Zeagler v. Dillard Dept. Stores, Inc.

• Decision Date: 24 February 1988
• Docket Number: No. 19356-CA,19356-CA
• Citation: 521 So.2d 766
• Parties: Sue ZEAGLER, Plaintiff-Appellee, v. DILLARD DEPARTMENT STORES, INC. and Liberty Mutual Insurance Company, In Solido, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 766

521 So.2d 766

Sue ZEAGLER, Plaintiff-Appellee, v. DILLARD DEPARTMENT STORES, INC. and Liberty Mutual Insurance Company, In Solido, Defendants-Appellants.

No. 19356-CA.

Court of Appeal of Louisiana Second Circuit.

Feb. 24, 1988.

Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for defendants-appellants.

C. William Gerhardt & Associates by C. William Gerhardt, Shreveport, for plaintiff-appellee.

Before MARVIN, SEXTON and LINDSAY, JJ.

MARVIN, Judge.

In this action for damages arising out of a slip and fall by a shopper in a department store and after a trial by jury, the store appeals a JNOV that assessed all fault to the store and awarded the shopper $15,000 in general damages, plus $5,800 in special damages.

The jury, apparently making no attempt to allocate fault that would total 100 percent, found the store 20 percent at fault and the plaintiff 50 percent at fault. The judgment based on the jury verdict awarded plaintiff $5,125 (one-half of the total of $4,450 general damages and $5,800 special damages).

We affirm the JNOV insofar as it allocates fault. We amend the JNOV to reduce the general damages to $12,000. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The trial court rendered JNOV on the finding that "there was no evidence upon which the jury could have based a finding that plaintiff was 50 percent negligent."

The store contends that the trial court misapplied the standard for JNOV and that the judgment should be amended to conform to the jury's assessment of fault and damages. The store also contends that it should not have been required to pay to the clerk of the trial court the accrued costs attributable to plaintiff in order to suspensively appeal and that, in any event, the costs below and here should be allocated according to the jury verdict's allocation of fault.

FACTS

The 65-year-old plaintiff, Ms. Zeagler, joined her adult daughter to shop at a Bossier City mall on a weekday in May, 1985. While away from her daughter, she entered the defendant department store about noon and there slipped on a white plastic clothes clip which was on the wooden parquet floor inside the store's entrance. The white plastic clip, which measures 1 1/2"' X 3/8"' X 1/4"", is here depicted:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Ms. Zeagler was 5'6"' tall and weighed 165 lbs. She said:

My right foot just turned and it threw me forward. And I hit the floor on my right side and twisted my ankle, hurt my ankle and even my head and my shoulder.

She said she got up off the floor, placed the clothes clip in her purse, and hurriedly left the store to avoid further embarrassment. Shortly thereafter she met her daughter as planned and told her about having fallen and hurt herself. They drove to a Bossier restaurant to eat lunch. She said several people saw her fall, but she produced no witnesses to testify to the event at trial.

A waitress-friend at the restaurant testified that when Ms. Zeagler and her daughter entered, Ms. Zeagler complained to her about just having slipped and fallen at defendant's store in the Bossier mall. Ms. Zeagler's employer, her daughter and son-in-law, and two doctors that treated her also testified that Ms. Zeagler attributed her complaints to the slip and fall in the store on May 16. Plaintiff returned to the store on May 27 to report the fall to store supervisors. She was referred to an insurance claims adjuster who recorded her statement on May 29.

One or more of four employees of defendant's cosmetics department that is adjacent to the entrance of the store where Ms. Zeagler fell, would have been working on May 16. These employees testified that they did not recall plaintiff falling.

Other store employees testified that the floors are inspected, particularly for such objects as clothes clips that would damage vacuum cleaners, before the store opened each morning. At that time the carpets are vacuumed and the parquet floors are dust mopped. Maintenance workers thereafter normally make periodic inspections of the floor "about every 30 minutes," according to the maintenance supervisor. The supervisor said that the store, however, maintained no record of these inspections, or whether or when the normal inspections were made before noon on May 16.

The sales manager for cosmetics and ladies' clothing testified that clothes clips are removed from clothing in the back of the sales area before clothes are hung for display and sale and that each sales employee is responsible for policing the floor in his or her area. The clothes clip could have come from defendant's store or from another store in the mall.

