Rosalea Mancuso, wife of/and James A. KAVLICH
v.
Wayne KRAMER, d/b/a Handi-Pak and Aetna Insurance Company.
Supreme Court of Louisiana.
*283 Charles J. Ferrara, Francipane, Regan & St. Pee, Metairie, for plaintiffs-applicants.
Edward A. Griffis, Talley, Anthony, Hughes & Knight, Bogalusa, for Handi-Pak and Aetna Ins. Co.
Leonard E. Yokum, Jr., Yokum & Yokum, Hammond, for Handi-Pak Food Store, Inc.
BARHAM, Justice.
Plaintiffs, Mr. and Mrs. James A. Kavlich, filed this personal injury lawsuit against the owner and insurer of a self-service convenience store in Hammond, Louisiana known as the Handi-Pak Food Store, Inc. Plaintiffs claim to be entitled to damages arising out of Mrs. Kavlich's fall in that store on July 8, 1972 at approximately 5:00 o'clock P.M., when upon entering the store, she slipped and fell, sеverely injuring her left knee.
The trial court, without assigning written reasons, rejected plaintiffs' demands. On appeal, the First Circuit Court of Appeal affirmed the trial court judgment. Kavlich v. Kramer,
We granted writs,
Since the case is now before us without limitation in the granting of writs, we are required to review the entirety of the case under the assignments of errors. Under Article 5, § 5 (C) of the Louisiana Constitution of 1974, once we have granted review of a case we review both the lаw and the facts for determination if error has occurred. We quickly dispose of the issue of amending the petition to seek $1000 under the medical payment provisions of thе policy. The defendant, Aetna Insurance Company, forwarded a check to plaintiffs discharging its obligations under the medical payments provision eight days after the dеmand was made for payment at trial. That matter is therefore now moot.
*284 The main issue argued on appeal, and the one to which we now direct our attention, is whethеr the courts below erred in denying recovery to plaintiffs.
The Handi-Pak Store is a small self-service neighborhood grocery store, approximately 30' × 40', containing four aislеs. It is generally tended by one employee during the morning shift (7:00 o'clock A.M. to 3:00 o'clock P.M.) and by two employees during the busier evening shift (3:00 o'clock to 11:00 o'clock P.M.). Clean-up рrocedures, which have been orally related to all employees, call for the store to be swept and, if needed, also mopped at the end of the mоrning shift, or around 3:00 o'clock P.M. The floor is both swept and mopped at the end of the business day, at approximately 11:00 o'clock P.M., in preparation for the next day's оpening. In addition, employees have been instructed to be alert for any debris on the floor, and to immediately clean any dirty area. Though no regular inspection tours are scheduled, testimony shows that most of the store is visible from the check-out counter and, further, that the employees are frequently in the store aisles, assisting customers, stocking the shelves, or refilling the frozen goods refrigeration unit.
On July 8, 1972, at approximately 5:00 o'clock P.M., Mrs. Kavlich, after parking her automobile in the black-topped parking lоt in front of the Handi-Pak Store, entered the store through the front entrance. She traversed a mat located directly in front of the double glass entrance doors, and, after taking two or three steps beyond the mat, fell, injuring her left knee.
Although the issue was apparently not presented in the trial of the case and was not discussed in the opinion оf the court of appeal, in argument before this Court defendant appears to contend that the piece of banana about the size of a finger was not оn the floor of the store but rather was "tracked" into the store by Mrs. Kavlich. We find no support for this contention in the record and no merit in the argument made to this Court in this regard. We сonclude that there was indeed a small piece of banana about the size of a finger on the mat inside the store or on the floor immediately in the vicinity of that mat. We also conclude that the plaintiff slipped upon this piece of banana.
A storekeeper owes an affirmative duty to those who use his premises to exercise reasonable care to keep his aisles, passageways and floors in a safe condition. Calamari v. Winn Dixie of Louisiana, Inc.,
Self-service grocery stores require customers to look for and to find the objects which they wish to purchase. These objects are placed uрon shelves of various sizes and heights. Discernment of a particular object for purchase requires fairly strict surveillance of the shelving in order to discover the item desirеd. Numerous items displayed upon shelving along the aisles or walkways in self-service stores entice the customers to focus their eyes upon the display rather than on the surfаce upon which they walk. Guy v. Kroger Company,
As we have previously stated, there is no doubt that a piece of banana about the size of a fingеr was on the floor of this store a few feet from the mat inside the entrance to the store. Mrs. Kavlich was in no position to know under what circumstances the piece of banana came to rest upon the floor. She was in no position to prove that the piece of banana rested on the floor because the employees of the store were negligent. She has established clearly that the piece of banana was there when she entered the store; that she stepped upon the piece of banana; and that it caused her to slip, fall, and be injured. The burden then shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. Lang v. Winn-Dixie Louisiana, Inc.,
Although there is testimony as to clean-up procedures, this does not sufficiently discharge defendant's burden in the instant case. The last scheduled clean-up procedure was two hours before plaintiff's injury. We are concerned with what happened in that two-hour рeriod and with what degree of reasonableness the employees of the store acted in that period of time. The two employees in the store at the time of the accident testified they could have seen the banana because they were in a position behind the cash registers and front counter to observe clearly the area where it was located. Obviously, the banana was observable. The employees testified that they were not extremely busy and that few customers had been in and our of the store during the two-hour period. Both employees testified they had traversed the area where the banana was located immediately before Mrs. Kavliсh slipped and fell. One of them testified further that she was watching the floor that day, even at the time the plaintiff fell.
She actually saw the banana after Mrs. Kavlich fell, and there was a sufficient amount of the fruit not only to be on the sole of Mrs. Kavlich's shoe but on top of her foot and on the floor. The other employee stated that the substance on the floorthe bananawas easily seen. Although he stated that he had been in and out of the aisles he never saw what was easily seenthe piece of banаnaand immediately prior to plaintiff's entry into the store, he had passed the area where she fell.
We conclude that the defendants have not borne the burden of рroving that they were reasonably prudent in their exercise of duty and care owed to a customer in a self-service grocery store. They should have seen that which was obvious to a careful observer. They should have observed that which they testified they were trained to discover. The defendant's employees were negligent in failing to remove the piece of banana upon which Mrs. Kavlich fell.
For the reasons assigned, the judgments of the trial court and the court of appeal are reversed and the case is remanded to the court of appeal for the assessing of quantum. All costs are to be cast against defendants.
Reversed and remanded.