Dominici v. Wal-Mart Stores, Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: LOBRANO
• Citation: Dominici v. Wal-Mart Stores, Inc., 606 So.2d 555 (La. App. 1992)
• Decision Date: 29 September 1992
• Docket Number: WAL-MART,No. 91-CA-2474,91-CA-2474
• Parties: David DOMINICI v.STORES, INC.

Page 555

606 So.2d 555

David DOMINICI v. WAL-MART STORES, INC.

No. 91-CA-2474.

Court of Appeal of Louisiana Fourth Circuit.

Sept. 29, 1992.

Thomas P. Anzelmo, Campbell, McCranie, Sistrunk, Anzelmo & Hardy, Metairie, for defendant/appellant.

Frank A. Bruno, Bruno and Bruno, New Orleans, for plaintiff/appellee.

Before LOBRANO, JONES and WALTZER, JJ.

LOBRANO, Judge.

This appeal arises from a judgment in favor of plaintiff-appellee, David Dominici and against defendant-appellant, Wal-Mart Stores, Inc. for injuries Dominici sustained when his vehicle struck a Wal-Mart shopping cart at the intersection of West Judge Perez Drive and Pakenham Avenue in Chalmette, Louisiana.

The case was tried on April 15, 1991. The trial court awarded Dominici forty-five hundred ($4,500.00) dollars for pain and suffering, past, present and future; three hundred and ten ($310.00) dollars for medical expenses; eighty five ($85.00) dollars for towing and one thousand ($1,000.00) dollars in property damage for a total award of five thousand eight hundred and ninety five ($5,895.00) dollars.

Wal-Mart appeals the judgment of the trial court asserting the following assignments of error:

1) The trial court committed manifest error in finding Wal-Mart Stores, Inc., negligent;

2) The trial court committed manifest error in its findings on the type and nature of injuries sustained by the plaintiff;

3) The trial court abused its discretion in the amount of damages awarded to plaintiff;

4) The trial court committed manifest error in not finding the plaintiff solely or comparatively at fault;

5) The trial court committed manifest error in failing to grant defendant's Motion for an Involuntary Dismissal.

TESTIMONY ADDUCED AT TRIAL:

David Dominici testified that shortly before midnight on February 22, 1990 he left his girlfriend's house and drove down Judge Perez Drive toward New Orleans. He stated it was raining heavily, the roadway was dark and visibility was "bleak". As he approached the intersection of Judge Perez Drive and Pakenham Avenue the right front side of his vehicle struck a shopping cart and he lost control of his vehicle. He described the accident as follows:

"A. I was leaving my girlfriend's house around midnight or so, and it was teeming down raining, and visibility was bleak, and it was dark. And I was heading down the highway ...

* * * * * *

... And, all of a sudden, right in front of me was a Wal-Mart basket; and boom, I hit it, and I hydroplaned--hit the ground, ...

* * * * * *

Q. What did you strike after that?

A. The neutral ground and a tree. And I grazed a pole ... I hit the pole and the tree right by each other, hit them and spun after I hit the neutral ground and busted all my rims and tires."

He described the cart as "dark blue" and stated he did not see it until it was right in front of him. He emphatically testified that the accident was unavoidable. It was "seconds", "split second" between the time he saw the cart and struck it.

He testified that he struck his head where the "windshield meets the window" but did not realize he was injured until he began experiencing headaches while sitting in the tow truck.

Dominici testified that several weeks after the accident he went to see Dr. Leon Weisberg because Dr. Weisberg had treated him in the past for vascular headaches. He stated he did not go immediately after the accident because he felt the headaches would "blow over" and only sought treatment when they persisted. He testified he saw Dr. Weisberg only twice and in June, 1990 began treatment with Dr. Robert Murphy because Dr. Murphy participated in Dominici's insurance plan at Avondale Shipyards. He stated it was less expensive and easier to see Dr. Murphy. He stated that he continues to see Dr. Murphy and last saw him two weeks prior to trial. He testified that both Dr. Weisberg and Dr. Murphy prescribed medication to treat the recurrence of the headaches.

