#### Ethel BROWN, Plaintiff-Appellee, v. The KROGER COMPANY et al. Defendants-Appellants.

No. 3451.

Court of Appeal of Louisiana, Third Circuit.

Aug. 20, 1971.

Rehearing Denied Sept. 23, 1971.

Plauché, Sanders, Smith & Hebert by Reid K. Hebert, Lake Charles, for defendants-appellants.

Francis E. Mire, Lake Charles, for plaintiff-appellee.

Before SAVOY, MILLER and DO-MENGEAUX, JJ.

DOMENGEAUX, Judge.

Plaintiff Ethel Brown alleged that she slipped in The Kroger Company store in Lake Charles, on November 4, 1968. She sought damages for injuries resulting from that slip. The trial jury gave judgment for plaintiff in the amount of $750.00 and The Kroger Company and its insurer have appealed. Plaintiff answered the appeal asking for an increase in damages. We reverse the trial court judgment.

Mrs. Brown, planning to shop, arrived at defendant’s store at approximately 2:00 P.M., and at about 2:30 P.M. she was in the produce department pushing a cart. She testified that she had just picked up some onions and was on the way to the squash counter when her right foot slipped and she caught the counter to break her fall. She did not fall to the floor. She said that she thought her ankle was hurt and she walked over and told one of the female employees about slipping. Mrs. Brown reported that she had slipped on a small piece of produce approximately one to two inches long. She later went home and soaked her ankle. She testified that her ankle was swollen and painful the next day and she felt pain in her knee and hip region and went to see Dr. Fritz Lacour on November 8, 1968. Mrs. Brown admitted she would have seen the piece of produce upon which she slipped had she been looking at the floor. She had recovered at the time of the trial.

Mr. Edgar Guins, an employee of Kroger and a bag boy at the time of the accident was called under cross-examination by plaintiff. He stated that the floors were *337cleaned before opening at approximately 8:00 in the morning and after closing at the end of the day and also “when needed”. He acknowledged that the displays were made attractive so that they might invite attention on the part of the customer. On direct examination he testified that he inspected the produce department at least three times a day but acknowledged that such inspection was for the purpose of making certain that the produce was set up properly and attractively as well as to inspect the floor for cleanliness.

Mr. Will Hardy, an employee of Kroger, was also called under cross-examination by plaintiff. He was the produce manager at the time of the accident and testified that at the point of the accident there was fruit on one side and vegetable displays on the opposite side with a space of about four feet in between. He testified that he filled the racks on the morning of the accident and acknowledged that produce is always dropping on the floor. Under direct examination Mr. Hardy testified that he usually made inspections two, three, or four times a day. He testified that he checks after displaying lettuce but apparently does not automatically sweep but does so only if needed. He admitted that there was no sweeping done between 12:00 and 3:00 P.M. that day.

Mrs. Brown’s testimony of the foreign substance on the floor and the fact that it caused her to slip was not contradicted, however there was no evidence as to how long the small piece of produce had been there (if the result of dropping by another customer) nor that the piece of produce had been placed there by the store employees.

The rules concerning slip and fall cases and the responsibilities of storekeepers and the burdens imposed on plaintiffs have been stated many times. As a general principle, a storekeeper is not an insurer of the safety of his patrons. He does, however, owe an affirmative duty to his customers to use ordinary care to keep his aisles, passageways and floors in a reasonably safe condition. The duty to use reasonable care extends to every hazard which creates an unreasonable risk of foreseeable harm to his store invitees. This duty includes reasonable inspection of the premises for defects and obstructions to passageway, and reasonable warning of perils which the customers may not see through the exercise of ordinary care. In determining this duty, consideration must be given to several factors, including the nature of the premises, the business purposes for which it is used, the volume of business, the likelihood that the passageway may become obstructed through shopping activities of employees and other customers and the nature of the obstacle.

In order to impose liability on the store operator, an injured customer must prove by a preponderance of the evidence that a dangerous condition which caused injury to him: (1) was created by the storekeeper himself (or some person for whom he is legally liable); or (2) either (a) was actually known to the storekeeper or his employees or (b) had existed for a sufficient length of time for the storekeeper to have constructive knowledge of it, i. e., that its presence should have been discovered through the exercise of reasonable care. In this respect the mere fact that a customer falls while using a store aisle does not by itself create any presumption of fault on the part of the storekeeper.

For examples of these general legal propositions, see Broussard v. National Food Stores of Louisiana, Inc., La.App., 233 So.2d 599; Hay v. Sears, Roebuck & Company, La.App., 224 So.2d 496; Chauvin v. United States Fidelity & Guaranty Co., La.App., 223 So.2d 441; Lofton v. Travelers Insurance Co., La.App., 208 So.2d 739; Sigler v. Mount Vernon Fire Insurance Co., La.App., 201 So.2d 656; Gauthier v. Liberty Mutual Insurance Co., La.App., 179 So.2d 437; Provost v. Great Atlantic & Pacific Tea Co., La.App., 154 So.2d 597.

