Opinion
No. 8665.
April 14, 1982.
APPEAL FROM NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, STATE OF LOUISIANA, HONORABLE JULES L. DAVIDSON, JR., J.
Downs Downs, James C. Downs, Alexandria, for plaintiff-appellant.
Davis Saybe, Michael H. Davis, Michael Wahlder, Alexandria, for defendant-appellee.
Before DOMENGEAUX, FORET and LABORDE, JJ.
This appeal arises from a slip and fall injury sustained by plaintiff, Doris Ivy, while entering the Giamanco Suburban Garden restaurant in Alexandria. Plaintiff brought suit against the owner, Mike Giamanco, d/b/a Giamanco Suburban Garden. The trial court rendered judgment in favor of the defendant and dismissed plaintiff's suit. From this adverse judgment she appeals.
On July 12, 1976, at approximately nine o'clock in the evening, plaintiff, escorted by her companion Mr. Robichaux, went to defendant's Suburban Garden restaurant. It had rained intermittently during the day and at the time of the accident it was still drizzling.
As plaintiff entered the restaurant through the bar entrance she slipped, causing her to fall backwards onto the tile floor. As a result of the fall, plaintiff fractured her left arm and suffered a vertical fracture of the body of the thoracic vertebra.
Plaintiff admits that due to the pain she was experiencing she did not look to see what was on the floor, but testified that water had soaked through the back and legs of her pantsuit. This testimony was somewhat corroborated by plaintiff's companion that evening, who testified that his pants were damp in the knee area after kneeling down to assist plaintiff after her fall. The companion further testified that upon entering the lounge he did not observe anything on the floor and did not have any trouble walking in the same area where plaintiff fell.
The question with which we are concerned is whether the defendant breached his duty to provide a safe place for customers by keeping the entrance to the restaurant-bar in a reasonably safe condition. Rozelle v. Employer's Liability Assurance Corp., 260 So.2d 757 (La.App. 2nd Cir. 1972).
James R. Graham, a patron of the bar, witnessed the entire incident and through his own volition had taken notes of the accident. He testified that it appeared that the plaintiff was rushing to enter the lounge to get out of the drizzling rain. Mr. Graham further testified that before leaving the lounge he stopped and inspected the area where the fall occurred. He found the floor was not slippery and that there was no indication of any wetness.
Miss Stroud, an employee of the restaurant testified that after plaintiff fell she inspected the area and found no water on the floor. Her testimony was further corroborated by another fellow employee.
As previously noted, even the plaintiff said that she could not testify as to the amount of the alleged water on the floor as she was in pain and did not observe the area in which she fell. All that is testified to by the plaintiff and her companion concerning the amount of water is that the backside of her pantsuit was damp. It is evident that the trial judge did not feel that the testimony was sufficient to preponderate over the positive testimony of defendant's witnesses to the general effect that there was no foreign substance on the floor when plaintiff slipped and fell.
The trial court concluded that the evidence indicated that the cause of plaintiff's slip and fall was plaintiff's own wet shoes and a hurried attempt to enter the restaurant to avoid the drizzling rain.
A trial court's factual determinations will be given great weight on appellate review and will not be disturbed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1979).
We find no manifest error in the trial court's conclusions. There is sufficient evidence in the record to confirm those conclusions.
The judgment is affirmed at appellant's costs.
AFFIRMED.
LABORDE, J., dissents and assigns reasons.
I respectfully dissent. In my opinion the trial judge was clearly wrong when he concluded that: "This Court, based upon the testimony offered at trial, finds no preponderating evidence that any foreign substance existed on defendant's floor. Moreover, there is no preponderating evidence that the cause of plaintiff's slip was anything other than the plaintiff's own wet shoes."
Plaintiff testified without contradiction that after she slipped and fell, her pants suit was wet and soiled on the back of her legs and on her rear. Her companion testified that his knees were soaked when he knelt down to assist plaintiff after her fall. This was positive evidence that was passed over by the lower court which instead chose to accept the suspect testimony of a beer-drinking bar patron (Mr. Graham) who on his own, began taking notes as plaintiff was writhing in pain.
The defendant had the duty to exercise ordinary care and prudence to keep its floors, aisles, entranceways and passageways in a reasonably safe condition for the customers. This duty includes an obligation to employ reasonable inspection and cleanup procedures to see that these areas are free from extraneous substances which increase the hazard of ordinary use by its patrons. Rozelle v. Employers Liability Assurance Corporation, 260 So.2d 757 (La.App. 2nd Cir. 1972), writ refused, 262 So.2d 45 (1972).
In discharging this duty, defendant could have placed a protective mat at the entrance, mopped the water, posted warning signs, applied anti-slip compound, etc. — any of which, when compared to the risk of injury faced by plaintiff and the exposure faced by defendant, is slight and inexpensive. See Williams v. Winn Dixie of Louisiana, Inc., 393 So.2d 680 (La. 1981); and Edwards v. Piggly Wiggly Operators, 401 So.2d 493 (La.App. 2nd Cir. 1981).
For the above reasons, I respectfully dissent.