93-1627 La.App. 4 Cir. 5/17/94, Dixon v. Winn-Dixie Louisiana, Inc.

• Decision Date: 17 May 1994
• Citation: 638 So.2d 306
• Parties: 93-1627 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 306

638 So.2d 306

93-1627 La.App. 4 Cir. 5/17/94

Louvanne DIXON v. WINN-DIXIE LOUISIANA, INC.

No. 93-CA-1627.

Court of Appeal of Louisiana Fourth Circuit.

May 17, 1994.

Rehearing Denied July 19, 1994.

Robert W. "Doc" Booksh, Jr. and John B. Fox, New Orleans, for plaintiff-appellee.

Elizabeth S. Cordes and Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellant.

Before LOBRANO, PLOTKIN and LANDRIEU, JJ.

[93-1627 La.App. 4 Cir. 1] PLOTKIN, Judge.

Defendant Winn-Dixie Louisiana, Inc. appeals a trial court judgment awarding plaintiff Louvanne Dixon $450,000 in damages for injuries he received as a result of a fall down a flight of stairs during a wrongful detention for suspected shoplifting. We amend the judgment to reduce the total award from $500,000 to $302,410.62, and reduce that award by 10 percent for the plaintiff's comparative negligence. In all other respects, we affirm the judgment.

Facts

Although the parties differ on the details of the incidents from which the instant case arose, the following facts are undisputed. On March 2, 1988, while shopping in the Winn-Dixie store at 1841 Almonaster Avenue in the City of New Orleans, Dixon was detained by security guard Michael Castillo for suspected shoplifting of two packages of cigarettes. Dixon had placed the cigarettes in his pocket and had moved into the area between the checkout area and the door at the time of the detention. In response to a request by Castillo, Dixon accompanied him to the back of the store and up a flight of stairs to a platform area where Winn-Dixie employees regularly took breaks. He was detained for more than two hours; toward the end of that time, he was handcuffed in a standing position [93-1627 La.App. 4 Cir. 2] next to a rail in the "break room." When the police arrived to arrest him, the handcuffs were removed by New Orleans Police Officer Leon Duncan, who was working a security detail at Winn-Dixie and who had previously relieved Castillo. As they prepared to go down the flight of stairs, Dixon fell, ending up at the bottom of the stairs.

Dixon filed suit against Winn-Dixie and Wackenhut Corporation, the security company which employed Castillo, claiming damages both for wrongful detention and for personal injury caused by the fall, which he claims resulted from a hazardous condition on the Winn-Dixie premises. Specifically, Dixon claims that the fall aggravated a pre-existing reflex sympathetic dystrophy (RSD) condition in his right hand. Additionally, he claims that the fall injured both his neck and lower back, causing, among other things, the herniation of a disc in his lower back. Wackenhut Corporation settled with Dixon prior to trial.

The case against Winn-Dixie was tried before a jury, which made the following findings of fact: (1) that Winn-Dixie did not have reasonable cause to detain Dixon, (2) that Dixon sustained an accident or injury on the Winn-Dixie premises due to a hazardous condition, (3) that Winn-Dixie did not act in a reasonably prudent manner to keep the premises free of hazardous conditions, and (4) that the plaintiff's actions did not contribute to his accident or injury. The jury assigned 10 percent contributory negligence to Dixon, with the remaining 90 percent of the negligence for the accident being assigned to Winn-Dixie.

The jury then awarded the following damages: $125,000 for past, present, and future physical pain and suffering; $125,000 for past, present, and future mental anguish and distress; and $250,000 for past, present, and future medical expenses--a total of $500,000 in damages. The trial judge entered a final judgment in conformity with the jury verdict, awarding the plaintiff $450,000 ($500,000 minus 10 percent for his contributory negligence).

Winn-Dixie appeals, claiming that the cumulative effect of numerous improper evidentiary rulings, coupled with the trial judge's improper comments and actions before the jury, resulted in reversible error. Winn-Dixie also claims that the following jury fact findings were manifestly erroneous: (1) that Winn-Dixie did not have reasonable cause to detain the plaintiff for shoplifting, (2) that Dixon sustained an accident as a result of a hazardous [93-1627 La.App. 4 Cir. 3] condition on the premises, and (3) that Winn-Dixie failed to act in a reasonably prudent manner to keep the premises free from such hazardous conditions. Finally, Winn-Dixie claims that the damages are excessive.