*338In this case defendants-appellants take the position that they are not negligent and that they had no actual or constructive knowledge of any dangerous condition, i. e., the small piece of produce in the store aisle.

Although the existence of the piece of produce in the aisle and plaintiff’s slipping thereon was not contradicted, she did not prove how the piece of produce happened to be on the floor or how long it had been there. Thus she did not prove that defendant had either actual or constructive knowledge of the hazard. Therefore, under the set of facts shown herein, defendant is exempt from liability for the damage sustained by the plaintiff.

We conclude therefore, under the existing jurisprudence that the trial jury erred in allowing plaintiff Ethel Brown to recover for her slipping on the aforementioned piece of produce.

In view of our conclusion it is unnecessary that we consider plaintiff’s alleged contributory negligence or the nature and extent of her injuries.

For the above reasons, the judgment of the trial court will be reversed and judgment will be entered in favor of defendants, rejecting plaintiff’s demands; plaintiff to pay all costs in both the district court and this court.

Reversed and rendered.

MILLER, Judge

(dissenting).

In my opinion, the plaintiff should recover. I believe the duty of a large self-service grocery store is to keep its premises reasonably safe for the customers and in so doing it is obligated to make systematic, frequent, and careful inspections of the aisles, particularly in the areas containing vegetable and fruit produce.

The perplexities created by these slip and fall cases are nowhere made more evident than in the opinions, (majority, concurring and dissenting) of the cases of Lofton v. Travelers Insurance Company, 208 So.2d 739 (La.App. 3 Cir. 1968) writs denied, 252 La. 457, 211 So.2d 327 (1968), and Broussard v. National Food Stores of Louisiana, Inc., 233 So.2d 599 (La.App. 3 Cir. 1970).

I am in agreement with Judge Culpepper’s conclusion in Lofton, particularly his explanation at 208 So.2d 744, to-wit:

> “The duty of reasonable care owed by this large self-service grocery store to its customers is of a high degree and certainly requires inspection of the aisles and passageways for obvious hazards such as this more often than once every two hours. The defendant has breached this duty. Hence, it has failed to exercise ordinary care to keep its premises reasonably safe for its patrons. * * * This failure of due care, when considered along with all of the other circumstances, makes it more probable than not that the water was on the floor long enough that defendant should have discovered and removed it.”

I also subscribe to the reasoning of Judge (now Justice) Tate in his concurring opinion to his own majority opinion in the Broussard case. Judge Tate quite succinctly and correctly says it is unlikely the customer can find answers to the questions of (a) who put the slippery substance on the floor ? and (b) how long was it there ? Indeed the customer’s chances of proving this vary between slim and none, with emphasis upon the latter. I do not subscribe to the principle of absolute liability, but I do believe it is the duty of the storekeeper (and he should carry the burden of proving it) to employ systematic, frequent and careful inspections of the aisles for the sole purpose of cleanliness.

The casual meanderings of an occasional employee through the aisles two, three, or four times a day with the dual purposes of setting up and rearranging exhibits and perhaps checking the floors, with the emphasis upon the former, does not discharge the storekeeper’s responsibility. Requiring *339an hourly inspection of the produce aisles for the sole purpose of checking the condition of the floors, is a reasonable requirement. This time schedule is not an absolute requirement but can be varied in accordance with the particular department and in accordance with the flow of traffic. Specific individuals should carry out definite assignments with respect to these inspections.

In the present case, the testimony by Kroger’s employees establishes the fact that the floor is swept at the beginning of the day, approximately 8:00 A.M. and after closing. Otherwise it is swept “upon needing it”. Indeed the produce manager, Will Hardy, admitted that the produce area was not swept between 12:00 P.M. and 3:00 P.M. on the date of the accident. Admittedly the purposes of the inspections were at best, dual, consisting of the obligation to make certain that the displays are properly set up and also to check the cleanliness of the area. The impression created by defendants’ witnesses was that the inspection procedures for the Kroger store were rather casual, if not haphazard. Added to this is the fact, not mentioned by the majority, that the floor color consisted of a pastel green and off-white which is hardly a prudent color for contrasting various shades of green produce.

The plaintiff must carry the burden of proving a dangerous condition existed at the point where the fall occurred and that the dangerous condition or foreign substance caused the fall. At this point it defies reality to assume the customer would be in a position to prove who dropped, or caused to fall, a foreign substance on the floor or how long it had been there. If he saw it fall or even that it was on the floor prior to the fall he would be guilty of contributory negligence by stepping on it. Where will he find an employee who will admit to dropping or even seeing it on the floor ? What casual customer will come forth with this information? The answers are self-evident. It then follows that the storekeeper must discharge the burden of proving he has carried out the systematic inspection described previously. In my judgment this is a reasonable alternative to absolute liability.

For the reasons assigned, I respectfully dissent.