*1 decisions to 158 So.2d 162 from common law and federal damages that, quantum of the effect since Charles S. PILIE et al. facts, 'depends primarily on evaluation precedents are of little value. NATIONAL FOOD STORES OF LOUISI- ANA, INC., et al. involving Indeed, cases prior if awards in No. 46586. value, will injuries how are little similar perform of this State appellate courts Nov. 1963. obligation review their constitutional Rehearing Denied Dec. per- majority law? The well as facts as must prior acknowledges awards force determining

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 12 So.2d at 808.”’ placing on the defendant the burden of (Italics ours.) ad 'going proof forward offset that as-, in, vantage. recognized all the The Larkin has been When question preponderance penetrating is still discussion res. whether the a “clear and plaintiff: loquitur by is' ipsa' with the All that is meant Chief Fournet” Justice i'psa loquitur' re’s appreciation is 'thát the circumstances of the real and as a sensible in' an accident problem in'applying 'involved Or connected with' case: Do. it'in'each n ’ Of suggest negli- ‘are" Such 'kn "Unusual character facts'of'the'controversy as *5 286 285 cases, ing object. some In one these Beck v. defendant, than rather gence Co., Fidelity Guaranty plausible ex- & 76 United States factors, the most as other Malone, (1954), So.2d 120 Second Circuit Court accident? See planation Appeal applica found doctrine be 19 La.L.Rev. Torts, Negligence, Proof of other, recog- ble. In the v. Hill Monroe H. G. seq. case has 334 The et Stores, Inc., (1951), 51 rule So.2d 645 the Or general with the in accord nized as apply leans Court of found the where doctrine ipsa res does applicable. Although be in that an facts are such applied de- than doctrine was other it other a cause due to accident was not, the as was drawn decision each can be sus negligence could fendant’s on his tained its own facts. was due reasonably one that as 6, Annotation, A.L.R.2d 79 negligence. recog- The of other courts states have 68. difficulty applying nized the the doctrine with an dealing are here

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, 2 348 P.2d 696 Cal.2d (1962); v. Penn Fruit see Cohen Pick-N-Pay 212 (1960); McCormack v. supra. Company, Market, App., Super N.E.2d Ohio 170 Foods, Inc., supra; Shoprite Saunders, Murphy (1960); v. J. L. 5. Gonzales v. 491 Herring Inc., (1961). Pacific Tea Atlantic & v. Great 121 375 202 Va. S.E.2d (1958). C.C.A.6th, Thayer Co., Emery, Dry 253 F.2d Bird Goods Hart v. , supra; Mo.App. 312, Penn Co., Fruit See Cohen v. 118 S.W.2d 509 Co. Stores, Inc., ; Shoprite Foods, National Food (1938) Bodenheimer v. v. Gonzales applied will not has the other-cus New York overcome unless the agents facts and circumstances by making tomers obstacle indicate that defendant, negligence of the proprietor if clerks. than as were rather others, plau- Tea is the Robinson Atlantic & most Pacific explanation sible (1945). 184 Misc. accident. Accord- N.Y.S.2d 42 ingly plaintiffs’ question in answer to premise has been ex unsoundness *6 law, pressly recognized, Safeway the facts and Bridgman circumstances of this v. Stores, permit case Inc., supra, do not and its make the use to doctrine of proprietor res liable because frotn without fault and an in them we draw pointed surer of cannot inference that his has been out customers it was opinion in a National’s concurring negligence, in rather than Perito v. Sunrise Supermarket negligence others, 627, Corp., that 33 Misc.2d 229 fall. (1961). Jersey N.Y.S.2d 667 New has taken the common-sense view that res insist, however, Plaintiffs that the case applied every cannot be case of Washington (La. v. T. & Smith Son injured when .customer is because of mer 337, App.), 68 So.2d wherein the doctrine falling stores, chandise in self-service applied steamship was against a agent that case each must on turn own its facts charge large airplane wing of a crated toas whether “there is evidence from which on a injured stored wharf which fell and * * *. the court can find that in the á nearby, authority apply workman ordinary things mishap, course of more ing the doctrine in this case! Suffice it to likely not, than was the result of defend- say applied the doctrine there ant’s negligence”. Francois v. American principles with little legal discussion of the Company, 394, N.J.Super. Stores 46 134 applicable it, and the facts of that case (1957).6 A.2d 799 determining make it of little use in applicability of case. the doctrine in this pointed previously,

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., 361 S.W.2d 137 N.C. 122 S.E.2d 715 255 Grocery Baking Stores, Beach, Kroger (1961); Co. v. Steven & Food Fair Palm (1951). App., Ky.App., Inc., Spinelli, son, 732 Fla.Dist.Ct. of 122 244 S.W.2d v. Womack, (1960). 223 v. 359 P.2d Pratt So.2d 41 See Inc., Stores, may placed category (Okl.1961); Winn-Dixie In he the same Ga.App. Drug Fredericks, Co., 128 S.E. v. v. Crown 284 S.W.2d Barker . Copher (1962) Barbee, (Mo.1955); 2d 542 erly carelessly placed National Food Stores of the shelves their suit Louisiana, Inc., by employees own Surety and American Com- the store’s when the original replenished, by must be pany New York. stock discarding