1. Alleged trial judge errors

This court has previously found that the cumulation of trial judge errors in evidentiary rulings, coupled with other improper circumstances occurring at trial, may be so prejudicial as to deprive the parties of a fair trial, and thus may constitute reversible error, even if none of the errors considered alone would be sufficient to rise to the level of reversible error. See Clement v. Griffin, 634 So.2d 412 (La.App. 4th Cir.1994). In the instant case, Winn-Dixie claims that the trial judge made numerous prejudicial evidentiary rulings and comments which prevented Winn-Dixie from presenting its defenses to the jury and resulted in an improper jury verdict.

Generally, a trial judge is afforded discretion in conducting a trial, even a jury trial. However, that discretion is circumscribed by considerations of justice and fairness and by La.C.C.P. art. 1791, which prohibits a trial judge from making any kind of comments on the evidence. The trial judge is generally prohibited from engaging in a pattern of judicial conduct which demonstrates prejudice to one party and/or partiality to the other party.

a. Evidentiary errors

Most of Winn-Dixie's arguments on this issue concern trial court decisions to either admit or exclude evidence, decisions which are governed by the Louisiana Code of Evidence, specifically the following articles:

La.C.E. art. 401. Definition of "relevant evidence"

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

La.C.E. art. 402. Relevant evidence generally admissible; irrelevant evidence inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.

[93-1627 La.App. 4 Cir. 4] La.C.E. art. 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

Generally, a trial judge is accorded discretion under the above articles concerning the admission or exclusion of evidence on the grounds of relevance. Polotzola v. Missouri Pacific Railroad Co., 610 So.2d 903, 907 (La.App. 1st Cir.1992). The trial judge is also given a great deal of discretion in assessing the probative value of evidence. Hebert v. Angelle, 600 So.2d 832, 836 (La.App. 3d Cir.), writ denied, 604 So.2d 997 (La.1992). Thus, a trial court decision admitting or excluding evidence will not be reversed in the absence of a finding of abuse of discretion. Polotzola, 610 So.2d at 907; Hebert, 600 So.2d at 836. Further, determination of whether the trial judge in a civil case abused his discretion by admitting relevant evidence because the relevance is outweighed by prejudice depends, at least in part, on whether the resulting prejudice was unfair in the context of the record of the case as a whole. Polotzola, 610 So.2d at 907.

1) Admission of municipal court record

First, Winn-Dixie claims that the trial court improperly admitted the municipal court record on the criminal shoplifting charge against Dixon, which had been stamped "DISMISSED NOT ON THE MERITS." Winn-Dixie's attack on the admission of the record is based primarily on its contention that dismissal of a criminal charge by some unknown person for some unknown reason is not relevant to determination of whether Winn-Dixie had reasonable cause to detain Dixon for suspicion of shoplifting since different burdens of proof are required in civil and criminal cases. ¹

[93-1627 La.App. 4 Cir. 5] The burden of proof in false imprisonment cases has been explained as follows:

In order for plaintiff to recover from a merchant for the tort of false imprisonment, [he] must prove that a detention occurred under one or more of the following circumstances: (1) unreasonable force was used, (2) no reasonable cause to believe that the suspect had committed a theft of goods existed, or (3) the detention lasted more than 60 minutes, unless it was reasonable under the circumstances that the suspect be detained longer.

Thomas v. Schwegmann Giant Supermarket, 561 So.2d 992, 995 (La.App. 4th Cir.1990). In this case, the plaintiff sought to prove the existence of the second circumstance--that no "reasonable cause" to believe that the suspect had committed a theft of goods existed.

In contrast, in order for a suspected shoplifter to be convicted under the criminal law of this state, the prosecutor must prove, among other things, "probable cause" to arrest. "Reasonable cause" to justify a detention is "something less than probable cause; it requires that the detaining officer have articulable knowledge of particular facts sufficiently reasonable to suspect the detained person of criminal activity." Id., quoting State v. Hudgins, 400 So.2d 889, 891 (La.1981) (emphasis added). Thus, the defendant correctly argues that two different burdens of proof apply.

However, the inquiry does not end there, because "relevant evidence" under La.C.E. art. 401 includes all evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more...