A routine evening trip to a Super 1 Foods in West Monroe ended in a T1-2 herniated disc and a multi-year legal battle. The case of Guerrero v. Brookshire Grocery Co. is a landmark example of how the Louisiana Second Circuit Court of Appeal protects shoppers from hidden hazards that merchants claim are “obvious.”
For a comprehensive breakdown of the statutes governing these claims, including the full text and legal requirements, see our Ultimate Guide to the Louisiana Merchant Liability Act (La. R.S. 9:2800.6)
Would you expect a routine trip to your local grocery store to end with a herniated disc and a possible need for surgery? Probably not. Trips to the grocery store are often without incident. However, people do get hurt sometimes, either from their own clumsiness or — as the Louisiana Court of Appeal, Second Circuit, found in a recent case — by the negligence of the store.
The Incident: Looking Up While Tripping Down
Donna Guerrero (the “Plaintiff”) was shopping at Super 1 Foods (the “Defendant”) in West Monroe one evening in January of 2010. Looking upward on the shelves for coffee, the Plaintiff tripped and fell over a 10-inch-tall rectangular box on the floor, which had been placed there for restocking purposes. The Plaintiff suffered from a T1-2 herniated disc, she continued to suffer from pain thereafter, and there is a possibility that surgery may be required in the future if the injury continues to worsen. The Plaintiff filed a lawsuit against the Defendant. The trial court found that the Defendant was not liable, and the Plaintiff appealed.
The Four-Part Test for “Unreasonable Risk of Harm”
In order to impose liability on a merchant — that is, a store like that of the Defendant — for a patron’s injuries resulting from an accident, a plaintiff must prove that: (1) the condition presented an unreasonable risk of harm that was reasonably foreseeable; (2) the merchant either created or had actual or constructive notice of the dangerous condition; and (3) the merchant failed to exercise reasonable care. La. R.S. 9:2800.6(B).
Under La. R.S. 9:2800.6, the core of this case was whether the box created an “unreasonable risk of harm.” The Second Circuit used a specific four-part balancing test:
- Utility: How much social value does the condition have? (Restocking is necessary).
- Likelihood/Magnitude of Harm: How likely is a fall, and how bad will it be? (Includes the “obviousness” of the hazard).
- Cost of Prevention: How easy was it to avoid this? (Very easy—use carts or signs).
- Social Utility of the Activity: Was the shopper doing something dangerous? (No, just shopping).
The appellate court noted that only the first element, whether the box in the aisle presented an unreasonable risk of harm, was in dispute. Such a determination is made on a case by case basis, and courts have developed a four-part test to aid in that determination. Here, the appellate court summarized the test as follows: “Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others.”
Restocking the shelves is an essential task for stores, and the thus the utility of the stocking procedure is high. However, the potential magnitude of harm is greatly increased when a box for restocking shelves is small enough to render it unapparent to a common store visitor. The harm to the Plaintiff here could have easily been prevented by using large carts or signs to make more obvious the presence of restocking boxes. Thus, because the small box was not an open and obvious obstacle and because the Defendant did not take take the simple steps needed to avoid the harm, the appellate court found the trial court’s conclusion in favor of the Defendant to be manifestly in error and clearly wrong (as is required to overturn the trial court’s decision). In other words, on appeal, the court found the Defendant liable.
Defeating the “Open and Obvious” Defense
However, the appellate court did not allocate all of the fault to the Defendant. Rather, the court considered the conduct of both parties. Although the Defendant, as a merchant, has a duty to not create trip hazards, the Plaintiff must also bear some of the fault for her inadvertence in shopping. Ultimately, because the Defendant was in a better position to avoid this accident altogether by having a better restocking procedure that would give notice to customers, sixty percent of the fault was allocated to the Defendant and only forty percent of the fault was attributed to the Plaintiff. The court adjusted the award for the plaintiff in accordance with the allocation of fault.
The store argued the box was “open and obvious” and that Mrs. Guerrero should have seen it. However, the court found that because the box was small (only 10 inches tall) and placed in an area where shoppers are expected to look up at shelves, it was not an obvious hazard. This is a vital precedent: Merchants cannot hide behind an “obvious” defense when they intentionally distract shoppers with high-shelf displays.
Thus, the appellate court reversed the trial court’s decision and found the Defendant mostly liable for the Plaintiff’s injury. The allocation of fault to both parties, however, is a reminder that we all must be careful to prevent harm to ourselves and others — even if the dangerous conditions surrounding us are the fault of others.
Comparative Fault: 60/40 Allocation
The court did not place 100% of the blame on the store. Under Louisiana’s Comparative Fault rules, the court found:
- 60% Fault (Store): For failing to use large carts or warning signs during restocking.
- 40% Fault (Shopper): For failing to see what was in her path.
This allocation ensures the victim still recovers 60% of her damages for her herniated disc and potential future surgery.
The Guerrero case proves that a trial court’s ‘No’ isn’t always the final word. To see how we appeal cases and move through the litigation roadmap, visit our Louisiana Slip and Fall Litigation Process & Case Studies hub.