Hutchinson v. Wal-Mart, Inc.

• Decision Date: 05 December 1990
• Docket Number: WAL-MAR,No. CA,INC,CA
• Citation: 573 So.2d 1148
• Parties: Virginia HUTCHINSON v.89 1672. 573 So.2d 1148
• Court: Court of Appeal of Louisiana — District of US

Page 1148

573 So.2d 1148

Virginia HUTCHINSON v. WAL-MART, INC.

No. CA 89 1672.

573 So.2d 1148

Court of Appeal of Louisiana, First Circuit.

Dec. 5, 1990.

Thomas B. Waterman, Ponchatoula, for plaintiff-appellee.

Frederick Campbell, Lisa Miley Geary, New Orleans, for defendant-appellant.

Before EDWARDS, WATKINS and LeBLANC, JJ.

LeBLANC, Judge.

The primary issues presented in this slip and fall case relate to the apportionment of fault between plaintiff, Virginia Hutchinson, and defendant, Wal-Mart, Inc., and quantum. After trial of this matter, the jury returned a verdict finding Wal-Mart 65 percent at fault and plaintiff 35 percent at fault and assessing plaintiff's damages at $285,000.00. The trial court granted plaintiff's motion for a judgment notwithstanding the verdict (JNOV) and reduced plaintiff's percentage of comparative fault from 35 percent to 10 percent, with a corresponding increase in Wal-Mart's percentage of fault, and raised the amount awarded for numerous items of damages, increasing the total amount awarded from $285,000.00 to $790,000.00. Defendant Wal-Mart now appeals this judgment.

FACTS

On September 2, 1986, plaintiff was shopping in a Wal-Mart store located in Hammond, Louisiana. After selecting several items and placing them in a shopping basket she was pushing for that purpose, she decided to browse further and began walking down an aisle in the vicinity of the sporting goods department. The aisle in question was fourteen feet wide; located at regular intervals along the aisle were at least five stack bases, which are wooden platforms 4x4 foot in size and 6 3/8 inches high used for the purpose of stacking and displaying merchandise. In the center of each stack base there was a 22 inches square sign used to display the price of the items featured thereon. There was approximately five feet of passage room on each side of the stack bases.

Plaintiff walked down the left side of this aisle passing several of these stack bases. As she passed one certain stack base, her interest was caught by some fishing rods located on a cross-aisle. She described what then occurred as follows:

When I got to where the rod and reels were, it caught my eyes. And it was on my left, but my buggy was up past where the rod and reels were and I took a step or two back to turn my buggy to go down the aisle and that is when I fell over the pallet [stack base].

The section of the stack base plaintiff fell onto was empty of merchandise at the time. Ben Thomason, a Wal-Mart employee, testified that shortly before plaintiff's fall he had been restocking this particular stack base when he was called away by a customer needing assistance. He testified he had been gone for only approximately two minutes when plaintiff fell. In any event, he admitted that the section of the stack base upon which plaintiff fell was empty, but stated that the other half of the stack base was completely stocked with merchandise. This testimony was corroborated by the testimony of the store manager, Don Sanford, who arrived at the scene almost immediately after plaintiff fell. Plaintiff herself stated that she did not remember there being any merchandise whatsoever on the stack base, but that she was "not saying there wasn't. I am saying where I fell there wasn't."

Plaintiff was helped to her feet and assisted to the employee's lounge, where she rested for twenty to twenty-five minutes. She was then helped into a car and taken to the office of Dr. Dwayne Burch, a chiropractor, where she complained of pain in her neck, shoulder and back, tingling in her arms, headache and dizziness. Plaintiff was treated by Dr. Burch on a total of twenty-five occasions from the time of the accident through October 21, 1986, but both he and plaintiff stated that she obtained little improvement in her complaints. She then went to her family physician who ordered several tests to be performed. However, since plaintiff did not have the money to pay for these tests and Wal-Mart refused to pay for them, she did not have them done.

On January 13, 1987, plaintiff consulted Dr. Dropadi Kewalramani, a specialist in physical medicine and rehabilitation, continuing to complain of basically the same symptoms she experienced on the date of the fall. Dr. Kewalramani prescribed anti-inflammatories, muscle relaxants and pain medication, as well as moist heat to the neck and back. Plaintiff was ordered to use a heating pad at home for thirty minutes daily. Plaintiff again saw Dr. Kewalramani on February 3, February 17 and March 5, 1987.

