Courtney v. Winn-Dixie Louisiana, Inc.

447 So. 2d 504, 1984 La. App. LEXIS 8137
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1984
Docket83-CA-578
StatusPublished
Cited by38 cases

This text of 447 So. 2d 504 (Courtney v. Winn-Dixie Louisiana, 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
Courtney v. Winn-Dixie Louisiana, Inc., 447 So. 2d 504, 1984 La. App. LEXIS 8137 (La. Ct. App. 1984).

Opinion

447 So.2d 504 (1984)

Patricia COURTNEY
v.
WINN-DIXIE LOUISIANA, INC.

No. 83-CA-578.

Court of Appeal of Louisiana, Fifth Circuit.

February 6, 1984.
Rehearing Denied March 16, 1984.
Writ Denied May 4, 1984.

*505 Gordon Hackman, Boutte, for plaintiff-appellant.

Dan R. Dorsey, River Ridge, for defendant-appellee.

*506 Before CHEHARDY, GRISBAUM and DUFRESNE, JJ.

CHEHARDY, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division "O", wherein the trial court judge dismissed plaintiff's claim for damages pursuant to the jury's finding of no negligence on the part of the defendant. Plaintiff now appeals.

Plaintiff filed suit seeking damages for personal injuries that she allegedly sustained as a result of two slip and fall accidents, both occurring at Winn Dixie stores. The first fall was on Wednesday, March 18, 1981 at approximately 3:30 p.m. Plaintiff was shopping in the defendant store at 3408 Williams Boulevard in Kenner, Louisiana when she allegedly slipped on a piece of green leafy matter on the floor in the produce aisle. Then on August 16, 1981, while shopping at the defendant store located in the Colonial Shopping Center, Harahan, Louisiana, plaintiff slipped in an accumulation of water and fell.

After a trial on the merits, plaintiff moved for a directed verdict which was denied and the case was then submitted to the jury. The jury returned a verdict of no negligence on the part of Winn Dixie by replying "no" to the first question of the jury interrogatories. In accordance with the jury interrogatories, the jury answered no further questions.

After a reading of the verdict, plaintiff moved for a judgment notwithstanding the verdict which was denied. A motion for a new trial was then denied and plaintiff has appealed, raising the following specifications of error: that (1) The trial judge erred in failing to correct a clearly wrong jury verdict on no liability and the trial judge was clearly wrong in failing to grant a motion for a directed verdict on liability and comparative negligence and, likewise, in failing to grant the motion for a new trial or judgment NOV; that

(2) The trial judge erred in failing to require the jury to answer specific interrogatories, asking it to return only a general verdict; that

(3) The trial judge erred in allowing evidence of plaintiff's prior fall, rather than limiting the evidence to plaintiff's prior condition; that

(4) The jury and trial judge erred in failing to award damages to plaintiff; that

(5) The trial judge erred in failing to render written reasons for his denial of the motion for new trial, JNOV, as well as special jury interrogatories; and that

(6) The trial judge erred in allocating costs against plaintiff rather than considering the equities as required by law.

This court in Carollo v. Shoney's Big Boy Enterprises, 433 So.2d 803 (La.App. 5th Cir.1983), adopted the law as to slip and fall accidents as summarized in Smith v. Winn Dixie Stores of Louisiana, Inc., 389 So.2d 900 (La.App. 4th Cir.1980) at page 901:

"The jurisprudence reflects the view that upon proof that a foreign substance was on the floor at the time the plaintiff entered the store; that the plaintiff stepped on this foreign substance; and that it caused her to slip, fall, and suffer injury, the burden shifts to the defendant to go forward with the evidence to exculpate itself from the presumption that it was negligent. The defendant, as store owner, can carry its burden by establishing that it was free from fault and that it exercised reasonable care in protecting its customers from foreign substances on the floor. Reasonable care is exercised when the store owner takes reasonable protective measures, including periodic inspections, in order to keep the floors and aisles free of substances or objects that may cause customers to fall. If the evidence presented is sufficient to establish that the store owner has carried its burden, then the presumption of negligence will be rebutted and the defendant will be exonerated from liability. (Citations omitted)
".... One other rule which must be considered here is that the storeowner is not the insurer of the safety of its customers *507 and further that it does not have to keep its entranceways, aisles and passageways in perfect condition." (Citations omitted)

This court, in Carollo, supra at page 805, went further to adopt the following rule expressed in Hanzo v. Travelers Insurance Co., 357 So.2d 1346 (La.App. 4th Cir.1978) at page 1349:

".... What is relevant to each case... is that a reasonable effort is made to insure the patron's safety under the circumstances...." (Citations omitted)

With these rules in mind, we now address appellant's specifications of error.

At the close of the evidence, appellant moved in accordance with LSA-C.C.P. article 1810(A) for a directed verdict as to Winn Dixie's liability and for a finding that plaintiff was not contributorily negligent. Appellant so moved on the grounds that there had been no regular inspections by store employees. This motion was promptly denied October 1, 1982.

The court in Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4th Cir.1982) affirmed a motion for directed verdict made by plaintiff in a trial by jury. As to the proper standard, that court pronounced and we adopt the following:

"The standard for granting a directed verdict (Art. 1810(A) of the Louisiana Civil Code Procedure) was set out in Campbell v. Mouton, 373 So.2d 237 (La. App. 3rd Cir.1979), whereby the court stated:
`[The statute allows] the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.'
The court, in Campbell, further states that the standard of proof is to be based on the Federal standard and cites the language in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969) in enunciating the state standard to be used:
`On motion for directed verdict and for judgment notwithstanding the verdict that Court should consider all of the evidence—not just that evidence which supports the non-mover's case—but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If 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 motions (sic) is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury."

We cannot say the trial court erred in failing to grant plaintiff's motion for directed verdict in light of the above standard. After reviewing the record, we conclude neither party enjoyed a strong or overwhelming position as to the facts which would justify the granting of such motion.

Plaintiff's testimony at trial stood uncorroborated and her credibility was continually attacked.

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447 So. 2d 504, 1984 La. App. LEXIS 8137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/courtney-v-winn-dixie-louisiana-inc-lactapp-1984.