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Bell v. American General Investment L.L.C.9/21/2005
Before GASKINS, PEATROSS and DREW, JJ.
American General Investment, L.L.C. ("American General") appeals from a judgment against it in favor of the plaintiff, Ericka Bell. We reverse and render judgment in favor of the defendant, American General.
FACTS
This is a personal injury action arising from a slip-and-fall accident at a convenience store. On May 30, 2002, Ms. Bell went into the Cracker Barrel store on Jackson Street in Monroe, Louisiana. Ms. Bell, who was five months pregnant at the time, went into the store to get a cup of ice. She walked to the self-serve fountain drink and ice dispenser and tried to get some ice in her cup, but the machine was out of ice.
Ms. Bell testified that she asked the store manager, Belonda Marshall, to reload the ice machine, and that Ms. Marshall went into the back of the store and came back with a bucket full of ice to refill the machine. Ms. Bell did not see any ice spill out onto the floor. Ms. Bell testified that Ms. Marshall asked her to come into a back room where the ice maker was located. Ms. Marshall, by contrast, testified that she never refilled the ice machine and that Ms. Bell remained in the hallway leading to the back room. The hallway and the room where the ice machine is located are both in a private area of the store where customers are not usually invited.
Ms. Marshall took Ms. Bell's cup and filled it with ice. Ms. Bell testified that she thanked Ms. Marshall and turned to walk out of the room when she slipped and fell. At trial Ms. Bell was asked:
Q: hat was it that you slipped in?
A: It had to be some water. It had to be a puddle of water somewhere.
Q: Well, was it water?
A: Yes sir.
Ms. Bell could not remember seeing any water on the floor but said that she was paying attention to Ms. Marshall. Ms. Marshall did not see Ms. Bell fall; she had returned to shut the lid on the ice machine. Ms. Marshall testified that she had not seen anything on the floor and that if she had, she would not have let Ms. Bell enter the hallway. Ms. Marshall testified that it was not raining on the day of the accident, and there were no drains or plumbing in the area from which water could spill or leak. There is an air intake vent at the end of the hallway for the store's HVAC system. The area is also near the store's freezer and another large drink cooler. Ms. Marshall answered a question from the court about this area:
Q: So, there's never been a problem or has the store ever experienced a problem with there being condensation or drippage from that area?
A: No ma'am. No, not since I been there. Well, Ms. Dean . . . uh . . . I had been there like a year, before I came to that store in 2002. This was 2003 and I hadn't had a problem out of it while I was there.
Ms. Marshall testified that on the day of the fall, the vent was not leaking water. After the fall, the ice from Ms. Bell's cup was scattered all around the floor; Ms. Marshall testified that this spilled ice was the only foreign substance she saw on the floor after Ms. Bell fell.
There are several pictures of the hallway included as exhibits in the record. They show a worn linoleum-like floor that is discolored in the hall area, which is beyond normal customer traffic. The plaintiff's counsel asked Ms. Marshall about the stains on the floor; Ms. Marshall responded by saying:
A: I don't know what that is. It is not water.
Q: Okay. Is it not like fresh water but isn't that stains from old water marks?
A: Those, uh - if those stains probably are still there. Like I say, since I've been
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