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Darton v. Kroger Company8/25/1998
as a result of a fall due to a condition existing in or on the merchant's premises are governed by LSA-R.S. 9:2800.6. Jo Darton's accident occurred prior to the 1996 amendment of the statute, therefore, we apply the version of the statute that was in effect on the date of the accident . The statute, prior to its amendment, provided in pertinent part:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. 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, and in addition to all other elements of his cause of action, that:
(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; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) "Constructive notice" means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.
In White v. Wal-Mart Stores, Inc., 97-0393 (La. 9/9/97), 699 So.2d 1081, the Supreme Court held that a claimant must prove each of the requirements enumerated in Section B of R.S. 9:2800.6. Rodgers v. Brookshire Grocery Co., 29,920 (La. App. 2d Cir. 10/29/97), 702 So.2d 11; Williams v. Wal-Mart Stores, Inc. 29,940 (La. App. 2d Cir. 10/29/97), 702 So.2d 8. The court also established that to prove constructive notice, a claimant must not only show that the condition existed, but that it existed on the floor long enough to have been discovered by the merchant had reasonable care been exercised. While a plaintiff must show that the damage-causing condition existed for "some time period" before the fall, no "bright line time period" is required. White v. Wal-Mart Stores, Inc., supra; Rodgers v. Brookshire Grocery Co., supra; Williams v. Wal-Mart Stores, Inc., supra. Of course, the plaintiffs need not prove this requirement of the statute if the facts show that the merchant created the unreasonably dangerous condition.
In the instant case, the trial court concluded that the plaintiffs failed to prove their case by a preponderance of the evidence. According to the trial court, its Conclusion was based on the testimony of Jo Darton during the trial. The trial court noted that during plaintiff's testimony, she stated, "I assume I caught my foot on the pallet; I may have just stumbled and fell." Based on his interpretation of plaintiff's testimony, the trial court concluded that Jo Darton was not aware of how she fell, and, therefore, she had failed to prove by a preponderance of the evidence that she tripped on the pallet.
After a review of the entire record, including the trial transcript, we must conclude that the trial court erred in granting the motion to dismiss. Initially, we note that the plaintiff's testimony was taken out of context. According to the transcript, when questioned regarding whether she caught her foot on the wooden pallet, plaintiff testified, "I assume. I caught it on something there. I don't know if I just stumbled when my foot hit it or what." Contrary to the trial Judge's Conclusion, the plai
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