Meshell v. Shamsie

• Decision Date: 11 May 1988
• Docket Number: No. 87-340,87-340
• Citation: 528 So.2d 1023
• Parties: Al L. MESHELL, Plaintiff-Appellee, v. Sahid C. SHAMSIE and Audubon Insurance Company, Defendants-Appellants. 528 So.2d 1023
• Court: Court of Appeal of Louisiana — District of US

Page 1023

528 So.2d 1023

Al L. MESHELL, Plaintiff-Appellee, v. Sahid C. SHAMSIE and Audubon Insurance Company Defendants-Appellants.

No. 87-340.

528 So.2d 1023

Court of Appeal of Louisiana Third Circuit.

May 11, 1988.

E.M. Nichols, Ted Nichols, Lake Charles, for plaintiff-appellee.

Woodley, Barnett, E.E. Woodley, Lake Charles, for defendants-appellants.

Before FORET, STOKER and DOUCET, JJ.

DOUCET, Judge.

Defendants, Sahid C. Shamsie and his insurer, Audubon Insurance Company (Audubon), appeal from a judgment rendered against them and in favor of plaintiff, Al L. Meshell. Plaintiff has answered the appeal seeking an increase in general damages.

On April 14, 1986, plaintiff allegedly tripped and fell over a four-inch high wooden platform on the floor of defendant Shamsie's grocery store, the Park-N-Shop, located in Lake Charles. He subsequently experienced back pain and was diagnosed as suffering from a herniated lumbar disc. On July 22, 1986, plaintiff underwent surgery to remove extruded disc material at the L4-5 level which was pressing on a nerve.

Evidence adduced at trial left the factfinder with a choice between two contradictory versions of the incident in question. Plaintiff and a companion, Kenneth Cornett, went fishing on the morning of April 14, 1986, putting their boat in the water at approximately 10:00 a.m. They finished fishing about 5:00 p.m. While fishing, they drank five or six beers between them with the plaintiff drinking two or three. On the way back to Lake Charles they apparently stopped somewhere for a sandwich and a soft drink, although the recollection of both men on this point is somewhat foggy. The two planned to play cards later that evening and stopped at defendant's store to buy a six-pack of beer.

According to both plaintiff and Cornett they entered the store and proceeded towards the rear. They passed by the meat counter on their right, turned right then left, and proceeded ahead. The particular section of the aisle which they were allegedly in at this point had a low bin-type freezer on their left and upright glass-doored freezers to their right. The beer coolers were some 25 to 30 feet ahead. Plaintiff testified that he was walking down the aisle when he suddenly thought that he'd passed the beer cooler. He hesitated and turned around facing towards Cornett who was several paces behind him. He said something to Cornett then realized he was mistaken about the beer and began to turn his head around in the direction he had been going. At this point he claimed he tripped backwards over a four-inch high wooden platform which covered a one-inch plastic drain pipe running across the width of the aisle. He fell backwards onto a display of large plastic bottles of soft drinks and landed on the floor.

This fall, it was alleged, caused the injury to his back. When he returned to his truck, plaintiff felt a "little twinge" in his back when he sat down. Later that evening he experienced back discomfort while playing cards with Cornett and their wives. He was treated by a general practitioner for several weeks but was referred to a neurosurgeon after a CT scan showed a possible ruptured disc.

Plaintiff testified that he was not intoxicated at the time of the accident and that it had been two or three hours since he had finished the last of his two or three beers consumed while fishing. He recalled that the wooden structure covering the drain pipe was four to five inches high and three or four feet long. He also stated that a wood soft drink crate was overturned on top of the pipe. He recalled that the entire length of the pipe was not covered and that nothing was on top of the platform. Plaintiff testified that he had been in the store a few times over the past several years and had walked down the aisle in question. On those occasions he had crossed over the platform, actually stepping on it.

Kenneth Cornett was a friend of the plaintiff's--they lived close together. He had known him for approximately six years and saw him once or twice a week. He corroborated plaintiff's testimony regarding the details of the fishing trip including the splitting of five beers between them. He was three or four feet behind the plaintiff when he tripped. He recalled that plaintiff stopped and turned around because he thought he had passed the beer cooler. Cornett stated that when the plaintiff began to turn back around he tripped over the pipe and fell. Cornett did not see any type of wooden platform or other object over the pipe. All he remembered seeing was the plastic pipe extending across the full width of the aisle. Cornett testified that he had been in the store "10 or 15, maybe 20 times before," and had never seen a wood pallet or empty overturned soft drink crate covering the pipe.

