# Pilie v. National Food Stores of Louisiana, Inc.

> Supreme Court of Louisiana · November 12, 1963 · 245 La. 276

URL: https://www.frixlaw.com/law-library/cases/9668830

## Case

- **Full name:** Charles S. PILIE Et Al. v. NATIONAL FOOD STORES OF LOUISIANA, INC., Et Al.
- **Court:** Supreme Court of Louisiana
- **Decided:** November 12, 1963
- **Citations:** 245 La. 276; 158 So. 2d 162; 1963 La. LEXIS 2667
- **Precedential status:** Published
- **Opinion:** Dissent by McCALEB
- **Judges:** Hawthorne, Fournet, McCaleb, Hamlin, Sanders
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9668830

## How later opinions describe it (automated extraction)

- stating the doctrine “will not be applied unless the facts and circumstances indicate that the negligence of the defendant ... is the most plausible explanation of the accident.”

## Opinion text

McCALEB, Justice
(dissenting).
I think plaintiffs should be permitted to recover in this case because they have established facts from which an inference of negligence on the part of defendant supermarket can fairly' be drawn and, particularly so, since defendant failed to offer any evidence to show that it had exercised ordinary care to keep its premises reasonably safe for its patrons.
Unlike the majority, I find no difficulty whatever in resolving that res ipsa loquitur applies to the facts of this case. I, of course, acknowledge that the rule is correctly stated in Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544 , 97 So.2d 389 , a case that bears no factual resemblance whatever to the matter at hand, 1 wherein this Court, quoting with approval from the Annotation in 53 A.L.R. 494 , stated “ * * * All that is meant by res ipsa loquitur is ‘that the circumstances involved in or connected with an accident are of such an unusual character as to justify, in the absence of other evidence bearing on the subject, the inference that the accident was due to the negligence of the one having control of the thing which caused the injury. This inference is not drawn merely because the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that, unless an explanation can be given, the only fair and reasonable conclusion is that the accident was due to *294 some omission of the defendants duty.’” (Italics mine).
Applying this test to the facts in the case at bar, it is manifest to me that plaintiffs have established a prima facie case. Consider, first, the accident. Mrs. Pilie, a shopper in a supermarket, is injured by the fall of at least two cartons of bottled Coca Cola from a rack on which the defendant supermarket had displayed the soft drink for sale in the promotion of its business enterprise. Surely, these bottled beverages would not have fallen had they been properly stacked or, if properly stacked, someone (an employee or other customer) had not disarranged them. Hence, it is logical to say that the happening of the accident bespeaks negligence on the part of someone or, put in another way, the accident speaks for itself — res • ipsa loquitur.
Now, plaintiffs have shown that .Mrs. Pilie was without fault; -that she was not interested in purchasing Coca Cola and that she does not know, and has-no reason to know, why the cartons of Coca Cola fell. Hence it would be inappropriate, under the facts, to conclude that the case could be governed by the unsound holding in Monroe v. H. G. Hill Stores, 51 So.2d 645 , where the Court of Appeal for the Parish of Orleans unrealistically - deduced that. res ipsa loquitur does pot apply in these sort of cases because the .-customers “ * * * would have just -as jnuch.knowledge as to the cause of such a fall of the bottles as would the storekeeper” since the bottles are displayed in full view.
Inasmuch as it is shown as a fact in this case that Mrs. Pilie was without knowledge of the cause of the fall of the bottles and inasmuch as it is certain that the bottles would not have fallen but for negligence (either through improper stacking or vibration, or mishandling by defendant’s employees or its customers), the question arises whether the supermarket may be dismissed from liability without offering any evidence at all to exhibit that it was free from fault.
. The majority say that the supermarket was not obliged to come forward with any evidence because res ipsa loquitur cannot apply. And why ! Because the rule should not obtain in cases where the injury might have occurred by the negligence of other customers, who are not under the management and control of the defendant.
