Crisler v. Paige One, Inc.

• Decision Date: 09 January 2008
• Docket Number: No. 42,563-CA.,42,563-CA.
• Citation: 974 So.2d 125
• Parties: Becky CRISLER and Jim Crisler, Plaintiff-Appellee, v. PAIGE ONE, INC. d/b/a McDonald's and St. Paul Fire and Marine Insurance Company, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

974 So.2d 125

Becky CRISLER and Jim Crisler, Plaintiff-Appellee, v. PAIGE ONE, INC. d/b/a McDonald's and St. Paul Fire and Marine Insurance Company, Defendant-Appellant.

No. 42,563-CA.

Court of Appeal of Louisiana, Second Circuit.

January 9, 2008.

Lawrence W. Pettiette, Jr., Joseph S. Woodley, Tam C. Bourgeois, Baton Rouge, for Appellant, Paige One, Inc.

William S. McKenzie, Baton Rouge, Lawrence W. Pettiette, Jr., Joseph S. Woodley, Margaret L. Tooke, Tam C. Bourgeois, Baton Rouge, for Appellant, St. Paul Fire and Marine Insurance Company.

James H. Colvin, Shreveport, Fiona C. York, for Appellee.

Before WILLIAMS, GASKINS and LOLLEY, JJ.

WILLIAMS, J.

Plaintiffs, Becky Crisler and Jim Crisler, sued for damages after Mrs. Crisler fell outside a McDonald's restaurant owned by defendant, Paige One, Inc. ("Paige One"). Prior to trial, the trial court denied a motion in limine, in which Paige One sought to exclude evidence of a post-accident installation of a rail near the site of Mrs. Crisler's fall. Following the trial, the jury found that the premises contained a condition that presented an unreasonable risk of harm and apportioned 60% fault to Paige One and 40% fault to Mrs. Crisler. The jury awarded a total of $578,132.22 in damages. The trial court rendered judgment ratifying the jury's verdict. For the following reasons, we affirm.

FACTS

On December 23, 2001, Becky and Jim Crisler stopped for breakfast in Arcadia, Louisiana at McDonald's restaurant owned by Paige One. The door on the north side of the restaurant opened to a brick sidewalk. Once customers exiting the restaurant reached the end of the sidewalk, they had to step down off a concrete curb onto the parking lot. Customers stepping down from the curb entered a traffic lane of the parking lot which was generally used by vehicles entering the restaurant's drivethru lane. The distance between the threshold of the door to the step-down of the sidewalk was approximately six feet.

As the Crislers exited the restaurant, Mr. Crisler held the door open for Mrs. Crisler, and she turned to thank him. As she stepped onto the sidewalk, she looked to her right for oncoming traffic. She failed to observe the step-down curb and fell, sustaining serious injuries to her knees.

The Crislers filed suit against Paige One and its insurer, St. Paul Fire and Marine Insurance Company, alleging, inter alia, that Paige One failed to: (1) protect its customers from a dangerous condition; (2) warn patrons of the presence of a potentially dangerous condition; (3) keep its parking lot and curbs free from unreasonably dangerous conditions, vices and/or defects; (4) place warning signs or cones; and (5) provide a smooth, flat parking and walking surface for customers exiting the restaurant.

Following a trial, the jury specifically found: (1) the premises contained a condition that presented an unreasonable risk of harm to plaintiff; (2) the unreasonable risk of harm was reasonably foreseeable; and (3) defendant or its employees had actual or constructive notice of the unreasonably dangerous condition prior to the occurrence. The jury apportioned 60% fault to Paige One and 40% fault to Mrs. Crisler and awarded a total of $578,132.22 in damages.¹ The trial court rendered judgment ratifying the jury's verdict. The court denied Paige One's motion for judgment notwithstanding the verdict/motion for new trial. This appeal followed.

DISCUSSION

Evidentiary Ruling

In its first assignment of error, Paige One contends the trial court abused its discretion by allowing plaintiffs to introduce testimony and exhibits with regard to the post-accident installation of a rail near the site of Mrs. Crisler's fall. According to Paige One, the evidence constituted evidence of a subsequent remedial measure and should not have been admitted.

LSA-C.E. art. 407 provides:

In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.