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 134 A.2d 799 pa- when, liable negligent indistinguishable for the acts in a case from this that, theory having facts, trons in the one on store on the its it stated: manage- a right of exclusive and control may think notice judicial “We we take accident, thing causing ment over the stores, that in such as the self-service imputable negligence patrons of other here, expected and the customer is to the store. indeed invited and examine to handle displayed or' personally I articles While subscribe of merchandise do am, however, store, theory liability this stacked in the to remove latter I and, that, from if he committed to when an acci- where stand the view then purchase, bar decides dent such as the one in the case at not to make the defendant, established, put The an inference of them back. requires having arises which to come established a business the defendant nature, take reason- showing duty forward with that it has is under a in- complied duty guard legal keeping its able measures to its fallings juries place reasonably con- to such of business in a safe to customers due may ; result dition that the accident is not attributable stacked merchandise as customers. employees to the fault of from these actions of other its displays generally If customers are careless the shelves or of its mer- the stack inspected. articles from regularly pulling chandise have been out them, duty Application reinserting does not pre- take part oblige explain the defendant of the defendant to cor- escape liability. (cid:127)in the situation is order to The burden cautions to meet duty to take Its respondingly heavier. arising the inference of opinion may majority heavier that each states measures corrective day when decided on own facts the times case must be its during agree greater. I with this statement. circumstances. the crowd case, doc- the view decide that the instant I am of no means “We ipsa loquitur applies showing when- have made a trine of res National should regularly premises customer is because were ever a aisles falling policed inspected displaced mer- in such stores. merchandise *10 due chandise, must turn on its facts. all Each case and that it therefore used sfc ^[*] ”* diligence protect its customers from in- jury. this after When it failed to show the facts and (Here the Court states she had adduced the facts as to how concludes) then injured, was be held liable. should ‡ ‡ ‡ respectfully I dissent. “ *** The doctrine of res applicable; loquitur was therefore SANDERS, (concurring). Justice circumstances the courts in the in such certiorari in this tort action granted We justice of should look to the interest judgment Ap- the of the Court of review to come an ex- forward with defendant Circuit,1 peal, doc- holding First that the mishap, planation of the if it wishes to ” trine be in- of could not * * * paren- (Words do so. plaintiffs’ recovery the voked to sustain of mine.) theses defendants, damages from the National here, say of this So I that the facts Louisiana, Inc., of in- Food its Stores de- are such of as to create inference an judgment I have concluded that the surer. negligence, fendant’s as the of is correct. the Court, that the were such Friday, late afternoon In the March the justice, interest of look “should plaintiff, while Mrs. Charles S. an ex- defendant to come forward Pilie, passing display was coca-cola in the * * planation ”; mishap, of the store National Food self-service Stores negli- failure to rebut Louisiana, Inc., two six-bottle cartons gence judgment against warrants a it. display. fell from One or coca-cola I respectfully broke, dissent. of the bottles more Mrs. Pilie’s

right injured by foot was Mrs. flying glass. HAMLIN, (dissenting). Pilie purchase had entered the store Justice

1. 148 So.2d 391. gQO accident, replenished display of the groceries. At the time not cart, grocery employees prior store pushing she was a wheeled accident. The- shape store, height dis- supplied display the coca-cola by the at the time- way of the accident is shown play on bread She counter. evidence. display touch Neither does testified that she did not disclose whether cart,, that with the or the cartons of body coca-cola either with her or were in. when, disarray time. 18 inches some she fell, not know she did and that accident, At time repair- street fall. what caused them to progress was in work front the store. Heavy equipment construction was in use- these from which display The coca-cola vicinity. in the immediate arranged cartons fell had been stacked company employee coca-cola A number of in the customers were store- morning of early in the National store customers; at "the time of the No accident. Thursday, day before March employees of the store were at the dis- it con- originally arranged, accident. As play at the cartons fell. moment the sisted tiers of coca-cola'cartons of seven wjiether legal que^tipn .presented display .platform. The a: wooden fall, from- The tiers deep. and 4 cartons cartons wide ca.rto.ns under, shown, supported by display, 'separated a roll the circumstances were *11 proper a The is the- mylar. the of plastic material known as pro- doctrine of as to the mylar the flat end of res was fastened to prietor shelves, of the adjoining-row of which abutted store. of These side the'stack. shelves extended n The -storekeeper to his cus- duty a -of display and away the coca-cola con- ordinary tomers, -invitees, of care... is one or a items When tained other of.merchandise. to- required, -to reasonable care (cid:127)He is use removed, mylar

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.

158 So.2d 172

STATE Louisiana COX.

B. Elton

No. 46618.

Nov. 1963.

Rehearing Dec. Denied