Dundas v. Real Superstore

650 So. 2d 402, 1995 WL 35748
CourtLouisiana Court of Appeal
DecidedFebruary 1, 1995
Docket94-979
StatusPublished
Cited by5 cases

This text of 650 So. 2d 402 (Dundas v. Real Superstore) 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
Dundas v. Real Superstore, 650 So. 2d 402, 1995 WL 35748 (La. Ct. App. 1995).

Opinion

650 So.2d 402 (1995)

Darlene DUNDAS and Jeffery Dundas, Plaintiffs-Appellants,
v.
The REAL SUPERSTORE and/or National Tea Company and Minh Tran and Tinh Tran d/b/a Fashion Nails, Defendants-Appellees.

No. 94-979.

Court of Appeal of Louisiana, Third Circuit.

February 1, 1995.
Writ Denied April 28, 1995.

*403 Stephen Santillo, Lafayette, for Darlene Dundas et ux.

T. Robert Shelton, Thomas H. Morrow, Lafayette, for The Real Superstore and/or Nat. Tea Co.

Before DOUCET, C.J., and THIBODEAUX and SULLIVAN, JJ.

SULLIVAN, Judge.

This litigation arises out of an accident of January 15, 1992, when Darlene Dundas injured her right ankle while allegedly fleeing from a violent altercation between a female employee and the owner of a nail salon located in The Real Superstore in Lafayette. Mrs. Dundas and her husband, Jeffery, named as defendants in this action National Tea Company d/b/a The Real Superstore and Minh Tran and Tinh Tran d/b/a Fashion Nails. The plaintiffs subsequently dismissed their claims against the National Tea Company, proceeding to a bench trial against only the Trans d/b/a Fashion Nails. The plaintiffs appeal an adverse judgment rejecting their demands. For the following reasons, we reverse the judgment of the trial court.

FACTS

On January 15, 1992, Mrs. Dundas presented herself for a manicure at Fashion Nails, a business located on the second floor of The Real Superstore in Lafayette. She was greeted by an employee, Diane Phuong, who began to perform the manicure.

A few minutes later, Tinh Tran, the owner of the shop, walked in and began speaking to Ms. Phuong in Vietnamese. According to Mrs. Dundas, Ms. Phuong continued with the manicure without replying to Tran or looking at him. Mrs. Dundas testified that Tran at first spoke in a normal tone but that his voice soon became louder. When Ms. Phuong finally looked up, Mrs. Dundas observed that she had tears in her eyes. While holding Mrs. Dundas' hand, Ms. Phuong stood and pointed at Tran, speaking rapidly in Vietnamese. Tran began walking toward the two women, speaking loudly and apparently very upset. He then grabbed a light fixture from an adjacent manicure table and smashed it onto the counter. When Mrs. Dundas saw Tran reach for a second light fixture, she *404 pulled her hand from Ms. Phuong's and fled to the door, leaving behind her purse. As she was descending the stairs, her right foot turned inward, resulting in the injuries at issue herein.

Paul Vallier, a Superstore employee who was bagging groceries nearby, was the first to assist Mrs. Dundas at the foot of the stairs. He testified that he heard glass breaking upstairs and he observed the plaintiff running down the stairway. After helping Mrs. Dundas into a chair, he then went upstairs to retrieve her purse. He testified that Ms. Phuong told him at least three times to "Call the police!"

Lila Perroncel, the manager of an optical store in the Superstore, also assisted the plaintiff. She described Mrs. Dundas as frightened, in tears and in pain. She also heard Mrs. Dundas refer to "fighting upstairs" and that she was "afraid of the man in the shop". Ms. Perroncel also heard Ms. Phuong say, "Don't worry. He always acts that way". Margaret Ansley, security supervisor for the Superstore, corroborated Ms. Perroncel's testimony that the plaintiff referred to "fighting" in the nail shop and Ms. Phuong's statement that "He always acts that way".

Delores Sewell, a paramedic with Acadian Ambulance, testified that when she arrived, Mrs. Dundas was almost hysterical and trembling from head to toe. Mrs. Dundas reported that she ran out of the room because she feared for her life and she didn't know what would happen next. Observing Mrs. Dundas to be in pain with a swollen right ankle, Ms. Sewell immobilized the limb and applied an ice pack to the foot before transporting her to Lafayette General Hospital.

Officer Reginald Thomas investigated the incident for the Lafayette police department. He took a statement from Tran, who at that time admitted that he had become irate during a small argument and had broken a lamp next to where Mrs. Dundas was sitting. Tran also told Officer Thomas that Mrs. Dundas appeared scared when she exited his place of business.

At trial, Tran and Ms. Phuong admitted that they spoke loudly in Vietnamese; however, they denied that they argued in Mrs. Dundas' presence. Tran testified that he and Ms. Phuong were discussing the lack of customers at the Superstore location when Ms. Phuong suggested that he repair a light fixture. He explained that he accidentally broke the fixture when he suddenly jumped up after Ms. Phuong suggested that he close this shop if business did not improve. He denied telling the police officer that he was involved in an argument.

According to Ms. Phuong, Tran did not advance toward the plaintiff during their conversation. She also stated that Mrs. Dundas did not run out of the shop nor did Mrs. Dundas appear frightened when she left.

LIABILITY

In rejecting the plaintiffs' claims, the trial court found that the testimony of Mrs. Dundas, Tran and Ms. Phuong was not inconsistent. The court concluded that Mrs. Dundas simply acted unreasonably in mistaking the conversation in Vietnamese for a fight.

Mindful of the great discretion afforded the trier of fact on questions of credibility, we must respectfully disagree with the trial court's finding that the parties' testimony was not conflicting. Although the language barrier may have created some confusion, a careful review of the record reveals that Mrs. Dundas' description of the events that took place cannot be reconciled with the testimony of Tran and Ms. Phuong.

Mrs. Dundas described a loud argument involving tears, shouting and pointing; Tran and Ms. Phuong testified that they were only speaking loudly in their native language. Mrs. Dundas' description of Tran deliberately breaking one light fixture and reaching for another is inconsistent with Tran's explanation that he accidentally broke the fixture while repairing it. Finally, Ms. Phuong's testimony that Mrs. Dundas did not run out of the shop and did not appear frightened is inconsistent with the testimony of the independent witnesses who observed Mrs. Dundas' demeanor immediately after the accident. The testimony of those witnesses who came to Mrs. Dundas' aid provide strong corroboration for Mrs. Dundas' claim that *405 she reasonably fled for her safety from a fight.

A business owner has a duty to provide his patrons with a reasonably safe place; included in that duty is the proprietor's obligation to protect his guests from harm at the hands of an employee, another guest or a third party. Johnston v. Fontana, 610 So.2d 1119 (La.App.2d Cir.1992), writ denied, 618 So.2d 407 (La.1993); Boue v. Loomis Armored, Inc., 575 So.2d 527 (La. App. 5th Cir.1991). We find that Tran breached this duty by engaging in a hostile encounter with his employee, particularly when that employee was performing a service in such close proximity to a patron.

We also find that, although Mrs. Dundas acted reasonably in fleeing, she must bear some responsibility for her inattentiveness while descending the stairs. When we consider the deliberateness of Tran's conduct and Mrs. Dundas' justification for proceeding in haste, we assign 20% fault to Mrs. Dundas and 80% fault to Tran.

DAMAGES

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Cite This Page — Counsel Stack

Bluebook (online)
650 So. 2d 402, 1995 WL 35748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dundas-v-real-superstore-lactapp-1995.