Lewis v. Wal-Mart Stores, Inc.
| Decision Date | 28 June 1989 |
| Docket Number | No. 88-388,WAL-MART,88-388 |
| Citation | 546 So.2d 267 |
| Parties | Lolita LEWIS, Plaintiff-Appellee, v.STORES, INC., et al., Defendants-Appellants. 546 So.2d 267 |
| Court | Court of Appeal of Louisiana — District of US |
Wm. J. Bennett, Marksville, for plaintiff-appellee.
Stafford, Stewart, James D. Kirk, Alexandria, for defendants-appellants.
Before DOMENGEAUX, LABORDE and KING, JJ.
This appeal presents for review the issue of the correctness of a jury verdict and the correctness of the judgment rendered by the trial court.
Lolita Lewis (hereinafter plaintiff) filed suit to recover damages for personal injuries against Wal-Mart Stores, Inc. (hereinafter Wal-Mart) and its manager, David Wilson. The suit alleged that defendants were liable, in solido, in the amount of $352,000.00, together with legal interest and court costs, for acts of negligence which were the legal cause of plaintiff's injuries. On the first day of the trial, plaintiff dismissed her suit against David Wilson with prejudice and proceeded to trial only against Wal-Mart. After trial on the merits the jury rendered a verdict, finding Wal-Mart guilty of fault which was the legal cause of plaintiff's injuries, finding the degree of fault of plaintiff and Wal-Mart to be 5% each, and finding the amount of plaintiff's damages to be $30,000.00. The portion of the jury verdict concerning Wal-Mart's degree of fault was set aside by the court, and Wal-Mart was found to be 95% at fault. The court then rendered judgment in favor of plaintiff and against Wal-Mart for 95% of the $30,000.00 damage award of the jury, making a total damage award to plaintiff in the amount of $28,500.00. A formal written judgment was signed. Plaintiff and Wal-Mart both filed for Judgment Notwithstanding The Verdict or, alternatively, Motions For New Trial or, alternatively, To Amend The Judgment. Both of these motions were heard and the trial court amended its original signed judgment to reflect the dismissal of the defendant, David Wilson, but otherwise denied the relief sought by both motions. Defendant timely filed a suspensive appeal. Plaintiff answered the appeal, contesting the jury finding that she was 5% at fault. We amend and render judgment.
On March 27, 1986, plaintiff, a fifty-two year old resident of Brookhaven, Mississippi, was visiting her family in Marksville, Louisiana. She accompanied her sister, Jan Laborde, and her niece and nephews, Wendy Marouf, Joseph Warren, and Jason Warren, on a shopping trip to the Wal-Mart store in Bunkie, Louisiana. Plaintiff testified that the group entered the store through a side entrance in the gardening department. Once inside, the group separated, with Laborde and her two sons walking toward the toy department and plaintiff and Marouf walking toward the health and beauty aids department. Marouf proceeded down an aisle in the health and beauty aid department while plaintiff stopped to look at some Easter cards. Plaintiff estimates that she was in the store for twenty or twenty-five minutes prior to her accident.
Plaintiff claims that when she left the Easter cards display, she went directly to the health and beauty aids department where Marouf was shopping. Marouf was standing in the next aisle from plaintiff, facing the wall, and three other women were talking in the aisle with their backs toward plaintiff. A Milk of Magnesia display stood between the aisle where plaintiff was walking and the aisle where Marouf shopped. Plaintiff turned the corner of the aisle and was approaching her niece when the accident occurred. Plaintiff claims that her right foot slid on "something wet" and left a mark on the floor. Plaintiff was wearing a denim wrap-around skirt and crepe rubber soled shoes. She claimed that she fell on her right side and on her elbow. Plaintiff testified she could not identify the alleged substance upon which she fell, but she identified it as a liquid, saying: "I knew there was something there because it slid too quick."