On her February 17th visit, plaintiff related to Dr. Kewalramani that she had experienced a severe pain in her middle back upon picking up a blackboard weighing six to seven pounds. At trial, Dr. Kewalramani stated emphatically that, while this incident may have aggravated plaintiff's condition, it was her opinion that it did not cause plaintiff's lower back disc problems.

On March 16, 1987, plaintiff began treatment with Dr. R.C. Llewellyn, a neurosurgeon. A CAT scan ordered by Dr. Llewellyn revealed a spur deformity and some protrusion of the disc at C5-6 and a bulging disc at L5-S1. Plaintiff was hospitalized from June 8 through June 15, 1987 for additional testing, traction and physical therapy. After her discharge, Dr. Llewellyn continued conservative treatment for several months. However, after she failed to respond to this treatment, she was again hospitalized on October 25, 1987, and a myelogram was performed. In addition to confirming the earlier diagnosed problems, this myelogram revealed an additional abnormality at L4-5. On October 29, Dr. Llewellyn performed an anterior cervical discectomy and fusion of the disc at C5-6. Plaintiff was discharged on November 2, 1987 and continued under Dr. Llewellyn's post-operative care.

At the end of December, plaintiff had to be hospitalized again because of a marked worsening of pain in the cervical region following a particular incident during which she attempted to rise from bed one morning and felt a popping sensation in her neck and immediately began experiencing severe pain and headaches. Tests performed during her hospitalization revealed that the intensified pain was due to the bone fragment placed in her neck during the fusion having compressed and collapsed forward. This discovery necessitated the performance of another myelogram to ensure that additional bone fragments or tissue were not compromising the spinal canal. After a hospital stay of approximately twelve days, plaintiff was discharged with instructions to continue wearing a neck brace.

Thereafter, plaintiff's neck condition progressed slowly but satisfactorily. However, her back condition continued to worsen. Plaintiff was admitted to Methodist Hospital on July 10, 1988, where she underwent another cervical and lumbar myelogram. On July 15, 1988 a partial lumbar laminotomy was performed at L4-5 and L5-S1 and a partial discectomy at L4-5 and L5-S1. Plaintiff was discharged on July 21, 1988. At that time, Dr. Llewellyn assigned her a 22 percent disability of the body as a whole. As of the date of trial in February of 1989, plaintiff remained under Dr. Llewellyn's care.

ISSUES

1) Whether the trial court erred in granting a JNOV reducing plaintiff's assessment of comparative fault from 35 percent to 10 percent and correspondingly raising Wal-Mart's from 65 percent to 90 percent?

2) Whether the trial court erred in granting a JNOV increasing the amounts awarded to plaintiff for past and future pain and suffering, mental anguish, past and future loss income and earning potential and future medical expenses?

3) In the event we conclude the trial court erred in granting the JNOV raising plaintiff's damages, whether the jury abused its discretion in awarding excessive amounts for past and future loss income and future medical expenses?

LAW

A trial court may grant a JNOV only when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not reach a contrary verdict. If there is substantial evidence opposed to the motion: i.e. evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion must be denied. Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 (La.1986). In considering a motion for JNOV, the trial court must construe all evidence and reasonable inferences to be made therefrom in favor of the party opposing the motion. Trans Global Alloy v. First Nat. Bank, 564 So.2d 697 (La.App. 5th Cir.1990); Zeagler v. Dillard Dept. Stores, Inc., 521 So.2d 766 (La.App. 2d Cir.1988). Further, the trial court may not weigh the evidence, pass on credibility of witnesses or substitute its own judgment for that of the jury. Wooten v. Louisiana Power & Light Co., 477 So.2d 1142 (La.App. 1st Cir.1985). Basically, a JNOV can be granted by a trial court only when a jury's verdict is one which reasonable men could not have rendered. Adams v. Security Ins. Co. of Hartford, 543 So.2d 480 (La.1989). The standard to be applied by appellate courts in reviewing the grant of a JNOV is whether the trial court's findings in rendering the JNOV were manifestly erroneous. Stafford v. Unsell, 492 So.2d 94 (La.App. 1st Cir.1986).

COMPARATIVE FAULT

In reviewing the trial court's JNOV on the issue of comparative fault the issue presented herein is whether the trial court erred in concluding that, given the evidence before the court, reasonable men could not have reached a verdict finding plaintiff 35 percent and Wal-Mart 65 percent at fault. In its reasons for judgment, the trial court concluded plaintiff "was guilty of a very small amount of negligence, if any."

After a thorough review of the record, we find that the trial court was manifestly erroneous in its conclusion. It is clear from the evidence that the jury could have reasonably found that plaintiff was 35 percent at fault and Wal-Mart was 65...