MEDICAL EVIDENCE

Plaintiff first saw a general practitioner 11 days after the fall. She saw an orthopedist between July 3 and December 26, 1985, on nine occasions. She was treated as an outpatient at her hometown hospital through December 1985. She complained of pain in her neck, back, foot, and shoulder and was given prescriptions for pain and inflammation, cortisone injections, physical therapy, and exercises.

The general practitioner diagnosed osteo-arthritis and cervical strain. The orthopedist eventually diagnosed degenerative disc disease as well as a "Martin's Neuroma," a nerve dysfunction between the third and fourth toes of plaintiff's right foot. Neck motion was limited by 30 percent. Back motion was limited by 20 percent.

Notwithstanding her pre-existing osteo-arthritis and degenerative disc, plaintiff told her doctors and testified that she had not experienced pain or limited motion before her fall. To the time of trial in February 1987, Ms. Zeagler, who worked as a sitter-practical nurse for an elderly bedridden gentleman and his wife, lost 695 hours of work because of her treatments and her condition, but had continued to perform most of her duties except heavy lifting of her patient and mopping of the floor. Plaintiff was awarded special damages by the JNOV which are not at issue in this appeal.

The orthopedist testified that Ms. Zeagler's complaints were not fabricated and that she would continue to experience pain during her lifetime. He assigned a four percent permanent disability of the body and opined that her condition was aggravated and rendered symptomatic by the fall. The general practitioner also opined that plaintiff's injuries and aggravations were caused and were rendered symptomatic by the fall. Defendant did not produce medical expert witnesses.

JUDGMENT NOTWITHSTANDING THE VERDICT

By JNOV, the trial judge may correct a legally erroneous verdict by either or both modifying fault and damages that the jury may have assessed. CCP Art. 1811. See Hardin v. Munchies Food Store, 523 So.2d 1321 (La.App. 2d Cir.1988).

CCP Art. 1811 and its interpretation derive from FRCP. When the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the JNOV motion is proper. Scott v. Hosp. Serv. Dist. No. 1, 496 So.2d 270 at 273 (La.1986), citing Boeing v. Shipman, 411 F.2d 365 (5th Cir.1969).

COMPARATIVE FAULT

Defendant speculates that the jury had doubts "as to whether the accident even occurred." Such speculation does not compel a finding that plaintiff was negligent. The jury found that the store was at fault and that plaintiff's injuries were caused by that fault. We must determine whether the jury's finding that plaintiff's negligence contributed to her injuries is so unreasonable that JNOV is warranted.

When granting the JNOV on the issue of comparative fault, the trial judge does not substitute his evaluation of the evidence for that of the jury. See Stafford v. Unsell, 492 So.2d 94 (La.App. 1st Cir.1986). The party against whom a motion for JNOV is made must be given the benefit of every legitimate and reasonable inference that can be drawn from the evidence by the jury. Hardin v. Munchies Food Store, 510 So.2d 33, 34 (La.App. 2d Cir.1987).

No witnesses testified at trial about the fall other than plaintiff. There was no evidence that plaintiff was walking too fast or that she was unobservant or otherwise careless. Defendant also speculates that "the jury may have felt [plaintiff] should have been on a greater lookout for any objects that may have been on the floor." Any such reasoning on the jury's part would have been legally erroneous and subject to being corrected by JNOV.

The size and color of the clothes clip make it extremely difficult to see. Shoppers simply do not have a duty to meticulously and vigilantly watch over the floors of retail stores that display great volumes and varieties of merchandise to attract shoppers and promote sales. Once a plaintiff has proved that she slipped on a hazardous object on the floor, the defendant store owner is required to prove that its employees did not cause the hazard and that it exercised such a degree of care that it would have known of and either removed or warned of the hazard created by another shopper within a reasonable time under logical and conceivable circumstances. See McCardie v. Wal-Mart Stores, Inc., 511 So.2d 1134 (La.1987).

The shift in the burden from the shopper to the store owner relieves the shopper of her burden of showing the store owner's actual or constructive knowledge of the existence of the hazard. McCardie, supra, citing Brown v. Winn-Dixie Louisiana, Inc., 452 So.2d 685 (La.1984). The clean-up and policing procedures in McCardie were more detailed than in defendant's store. Even should we assume defendant's clean-up and policing procedures were adequate, we must find, as McCardie did, that proof of adequate procedures is not proof that the floor hazard was not caused by one of the store's own employees.

The testimony of the manager of the ladies' clothing and cosmetic departments falls far short of proving that the hazard created by the clothes clip on the floor was not caused by an...