On cross examination Dominici admitted that he had suffered in the past with vascular headaches. He stated that he has been treated by Dr. Weisberg as well as other doctors prior to the accident for vascular headaches. He admitted that on his job application with Avondale Shipyards he deliberately failed to disclose that he suffered with headaches in order to secure a job. He insisted that he had seen Dr. Murphy two weeks prior to trial even though Dr. Murphy's report indicates he last saw plaintiff January 17, 1991. He admitted that in April, 1990 he fell off a fence and hurt his back and in September, 1990 he fell backwards against a pipe rack during a sandblasting operation. He was treated for injuries following both accidents by Dr. I.L. Fontenelle. He admitted that he did not inform Dr. Murphy of these accidents.

Dominici vehemently denied telling Dr. Murphy that he lost consciousness. He also vehemently denied that he saw the cart in time to avoid the accident. He stated, "It was right in front of me. Right in front of me ... It was smack there. If I could have cut my wheel this way or that way, I would have hit it no matter what."

William Person testified that he was assistant store manager of the Wal-Mart store located adjacent to the scene of the accident. He stated that on February 22, 1990, he was in charge of securing the shopping carts at closing time. He testified that he searches for the carts by driving around the perimeter of the parking area behind and in front of the store. He stated the carts are rounded up by stockmen and stacked outside along the side of the store. They are not chained or locked together. He testified that customers wheel the carts throughout the parking area and even take them across the adjacent streets. He stated that he does not cross the street to look for carts. Only those that he can see from the parking lot would be retrieved. He stated that on the night of the accident no carts were left in the parking lot and he saw none near or across Judge Perez Drive or Pakenham Avenue.

Officer Eric Levis testified that he investigated the accident the night of February 22, 1990. Upon arriving at the scene he observed a vehicle on the median facing in the opposite direction. He interviewed plaintiff who told him he struck a shopping cart and lost control of his car. His report indicated the Dominici's headlights and wipers were operational and that Dominici was wearing his seat belt. Officer Levis testified that plaintiff was not under the influence of drugs or alcohol and no citation was issued to him. The report further shows no skid marks were visible and Dominici's vehicle traveled 145 feet after the impact. Officer Levis testified it was raining and very windy. The roadway was dark and the street lights were out.

Dr. Leon Weisberg, ¹ an expert in the field of neurology, testified he treated Dominici in March of 1985 and December of 1988 for vascular type headaches commonly called migraine headaches. Dr. Weisberg prescribed valium, cafergot and percodan. He instructed Dominici to return if the headaches persisted.

Dr. Weisberg stated that he did not see Dominici again until March 19, 1990. Dominici told him that the headaches recurred after he was involved in an automobile accident and struck his head on the car window. Dr. Weisberg testified that while this type of headache is caused by trauma, the stress surrounding an accident can cause the headaches to return. He called this type of headache a "letdown" headache which manifests itself after the stress is over. He stated that according to his records Dominici was headache free from December, 1988 until March, 1990 and that given Dominici's history he felt the accident exacerbated the headaches. He testified, however, that there is no way to estimate the duration of the exacerbation. While he stated that he felt Dominici's headaches in May, 1990 were most likely related to stress at work, he admitted that this determination depends basically on the history given by the patient.

THE LAW:

It is well settled that a court of appeal may not set aside a finding of fact by a trial court or a jury in the absence of "manifest error" or unless it is "clearly wrong". Where there is conflict in the testimony, reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluation 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).

When findings are based on a determination regarding the credibility of witnesses, the "manifest error--clearly wrong" standard demands great deference to the trier of fact's findings; for 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. Lirette v. State Farm Insurance Company, 563 So.2d 850 (La.1990), citing, Rosell, supra; Canter, supra.

ASSIGNMENTS OF ERROR 1, 4 AND 5:

At the conclusion of Dominici's case, Wal-Mart moved for an involuntary dismissal asserting Dominici failed to present evidence that Wal-Mart was negligent. The trial court denied defendant's motion and subsequently found Wal-Mart negligent and the cause-in-fact of the accident.

Defendant asserts the trial court committed manifest error in so finding. Specifically, Wal-Mart argues that Dominici failed to establish a legal duty on the part of Wal-Mart to chain, lock or otherwise secure the shopping carts and that Wal-Mart breached that duty. Defendant further asserts the evidence proves the cause-in-fact of the accident was the negligence of Dominici or at the very least the result of a large degree of comparative fault which the trial court should have attributed to him. We disagree.

"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Civil Code Article 2315. These acts...