96-599 La.App. 5 Cir. 12/11/96, Stewart v. Winn Dixie Louisiana, Inc.

• Decision Date: 11 December 1996
• Citation: 686 So.2d 907
• Parties: 96-599 La.App. 5 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 907

686 So.2d 907

96-599 La.App. 5 Cir. 12/11/96

Raymond STEWART, et al., v. WINN DIXIE LOUISIANA, INC.

No. 96-CA-599.

Court of Appeal of Louisiana,

Fifth Circuit.

Dec. 11, 1996.

Gregory G. Gremillion, Thomas W. Darling, Gretna, for Kleinpeter Farms Dairy, Inc.

William D. Grimley, Baton Rouge, for Raymond Stewart, et al.

Carlos E. Lazarus, Jr., Dixie C. Brown, Houma, for Winn-Dixie Louisiana, Inc.

Before GRISBAUM, WICKER and CANNELLA, JJ.

[96-599 La.App. 5 Cir. 2] CANNELLA, Judge.

Defendant and Third Party plaintiff, Winn Dixie Louisiana, Inc. (Winn Dixie) and Third Party defendant, Kleinpeter Farms Dairy, Inc. (Kleinpeter) appeal from the judgment in this slip and fall case rendered in favor of plaintiffs, Raymond Stewart (Stewart) and his wife, Johanna, and holding Kleinpeter liable under an indemnification agreement. For the reasons which follow, we affirm on the liability and damages issues and reverse and render on indemnification..

On November 22, 1993, Raymond Stewart was injured when he slipped on a broken egg and fell to the floor of the Winn Dixie Store located on West Main Street in Gramercy, Louisiana. At the time of the accident, Stewart was employed by Kleinpeter as a route delivery man. This Winn Dixie store was part of his route and he was in the course and scope of his [96-599 La.App. 5 Cir. 3] employment at the time of the accident. Stewart arrived at the store around 7:40 a.m., entered and walked down aisle one, where the fall later occurred. He walked to the dairy case to determine the amount of milk products the store needed. He was entering information into his hand held computer on his way down the aisle. He removed the out-of-date items from the dairy case and headed back to the front of the store and back to his truck. He estimated that this trip from and back to his truck took approximately ten minutes. He did not see any egg on the floor at this time, but he remembered that there were numerous displays on the aisle on that particular day. The co-manager, Paul Bourgeois, confirmed that it was common to have a number of displays at Thanksgiving time.

A computer generated printout, showed the time which Stewart returned to his truck as 7:49 a.m. He then proceeded to fill his order from the rear of his truck, loading his dolly with four to five crates of milk products. Stewart reentered the store to check-in the merchandise with the store computer. The Winn Dixie computer generated a ticket showing the time as 8:08 or 8:09 a.m. This indicates that twenty minutes elapsed from the time Stewart returned to his truck and the time he reentered the store. He then waited to be checked-in by Paul Bourgeois. Thereafter he proceeded to the milk section where he shelved the merchandise, straightened up the Kleinpeter products area, stacked the crates on his dolly and turned to leave the store. As he proceeded down the aisle, some twenty feet away, he passed the egg section and slipped and fell on a broken egg that was on the floor. An ambulance was called at 8:29 a.m.

[96-599 La.App. 5 Cir. 4] When Stewart fell, his back and head hit the floor. He tried to catch himself and he landed with his shoulder and right arm underneath him. His primary injuries were to his low back and right wrist.

Stewart filed suit against Winn Dixie and Kleinpeter intervened for reimbursement of funds it paid to Stewart as worker's compensation benefits. Winn Dixie filed a third-party demand against Kleinpeter, alleging that Kleinpeter had entered into an indemnity agreement with Winn Dixie, whereby Kleinpeter agreed to indemnify Winn Dixie for any damages owed to a Kleinpeter employee. Kleinpeter and Winn Dixie agreed to sever the indemnity third party demand from the liability proceedings between Stewart and Winn Dixie. Trial was held on August 9 and 10, 1995. At the conclusion of trial, the trial court requested memoranda and took the matter under advisement. The third party demand came back before the trial court on motions for summary judgment filed by both sides.

