Opinion
NO. 2023 CA 0251
11-03-2023
Michelle MINCEY and Albert Mincey, Jr. v. ROUSE’S ENTERPRISES, LLC
Mark D. Boyer, Denham Springs, LA, Attorney for Plaintiffs-Appellees, Michelle Mincey and Albert Mincey, Jr. Michael G. Gee, Kaitlyn E. Bourg, Mallory F. Maddocks, Thibodaux, LA, Attorneys for Defendant-Appellant, Rouse’s Enterprises, LLC
On Appeal from the 21st Judicial District Court, In and for the Parish of Livingston, State of Louisiana, Trial Court No. 156381, Honorable Erika W. Sledge, Judge Presiding
Mark D. Boyer, Denham Springs, LA, Attorney for Plaintiffs-Appellees, Michelle Mincey and Albert Mincey, Jr.
Michael G. Gee, Kaitlyn E. Bourg, Mallory F. Maddocks, Thibodaux, LA, Attorneys for Defendant-Appellant, Rouse’s Enterprises, LLC
BEFORE; McCLENDON, HESTER, AND MILLER, JJ.
HESTER, J.
2In this personal injury matter, defendant, Rouse’s Enterprises, LLC ("Rouses"), appeals the trial court judgment assessing Rouses with 100% of the fault for the slip and fall accident of plaintiff, Michelle Mincey, and awarding damages to Ms. Mincey for her injuries as well as to her husband, Albert Mincey, for his loss of consortium. For the following reasons, we affirm in part, reverse in part, and amend.
FACTS AND PROCEDURAL HISTORY
On the morning of August 13, 2016, Ms. Mincey went to Rouses in Denham Springs, Louisiana, to purchase groceries in anticipation that she may be flooded in by the excessive rain that was occurring in Livingston Parish. As she entered the store, she slipped and fell on the wet floor, hitting her torso on a metal handrail. Ms. Mincey sustained injuries as a result of the fall.
On August 3, 2017, Ms. Mincey and Mr. Mincey filed a petition for damages naming Rouses as the defendant and alleging that Rouses was negligent in failing to exercise reasonable care to keep its floors in a reasonably safe condition by failing to place floor mats or warning signs at the entrance. Rouses answered the petition, and the matter came before the court for a bench trial on November 7, 2022. At the conclusion of the trial, the trial court issued written reasons and signed a judgment on November 9, 2022, finding Rouses 100% at fault for the accident; awarding Ms. Mincey $7,480.00 in past medical expenses/special damages and $40,000.00 in general damages; and awarding Mr. Mincey $5,000.00 for loss of consortium. It is from this judgment that Rouses appeals, contending that the trial court erred in finding that Rouses failed to exercise reasonable care, in finding Rouses 100% at fault for the accident, and in failing to find any comparative fault on the part of Ms. Mincey.
3 STANDARD OF REVIEW [1–5] The trier of fact’s findings under Louisiana’s Merchant Liability Statute are subject to the manifest error standard of review. Weiley v. Wal-Mart Store, Inc., 2014-0527 (La. App. 1st Cir. 4/24/15) 2015 WL 1882497 *2 (unpublished). It is well-settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rabalais v. Nash, 2006-0999 (La. 3/9/07), 952 So.2d 653, 657. Thus, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder’s conclusion was a reasonable one. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). If the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-83. Like all factual findings, the standard of review of comparative fault allocations is that of manifest error. Laborde v. St. James Place Apartments, 2005-0007 (La. App. 1st Cir. 2/15/06), 928 So.2d 643, 647.
[6–8] The appellate court’s determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). These factors include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. Id. These same factors guide the appellate court’s determination as to the 4highest or lowest percentage of fault that could reasonably be assessed. Hankton v. State, 2020-00462 (La. 12/1/20), 315 So.3d 1278, 1283-84. After an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively, which is reasonably within the trial court’s discretion. Toston v. Pardon, 2003-1747 (La. 4/23/04), 874 So.2d 791, 803.
LAW AND ANALYSIS
[9–11] Louisiana’s Merchant Liability Statute, La. R.S. 9:2800.6, provides that a merchant such as Rouses owes a duty to persons who use its premises to exercise reasonable care to keep its aisles, passageways, and floors in a reasonably safe condition. See La. R.S. 9:2800.6(A). This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage. Id.; Lewis v. Jazz Casino Company, L.L.C., 2017-0935 (La. App. 4th Cir. 4/26/18), 245 So.3d 68, 73 writ denied, 2018-0757 (La. 9/21/18), 252 So.3d 877. However, merchants are not insurers of their patrons’ safety, and a customer is under a duty to use ordinary care to avoid injury. Moore v. Murphy Oil USA, Inc., 2015-0096 (La. App. 1st Cir. 12/23/15), 186 So.3d 135, 147, writ denied, 2016-00444 (La. 5/20/16), 191 So.3d 1066. A merchant is not absolutely liable every time an accident happens. Id.
