27,702 La.App. 2 Cir. 12/6/95, Wilson v. National Union Fire Ins. Co. of Louisiana

• Decision Date: 06 December 1995
• Citation: 665 So.2d 1252
• Parties: 27,702 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1252

665 So.2d 1252

27,702 La.App. 2 Cir. 12/6/95

James WILSON and Sherry Wilson, Plaintiffs-Appellees, v. NATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA and Hardee's Food Systems, Inc., Defendant-Appellant.

No. 27702-CA.

Court of Appeal of Louisiana Second Circuit.

Dec. 6, 1995.

Blackman Law Firm by Gordon N. Blackman, Jr., Shreveport, for appellant.

Peters, Ward, Bright & Hennessy by J. Patrick Hennessy, Shreveport, for appellee.

Before NORRIS and STEWART, JJ., and SAVOIE, J. Pro Tem.

NORRIS, Judge.

Both the plaintiffs, James and Sherry Wilson, and the defendant, Hardee's Food Systems Inc., appeal a judgment based on a jury verdict and the district court's grant of JNOV in this case arising from James Wilson's slip on the floor of a Hardee's restaurant. For the reasons expressed, we affirm in part, reverse in part and render.

Factual background

In October 1992 James Wilson, his wife Sherry, and several family members went for lunch at the Hardee's restaurant on Line Avenue in Shreveport. Wilson was at the time 36 years old and had been on total disability since sustaining work-related back injuries in 1983 and 1984. When he and his family were ready to leave the restaurant, Wilson picked up his tray and carried it toward the trash bin. He was walking behind his sister-in-law, Charlotte Lagrone. Neither Wilson, Ms. Lagrone, nor anyone else in his group noticed that the floor was damp or that a Hardee's employee was performing an after-lunch damp-mop in the area. Wilson testified that when he got near the trash bin, his left foot slipped perhaps 10-12"', but he was able to avert a complete fall by catching himself with his right foot, which also slipped about 10-12"'. Ms. Lagrone testified that walking just a few steps in front of Wilson she also slipped without falling, but did not have time to warn him that the floor was wet. After the incident Wilson and his family noticed a "Caution: Wet Floor" sign on the floor near the front of the dining area, but it was actually located beyond the wet spot, from Wilson's vantage point. An eyewitness, Mary Sims, verified that the sign was on the other side of the wet spot from where Wilson was walking. Ms. Sims also testified that after Wilson slipped, she saw the floor was not "wet, wet," but damp and drying; Wilson's family members corroborated this.

A Hardee's employee, Debra Barham, testified that last thing before she got off shift at 2:00 p.m. she swept and damp-mopped the dining area. She remembered Wilson's family; although they were rather loud she interrupted their conversation to tell them she was about to mop (no one in Wilson's group recalled this warning). She further testified that she damp-mopped with clear, hot water; this detail was verified by the store manager, Bob Burgoyne. Mr. Burgoyne added that it was actually company policy at the time to use a general purpose soap called Kadet TM for daily cleaning, but he felt this created a buildup so he instructed his staff to use clear, hot water. There was considerable testimony about the quality of tile used in the restaurant, the preferred placement of warning signs, and accident reporting procedures; these will be addressed later in the opinion.

Immediately after the incident Wilson walked to his truck to leave Hardee's, but realized his right hip was starting to hurt. His father-in-law, Rev. Adams, advised him to go back and file an accident report, which he did. Mary Fobbs, the store's assistant manager, took the information from Wilson and apparently advised him to go to Physicians and Surgeons Hospital for an examination. ¹ Wilson did so, and when the pain and tingling in his right hip did not subside, he went to his orthopedic surgeon, Dr. Garrett. Dr. Garrett, it turns out, had previously diagnosed Wilson with avascular necrosis in the femoral heads of both hips. In March 1990 he had operated on Wilson, replacing his right hip; he released him three months later with a slight limp. A few days after the slip, Dr. Garrett thought Wilson had damaged a small nerve in the front of his thigh, and treated it conservatively, but when after six weeks Wilson began complaining of "popping" when he moved his thigh, Dr. Garrett suspected a partial dislocation of the implant. He performed two operations, ultimately removing Wilson's damaged right hip implant and putting in a new one (a "revision"). He testified that "the fall Mr. Wilson told me about" was probably the cause of the damage to the implant. While his right thigh was recovering, Wilson's left thigh began to give him problems; Dr. Garrett felt this was an acceleration of a pre-existing condition owing to the increased demands on his left hip while the right hip was healing from the revision. Dr. Garrett replaced Wilson's left hip in January 1994. Wilson testified that this operation was not completely successful and he expected having to replace the left hip again; Dr. Garrett, however, did not specifically project a revision.

