Guillot v. Dolgencorp, L.L.C.
| Decision Date | 27 November 2013 |
| Docket Number | No. 13–587.,13–587. |
| Parties | David GUILLOT v. DOLGENCORP, L.L.C. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Peter J. Wanek, McCranie, Sistrunk, Anzelmo, New Orleans, LA, for Defendant/Appellant, Dolgencorp, L.L.C.
Cory P. Roy, Attorney at Law, Marksville, LA, for Plaintiff/Appellee, David Guillot.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
While shopping at a Dollar General store owned and operated by Dolgencorp, L.L.C. in Marksville, Louisiana, David Guillot slipped and fell on a discarded McDonald's cup, sustaining soft tissue injuries. Following a bench trial on the merits, the trial court found Dolgencorp liable and awarded Mr. Guillot $15,000.00 in general damages and $2,426.45 in special damages. We find that the trial court abused its discretion in the admission of certain deposition testimony. Nevertheless, we uphold the trial court's judgment, and we affirm.
We shall consider:
(1) whether the trial court abused its discretion in admitting the deposition testimony of the Dollar General assistant manager into evidence in lieu of live testimony;
(2) whether Mr. Guillot proved by a preponderance of the evidence that Dolgencorp had constructive notice of the McDonald's cup;
(3) whether the trial court erred in finding that Mr. Guillot carried his burden to prove that the accident caused his alleged injuries; and
(4) whether the trial court erred in awarding Mr. Guillot excessive damages.
On April 23, 2011, David Guillot was shopping in a Dollar General store in Marksville, Louisiana, when he slipped on a McDonald's cup and fell in one of the store aisles. Kimberly Ragsdale, the assistant manager of the Dollar General, came to Mr. Guillot's assistance. Mr. Guillot then left the store. He later filed this lawsuit.
At trial, Mr. Guillot served as the only witness on his behalf. He testified that he slipped on the McDonald's cup that contained a clear liquid and suffered injuries to his lower back, right hip, and right knee. In addition to his testimony, Mr. Guillot submitted into evidence video surveillance footage showing that for the period of roughly two minutes before the incident, no person entered the area where Mr. Guillot fell. The video further showed a plastic bag discarded on the floor in another part of the store for roughly ten minutes during the time of the accident.
At trial, the court admitted into evidence the deposition of Kimberly Ragsdale in lieu of live testimony. It determined that although Ms. Ragsdale lived within the subpoena power of the court, her deposition testimony was limited in nature to her observations of the accident scene and the store's inspection policies. Furthermore, the court concluded it should be admitted to minimize resulting court costs from issuing a continuance and instanter subpoena.
After denying its motion for involuntary dismissal, the trial court held that Dolgencorp was solely liable for Mr. Guillot's fall under La.R.S. 9:2800.6, concluding that a store has a duty to keep its aisles and passageways clear of objects that might cause injury and a patron does not have a duty to watch every step that he or she may take while shopping. The trial court reasoned that there was a McDonald's cup in the aisle, and given the presence of the neglected plastic bag in another part of the store, the store had constructive notice of the potential hazard. The trial court awarded Mr. Guillot $15,000.00 in general damages and $2,426.45 in special damages.
The decision to admit deposition testimony at trial is discretionary and will not be disturbed upon appeal absent an abuse of discretion. Bruins v. U.S. Fleet Leasing, Inc. 430 So.2d 386 (La.App. 3 Cir.1983); Dickens v. Commercial Union Ins. Co., 99–698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. Furthermore, even if the trial court's evidentiary ruling is erroneous, reversal is not warranted unless the error prejudiced the complainant's cause. State Farm Mut. Auto. Ins. Co. v. Little, 34,760 (La.App. 2 Cir. 6/20/01), 794 So.2d 927.
With regard to constructive notice, a trial court's determination of whether a merchant had constructive knowledge of a condition creating an unreasonable risk of harm is a factual finding that may not be set aside absent manifest error. Smith v. Brookshire Grocery Co., 32,619 (La.App. 2 Cir. 1/26/00), 750 So.2d 450. We cannot disturb the trial court's ruling unless it is unreasonable or clearly wrong under the record. Mart v. Hill, 505 So.2d 1120 (La.1987).
Dolgencorp argues that the trial court erred in admitting the deposition of Ms. Ragsdale in lieu of live testimony. We agree.
Louisiana Code of Civil Procedure Article 1450, in part, states:
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
....
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
Ms. Ragsdale's deposition was taken for the purpose of discovery, and there was no stipulation by the parties that this deposition could be used at trial in lieu of live testimony. She resided within the subpoenapower of the court, and there is no evidence in the record that she was unavailable to testify. As such, Ms. Ragsdale's deposition may only be admitted if an exceptional circumstance exists as defined under La.Code Civ.P. art. 1450. While the trial court believed the limited nature of Ms. Ragsdale's testimony combined with a desire to limit court costs amounted to exceptional circumstances, we disagree.
Under Article 1450, an exceptional circumstance must “make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” La.Code Civ.P. art. 1450(A)(3)(c). Here, the only hurdles to Ms. Ragsdale testifying live are court costs from issuing a continuance and instanter subpoena. While burdensome, court costs do not impede the interest of justice nor do they outweigh the value of live witness testimony; they are merely expected and inevitable consequences of litigation. To hold otherwise would amount to eliminating live testimony altogether in favor of depositions to save court costs which flies in the face of Article 1450.
Furthermore, while Ms. Ragsdale's deposition testimony was limited in scope, it contained discrepancies regarding the inspection times of the store prior to the accident that not only could have been rectified via live testimony but also potentially prejudiced Dolgencorp regarding the court's determination of constructive notice. Given the ease in which Ms. Ragsdale could have been called into court via instanter subpoena, the highly favored preference of presenting witness testimony orally, and the potential prejudice of the deposition, we find the trial court's admission of Ms. Ragsdale's deposition testimony to be an abuse of discretion. As such, we exclude consideration of this testimony in our review of the trial court's finding of constructive notice. See Maricle v. Cloud, 341 So.2d 29 (La.App. 3 Cir.1976).
Dolgencorp contends that the trial court erred in concluding that it had constructive notice of the unreasonable risk of harm presented by the McDonald's cup under La.R.S. 9:2800.6. We do not agree.
Louisiana Revised Statutes 9:2800.6, in part, provides:
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 existing 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 notice of the condition which caused the damage, prior to the occurrence; and
(3) The merchant failed to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care.
The Louisiana Supreme Court has explained that the constructive notice requirement of La.R.S. 2800.6 includes a mandatory temporal element, such that “[t]he claimant must make a positive showing of the existence of the condition prior to the fall.” White v. Wal–Mart Stores, Inc., 97–393, p. 4 (La.9/9/97), 699 So.2d 1081, 1084. While the supreme court concluded it was unnecessary to show precisely how long the hazard existed, the claimant must show that the period of time is “sufficiently lengthy” such that a merchant should have discovered the hazard. Id.
In proving the temporal element, the plaintiff may rely on circumstantial evidence over direct evidence to show that constructive knowledge can be...
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