# 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/9668832

## 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:** Concurrence by Sanders
- **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/9668832

## 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

SANDERS, Justice
(concurring).
We granted certiorari in this tort action to review the judgment of the Court of Appeal, First Circuit, 1 holding that the doctrine of res ipsa loquitur could not be invoked to sustain the plaintiffs’ recovery of damages from the defendants, National Food Stores of Louisiana, Inc., and its insurer. I have concluded that the judgment of the Court of Appeal is correct.
In the late afternoon of Friday, March 11, 1960, while plaintiff, Mrs. Charles S. Pilie, was passing a coca-cola display in the self-service store of National Food Stores of Louisiana, Inc., two six-bottle cartons of coca-cola fell from the display. One or more of the bottles broke, and Mrs. Pilie’s right foot was injured by flying glass. Mrs. Pilie had entered the store to purchase *300 groceries. At the time of the accident, she was pushing a wheeled grocery cart, supplied by the store, by the coca-cola display on her way to the bread counter. She testified that she did not touch the display either with her body or with the cart,, that she was some 18 inches from it when, the cartons fell, and that she did not know what caused them to fall.
The coca-cola display from which these cartons fell had been stacked or arranged by an employee of the coca-cola company in the National store in the early morning of Thursday, March 10, the day before the accident. As originally arranged, it consisted of seven tiers of coca-cola'cartons on a: wooden .platform. The display was 10 cartons wide and 4 cartons deep. The tiers were 'separated and supported by a roll of plastic material known as mylar. The mylar was fastened to the flat end of an adjoining-row of shelves, which abutted one side of the'stack. These shelves extended away from the coca-cola display and contained other items of. merchandise. When a tier of cartons had been removed, the mylar would ,roll back against the. backboard to which it. was fastened, thereby exposing another tier of c.oca-cola for sale.
Between Thursday, when the coca-colas 'were stacked, and the following Monday, when the coca-cola company replenished the display, many cartons had been removed by the customers of National. However, the display had not been • replenished by store employees prior to the accident. The-height and shape of the display at the time-of the accident is not shown by the evidence. Neither does the evidence disclose whether or not the cartons of coca-cola were in. disarray at the time.
At the time of the accident, street repair-work was in progress in front of the store. Heavy construction equipment was in use-in the immediate vicinity.
A number of customers were in the store-at "the time of the accident. No customers; or employees of the store were at the display at the moment the cartons fell.
The legal que^tipn .presented is wjiether the fall, of the ca.rto.ns of coca-cola from-the display, under, the circumstances shown, is a proper case for the application of the-doctrine of res ipsa loquitur as to the proprietor of the store.
■The duty -of a -storekeeper to his customers, or -invitees, is one of ordinary care... •He is required, -to use reasonable care to-keep his premises, in a, safe condition, for-their protection. Thus, he must inspect the premises to discover- defects. There, is. no liability, however, • for conditions of which the storekeeper was not aware and' could not have discovered with reasonable-care. The mere existence of a defect or-danger is not sufficient to establish liability.. -For liability to arise, it must appear that. *302 the defect is of such a character or of such a duration that the storekeeper, in the exercise of due care, should have known of it prior to the loss or injury and have either corrected it or given adequate warning. Peters v. Great Atlantic and Pacific Tea Co. (La.App.) 72 So.2d 562 ; Knight v. Travelers Ins. Co. (La.App.) 32 So.2d 508 ; Powell v. L. Feibleman & Co. (La.App.) 187 So. 130 .
The doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to be determined at the conclusion of the trial. Plunkett v. United Electric Service, 214 La. 145 , 36 So.2d 704 , 3 A.L.R.2d 1437 ; Gerald v. Standard Oil Company of Louisiana, 204 La. 690 , 16 So.2d 233 ; Malone, Res Ipsa Loquitur and Proof by Inference, 4 Louisiana Law Review 70, 92.
For the doctrine to be applicable, the ■circumstances shown by the evidence must he such as to warrant an inference, not of negligence only, but of defendant’s negligence. This means that it must appear more probable than not that the injury was attributable to a violation of defendant’s ■duty to plaintiff. Davis v. Hines, 154 La. 511 , 97 So. 794 ; Prosser On Torts (2d Ed. 1955) § 42, pp. 204-206. See also Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544 , 97 So.2d 389 .
The test has been succinctly stated as follows: Do the facts shown suggest the negligence of the defendant, rather than other factors, as the most plausible explanation of the accident? Malone, Torts: Proof of Negligence, 19 Louisiana Law Review 335-336.
In the instant case, Mrs. Pilie was free from fault since she did not touch the coca-cola display. However, neither the shape nor the condition of the display at the time of the accident is shown. The coca-colas were available to customers who handled them in making selections. Moreover, heavy construction equipment was at work outside the store. Thus, the evidence raises several strongly competing inferences, which cannot be brushed aside. Among these are the disarrangement of the coca-cola cartons by another customer shortly before the accident and the vibration of the premises by the heavy construction equipment outside the store. 2 In my opinion, the facts do not suggest the negligence of the proprietor as the most plausible explanation of the accident. The circumstances shown do not warrant an inference that it was National’s negligence, rather than the acts of others for which National would not be responsible, that caused the cartons to fall. Hence, the record does *304 not provide an evidentiary basis for res ipsa loquitur. Having failed to establish that National breached its duty, plaintiffs can not recover.
For the reasons assigned, I concur in the decree.
. 148 So.2d 391 .
. In this connection, plaintiffs’ brief in the Court of Appeal makes the following comment: “It is true that there was in-this, case, as in the Washington case, heavy equipment working on the street outside, that there were other people in the store and any number of tilings could have caused the fall.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668832. Public record. Not legal advice.