*1
decisions to
necessarily considered or his has abused judge jury
whether But, making con- this after
its discretion. disregarding Court, apparently
cession, the simply concludes jurisprudence, prior pain and suffered plaintiff has
that, because jury tissues, did in the
fibrosis
n giving discretion “large” not abuse more times three almost $19,500, or for sim- awarded heretofore
than has reasoning, what Under injuries.
ilar be re- would facts
set of ? Must be excessive for a verdict
quired Is there more? 20 times or 10
it be 5 may be reference to which precedent
be no compen- just
made determination here- courts appellate or shall
sation ap- in abstract heads merely their nod
after trial estimates speculative proval of
. judges trial should juries? And
judges and give juries to instruct themselves
. prior in similar awards
consideration conclusions? reaching their
cases in respectfully 'dissent.
I Appeal, judgment of the Court of
view Circuit, holding doctrine of First applied could not be permit recovery from the defendants Na- Louisiana, Inc., tional Food Stores *2 Surety Com- National’s insurer American pany of New York. opin- fully in the
The facts are set forth ion Appeal, of the Court of shall For purposes we of our decision briefly. only state them March Friday, In the afternoon late 11, 1960, Charles S. Mrs. while display in passing Pilie was a coca-cola Na- the self-service the defendant store of Inc., Louisiana, tional Food Stores fell six-bottle cartons of coca-cola two display, from the the bottles one or more of broke, right and foot was Mrs. Pilie’s by glass lacerated nerve of flying injured. Pilie, foot Mrs. who supplied pushing' wheeled cart store to its iff for convenience customers merchandise, gone carrying articles of purchase grocery the store to a few Dodd, Hirsch, Barker, Wall, Avant & coca-cola, items, none of which was Rouge, plaintiffs-appellants-ap- Baton passing at time accident was plicanfs. bread display route coca-cola en Breazeale, Wilson, by Harry Sachse & R. did not testimony that she counter. Her Sachse, defendants-appel- Rouge, Baton body or display either with touch lants-respondents. with, sqme cart,, 18 inches that she was HAWTHORNE, fell, cartons, Justice. the, from it bottles when and that what she did know plaintiffs application granted On we : might this case so that we to fall. certiorari re- display company, rack The of coca-colas 'the reversed dis- against been stacked trict court’s judgment which these fell had National cartons coca- and its arranged by employee plaintiffs’ an insurer dismissed company in the suit. cola in the National store 10, the Thursday, early morning of March plaintiffs In the of Appeal Court did happened; day before accident invoke doctrine of res Thursday the coca-colas when between company, the coca-cola but main- Monday following and the were stacked negligent company tained that that replenished .company when the coca-cola erecting display. unstable rack, many had been removed Appeal, after reviewing all facts but not by the customers of National connected stack- any replenishment from enough to warrant arranging display ing or of coca- stock National. Because storeroom company, employee colas n repair work in front of the store street plaintiffs prove concluded that had failed to time, business National was injury Mrs. Pilie sustained employees normal. No of Na- than less any negligence by Coca- resulted from vicinity tional were for writs this court Cola. *3 time it occurred.
