Zeno v. Great Atlantic and Pacific Tea Co.

• Decision Date: 24 October 1986
• Docket Number: No. 86-4127,86-4127
• Citation: 803 F.2d 178
• Parties: Bertha Jolivette ZENO, Plaintiff-Appellee, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, d/b/a A & P Food Stores, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 178

803 F.2d 178

Bertha Jolivette ZENO, Plaintiff-Appellee, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, d/b/a A & P Food

Stores, Defendant-Appellant.

No. 86-4127

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 24, 1986.

Sera H. Russell, III, Lafayette, La., for defendant-appellant.

Glenn J. Armentor, Lafayette, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, JOHNSON, and JONES, Circuit Judges.

JOHNSON, Circuit Judge:

The defendant, a grocery store company, appeals from an adverse jury verdict in a "slip and fall" case that came to the district court on removal from Louisiana state court. The issues are: (1) whether the jury's finding of liability was clearly erroneous and unsupported by the evidence; and (2) whether the jury's damages figure, $95,000.00, was so clearly erroneous as to "shock the conscience of the court."

We find that the record sufficiently supports both the findings on liability and damages, and accordingly affirm.

I. FACTS

On a rainy Sunday in Lafayette, Louisiana, Mrs. Bertha Zeno, a sixty-five-year-old seamstress, stopped off at the local A&P store to buy some chicken on her way home from church. Just inside the store's electric doors, she noticed a large puddle of water and carefully skirted it. A few feet further on, as Mrs. Zeno was about to turn into one of the aisles, her foot slipped and she fell forward, fracturing her left leg and her right elbow.

The store manager filed an accident report on a form. In it, he described the accident with the words "water from rain on floor. Slipped and felled [sic]," and in the space for "defect or substance" on the floor, he wrote "water."

Mrs. Zeno incurred $807.00 in medical bills as a result of the accident. By the time of trial, the injury to her leg had healed; however she continued to experience pain in her elbow. Her doctor testified that this pain was likely to continue for the rest of her life and that Mrs. Zeno would suffer a ten percent impairment in her right arm and should avoid work or hobbies that would place stress on it. The injury to her arm was in her right elbow and she was right-handed. Before the accident, Mrs. Zeno worked as a part-time seamstress, earning about $5,000.00 a year, and planned to continue for at least two more years. After the accident, she stopped working and avoided household chores, gardening, and picking up her grandchildren because she experienced pain when bending or putting weight on her elbow.

II. A & P'S LIABILITY

Louisiana law authorizes an action for negligence, placing on the plaintiff the burden of proving a fault by the defendant that caused injury. Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). In slip and fall cases, the Louisiana courts have held that the plaintiff can satisfy his burden on fault by proving that there was a foreign substance on the floor; the burden then shifts to the store owner to prove that it fulfilled its duty to provide customers a safe place to shop. Kavlich v. Kramer, 315 So.2d 282, 284-85 (La.1975); Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976). The store owner can meet this burden by proving that he took reasonable efforts to inspect his floors, clean up foreign substances, and, if appropriate, warn customers. Johnson v. Tayco Foods, 475 So.2d 65, 68 (La.App.2d Cir.), writ denied, 478 So.2d 149 (La.1985); Wilson v. Wal-Mart Stores, Inc., 448 So.2d 829, 831 (La.App.2d Cir.1984); Albritton v. J.C. Penney Co., Inc., 385 So.2d 549, 551 (La.App.3d Cir.), writ denied, 393 So.2d 727 (La.1980).

In this case, the store owner contends that Mrs. Zeno did not meet her burden of proving that there was a foreign substance on the floor at the point where she fell. Mrs. Zeno, her husband, and the store manager testified that they did not notice any water at that point. However, there was testimony that customers had been entering through the large puddle at the door for several hours, and the jury could have inferred that these customers tracked water to the spot. In addition, Mr. and Mrs. Zeno testified that, just after the fall, they noticed a large spot on her coat that had not been there before. Store employees stated that they used a water-soluble floor wax, and the jury could have concluded that this wax, softened by rainwater, became slippery, causing the fall and the spot on Mrs. Zeno's coat. Finally, the jury could have given credence to the form filled out by the store manager immediately after the accident, acknowledging water on the floor.

