Davis v. Schwegmann Giant Super Markets

631 So. 2d 479, 1994 La. App. LEXIS 20, 1994 WL 7729
CourtLouisiana Court of Appeal
DecidedJanuary 13, 1994
Docket92-CA-2051
StatusPublished
Cited by5 cases

This text of 631 So. 2d 479 (Davis v. Schwegmann Giant Super Markets) 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
Davis v. Schwegmann Giant Super Markets, 631 So. 2d 479, 1994 La. App. LEXIS 20, 1994 WL 7729 (La. Ct. App. 1994).

Opinion

631 So.2d 479 (1994)

Glenda DAVIS
v.
SCHWEGMANN GIANT SUPER MARKETS.

No. 92-CA-2051.

Court of Appeal of Louisiana, Fourth Circuit.

January 13, 1994.

*480 Harry E. Cantrell, Jr., New Orleans, for plaintiff-appellee.

Robert E. Caraway, III, Blue Williams, L.L.P., Metairie, for defendant-appellant.

Before BARRY and KLEES, JJ., and JAMES C. GULOTTA, J. Pro Tem.

BARRY, Judge.

Schwegmann Giant Super Markets, Inc. (Schwegmann) appeals a judgment which awards $3,945.00 to Glenda Davis for injuries from an alleged slip and fall in its store. Schwegmann's assignments are:

Ms. Davis' testimony is unbelievable and she is incompetent;
Schwegmann's investigative records were improperly excluded as inadmissible hearsay, leading to an erroneous finding of liability.

TESTIMONY

Ms. Davis testified that on July 9, 1986 while in the egg section of Schwegmann she slipped on some egg white, although she did not see a broken egg in the area. She demonstrated how her right leg went under the left leg, causing her to land on her right side. Ms. Davis stated that several Schwegmann employees helped her up and escorted her to an office in the front of the store. She was told to see her family doctor, but she did not recall filling out or signing a form. Ms. Davis was told she could leave.

Ms. Davis testified that after the fall she felt immediate pain up her right leg and especially in the ankle. By the time she walked home the ankle was swollen so she made an appointment to see her family doctor the next day. Ms. Davis said Dr. Curtis Bonin briefly examined her ankle and told her he didn't handle that type of injury, and she should see another doctor. She went to Gulf Coast Medical Consultants and after an examination and x-rays, heat treatments and pain medication were prescribed. Ms. Davis testified that the injury improved but she had occasional severe pain in her ankle and up her right side.

On cross examination Ms. Davis said that she had attended Southern University for three years. She reiterated that she saw nothing on the floor before the fall, and she believed that she slipped on egg white because of the "slimy" feel on her arm and leg. Ms. Davis stated that she had no problem with her left ankle, leg or side.

*481 When Ms. Davis was shown Schwegmann's form, "Loss Notice" she acknowledged her signature at the bottom, but denied that she told anyone that she slipped but did not fall, as stated on the form. She remembered being deposed in May 1987 but could not explain her statement that "about ten eggs" were on the floor or why she said that she and her niece were "clowning around" when she fell, and she now testified that her niece was elsewhere in the store when the incident occurred.

Ms. Davis' cross examination was interrupted to hear the testimony of Dr. Curtis Bonin, a board certified family practitioner. He had seen Ms. Davis on July 10, 1986 because of a reported slip and fall due to water on the floor at Schwegmann on July 8. She told Dr. Bonin that she landed on her left side which caused severe pain. He found tenderness from the lower back and left buttock to her ankle, according to a drawing he'd made in his notes. Dr. Bonin testified that although there was no obvious swelling, his exam was limited because Ms. Davis cried with pain when he tried to move her leg. He also found her muscles were very tight during the exam. The diagnosis was lumbosacral sprain and contusions of the left lower extremity. Dr. Bonin admitted it was possible for his notes to show "left side" when the patient's complaints were about the right side, saying "I very seldom do it but I've been known to have done it." Dr. Bonin's records were admitted into evidence as Exhibit # 1.

Cross examination of Ms. Davis resumed after Dr. Bonin's testimony and a recess for lunch. She again acknowledged her signature on the Loss Notice and repeated that she did not remember the form, or that it was given for her to read and sign following the incident. Ms. Davis was allowed to read the document and agreed that it was accurate.

When questioned by Schwegmann's counsel about prior medical problems, the trial judge instructed Ms. Davis to consult with her attorney before answering the question. Ms. Davis then testified that at some time prior to the fall Charity Hospital had diagnosed a fibroid tumor on the left side of her brain but she refused surgery. She said that the tumor caused memory loss, difficulty in telling right from left and up from down, and intermittent severe headaches:

Ms. Davis: ... the headaches just take control where I tune everything out, where I may not understand what you are saying, I have to sit and look at you about twice and really come back to myself, that is how.
Counsel: Have you had any of those headaches while we have been here in Your Honor's [sic] court?
Ms. Davis: Yes I have.
Counsel: Is it your testimony right now that those headaches have influenced or changed testimony in any way?
Ms. Davis: Yes, the first time, yes it have [sic].
* * * * * *
Counsel: Are you having a headache right now as we are talking?
Ms. Davis: Yes I am.
* * * * * *
Counsel: Is there any testimony that you are aware of as we sit here right now that you would like to change because you felt like you really weren't able to focus on either of the questions that you were asked today?
Ms. Davis: Left from right, like if you may tell me to stand up and tell me to point to my left eye, I can see you saying to my left, but point to my right. I may be on my—to point, my mind just go toward my left and the whole, while it's my right, where it could be my right, I could be pointing to my left, but suddenly I'll just say right, or it be like a crisscross.

Ms. Davis testified that she did not mention the tumor to her attorney until their conversation in the courtroom.

Schwegmann's counsel moved to strike Ms. Davis' testimony, arguing that her description of her condition established her incompetency as a witness. The trial court denied the motion.

*482 When asked to raise her right hand, Ms. Davis raised her left hand. When questioned again about where she was hurt after the alleged fall, she stated her left side. She said she didn't tell any of the doctors about the tumor or its effects because she felt it was not related to the fall and only the doctor at Charity knew about the tumor. On redirect, Ms. Davis testified that the tumor was diagnosed on her birthday in June, but she couldn't remember what year. She said she had never been declared mentally incompetent.

Records from Gulf Coast Medical Consultants were introduced into evidence through the testimony of Dr. Joseph Gunther. He testified that Ms. Davis was first seen at the clinic on August 14, 1986 because of pain on her left side from a fall at Schwegmann on July 10, 1986. She reported a prior medical history of asthma, hypertension and removal of fibroids on the left ovary in 1983. After xrays and an examination by Dr. Anil Kumar, Ms. Davis was diagnosed as suffering from a cervical strain, bilateral trapezius strain, lumbar strain and left ankle strain. She received nine therapy sessions within the next month and three more office exams, one of which was by Dr. Gunther. She was last seen November 12, 1986 by Dr. Phillip A.

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Cite This Page — Counsel Stack

Bluebook (online)
631 So. 2d 479, 1994 La. App. LEXIS 20, 1994 WL 7729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-schwegmann-giant-super-markets-lactapp-1994.