Brown v. Great Atlantic & Pacific Tea Co., Inc.

509 So. 2d 557, 1987 La. App. LEXIS 9292
CourtLouisiana Court of Appeal
DecidedApril 8, 1987
Docket86-376
StatusPublished
Cited by7 cases

This text of 509 So. 2d 557 (Brown v. Great Atlantic & Pacific Tea Co., 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
Brown v. Great Atlantic & Pacific Tea Co., Inc., 509 So. 2d 557, 1987 La. App. LEXIS 9292 (La. Ct. App. 1987).

Opinion

509 So.2d 557 (1987)

Pamela D. BROWN, Plaintiff-Appellant,
v.
The GREAT ATLANTIC & PACIFIC TEA CO., INC., Defendant-Appellee.

No. 86-376.

Court of Appeal of Louisiana, Third Circuit.

April 8, 1987.

Rivers and Beck, Larry W. Rivers, Alexandria, for plaintiff-appellant.

McLure and Pickels, John C. Pickels, Alexandria, for defendant-appellee.

*558 Before LABORDE, YELVERTON, JJ., and CULPEPPER, J. Pro Tem.[*]

WILLIAM A. CULPEPPER, Judge, Retired, Pro Tem.

The principal issue presented by this appeal is whether the jury was proper in awarding plaintiff $1,500.00 in damages and reducing by 50% the amount of the award due to plaintiff's comparative negligence in a slip and fall accident in which plaintiff allegedly sustained damages.

On May 29, 1983 at about 7:00 A.M. store manager Felton Richard opened the A & P grocery store on MacArthur Drive in Alexandria, Louisiana by unlocking the front doors at the beginning of the business day. He proceeded into the store, followed by plaintiff, Pamela D. Brown, and her boyfriend who had been waiting for the store to open. As plaintiff proceeded down the aisles of the store, obtaining items for a picnic outing/auto race near Baton Rouge, she slipped and fell in a puddle of clear, non-sticky substance on the tile floor of the supermarket. It is uncontested on appeal that the substance was water left standing by A & P employees who mopped the tile floor the night before. Plaintiff fell and landed on her right elbow and right hip which resulted in an abrasion of her right elbow. Plaintiff, at the time being mostly embarrassed and believing that she was otherwise unhurt, finished her shopping and continued on her outing to the races. Later that afternoon, however, plaintiff began to feel "stiff all over" and, more particularly, began to feel a tightening in her neck and a pain in her back.

The day after the accident plaintiff saw Dr. Rud, a chiropractor whom plaintiff had seen for various reasons since 1975. Plaintiff received chiropractic treatment for her complaints of right shoulder, neck pain and thoracic or mid-dorsal pain. Plaintiff also returned to Dr. Rud on June 6, 1983, one week after the accident, and received chiropractic treatments for neck pains. Plaintiff did not return to Dr. Rud until September 1985 for a dislocation of her right thumb.

Plaintiff also began seeing Dr. Ray Beurlot, an orthopaedic surgeon, on June 13, 1983 when an examination revealed a 5% limitation when turning her head to the right, which was diagnosed as a sustained strain of the cervical spine. Dr. Beurlot also diagnosed that plaintiff suffered a strain of the thoracic or mid-back area based on plaintiff's complaints of back pain. Plaintiff was allowed to continue taking Percodan, which she had been prescribed for a tubal ligation operation 1 ½ months prior to the slip and fall accident and plaintiff was prescribed an anti-inflammant, range of motion exercises and applied heat in the form of hot towels. Plaintiff's next visit was June 27, 1983, at which time plaintiff complained of mostly neck discomfort, was prescribed a muscle relaxer and analgesic and asked to continue heat and exercises. After plaintiff's next visit on July 5, 1983 she began physical therapy.

Plaintiff saw physical therapist Mr. Eugene Noel, Jr. several times during July and August 1983 but only came in intermittently for physical therapy thereafter. She resumed physical therapy on a more regular basis in June 1984 when she was involved in an auto accident and was diagnosed as having a cervical and lumbosacral injury based on her complaints of pain and discomfort in her neck, shoulders and lower back. By October 17, 1984, however, plaintiff's lower back problems had subsided and plaintiff was complaining of pains similar to and located in the same area of pains experienced after the May 29, 1983 slip and fall accident but prior to the June 1984 auto accident.

Plaintiff also sought other medical help and underwent various procedures in an attempt to have her physical complaints diagnosed and treated. Plaintiff underwent two CT scans in October 1983, and a myelogram in November 1984, all of which were negative, thus ruling out the possibility of nerve root impingement or herniated disc. Plaintiff was also prescribed an ultrasound/electrical stimulator by Mr. Noel, her physical therapist. While in the hospital *559 for her myelogram, plaintiff underwent a psychiatric examination by Dr. W. Goodwin, the results of which showed that the patient had no serious mental defects. Plaintiff was also examined by neurologist Drs. Cooper and Patton and by orthopaedic physician Dr. T.E. Banks. The diagnoses of plaintiff's examining physicians are generally in agreement in finding that plaintiff sustained a strain of her cervical spine and thoracic spine as a result of the May 27, 1983 slip and fall accident and that, based on plaintiff's continuing complaints of pain, plaintiff suffers from a chronic cervical strain. Dr. Beurlot, plaintiff's treating physician, also felt that plaintiff suffered from chronic thoracic strain, however, he considered plaintiff's cervical and thoracic strains as "mild." Evidence at trial, however, revealed that plaintiff experienced episodes of thoracic and cervical pain prior to the May 29, 1983 slip and fall accident.

Plaintiff sued The Great Atlantic & Pacific Tea Co., Inc. (hereinafter A & P), the owners of the grocery store in which she slipped and fell, for her injuries resulting from the accident. A trial was held on November 5 and 6, 1985, at the commencement of which plaintiff's counsel objected to the non-appearance of 57 persons whose names appeared on the list of jurors to be called. The trial judge allowed the objection entered upon the record. At the conclusion of the trial the jury determined that as a result of the May 29, 1983 slip and fall plaintiff had suffered $1,500.00 in damages. The jury also found plaintiff 50% contributorily negligent, effectively reducing plaintiff's recovery by one-half. Defendant, A & P, filed a motion to allocate court costs which was argued on December 23, 1985, at the conclusion of which the trial court allocated all court costs to defendant. Judgment was signed on January 13, 1986 reflecting the award of the jury and the allocation of all court costs to defendant. From this judgment plaintiff appeals. Defendant, A & P, answers the appeal asking that this court reduce the award reflected by the trial court judgment and asking that the court costs be assessed equally between plaintiff and defendant in proportion to each party's percentage of fault.

EXCUSAL OF MEMBERS OF JURY VENIRE

Plaintiff contends as its first assignment of error the action of the trial court in excusing, outside of the presence of the parties, approximately 57 members of the jury venire.

Central to the idea of the use of juries as instruments of public justice is that a jury should be drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Pursuant to this idea our state Constitution, statutes and Supreme Court rules provide for qualifications for and exemptions and excusals of jurors. LSA-Const. of 1974, Art. 5 § 33; LSA-R.S. 13:3044; LSA-C.C.P. art. 1767; Louisiana Supreme Court Rules XXV and XXVI.

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Bluebook (online)
509 So. 2d 557, 1987 La. App. LEXIS 9292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-great-atlantic-pacific-tea-co-inc-lactapp-1987.