• I submit that this conclusion is erroneous. The Court does not give due consideration to the nature of the business enterprise, the method of the operation and the concomitant obligation of those engaged in such forms of merchandising to their patrons. If maintained, the result here enables firms engaged in self-service merchandising to escape liability in all cases when their- patrons are injured by falling objects and the like, irrespective-of whether *296 or not they have complied with their legal duty of furnishing a reasonably safe place for their patrons to shop.
The courts of New York have refused to provide self-service operators with an avenue of escape by standing mute (see Robinson v. Atlantic & Pacific Tea Co., 184 Misc. 571 , 54 N.Y.S.2d 42 , affirmed 269 App.Div. 977 , 59 N.Y.S.2d 290 and Perito v. Sunrise Supermarket Corp., 33 Misc.2d 627 , 229 N.Y.S.2d 667 ) and have gone so far as to render the supermarket liable for the negligent acts of other patrons in the store on the theory that, having a right of exclusive control and management over the thing causing the accident, the negligence of other patrons is imputable to the store.
While I do not personally subscribe to this latter theory of liability I am, however, committed to the view that, when an accident such as the one in the case at bar is established, an inference of negligence arises which requires the defendant to come forward with evidence showing that it has complied with its legal duty of keeping its place of business in a reasonably safe condition ; that the accident is not attributable to the fault of any of its employees and that the shelves or displays of its merchandise have been regularly inspected. Application of res ipsa loquitur does not oblige the defendant to explain the accident •in order to escape liability. The burden arising from the inference of negligence merely requires the defendant to show that it was free from negligence (see Davis v. Teche Lines, 200 La. 1 , 75 So.2d 365 ; it is not obliged to show, even in cases of passenger and carrier, how and why the accident occurred. Cusimano v. New Orleans Public Service, Inc., 170 La. 95 , 127 So. 376 .
The views I entertain were well expressed by the Superior Court of New Jersey in Francois v. American Stores Co., 46 N.J.Super. 394 , 134 A.2d 799 (1957) when, in a case indistinguishable from this one on its facts, it stated:
“We think we may take judicial notice that in self-service stores, such as the one here, the customer is expected and indeed invited to handle and examine articles of merchandise displayed or' stacked in the store, to remove them from where they stand and, if he decides not to make the purchase, then to put them back. The defendant, having established a business of this nature, is under a duty to take reasonable measures to guard against injuries to customers due to such fallings of stacked merchandise as may result from these actions of other customers. If customers are generally careless in pulling out articles from the stack and in reinserting them, the duty on the part of the defendant to take precautions to meet the situation is correspondingly heavier. Its duty to take *298 corrective measures may be heavier also during the times of the day when the crowd is greater.
“We by no means decide that the doctrine of res ipsa loquitur applies whenever a customer is injured because of merchandise falling in such stores. Each case must turn on its facts.
sfc * * ”
(Here the Court states the facts and then concludes)
‡ ‡ ‡
“ * * * The doctrine of res ipsa loquitur was therefore applicable; for in such circumstances the courts in the interest of justice should look to the defendant to come forward with an explanation of the mishap, if it wishes to do so. * * * ” (Words in parentheses mine.)
So I say here, that the facts of this case are such as to create an inference of defendant’s negligence, as the circumstances of the accident were such that the Court, in the interest of justice, “should look to the defendant to come forward with an explanation of the mishap, * * * ”; and its failure to rebut the inference of negligence warrants a judgment against it.
I respectfully dissent.
. That was an automobile accident. This is a “falling object” ease where the object causing the damage was displayed in defendant’s store. Shain, Kes Ipsa Loquitur, at ..page 141, says that the. courts have become “almost uniformly” (except in Pennsylvania), more liberal in their application of the doctrine “and apply it in many cases in which, it is debatable whether the accident may not have happened in the ordinary course of things if those that had the management used proper care.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668830. Public record. Not legal advice.