'at the complain plaintiffs stated “do not that rejecting judgment affirmance of the of the Plaintiffs sued Food Stores National against Rouge the Baton demands Louisiana, Inc., insurer, Baton and the Company, Limited”, Bottling Cola Coca De- Company. Rouge' Bottling Coca-Cola judgment sought a reinstatement petition party fendant National third granted court which trial the >sought com- to recover from the and its insurer against recovery National pany any judgment against for rendered recovery against Coca-Cola. denied and resulting 'it After trial from the accident. ¡ concluding in Appeal that on the merits rendered the district court loquitur was not ipsa judgment against in plaintiffs favor of and doctrine i said: insurer, plain- National rejected and its as to National applicable and
tiffs’ third-party plaintiff’s demands and “ * * * display shown Here, this company. demands the coca-cola originally, condition in a safe have been appeal have been
On Plaintiff Appeal affirmed not shown Court of placed have cartons judgment disarray, not shown to suit dismissing the as to ^ expenses party result husband, as a incurred is medical Pilie’s who a Mrs. injuries. recovery suit, plaintiff to the seeks ipsa lo.qui.tur of res plication of within the the doctrine negligent a manner thereon in proprietor of such establishment.” as to was there- knowledge, Plaintiff Defendant’s position as Defendant good a in as words, Latin we Dispensing re- fell reason carton show argument thus: can restate their affirmatively show would have to cover she question only one “There of law in- part Defend- negligence acts of whether or and that is not the unex- volved ant.” plained fall of several 6-bottle cartons of cited author- display grocery a a store The Court of Cola Coca rule will fall supermarket, effect “The which to the results in- ities discloses applied guest where evidence establish- juries to a business by ment, occurred injury might have logically gives rise the inference negligence of proprietor the concurrent reason of that the causes, one of persons in- produced plaintiff’s or more which two management and juries.” which not under the of the defendant”.
control Day This National court observed Corporation, U. 241 La. S. Radiator any affirmative Plaintiffs did offer (1961): So.2d 660 any circumstance tend- fact or “ * * negligence by Na- ing to establish fault or This doctrine [res tional, and there evidence to show is no loquitur] qualification general Pilie at fault. stated presumed that Mrs. She rule that is not to be that she did not know what caused always affirmatively proved, but must fall, proof does not even applied, bottles sparingly therefore should be falling. suggest for their only exceptional cause demands cases where the justice application make that essential. plaintiffs In their writs * * *» question presented law to this court In Larkin Farm Mutual Auto- v. State thus: mobile Ins. 97 So.2d only question (1957), involving a collision in- between law “There automobiles, sought private .two is whether or not volved and *4 loquitur. ipsa invoke fall .to the doctrine of res .unexplained of several 6-bottle display grocery This court there reviewed and discussed Cola from a a of Coca this court and of supermarket, jurisprudence fall of which results store states, and that guest Appeal, injuries business that es- Courts n scholars, on tablishment, ap- is a case for proper .and textwriters works 288- ipsa
the meaning
justify,
the maxim "res
in the absence of other evidence
loquitur”,
application,
bearing
instances
subject,
on the
the inference that
though
where
invoked the doctrine has no
the accident was due to the
application.
case,
recog-
which is
having
control of
thing
which
nized
aas
landmark case in
injury.
this state on
caused the
This inference is not
subject,
we said:
merely
speaks
drawn
thing
for
because the
itself, but because all
circumstances
proper
“A determination of a
instance
surrounding the accident are of such a
principle
that,
explanation
character
unless an
can
ipsa- loquitur
subject
has been the
of vol
given,
only
fair and reasonable .con-
jurists
umes of'discussion
learned
clusion is that the accident was due to some
scholars,-
legal
who
pains
have been at
duty.’
omission of the defendant’s
point
only
out that the maxim means
* ft
the' facts of the occurrence warrant
‡
‡
%
“
* *
negligence,
not that
com
In the case
of Morales v.
pel
such
inference ***.***
Employers’ Liability
Corp.,
Assur.
ipsa
.generally'-conceded
It
.that-res.
12 So.2d
aptly
stated:
loquitur
way,modifies
the rule
no
duty
prove
‘It is
neg
.presumed.
will
.ap
ligence affirmatively; and, while the in
plication
not, therefore,
of .the rule does
ference
.rule,
allowed
of res
dispense
necessity
plain-
with the
that the
proof,
only
constitutes such
it is
jiff prove negligence,
simply
step
where the circumstances leave no room
process
proof,
of such
permitting the
¡in
presumption
a different
the rule
case,
plaintiff,
proper
in a
place
applies.
it is shown that the acci
When
scales, along
proof
with
might
happened
dent
as the result
enough
attending
causes,
of one of two
the reason for the
rule,
to invoke
negli
invoked,’
an inference of
rule fails and it can not be
gence, thereby
advantage
obtaining an
page
page
La. at
We
objects
resulting
cases of accidents
store.
in a self-service
occurred
which
falling
customers in
self-service stores.
plain-
a
case for
a
difficulty
The
such
Pennsylvania
The
courts
taken the
immediately
loquitur is
ipsa
urging res
tiff
position
they
apply
will never
doc-
mer-
availability
apparent.