A number of other witnesses testified on behalf of plaintiff, all of whom had been in defendant's store at one time or another. John Beeton, a private investigator employed by plaintiff's counsel, took twelve photos of the area where the accident occurred. The photos depict a small diameter white plastic pipe running across the full width of the aisle. At the time these photos were taken, access across the pipe was blocked by three clear plastic soap displays. Defendants admit that this particular display was not on the floor at the time of the alleged accident. Beeton also testified that he used to buy meat at the store approximately once a month. He had personally walked in the aisle where the pipe runs across the floor and had seen old soft drink crates covering the pipe. Beeton stated that he and his wife used to cross over the crates stepping on them as they passed. He had never seen anything on top of the crates such as merchandise on display. On occasion he recalled seeing no crate--apparently meaning that on those occasions the pipe was completely uncovered. The last time he had been in the store before the April 14, 1986 accident was late 1985 or early 1986.

Sixteen-year old Mack Solice was a friend of the plaintiff's and had been a customer at the store. The youth has a brother, Russell, who is paralyzed from the shoulders down and is confined to a wheelchair. Solice testified that he was in the store with Russell on April 10th, four days before the accident. He recalled the date because it was his birthday. On that day the pipe was "open" there was no "display case" as depicted in Beeton's photographs. While shopping that day Solice walked over the pipe, leaving Russell in his motorized wheelchair on the other side. On another occasion, when Russell was in a lighter, manually operated wheelchair, he and two friends picked up the chair and lifted Russell across the pipe. Solice further testified that the pipe had a soft drink box or something over part of it which he occasionally stepped on while crossing the pipe.

Russell Peavey had known the plaintiff four or five years and had worked with him in the past. He had been a customer at defendant's store for about ten to twelve years and had been down the aisle in question "a bunch of times." He testified he had been in the store between April 17th and 19th--after the accident. He remembered the pipe having a soft drink box "or something" over the middle of it--only part of the pipe was covered. Mr. Peavey used to walk over the pipe on occasion and had never seen a merchandise display over it. Mrs. Russell Peavey had known the plaintiff for a couple of years. She recalled being in the store around March 19, 1986. She saw the soft drink crate turned upside down on the pipe but picked up the front wheels of her shopping basket and crossed over the pipe. She stated, however, that you could have maneuvered a shopping basket around the side of the crate.

Maybell Lewis used to work with plaintiff's wife and had been a customer at defendant's store for up to 20 years. She shopped at the store at least once a week and had been there close to the date of the accident. On that particular occasion she recalled that the pipe was exposed and there was no display over it. She also saw it uncovered after April, 1986. Mrs. Lewis testified that in the past her husband and sister had stumbled on the exposed pipe. She stated that you had to cross the pipe to get to the cold cut cooler. She had never seen a wooden pallet or soft drink case covering the pipe. Sixteen-year old Derek Cornett knew plaintiff and his wife. Derek was a nephew of plaintiff's friend, Kenneth Cornett. Derek was in defendant's store April 17, 1986 and recalled that the pipe was uncovered. Wilson Fontenot was another regular customer and had seen the pipe partially covered by a soft drink crate or a wooden pallet. Billy Thrasher, another friend of the plaintiff's, testified that he had seen the pipe before. In April and May 1986, it was "open" and, later, he noticed that it had been covered.

Plaintiff's wife, Anna Louise, testified that her husband mentioned the accident to her when he and Cornett came home from fishing that evening. At that time, he was just "sore" and was sore for the next few days. She stated that he was not drunk when he came home that evening. Lydia Cornett, Kenneth's wife, testified that neither plaintiff nor her husband appeared intoxicated when they returned from fishing. Another of Kenneth Cornett's nephews, Kevin, was present when plaintiff and his uncle returned from fishing. He testified that neither of the two men were intoxicated.

Sahid C. Shamsie, the owner of the store, was not present when the accident occurred. However, he testified that the pipe in question was covered with a wood pallet and "always had some kind of display" on it. According to Shamsie there was always a display blocking that aisle and that the aisle had not been open in the last eight years. He identified a photograph showing the pipe completely covered with a wooden pallet upon which were stacked cases of tomato sauce, two, three and four cases high. This photograph, along with...