The prohibition against evidence of subsequent remedial measures is designed to bring within the scope of the rule any change, repair or precaution subsequent to an accident. Northern Assur. Co. v. Louisiana Power & Light Co., 580 So.2d 351 (La.1991); Reichert v. State, Dept. of Transp. and Dev., 26,800 (La.App.2d Cir.5/8/96), 674 So.2d 1105, affd, 96-1419, 96-1460 (La.5/20/97), 694 So.2d 193. The prohibition covers only measures taken after an event, such as post-accident repairs, installation of safety devices, changes in design, the removal of dangerous conditions, changes in procedure, the dismissal of an employee charged with causing an accident, changes in regulations or instructions. Id.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. LSA-C.E. art. 103(A). If the probative value of the evidence is outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, then it is inadmissible although relevant. LSA-C.E. art. 403.

In the instant case, plaintiffs introduced into evidence at trial a photograph of the accident site which showed that a rail was installed after Mrs. Crisler's fall. Plaintiffs also elicited testimony from witnesses with regard to the rail. Prior to the trial, Paige One filed a motion in limine, seeking to exclude the photograph. In opposition to the motion, plaintiffs' counsel contended the evidence would be used to show that the rail was a feasible precautionary measure. The trial court denied the motion in limine, but agreed to instruct the jury that evidence of the installation of the rail was not admissible to prove negligence or culpable conduct on the part of Paige One.

During his opening statement, plaintiffs' counsel stated:

Photograph number 2 depicts a rail that was installed by an employee of McDonald's after this incident occurred. ... Now, that rail that is there cost less than $100.00 and an afternoon's work to install, and you will hear the testimony that this would have, and could have, and does, in fact, stop the very condition that created the hazard that Mrs. Crisler succumbed to on that particular day.

Plaintiffs' counsel also questioned various witnesses with regard to the installation of the rail. Nina Mitchell Robertson, the manager of the restaurant at the time of the accident, and Stephanie Jones, the shift manager on duty at the time of Mrs. Crisler's fall, both testified that no one had stumbled or fallen near the exit since the rail was installed.

Jack Barnridge was accepted by the court as a safety expert. During his testimony, Barnridge stated, "[B]ut you could put a guardrail there ... which they did after this, but they could put a guardrail there to catch their attention that they can go, and then they have time to look ...." Larry Smith, the owner of Paige One, was also questioned with regard to the installation of the rail.

Following the testimony of plaintiffs' witnesses, the trial court admonished the jury as follows:

Ladies and gentlemen, please listen carefully. In this case, the fact that McDonald's placed a rail after the incident is not to be considered by you as fault, but it can be considered as proof of other issues such as feasibility.

The trial court is granted broad discretion in its evidentiary rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Graves v. Riverwood Intern. Corp., 41,810 (La.App.2d Cir.1/31/07), 949 So.2d 576, writ denied, 2007-0630 (La.5/4/07), 956 So.2d 621, citing Roberts v. Owens-Corning Fiberglas Corporation, 2003-0248 (La.App. 1st Cir.4/2/04), 878 So.2d 631, writ denied, 2004-1834 (La.12/17/04), 888 So.2d 863; Emery v. Owens-Corporation, 2000-2144 (La.App. 1st Cir.11/9/01), 813 So.2d 441, writ denied, 2002-0635 (La.5/10/02), 815 So.2d 842.

At trial, a party must make a timely objection to evidence that the party considers to be inadmissible and must state the specific ground for the objection. LSA-C.E. art. 103(A)(1); LSA-C.C.P. art. 1635; Graves, supra; McWilliams v. Courtney, 41,725 (La.App.2d Cir.12/13/06), 945 So.2d 242. On appeal, the court must consider whether the complained-of ruling was erroneous and whether the error affected a substantial right of the party affected. If not, a reversal is not warranted. Graves, supra, citing LSA-C.E. art. 103(A); Emery, supra; Brown v. Associated Insurance Consultants, Inc., 94-1451 (La.App. 1st Cir.4/4/96), 672 So.2d 324, writ denied, 96-1106 (La.6/7/96), 674 So.2d 970. The determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case, and it is the complainant's burden to so prove. Graves, supra, citing Emery, supra.

In the instant case, we cannot say that the trial court's decision to instruct the jury with regard to the rail, rather than granting defendant's motion in liminie, was so erroneous as to be prejudicial. The trial court admonished the jury with regard to the installation of the railing and instructed the jury that the evidence with regard to the rail could not be used as evidence of fault, only as proof of other issues such as feasibility. We find that the admonition was sufficient to cure any prejudicial effect of the photograph and testimony. Moreover, defendant has not demonstrated that the trial court's ruling had a substantial effect on the outcome of the case. Therefore, we cannot say that the trial court abused its discretion in allowing the evidence. This assignment of error is without merit.

Merchant Liability

The imposition of tort...