Davis v. Winningham Datsun-Volvo, Inc.

493 So. 2d 719
CourtLouisiana Court of Appeal
DecidedAugust 20, 1986
Docket18,005-CA
StatusPublished
Cited by10 cases

This text of 493 So. 2d 719 (Davis v. Winningham Datsun-Volvo, 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
Davis v. Winningham Datsun-Volvo, Inc., 493 So. 2d 719 (La. Ct. App. 1986).

Opinion

493 So.2d 719 (1986)

Jessie G. DAVIS, Plaintiff-Appellant,
v.
WINNINGHAM DATSUN-VOLVO, INC. and National Dealers Services, Inc., In Solido, Defendants-Appellees.

No. 18,005-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1986.

*720 C. William Gerhardt & Assoc. by C. William Gerhardt, Shreveport, for plaintiff-appellant.

Cook, Yancey, King & Galloway by Benjamin C. King, Jr., Shreveport, for defendants-appellees.

Before HALL, FRED W. JONES and LINDSAY, JJ.

HALL, Chief Judge.

In this action for damages for personal injuries sustained as a result of a "slip and fall" on a concrete driveway at a car dealership, plaintiff, Jessie G. Davis, appeals from the judgment of the trial court in favor of the defendant, Winningham Datsun-Volvo, Inc. and its alleged insurer, National Dealers Services, Inc.,[1] dismissing the plaintiff's claims. At issue is whether the trial court erred in finding that the defendant-dealership was not negligent in its maintenance of the premises and that the plaintiff's negligence was the cause of the accident. For the following reasons, we affirm the judgment of the trial court.

FACTS

On September 28, 1983, plaintiff, an eighty-two year old woman, accompanied her daughter and grandson to the defendant's car dealership in order to have her grandson's automobile repaired. After waiting at the dealership all afternoon, they were informed that repairs on the automobile would not be completed on that day. In order to call a relative for transportation from the dealership, the parties had to proceed to a different area of the dealership to use the telephone. The dealership consists essentially of two buildings under one roof with a covered concrete driveway between the buildings. Cars *721 were ordinarily parked temporarily in the driveway while the service tickets were being written up before proceeding into the service department for repairs. It was necessary to go across the driveway when walking back and forth between the two buildings. Plaintiff had crossed the driveway earlier in the day.

Plaintiff's daughter crossed the driveway first followed by the plaintiff and her grandson. There were no cars parked in the driveway at that time. As plaintiff stepped off the curb onto the driveway, her foot slipped, allegedly on a foreign substance, and she fell face forward onto the concrete.

Plaintiff later instituted this action generally alleging that the accident was caused by the fault of the defendant in failing to keep the premises in a safe condition and free from foreign substances in the public areas.

At the trial on the merits, plaintiff and her family testified that there was a puddle of a foreign substance, green in color and approximately two to three feet in diameter, on the driveway near the curb. The substance was identified as most probably being anti-freeze. Plaintiff stated that she did not see the puddle before she fell and that the substance wet her clothing when she fell. Plaintiff's daughter testified that she saw the puddle and she stepped over it when crossing the driveway. She stepped down from the curb and then stepped over the puddle. Plaintiff's daughter and grandson both testified that the substance was on the plaintiff's clothing after her fall.

Three employees of the defendant testified at trial that they did not see any foreign substance on the driveway when the plaintiff fell. Their testimony indicated that the driveway is frequently crossed by the defendant's employees during the course of a day, that the area is inspected for spills from automobiles, and such spills were promptly removed. The testimony established that due to the hazard that such a spill would present, a porter was required to regularly inspect the driveway and clean-up any spills. Defendant's porter, Frank Ruffins, testified that part of his job duties required him to keep the premises clean and that he normally patrolled the driveway to inspect for spills and to move automobiles into the service area. Ruffins testified that during the course of a work day he would pass by the driveway approximately every ten to fifteen minutes. The defendant's witnesses testified that they did not observe any foreign substance on the driveway either immediately before or after the plaintiff's fall. The service advisor who helped plaintiff up testified there was no foreign substance on the driveway and the pavement was dry.

Plaintiff jammed several fingers, cut her knee and injured her right shoulder as a result of the fall. Plaintiff's treating physician, Dr. Thomas Edwards, indicated that the shoulder injury was most likely a rotator cuff tear. However, the diagnostic test for this condition, an arthrogram, was not performed as it was an invasive procedure. As Edwards' believed that due to plaintiff's age surgery to correct this condition would not be beneficial, he did not feel that it was necessary to subject plaintiff to this diagnostic procedure. Edwards stated that the surgery was very significant with a difficult recovery and rehabilitation period. Plaintiff had experienced a previous rotator cuff injury in her left shoulder in 1980 and the surgery on that shoulder had not achieved good results. In fact, that shoulder was in worse condition than the newly injured shoulder. Plaintiff received conservative treatment, medication and exercise, for her injury. Plaintiff was assigned a 25% disability for the injury, primarily due to the limitation of movement above shoulder level. The testimony established that plaintiff, a seamstress, was no longer able to sew and experienced difficulties in such tasks as dressing or brushing her hair.

TRIAL COURT JUDGMENT

After reviewing the evidence, the trial court noted that the issue of whether there was foreign substance on the driveway was a hotly disputed issue. However, the court *722 declined to make a factual determination on this issue, finding that it was not necessary to the outcome of the litigation as the court found that the inspection and clean-up procedures employed by the defendant were reasonable. Thus, even if there was a foreign substance on the driveway, it did not present an unreasonable risk of harm and the defendant was not negligent. Assuming there was such a substance on the driveway, the court found that the plaintiff should have seen it before she stepped from the curb and avoided it. There was nothing to distract the plaintiff's attention, such as might be found on the inside of a store. Under these circumstances, the court found that the plaintiff was negligent in failing to observe the foreign substance and that her negligence was the cause of the accident.

ASSIGNMENTS OF ERROR

On appeal, plaintiff-appellant asserts the following assignments of error:

1. The trial court erred in not finding that there was a foreign substance on the driveway where the plaintiff fell and that the substance presented an unreasonable risk of harm which caused the plaintiff's fall;
2. The trial court erred in finding that the inspection and clean-up procedures employed by defendant were reasonable and that defendant was not negligent; and
3. The trial court erred in finding that the plaintiff's negligence was the cause of the accident and in not awarding damages to plaintiff.

APPLICABLE LEGAL PRINCIPLES

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493 So. 2d 719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-winningham-datsun-volvo-inc-lactapp-1986.