The
involving injuries
trine in cases
to an in-
customers
chandise
storekeeper.2
vitee of
California and
pos-
rise
gives
self-service stores
Virginia
rejected
Ohio
have in effect
sibility that
another customer
he or
applicability in the
self-service situa-
proprietor caused the accident
consistently
tion.3 Courts have
refused to
draw
difficult to
makes the inference more
apply
particular
the doctrine to
be-
cases
proprietor.
as
equally
cause under the facts was at least
probable
that another customer’s
there are two
this state
cases
injury4
plaintiff’s negligence
involving self-service stores where
cus-
could have contributed to
accident.5
as a result
some fall-
tomer was
;
95,
(1981)
Company,
P.2d
Marn
352
Pa.
69 N.M.
2.
v. Penn Fruit
192
364
Cohen
Co.,
sigli
Super. 244,
(1960).
Averill
123 Vt.
C.
v. W.
159
558
A.2d
Safeway
(1962);
v.
Lee
732
Safeway Stores,
Inc.,
A.2d
Bridgman
185
53
3.
v.
D.C.,
Inc., Mun.App.,
Stores,
A.2d
184
443, Cal.Rptr. 146,
2
As
out
our
judgment
jurisprudence
assigned
own
accord with the
the reasons
For
Plain-
must be decided on
is affirmed.
view
each case
circumstances,
pay
costs incurred
facts and
all
own
and that res
tiffs-relators are
(1962);
743,
Springfield App.,
Inc.,
other customers when articles picked by up FOURNET, (dissenting). after it has been decided Chief Justice these are not wanted. opinion, majority author of It is conceded in the this court instant case that lauding while decision Mrs. Pilie was when two cartons Farm Mutual Automobile Larkin v. State placed that had as the on de- Ins. subject fendant’s self-service landmark case in this state on and never shelves ipsa loquitur, has, my humble her fell when touched she was some 18- applica- them, proper away from opinion, give failed it the inches with the result bar, possibly in that that at least one—and two —of tion to the facts exploded completely he in the cartons overlooks the fact bottles and the feet, acts guilty can be thrown glass causing- toward injury omission as acts of to at least Clearly well as commission. severe one foot. this accident was not caused reason of doctrine, reaching the conclusion the the fault or of Mrs. Pilie. In- *7 maxim, ipsa loquitur of res not does deed, Consequently, this is conceded. here, apply majority the has com- view through only could have been the caused pletely the overlooked the fact that it is negligence fault or And someone else. of stores, duty operator of self-service seen, not inasmuch as the defendant has who, purposes economy, for of have elim- fit to some reason- come forward offer expense inated upon use attendant explanation able this acci- just as to how help, of behind-the-counter to take clerical have- dent that could have occurred would reasonable measures cus- to see that negligence,, effect of it from absolving tomers thus invited to serve themselves every rea- showing at least make a that will be as the result of the new by it to precaution taken sonable had been operation adopted innovations for the of using self-service insure that customers its stores, particularly objects such from there shop facilities to would be able that, by very nature of this new method safety, it has failed absolve itself to merchandizing, help of cannot but fall with liability. frequency, improperly whether because product therefore, stacked opinion, those Mrs. selling my It is initially placing shelves, improp- it on the in this. clearly Pilie is entitled recover case,, so,
case under the decision in the Larkin larly since defendant failed to offer specifically where we “All held that that is evidence to show that had exercised ordi- ipsa loquitur meant is cir- nary res ‘that the keep premises care to reasonably patrons. cumstances involved in or connected safe for its an accident are such an unusual charac- majority, difficulty Unlike the I find no justify, as evi- ter in the absence ipsa loquitur whatever in resolving that res subject, dence bearing on the the inference I, applies to the case. facts that the accident was due to the course, acknowledge is the rule cor thing having of the one control rectly stated in Farm Mu Larkin State injury. which This caused 544, 97 tual Automobile Ins. thing merely not drawn because a case bears no factual itself, but all speaks because resemblance to the matter whatever are accident surrounding circumstances hand,1 Court, quoting with wherein this that, explana- a character unless an such approval from the Annotation 53 A.L.R. only given, tion can and reason- fair “ * * meant All that is stated due able conclusion that the accident w'as ” is ‘that the duty.’ some omission defendant’s accident involved with an or connected give Here the defendant has chosen to as are of such an unusual character whatsoever, explanation bringing no thus justify, the absence of other squarely established rule itself within this bearing subject, the inference supplied (The emphasis has of law. the accident was due to the by me.) thing which having the one control injury. This inference McCALEB, (dissenting). Justice speaks merely thing drawn because the plaintiffs permitted itself, should be circum I think but because all in this case because surrounding recover are es- stances which an that, explanation facts from inference of tablished such character unless an part super- negligence on defendant can and reasonable given, only fair fairly' and, be drawn particu- market can is that the was due conclusion 1. That was automobile accident. This of the doctrine “and object” which, *8 “falling apply many is a ease where ob- in it cases in damage ject causing displayed may in debatable whether Shain, Ipsa ordinary happened store. defendant’s Kes in have things course of says Loquitur, ..page 141, management at if had those that the. uniformly” proper become courts have “almost used care.” Pennsylvania), (except in more liberal 293' duty.’” edge as to the cause of such a fall of
some omission of defendants storekeeper” bottles as would the since the mine). (Italics displayed are in bottles view. full facts in the case this test to the Applying Inasmuch as it is shown as a fact in this plaintiffs bar, me that is manifest to case that knowledge Mrs. Pilie was without prima case. Con- facie have established of the cause of the fall bottles Pilie, first, sider, accident. Mrs. inasmuch as it is certain that the bottles shopper supermarket, in a would not have fallen but for cartons of bottled fall of at least two (either improper through stacking or vibra- the de- from a rack on which Coca Cola tion, or mishandling defendant’s em- displayed supermarket the soft fendant ployees question customers), promotion of its busi- drink sale arises supermarket may whether Surely, enterprise. bottled bev- these ness offering liability dismissed from without not have fallen had erages would any evidence at all to exhibit that it was stacked, or, properly if properly stacked free from fault. customer) employee (an someone Hence, it is disarranged them. had not . supermarket say The majority say happening logical to obliged was not come forward with part bespeaks negligence on the ipsa loquitur evidence because res cannot or, way, put in the ac- of someone another apply. why And ! Because the rule should (cid:127) loquitur. speaks cident for itself —res injury might not obtain in cases where the occurred of other Now, plaintiffs have shown that .Mrs. customers, manage- who are not under the fault; Pilie was without -that she was ment and control of the defendant. interested in Cola and purchasing Coca know, that she does not and has-no reason I submit that this conclusion is erroneous. know, why Coca Cola give does not due consideration inappropriate, fell. Hence it un- would be enterprise, to the nature of the business facts, der the to conclude the case operation the method of the and the con- governed holding the unsound could obligation engaged comitant of those Stores, Monroe v. H. G. Hill pa- such forms of merchandising to where the Court of for the maintained, en- trons. If the result here - unrealistically Parish Orleans deduced engaged ables firms mer- self-service pot apply does that. escape cases chandising liability in all these sort of cases because the .-customers falling patrons injured by when their- are “ ** jnuch.knowl- objects just like, irrespective-of would have and the whether -as
295 296 legal requires they complied merely or not have with the defendant to show that duty reasonably place negligence it was (see safe free from furnishing Davis v. Lines, 1, patrons shop. 365; Teche for their 200 La. 75 So.2d show, is obliged even in cases refused to The courts of New York have passenger carrier, why and how and operators provide self-service with accident occurred. Cusimano v. New Or- (see escape by standing avenue of mute Service, Inc., 95, 127 leans Public Co., Tea Robinson Pacific v. Atlantic & So. 376. 42, affirmed 184 Misc. 54 N.Y.S.2d App.Div. and 59 N.Y.S.2d The views I well ex- entertain were Supermarket Corp., 33 pressed
Perito v.
