Alfonso v. Piccadilly Cafeteria, Inc.

665 So. 2d 589, 1995 WL 697953
CourtLouisiana Court of Appeal
DecidedNovember 28, 1995
Docket95-CA-279
StatusPublished
Cited by7 cases

This text of 665 So. 2d 589 (Alfonso v. Piccadilly Cafeteria, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alfonso v. Piccadilly Cafeteria, Inc., 665 So. 2d 589, 1995 WL 697953 (La. Ct. App. 1995).

Opinion

665 So.2d 589 (1995)

Curtis ALFONSO and Christine Alfonso, wife of Curtis Alfonso,
v.
PICCADILLY CAFETERIA, INC., Don Monsorial and Crawford and Company.

No. 95-CA-279.

Court of Appeal of Louisiana, Fifth Circuit.

November 28, 1995.
Writ Denied February 16, 1996.

*592 Law Offices of Tonry & Ginart, Richard A. Tonry, Michael C. Ginart, Jr., Chalmatte, for Plaintiffs-Appellants Curtis Alfonso and Christine Alfonso.

McQuaig & Solomon, APLC, Scott W. McQuaig, W. Chad Stelly, Metairie, for Defendant-Appellee Piccadilly Cafeterias, Inc.

Philip Borne, New Orleans, for Defendant-Appellee-2nd Appellant Highlands Insurance Company.

Before GOTHARD, CANNELLA and KLIEBERT, JJ.

KLIEBERT, Judge.

Plaintiffs, Curtis Alfonso and his wife, Christine, sued Piccadilly Cafeteria, Inc., and one of its site managers, Don Manseur[1], after Curtis slipped and fell in the Piccadilly located at 2609 Jefferson Highway. At the time of the incident, Alfonso was in the course and scope of his employment with In-House Vaults, Inc., an armored car company that delivered change (coin and currency) to businesses in the area. Highlands Insurance Co., In-House's worker's compensation carrier, intervened in the suit to recover benefits it paid to or on behalf of plaintiff.

After a three day trial, a twelve-person jury returned a verdict, finding that a premises hazard existed, but casting plaintiff with 83% contributory fault. The jury awarded Alfonso $11,000.00 in general damages, $1,100.00 in past lost wages, $1,000.00 in future lost wages, and awarded $0 for past medical expenses and future medical expenses. The jury also dismissed Christine Alfonso's loss of consortium claim.

Following trial, the plaintiffs filed a Motion for Judgment Notwithstanding the Verdict and Alternatively a Motion for New Trial. After a hearing on these motions, the trial judge granted the Motion for JNOV in part, awarding plaintiffs $7,500.00 in past medical expenses, but denying all other motions. Thereafter, plaintiffs appealed.

On appeal, plaintiffs assign numerous errors of the trial court. First, plaintiffs argue that the trial court erred in not ordering defense counsel to produce the police report of an automobile accident that occurred after plaintiff's fall in the Piccadilly but before his fusion surgery. Second, the trial court erred when it permitted a bag of coins and currency which had not been admitted into evidence to be published to the jury as demonstrative evidence. Third, the trial court erred in not granting a mistrial after the bailiff commented on the weight of the bag of coins in the hearing of the jury. Fourth and fifth, plaintiffs argue the jury committed manifest error in finding the plaintiff 83% at fault and awarding him only $11,000.00 in general damages. Sixth, the jury erred when it awarded plaintiff only $1,100.00 in past lost wages. Seventh, the jury erred when it awarded plaintiff only $1,000.00 in future lost wages. Eighth, the jury erred when it awarded nothing for future medical expenses. Ninth, the trial court erred when it granted in part plaintiffs' Motion for JNOV in that it awarded only $7,500.00 in past medical expenses, in light of the stipulation that past medical expenses totaled $103,166.57. Last, the jury committed manifest error when it denied plaintiff Christine Alfonso's loss of consortium claim.

After thorough review of the record and jurisprudence, we amend the judgment in part, reallocating fault between the parties to 50/50, raising the general damages to $25,000.00, and awarding Mrs. Alfonso $1,000.00 for loss of consortium. All other aspects of the trial court's judgment are affirmed.

Plaintiff's first assignment of error concerns the trial court's failure to order defense counsel to produce a police automobile accident report that was mentioned in defense's cross-examination of Dr. Gessner, plaintiff's treating orthopedist. We see no error for the following reasons. First, the *593 report was never introduced into evidence, nor did the witness look at the report. Second, plaintiff Christine Alfonso filed a lawsuit as a result of this accident, using the same counsel as in the instant lawsuit. Thus, the accident report was available equally to both sides' counsel. Since plaintiffs' counsel could have procured the report on its own, we see no error in the trial court's ruling.

Plaintiffs' second assignment of error concerns the publishing to the jury of a bag, representing the weight of the coins, that was not entered into evidence as the actual bag plaintiff carried. Additionally, plaintiffs argue that the judge should have granted their Motion for Mistrial after the bailiff commented on the weight of the bag within earshot of the jury.

The court ruled that the bag could be used as a demonstrative exhibit for purposes of its weight only. The bag was not offered into evidence as the actual bag carried by plaintiff, but was shown to be the same size and type as the bag Mr. Alfonso carried the morning of the incident. We see no error in its publication to the jury as a demonstrative aid. The evidence was relevant, probative, and a proper foundation was laid for its introduction; the plaintiffs have not shown the bag's introduction to have been prejudicial to their case. See Dawson v. Mazda Motors of America, Inc., 517 So.2d 283 (La. App. 1 Cir.1987) and Pullen v. Ziegler, 562 So.2d 1093 (La.App. 4 Cir.1990).

Regarding the denial of plaintiffs' Motion for Mistrial, in Searle v. Travelers Insurance Company, 557 So.2d 321, 323 (La. App. 4 Cir.1990), the Fourth Circuit said:

The Louisiana Code of Civil Procedure does not expressly provide for mistrials, and the jurisprudence concerning motions for mistrial is limited. Generally, mistrials are properly granted because of some fundamental failure in the proceeding. 76 Am.Jur.2d, Trial Sec. 1073. It is well settled in Louisiana law that a motion for mistrial in a civil case should be granted under the following circumstances: (1) when, before the trial ends and the judgment is rendered, the trial judge determines that it is impossible to reach a proper judgment because of some error or irregularity and (2) where no other remedy would provide relief to the moving party. Spencer v. Children's Hospital, 432 So.2d 823, 826 (La.1983); Streeter v. Sears, Roebuck & Co., 533 So.2d 54, 62 (La.App. 3d Cir.1988), writ denied 536 So.2d 1255 (La. 1989). Motions for mistrial should also be granted upon proof of prejudicial misconduct occurring during a jury trial, which cannot be cured by admonition or instructions. 76 Am.Jur.2d, Trial Sec. 1072.

There is no evidence that the jury heard the bailiff's comments. Plaintiffs' counsel requested that the trial court give the jury a general curative instruction, which the court did. The court also offered to question the jury as to whether the comment was heard. Counsel for plaintiffs declined this offer. In light of the whole scenario, we see no error in the trial court's denial of the motion for mistrial.

The next items for review pertain to the jury's apportionment of fault and awards for damages. A Court of Appeal may not set aside a trial court's or a jury's findings of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La. 1989). Where a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the Appellate Court may feel that its own evaluations and inferences are as reasonable. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 589, 1995 WL 697953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alfonso-v-piccadilly-cafeteria-inc-lactapp-1995.