Dr. Garrett testified that as a result of the implants Wilson is restricted against heavy lifting, jogging and repetitive, stressful activity to his hips. Wilson admitted he had been on total disability since 1984, having undergone two fusions and one decompression that left him in constant pain; however, he testified that his residual back pain was not as bad as the new pain in his hips. He added that the problems resulting from his slip at Hardee's have affected his marriage and made him "snappy" with his children and wife for small things.

Action of the trial court

The Wilsons filed the instant petition in April 1993, James seeking general and special damages, and Sherry claiming loss of consortium. ² At trial in July 1994 the Wilsons introduced medical bills totaling $72,709.07, reflecting treatment and replacement of both hips after the accident. The parties vigorously discussed the proposed jury charge, which forms the basis of several of the assignments of error. In response to special interrogatories, the jury found that the condition of the floor posed an unreasonable risk of harm to Wilson, that Hardee's caused the condition, that Hardee's failed to exercise reasonable care, and that this conduct caused Wilson's damages. The jury also found Wilson comparatively negligent to the extent of 50%. The jury awarded past medical and hospital expenses of $80,000 but denied all future medicals. The jury further awarded $40,000 for past pain and suffering and $10,000 for past mental anguish, but denied all future general damages, loss of enjoyment of life and disability. The jury finally also denied Mrs. Wilson's claim for past lost wages and loss of consortium.

Wilson moved for a new trial or JNOV, urging three grounds: (1) the allocation of fault was improper; (2) general damages should have been at least $225,000; and (3) loss of consortium should have been awarded in the amount of at least $25,000. Hardee's also moved for JNOV, urging only that the special damages of $80,000 should be reduced to the $72,709.07 proved at trial.

After argument on the motions, the district court declined to change the allocation of fault, noting that reasonable jurors could have differed on that issue. The court then granted Hardee's motion for JNOV, reducing the past medical damages from $80,000 to $72,709.07. Turning to Wilson's motion, the court stated that any reasonable person would have found that he was going to need future medical treatment for his left hip; the court granted JNOV in the amount of $10,000 for this. Stating that "as a result of his injury Mr. Wilson was going to suffer a permanent disability, and it was something different and new from what he already had," the court added $20,000 for Wilson's disability and loss of enjoyment of life. The court finally added an award of $3,000 for Mrs. Wilson's loss of consortium, representing three months' time she missed working as a private-duty nurse while she tended her husband. Hardee's has appealed suspensively, and the Wilsons have answered the appeal.

Applicable law

Tort claims against merchants for slips and falls on their premises are regulated by statute, La.R.S. 9:2800.6. As amended in 1990 it provides in pertinent part ³:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition in or on a merchant's premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;

(2) The merchant either created or had actual or constructive knowledge of the condition which caused the damage, prior to the occurrence; and

(3) The merchant failed to exercise reasonable care.

Under this statute, the presence of a foreign substance on the floor does not create a presumption of negligence. Welch v. Winn-Dixie La. Inc., 94-2331 (La. 5/22/95), 655 So.2d 309; Perez v. Wal-Mart Stores Inc., 608 So.2d 1006 (La.1992). However, prior formulations of the law of slip-and-fall did indeed establish a presumption of negligence upon proof of a foreign substance on the store's floor and that it caused the plaintiff to fall and sustain injury. Kavlich v. Kramer, 315 So.2d 282 (La.1975); McCardie v. Wal-Mart Stores Inc., 511 So.2d 1134 (La.1987); La.R.S. 9:2800.6 prior to the 1990 amendment. ⁴

The statute has been strictly construed not to apply to falling merchandise cases or to non-merchant defendants. See, e.g., Edwards v. K & B Inc., 26,002 (La.App. 2d...