The store does not claim to have met its burden of proving reasonable care; it does argue that the jury should have assigned more than twelve percent of the fault to Mrs. Zeno. However, nothing in the record indicates that this percentage is incorrect. A customer must take care to avoid obvious store hazards, but need not look at the floor before each step. Peralta v. Schwegmann Bros. Gt. Supermkts, Inc., 406 So.2d 720, 722 (La.App. 4th Cir.1981), writ denied, 410 So.2d 762 (La.1982). Indeed, stores encourage customers to look at eye-catching displays. Kavlich v. Kramer, supra at 284.

The jury's finding that a foreign substance on the floor was eighty-eight percent responsible for Mrs. Zeno's injuries binds this Court as long as "there is a rational basis in the record for the jury's verdict." Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1288 (5th Cir.1974); Porter v. American Optical Corp., 641 F.2d 1128, 1137 (5th Cir.), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981). The jury in this case has fulfilled its function as trier of fact "to weigh conflicting evidence and inferences and determine the credibility of witnesses." Boeing Company v. Shipman, 411 F.2d 365, 375 (5th Cir.1969) (en banc). The verdict is supported by "substantial evidence" and "reasonable inferences," id. at 374, and we decline to overturn it.

III. DAMAGES

In a single sentence, at the conclusion of its brief, A&P alludes to the amount of damages as follows: "Alternatively, it is submitted that the jury abused its discretion in apportioning fault and in awarding $95,000.00 in damages." The brief furnishes us with no analysis of the record on the amount of damages, no authority for granting a remittitur in the instant case, no enumeration of the standards to use in calculating the proper measure of damages, and no estimate of what amount of damages might be excessive. Understandably, Mrs. Zeno's brief spends barely a page defending the jury award. The normal rule in this Circuit provides that contentions not briefed are waived and will not be considered on appeal. Zuccarello v. Exxon Corp., 756 F.2d 402, 407-08 (5th Cir.1985). The rule is necessary both because the appellate system cannot handle a high volume of cases without adequate briefs from the parties, and because one party's failure to brief an issue deprives the other party of notice to develop that issue in the opposing brief. However, a short discussion of damages is in order.

Jury damage awards, especially when approved by the trial court, should not be disturbed on appeal unless they are "entirely disproportionate to the injury sustained." Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983). Because fixing the amount of damages requires the sifting and weighing of masses of facts, the jury's figures demand deference from the appellate court, unless they "shock[ing] the judicial conscience" or "exceed that amount that any reasonable man could feel the claimant is entitled to." Bridges v. Groendyke Transport, Inc., 553 F.2d 877, 880 (5th Cir.1977) (emphasis in original); Complete Auto Transit, Inc. v. Floyd, 249 F.2d 396, 399 (5th Cir.), cert. denied, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed.2d 843 (1958). In declining to overturn a damages award, an appellate court does not necessarily approve that award or signal that, sitting as a trial court before the same evidence, it would reach the same result. Sosa v. M/V LAGO IZABEL, 736 F.2d 1028, 1035 (5th Cir.1984). It merely holds that the award falls within the broad bounds of discretion accorded the jury in factual matters.

In this case, A&P does not contest the conservative amounts that Mrs. Zeno requested for medical expenses and lost wages. It apparently only objects to the $79,193 which she was awarded for past and future pain and physical impairment, or general damages. ¹ Evidence in the record supports this amount of damages. Mrs. Zeno suffered two fractures. The injury to her leg took several months to heal, and the injury to her elbow will, according to uncontradicted medical testimony, continue to pain her for the rest of her life. She has experienced a ten percent permanent impairment to her right arm, and she is right-handed. Before the accident, she was employed and active in housework, gardening, and hobbies; the accident forced her to quit her job and drastically curtail these activities. These effects will likely continue for at least ten years, since Mrs. Zeno is otherwise in good health and can expect to live out her normal life span. In sum, the jury had ample reasons other than "bias, passion, prejudice, corruption, or other improper motive" for reaching the amount that it did. Allen v. Seacoast Products, Inc., 623 F.2d 355, 364 (5th Cir.1980).

Even if this Court were to consider a remittitur, the result would be similar. The Fifth Circuit follows the "maximum recovery rule," according to which remittitur can only reduce a verdict to "the maximum amount the jury could properly have awarded." Caldarera, 705 F.2d at 784; 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2815 at 104 and n. 6 (1973 and 1986 Supp.). ² The rule requires us to reconstruct the evidence and then to make a guess as to the maximum award a jury might have made.

One way to apply this rule is to look at cases that in the recent past have properly applied...