Orr v. Acad. La. Co.

• Decision Date: 01 May 2013
• Docket Number: No. 12–1411.,12–1411.
• Citation: 157 So.3d 44
• Parties: Gwenda C. ORR, et ux. v. ACADEMY LOUISIANA CO., L.L.C.
• Court: Court of Appeal of Louisiana — District of US

157 So.3d 44

Gwenda C. ORR, et ux.
v.
ACADEMY LOUISIANA CO., L.L.C.

No. 12–1411.

Court of Appeal of Louisiana, Third Circuit.

May 1, 2013

Reversed and rendered.

[157 So.3d 45]

John O. Charrier, Baton Rouge, LA, Charles K. Charrier, Alexandria, LA, for Plaintiffs/Appellees, Gwenda C. Orr and Thomas Orr.

Carl W. Robicheaux, Lafayette, LA, Kimberly G. Anderson, Metairie, LA, for Defendants/Appellants, Academy Louisiana Company, L.L.C., Zurich American Insurance Company.

Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges. PETERS, J.

The defendants, Academy Louisiana Company, L.L.C. (Academy) and its liability insurer, Zurich American Insurance Company (Zurich American), appeal a trial court judgment awarding the plaintiff, Gwenda C. Orr, $50,000.00 in general and special damages for injuries she sustained in an accident which occurred at an Alexandria, Louisiana store owned and operated by Academy. For the following reasons, we reverse the trial court judgment and render judgment in favor of the defendants, dismissing Mrs. Orr's damage claims.

DISCUSSION OF THE RECORD

Academy owns and operates a chain of sporting goods stores generally identified as the Academy Sports and Outdoor Stores (Academy Sports). At approximately 6:30 p.m. on August 21, 2008, Mrs. Orr and her four-year-old great-granddaughter, Lacey, entered the Academy Sports store in Alexandria, Louisiana, to shop for school shoes for Lacey. While Mrs. Orr was attempting to assist the child in trying on a pair of shoes, she was struck by an adult male riding a small girl's bicycle. The impact caused her to sustain

[157 So.3d 46]

significant personal injuries. The man riding the bicycle offered her assistance, but when she refused his help, he left the scene. Store personnel later located the bicycle after Mrs. Orr reported the accident, but were unable to locate the bicycle rider.

Mrs. Orr filed suit in Alexandria City Court against Academy and Zurich American,¹ seeking both general and special damages. Her husband, Thomas Orr, joined in the litigation, making a claim for loss of consortium damages based on Mrs. Orr's injuries. The defendants answered the petition by denying liability and asserting the fault of the unknown bicycle rider and the comparative fault of Mrs. Orr as the cause of the plaintiffs' damages.

Following a May 14, 2012 trial on the merits, the trial court took the matter under advisement. On July 13, 2012, the trial court rendered reasons for judgment, finding that Academy was one hundred percent at fault in causing Mrs. Orr's accident. Finding that Mrs. Orr sustained $17,538.08 in medical expenses and suffered $45,000.00 in general damages, the trial court awarded Mrs. Orr its jurisdictional limit of $50,000.00 in damages.² After the trial court executed a November 21, 2012 judgment, the defendants perfected this appeal, asserting three assignments of error:

1. The trial court erred in finding that plaintiff met her burden of proof.

2. The trial court erred in finding Academy was negligent when the incident could not have been reasonably anticipated.

3. The trial court erred in failing to assign fault on the unknown customer/tortfeasor.

OPINION

A trial court's findings of fact are reviewed on appeal pursuant to the manifest error—clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, an appeal raising a question of law requires the reviewing court to determine whether the trial court was legally correct in its ruling. Brooks v. Popeye's, Inc., 11–1086 (La.App. 3 Cir. 3/14/12), 101 So.3d 59, writ denied, 12–1755 (La.11/2/12), 99 So.3d 676.

The evidence presented is basically not in dispute. Photographs reveal that the bicycles are displayed on a three-tier racking system traversing one side of the bicycle aisle. Each bicycle sits on a slanted stand, comprised of a u-shaped metal bar. The bicycle is held upright by front and rear, inverted L-shaped stands, which cradle the bicycle's tires. The front-stand system, which fits around the front of the tire, locks into place by a collar located on the u-shaped metal bar, which unlocks by sliding backwards. The rear-stand system, comprised of two stands which fit around the front and back of the rear tire, is connected to a movable plate, located inside the channel of the u-shaped metal bar.

According to Mr. Randall C. Hoben, the Alexandria store director, one must unlock the front stand by sliding the collar backwards and then lowering the stand in order to remove the bicycle from the rack. This action requires that the bicycle be held in place to prevent the rear-stand system from sliding forward as the front

[157 So.3d 47]

stand is lowered. Once the front stand is unlocked, the bicycle, whose rear tire is still cradled in the rear stand, is pulled forward, lifted out of the rear stand, and then lowered to the floor. Mr. Hoben testified that while it is somewhat difficult for a bicycle to be removed from the rack, Academy's policy is to encourage its customers to handle all of the merchandise except for guns and high-end fishing reels. The only restriction placed on that policy is that customers are forbidden from climbing store ladders. He testified that the bicycle display is located in the team-sports department and that the racks holding the bicycles are designed to keep the bicycles upright and stable and to prevent them from falling or rolling forward onto customers. He also testified that the display allows for customers or sales personnel to remove bicycles and further inspect them on the aisle floor. This allows a potential purchaser to make a decision concerning which bicycle to purchase and to transport it to the front of the store and complete the purchase at the check-out area.

The shoe department, on the other hand, is located in the rear of the store in the opposite direction one might expect a customer to transport a bicycle. Mr. Hoben testified that the bicycles are separated from the shoe department by an aisle of bicycle and skateboard accessories. A customer going from the bicycle section to the shoe department does so by one of two ways. He can either exit the bicycle aisle by moving toward the center of the store and turning toward the back of the store via the major store walkway,³ or he can exit the bicycle aisle in the other direction and proceed toward the rear of the store along the exterior wall of the store.

Both Mr. Hoben, who had been employed by Academy for fifteen years, and Mary Beth Thomas, the manager on duty at the time of Mrs. Orr's accident, testified that they had never been involved in the investigation of an accident similar to this. In fact, even Mrs. Orr suggested that “[n]ever in a million years” would she have expected such an accident to occur in Academy Sports. Mr. Hoben was more specific when...