Coleman v. Wal-Mart Stores, Inc.

802 So. 2d 716, 99 La.App. 4 Cir. 2274, 2001 La. App. LEXIS 2715, 2001 WL 1464230
CourtLouisiana Court of Appeal
DecidedAugust 29, 2001
DocketNo. 99-CA-2274
StatusPublished
Cited by1 cases

This text of 802 So. 2d 716 (Coleman v. Wal-Mart Stores, 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
Coleman v. Wal-Mart Stores, Inc., 802 So. 2d 716, 99 La.App. 4 Cir. 2274, 2001 La. App. LEXIS 2715, 2001 WL 1464230 (La. Ct. App. 2001).

Opinion

I,KIRBY, Judge.

Plaintiff, Michelle Coleman, appeals the trial court judgment in her favor and against defendant, Wal-Mart Stores, Inc. (“Wal-Mart”). A jury found plaintiff and Wal-Mart each 50% at fault in the December 10, 1995 accident in which plaintiff was injured in a Wal-Mart store on Bundy Road in New Orleans. The jury assessed plaintiffs damages at $2,500.00 in general damages and $1,045.00 in past medical expenses, but found that plaintiff was not entitled to any amount for future medical expenses. The trial court adopted the jury’s verdict and awarded plaintiff $1,772.50 in compensatory damages after reducing the total amount of damages by 50% to reflect the fault attributable to plaintiff in the accident.

Plaintiff argues in this appeal that the trial court erred in finding her at fault in the accident and in awarding inadequate general damages. Wal-Mart has not appealed the trial court judgment. On the issue of fault, the following evidence was [718]*718presented at trial. Ann Mills was an assistant manager at the Bundy Road Wal-Mart on December 10, 1995. She testified that the merchandise baskets used at Wal-Mart are not as deep as grocery store carts. Mills investigated the accident that involved plaintiff and completed an incident report.

1 ¿The incident report was introduced into evidence. The report indicated that plaintiff was sitting in the layaway section of the store when the accident occurred. In answer to the question “What did alleged injured person say happened?” Mills wrote “Miss Coleman alledges [sic] that the 12” bike fell from a shopping cart hitting her right shoulder.” Her comments under the section entitled “Our comments on how incident occurred,” were “Customer was sitting on 4 wheeler when 12” bike fell from shopping cart hitting her right shoulder.”

Mills stated at trial that there is no information on the incident report that indicated that plaintiff was in a location where she was not supposed to be, or that she was told to move when the cart of bicycles was placed near her. Her investigation found nothing to contradict plaintiffs version of the accident. Mills testified that the item referred to as a “4 wheeler” in her report is a cart with four wheels and a flat bed-type surface that is close to the ground and is used to transport merchandise around the store.

On cross-examination, Mills testified that the shopping carts used by Wal-Mart in 1995 were used to transport the type of bicycle that allegedly fell on plaintiff because the bicycles fit very easily inside of those carts. When she went to the layaway area of the store after being notified of the accident, she found two of these bicycles in a shopping cart and none on the floor. She said that the layaway area was crowded when she arrived, but none of the customers or sales associates saw the accident.

She said the shopping carts containing the bicycles measured 37 inches from the top of the cart to the floor and the length of the carts was 35$ inches. The carts measured from 16 to 18 inches deep and from 20$ to 24 inches wide.

l3On redirect examination, Mills admitted that she had no independent recollection of the accident or of the placement of the bicycles in the cart on the night in question. She took measurements of the shopping carts several days before trial in response to a request from plaintiffs attorney. She also admitted that she had no personal recollection of how crowded the layaway section of the store was on the night in question; she said her testimony that the layaway area was crowded was based on the fact that it is always crowded in the days before December 15th because that is the last day to get items out of layaway.

The plaintiff testified that on the evening of December 10, 1995, she went to the layaway department of Wal-Mart by herself to get a toy she had placed in layaway on an earlier date. After she made her final payment for the toy and waited for it to be brought out to her, there was one other woman in the waiting area. The other woman had two children with her, and they were sitting on a bench behind plaintiff. Because there was only one bench in the area and there were no seats left, plaintiff sat down on a cart that was in the middle of the floor while she waited for delivery of the toy. As she was seated on the cart, a Wal-Mart employee rolled a shopping basket with two bicycles in it to an area right behind plaintiff and then walked away. Shortly after he walked away, one of the bicycles fell out of the cart and hit her right shoulder. Plaintiff stated that she knew the man who rolled [719]*719the cart of bicycles behind her was a Wal-Mart employee because he was wearing a Wal-Mart vest.

Plaintiff stated that shortly after the bicycle fell on her, someone helped get the bicycle off of her, but she did not know the identity of the person. The cashier in layaway called for assistance and Ann Mills came and filled out a report and gave plaintiff an ice pack.

|40n cross-examination, plaintiff stated that she chose not to move from where she was seated on the cart after the shopping cart containing the two bicycles was placed behind her. She said the bicycles did not appear to be wobbly or shaky, and she was not concerned that anything might fall.

To prevail in this “falling merchandise” case under La. R.S. 9:2800.6(A), the plaintiff was required to prove (1) that she did not cause the. merchandise to fall, (2) that another customer in the aisle at that moment did not cause the merchandise to fall and (3) that the merchant’s negligence was the cause of the accident. Davis v. Wal-Mart Stores, Inc., 2000-0445, p. 6 (La.11/28/00), 774 So.2d 84, 90. The trial court found that Wal-Mart’s negligence was a cause of the accident, and Wal-Mart has not appealed the judgment. The plaintiff has appealed the trial court’s finding that she was at fault in the accident. The record in this case is completely devoid of any evidence indicating that plaintiff or another customer caused the bicycle to fall. Therefore, we find that the jury erred in finding plaintiff 50% at fault, and the trial court erred in adopting this portion of the jury’s verdict as the judgment of the court. We amend the portion of the judgment assessing 50% of the fault for this accident to plaintiff to reflect that 100% of the fault is assessed to Wal-Mart.

On the issue of the adequacy of the general damages award of $2,500.00, the evidence includes the testimony of Dr. Roy Marrero and plaintiff. Dr. Marrero, an orthopedic surgeon, testified that he first treated plaintiff prior to the December 1995 Wal-Mart accident on September 27, 1994, following surgery that had been performed on her right shoulder in 1993. His initial diagnosis was bursitis of the shoulder. He recommended physical therapy and analgesic painkillers. An MRI performed in April 1995 indicated a cyst in the right shoulder. Dr. Marrero | ¿referred plaintiff to a tumor specialist, Dr. Hinrich. Dr. Marrero saw plaintiff again on May 1, 1995 and then did not see her again until December 19,1995.

Dr. Marrero testified that he reviewed Dr. Hinrich’s records regarding plaintiff, which indicated that plaintiff underwent a surgical procedure in July 1995 in which the shoulder area was explored and a large cyst was removed from the shoulder. It is important to note that Dr. Hinrich did not testify at this trial and his records were not introduced into evidence. Dr. Marrero explained the procedure used in cyst removal.

When plaintiff returned to Dr.

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Bluebook (online)
802 So. 2d 716, 99 La.App. 4 Cir. 2274, 2001 La. App. LEXIS 2715, 2001 WL 1464230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-wal-mart-stores-inc-lactapp-2001.