Marouf testified that when she heard her aunt scream, she turned and actually saw her aunt lose her balance and fall to the floor. She remembered that plaintiff's feet came out in front of her body when she fell, toppling several bottles from the Milk of Magnesia display. Marouf testified that she saw where plaintiff's foot had slid through a wet substance, and she touched the substance with her finger. Marouf stated that the substance was watery and smelled like lemon. Wal-Mart's employee, Judy Ducote, testified that she remembered hearing Marouf remark about something on the floor immediately after the accident. Marouf also testified she saw a scuff mark from plaintiff's shoe on the floor in the exact spot where plaintiff slid in the lemony substance. Warren testified that although he did not witness the accident, he did see the puddle on the floor with the scuff mark through it. He also remembered seeing a large wet spot at the hip of plaintiff's skirt. Jan Laborde testified that when she arrived in the aisle where plaintiff fell, plaintiff was still on the floor and was crying. She also saw the substance on the floor with the scuff mark through it and the spots on plaintiff's skirt. The health and beauty aids department manager, Mrs. Judy Ducote, claimed that plaintiff did not cry. She also related that David Wilson, the manager, picked up a cigarette butt on the floor near plaintiff's head. Mrs. Ducote testified that the floor had been swept with a large dust mop earlier that morning and had been cleaned the night before the accident and that she and Wilson had inspected the aisle shortly before the accident and had found nothing on the floor.
The store manager, David Wilson, also testified that plaintiff did not cry but was stunned and embarrassed. He claimed that he and Mrs. Ducote had just inspected the aisle ten minutes before the accident. He corroborated that he found a cigarette butt on the floor, but could not remember where it was in relation to plaintiff. On the accident report, Wilson made no mention of plaintiff's eyewitness, Wendy Marouf, nor did he accurately depict the condition of the aisle. He wrote that the aisle where the accident occurred was clean and dry. Wilson also ordered that the laxative display plaintiff had knocked over be cleaned before any accident scene photographs were taken.
Ducote, Wilson, and 33 other employees of Wal-Mart all testified about the defendant's daily cleaning procedures included periodic inspections, five or six safety sweeps, and zone defense, where employees clean their departments upon arrival, before lunch, and at closing. They testified that if a spill occurred, a stockman was called to clean the floor and an employee was required to stand by the area until it was clean.
Jan Laborde and her children obtained permission from Wilson to take plaintiff to the hospital. To the date of the trial, plaintiff has incurred $12,425.00 in medical expenses for treatment of her back, neck, and hip pain and may require neck surgery to fuse her vertebrae. The judgment of the trial court awarded her 95% of the total damages of $30,000.00 found by the jury, which was a total award of $28,500.00.
Wal-Mart appeals alleging eight specifications of error which are that:
(1) The jury was manifestly erroneous in finding that there was a foreign substance on the floor of the Wal-Mart store which caused plaintiff to slip and fall and sustain an injury;
(2) The jury was manifestly erroneous in finding that the Wal-Mart employees either created a hazard or that Wal-Mart failed to use good procedures so that it would have known under most circumstances whether or not a hazard existed;
(3) The trial court erred in not submitting to the jury the suggested verdict form submitted by defendant and in not instructing the jury that all fault assessed must total 100%;
(4) The court erred in accepting the verdict and interrogatories of the jury and in not declaring the jury's findings to be an illegal verdict and not returning the jury for further deliberations or alternatively, granting a new trial;
(5) The trial court erred in entering a judgment for $28,500.00 which was not in conformity with the jury's verdict and its answers to interrogatories;
(6) The trial court erred in entering a judgment adjudging Wal-Mart to be solidarily bound and therefore, liable for 100% of the damages less plaintiff's proportionate share;
(7) The trial court erred in not applying LSA-C.C. Article 2324 as amended by the 1987 Legislature so that Wal-Mart's fault could not exceed 50%; and
(8) The jury was manifestly erroneous in finding that plaintiff was injured and in awarding excessive damages.
The first and second specifications of error urged by Wal-Mart concern whether or not the trial court was correct in adopting the jury's finding of fact that plaintiff slipped and fell in a foreign substance on Wal-Mart's floor and that Wal-Mart was guilty of fault or negligence which was the legal cause of plaintiff's fall and damages. As these two specifications of error are interrelated, they will be discussed together.
Jury determinations are accorded great weight and should not be disturbed unless they are clearly wrong. Miller v. Winn-Dixie Stores, Inc., 527 So.2d 989 (La.App. 3 Cir.1988), writ den., 531 So.2d 763 (La.1988), and cases cited therein. An appellate court must give great weight to conclusions reached by the trier of fact, and if there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Miller v. Winn-Dixie Stores, Inc., supra; Novak v. Texada, Et Al. Clinic, 514 So.2d 524 (La.App. 3 Cir.1987), writ den., 515 So.2d 807 (La.1987). The appellate court should not disturb a finding of fact unless it is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Miller v. Winn-Dixie Stores, Inc., supra.
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