Judgement was rendered on February 14, 1996 on the entire case. The trial court rendered judgment in favor of Stewart and against Winn Dixie in the amounts of $330,000 general damages and $298,496 for lost wages. Mrs. Stewart was awarded $20,000 against Winn Dixie for loss of consortium. The trial court awarded Kleinpeter reimbursement of $57,617.33 against Winn Dixie for medical expenses it had paid on behalf of Stewart. The trial court also awarded Kleinpeter, against Winn Dixie, reimbursement for any weekly compensation benefits it had paid or would pay. The trial court also ruled on the summary judgment motions, denying Kleinpeter's and granting Winn Dixie's, thereby holding that Kleinpeter must indemnify Winn Dixie per their agreement. It is from this judgment that [96-599 La.App. 5 Cir. 5] Kleinpeter and Winn Dixie appeal and plaintiffs answered their appeals requesting an increase in the general damage award.

The issues on appeal fall into two categories, whether the trial court erred in its assessment of liability and quantum and whether the trial court erred in holding that the indemnity agreement between the parties required Kleinpeter to indemnify Winn Dixie for its own negligence. The resolution of the first issue could render the second issue moot.

Kleinpeter and Winn Dixie argue on appeal that the trial court erred in not finding that Stewart was comparatively at fault in causing the accident and that the damage award was excessive. Winn Dixie also argues that the trial court erred in finding that it was at fault at all.

Plaintiffs, of course, argue that the trial court judgment was correct concerning liability and quantum or, if anything, the award was too low, and argue that defendants cannot show, based on the case record, that the trial court judgment was manifestly erroneous in any respect.

It is well settled that, on appellate review of a factual determination, the reviewing court may not set aside the findings of fact in the absence of manifest error or unless they are clearly wrong. Also, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Stobart v. State through DOTD, 617 So.2d 880 (La.[96-599 La.App. 5 Cir. 6] 1993). Thus, where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra. When findings are based on determinations regarding the credibility of witnesses, the manifest error or clearly wrong standard demands great deference to the trier of fact's findings, because only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Canter, supra at 724; Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825, 826 (La.1987); Boulos v. Morrison, 503 So.2d 1, 3 (La.1987); Williams v. Keystone General Contractors, Inc., 488 So.2d 999, 1001 (La.1986); Johnson v. Insurance Co. of North America, 454 So.2d 1113, 1117 (La.1984); Berry v. Livingston Roofing Co., 403 So.2d 1247, 1249 (La.1981); Crump v. Hartford Accident & Indemnity Co., 367 So.2d 300, 301 (La.1979).

The fact finder in this case was a judge, from whom we have the benefit of extensive, well-written reasons for his judgment, finding Winn Dixie 100% at fault in causing Stewart's accident. He made several important factual findings among which, concerning credibility, he found plaintiff's testimony to be "straightforward and unembellished".

The trial judge found that Clarence Webre, the Winn Dixie employee who had the responsibility of checking the aisle where the accident happened, arrived at the store at 6:00 a.m. and walked down the aisle at that time. He did not walk down the aisle again until after the accident happened, more than two hours later. As part of his zone check he was supposed to check the aisles every thirty minutes. Instead of walking down the aisle, he stood at the end of the aisle and looked down it. The aisle was [96-599 La.App. 5 Cir. 7] sixty feet, six inches long and contained more floor displays than usual because of the Thanksgiving holiday displays. The trial judge found that distant observation down the aisle was difficult. Further, the trial court found that the floor on the aisle was multicolored, with blue, yellow and white striping, also making observation of items on the floor difficult. The egg upon which Stewart slipped overlapped the yellow and white floor stripes.

The trial court further found that the dolly which Stewart was pushing at the time of the accident was six feet tall and came to his chest when being pushed. The trial court noted that there was conflicting testimony between Stewart who testified that he could not see over the dolly when filled with the milk crates and the co-manager Bourgeois who agreed with Stewart in deposition but testified at trial that after conducting a test found that he could have seen the egg over the dolly. The trial court resolved this conflict by concluding that Bourgeois may have seen the egg because he knew it was there. However, he found that the dolly and the crates, coupled with the floor displays and multicolored floor tiles hampered the plaintiff's ability to observe the egg on the floor. Another Winn Dixie employee who had been buffing the floors passed down the aisle where the accident happened just minutes before the accident. This employee was not called to testify. The...