Sunrise
Superior
New
Court of
667)
Misc.2d
and
Jersey
229 N.Y.S.2d
Stores
Francois v. American
gone
supermarket
N.J.Super. 394,
(1957)
far as to render the
so
right injured by foot was Mrs. flying glass. HAMLIN, (dissenting). Pilie purchase had entered the store Justice
1.
tier cartons condition, a, keep premises, for- his safe ,roll back would backboard the. inspect Thus, must protection. he fastened, thereby exposing which it. There, is. premises defects. to discover- tier of for sale. c.oca-cola another however, conditions liability, no and' aware storekeeper was not Thursday, which the Between when the coca-colas reasonable- stacked, Monday, not could have discovered following 'were or- a defect replenished care. mere existence company The when the coca-cola liability.. is to establish danger display, many had been removed sufficient cartons appear that. arise, However, it must liability to National. -For the customers of 3Q2 301 succinctly as The has been stated of such test character of such a the defect is storekeeper, suggest follows: shown Do the facts a duration defendant, than rather care, have known should of due exercise ex- factors, plausible as the injury and have most prior to the loss it Malone, planation Torts: adequate the accident? warn given it or corrected either Law Proof of Negligence, 19 Louisiana Pacific ing. v. Atlantic Great Peters Review 335-336. 562; Knight (La.App.) Tea Co. 72 So.2d 32 (La.App.) So.2d v. Ins. Co. Travelers case, In the free instant Mrs. Pilie was 508; (La. & Co. L. v. Feibleman Powell from fault did touch since she App.) So. 130. However, display. neither The doctrine shape display at nor the condition evidence, applicability of which rule of time shown. determined at the conclusion of to be who coca-colas were available to customers Plunkett Electric trial. v. United Serv- handled More- making them in selections. 145, 704, ice, 3 A.L.R.2d So.2d over, heavy equipment was construction 1437; Company Oil v. Gerald Standard Thus, work outside the store. 233; 690, Louisiana, La. 16 So.2d competing raises infer- strongly several Loquitur Malone, Ipsa Res and Proof ences, be brushed aside. which cannot Inference, 70, 92. 4 Louisiana Law Review Among disarrangement are the these applicable, doctrine For the to be the coca-cola cartons another customer n shown the evidence must shortly vibra- before the accident and the inference, he warrant an not of premises by heavy such as tion of the construc- only, negli- defendant’s my equipment tion outside the store.2 appear gence. This must means opinion, negli- suggest do not the facts injury probable more than not that the gence proprietor plausible as the most attributable defendant’s violation of explanation circum- accident. The n duty plaintiff. Hines, 154 La. Davis v. stances shown do not warrant an (2d 794; Torts Ed. 97 So. Prosser On negligence, was National’s rather Larkin than the 1955) pp. acts of others for which National 204-206. See § responsible, would Farm not be that caused State Automobile Ins. Mutual Hence, does La. to fall. the record *12 working heavy equipment connection, plaintiffs’ on the street 2. brief In this people following outside, there were other Court of makes the tilings number of “It there was in- in the store comment: true case, Washington case, the fall.” as in could have caused this, evidentiary basis for res provide an ipsa loquitur. to establish Having failed duty, plaintiffs National breached its
can not recover. assigned, I concur
For the reasons
decree.
STATE Louisiana COX.
B. Elton
No. 46618.
Nov. 1963.
Rehearing Dec. Denied