Ferlicca v. Brookshire Grocery Co.

Citations: 175 So. 3d 469; 2015 La. App. LEXIS 1640; 2015 WL 5175024Docket: No. 50,000-CA

Court: Louisiana Court of Appeal; September 4, 2015; Louisiana; State Appellate Court

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In the case of Donna Ferlicca v. Brookshire Grocery Company, the appellate court reversed a trial court judgment that awarded the plaintiff $21,000 in general damages and $4,921.12 in special damages, assigning 90% fault to the defendant and 10% to the plaintiff. The incident occurred on December 16, 2012, when Ferlicca slipped and fell while returning to the store after retrieving more money to buy a cake. The defendant argued that the trial court misapplied legal standards regarding slip and fall cases, contending that the plaintiff did not demonstrate that an unreasonably dangerous condition existed at the time of her accident. The defendant noted the presence of a visible "Wet Floor" sign, which it claimed indicated an open and obvious hazard, thus negating liability. Additionally, the defendant challenged the trial court's fault allocation, asserting that the plaintiff's own acknowledgment of the sign warranted greater responsibility on her part. The appellate court emphasized that under La. R.S. 9:2800.6, plaintiffs must prove that a hazardous condition was present, that the merchant had notice of it, and that the merchant failed to exercise reasonable care, which Ferlicca did not adequately establish.

The absence of a written or verbal uniform cleanup or safety procedure alone does not establish a failure to exercise reasonable care in premises liability cases. For a plaintiff to succeed under La. R.S. 9:2800.6, they must meet specific requirements; failing to do so could result in dismissal of the case. The Louisiana Supreme Court's ruling in White v. Wal-Mart Stores, Inc. highlights that plaintiffs must provide positive evidence showing that the hazardous condition existed for a sufficient duration to give the merchant notice of its presence, known as the "temporal" element. There is no strict time frame, but some evidence must be presented to show the condition's prior existence. In contrast, defendants are not obligated to prove the absence of such conditions before an incident occurs.

Merchants are required to maintain safe premises and warn of known dangers, but the mere existence of a defect does not automatically render it unreasonably dangerous. While commercial property owners must ensure safety, they are not liable for every accident. They do not have a duty to protect against obvious hazards; if a condition is apparent, it may not be considered unreasonably dangerous, relieving the merchant of liability. Requiring a merchant to maintain completely dry entrances during rainy weather would impose an undue burden, effectively making them insurers of customer safety, which is not mandated by La. R.S. 9:2800.6. Merchants are expected to exercise reasonable care by addressing wet areas and warning customers of potential hazards from tracked-in water. Ultimately, the standard for evaluating a merchant's safety measures involves assessing whether their actions were organized, prudent, and reasonable in response to the circumstances.

Josh Brown, the assistant manager, and Matthew Lewis, a courtesy clerk at the Brookshire store, provided testimony regarding the safety measures implemented on December 16, 2012, a rainy day when an incident occurred. Key safety measures included: permanent carpeting and rubber-backed mats at the entrance, a visible “Wet Floor” sign, and a dry mop available for use. Brown confirmed that standard procedures for rainy weather were followed, including placing mats and using a dry mop to remove excess water. He stated that before the incident, he inspected the floor and found it clear of liquids. Lewis corroborated this, noting he adjusted the mats and inspected the floor shortly before the incident, reporting no slippery substances. Surveillance footage showed both employees performing these tasks prior to the plaintiff's fall. The plaintiff, wearing rain boots, claimed to have slipped after stepping off the mats, suggesting the mop used was dirty and contained other substances, a claim she could not substantiate. Brown maintained that the mops were clean and stored properly, with dirty mops kept away from public areas. The case referenced a similar incident in Turner, where a plaintiff also slipped at a grocery store with implemented safety measures.

The defendant grocery store implemented a systematic procedure for inspecting and mopping its entrance/exit corridor, demonstrating reasonable care in its safety measures. The court found that the plaintiff, Donna Ferlicca, did not satisfy the burden of proof as required by La. R.S. 9:2800.6, leading to the conclusion that the trial court incorrectly ruled in favor of the plaintiff and assigned 90% fault to the defendant and 10% to the plaintiff. The safety measures employed by the grocery store—such as using rubber-backed mats, placing visible warning signs, and regularly inspecting and mopping the area—were deemed organized and prudent. Consequently, the court reversed the trial court's judgment, ruling in favor of Brookshire Grocery Company and dismissing the plaintiff's suit with prejudice. The costs of the appeal were assessed against the plaintiff. An application for rehearing was denied, and no additional reasons for the judgment were provided beyond those stated in the ruling.