There are three specific elements of a claim under La, R.S. 9:2800.6. Subsection (B) provides:
In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
5(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
Rouses argues that the trial court used the wrong standard when stating, "more could have been done to warn patrons" that there were no floor mats at the entrance of the store because the statute requires only that Rouses prove it acted reasonably. We find no merit to the argument that this statement proves that the trial court used the wrong standard. The trial court in its written reasons cited to the appropriate merchant liability statute and concluded, "[t]his court finds that [Rouses] failed to exercise reasonable care" which is the proper standard under the statute.
Rouses contends that it exercised reasonable care in light of the circumstances on the day of Ms. Mincey’s fall. Ms. Mincey’s accident occurred during the historic, unprecedented flooding in Livingston Parish in August 2016. On the day of the accident, Rouses was busy as people were preparing for the weather. It was raining, and the Rouses parking lot was beginning to flood. Rouses usually has floor mats at the entry way of the store, but on that day, Michael Barndt, the store director, made the decision to remove the floor mats because "the mats were soaking wet from the previous evening" and would not stick to the floor. Mr. Barndt testified that Rouses did not have another set of floor mats because Rouses’ floor mats are delivered through a contract with Cintas. Claude C. Reed, who was also working at Rouses on the day of Ms. Mincey’s fall, agreed with Mr. Barndt’s decision to remove the floor mats because walking over a wet mat would have brought more water into the store. Both Mr. Barndt and Mr. Reed tes- tified that there were no other accidents on the day of Ms. Mincey’s fall.
There was no dispute that Ms. Mincey fell in the area where the floor mats were usually located, and the floor, which was stained concrete, was wet. Pictures of the area where Ms. Mincey fell that were taken on the day of the accident after Ms. Mincey’s fall was reported were introduced into evidence. The pictures showed that the floor at the entrance was wet. The pictures also showed that there were four large yellow safety cones, two outside the entrance and two inside the entrance, that 6stated "caution, wet floor." Ms. Mincey did not remember seeing the cones, but she acknowledged that the cones could have been there.
Mr. Barndt, as well as Sophia Beard, who entered the store directly behind Ms. Mincey when the accident occurred, said fans were being set up in an attempt to dry the wet floors. Ms. Beard said that the parking lot was flooding and water was starting to come inside the store from the parking lot. Rouses introduced a picture of Ms. Mincey shopping after the accident that showed she was wearing plastic flip-flops. Rouses contends that Ms. Mincey contributed to her own accident by wearing flip-flops in a flooding area, and her shoe choice weighs in favor of comparative fault being assessed against her.
[12] After considering the evidence, the trial court issued written reasons concluding that Rouses failed to exercise reasonable care because the "[s]tore employees knew that a significant amount of water was present on the floor and/or being brought in with patrons and decided to remove the mat(s)… [Rouses] failed to exercise reasonable care in removing the mats." After thorough review of the evidence, we find that although we may have weighed the evidence differently, we cannot conclude that the trial court was clearly wrong in its finding that Rouses failed to exercise reasonable care in removing the floor mats. However, notwithstanding the deference due to the trier of fact, after application of the Watson factors, our examination of the record reveals manifest error in casting Rouses with 100% fault for the accident.
As a customer, Ms. Mincey had a duty to use ordinary care to avoid injury. The evidence overwhelmingly showed that the weather conditions on the day of the accident were extreme. There had been heavy rain the evening before, it was raining at the time of the accident, and the parking lot was beginning to flood. Ms. Mincey was aware of the extreme conditions and of the potential for areas of the store to be wet. The large yellow cones at the entryway further alerted Ms. Mincey of the need 7to proceed with caution. Considering Ms. Mincey’s awareness of the flooding and the need to proceed with caution combined with her decision to wear plastic flip-flops on the day of an unprecedented rain event, we find that the trial court was clearly wrong in absolving Ms. Mincey of any fault in causing her accident.
Having found that the trial court was clearly wrong in failing to find Ms. Mincey at fault, we reallocate fault using the factors laid out in Watson, 469 So.2d at 974. In our application of the Watson factors, we determined that Ms. Mincey was not less than 40% at fault, but no more than 60% at fault. Accordingly, we allocate 40% of fault to Ms. Mincey, which is the lowest amount the trial court could have reasonably allocated to Ms. Mincey, and 60% of fault to Rouses.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed insofar as it found Rouses’ negligence contributed to the accident. However, we reverse the trial court's failure to assign fault to Ms. Mincey, and reallocate fault, assigning 40% of fault to Ms. Mincey and 60% of fault to Rouses. We further amend the judgment to adjust the damages for the reallocation of fault, awarding to Ms. Mincey $4,488.00 for past medical expenses/special damages, and $24,000.00 for general damages, and awarding to Mr. Mincey $3,000.00 for loss of consortium. All costs of the appeal are divided equally between plaintiff-appellees, Michelle Mincey and Albert Mincey, Jr., and defendant-appellant, Rouse’s Enterprises, LLC.
AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.