DUPRE' v. Maison Blanche, Inc.

712 So. 2d 567, 1998 WL 166978
CourtLouisiana Court of Appeal
DecidedApril 8, 1998
Docket97 CA 0652
StatusPublished
Cited by12 cases

This text of 712 So. 2d 567 (DUPRE' v. Maison Blanche, 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
DUPRE' v. Maison Blanche, Inc., 712 So. 2d 567, 1998 WL 166978 (La. Ct. App. 1998).

Opinion

712 So.2d 567 (1998)

Harriet Greer DUPRE'
v.
MAISON BLANCHE, INC. and Liberty Mutual Insurance Group.

No. 97 CA 0652.

Court of Appeal of Louisiana, First Circuit.

April 8, 1998.

*568 John Housan Fenner, III, Baton Rouge, for Plaintiff-Appellant Harriet Greer Dupre'.

Marvin H. Olinde, Baton Rouge, for Defendant-Appellee Maison Blanche, et al.

Before LOTTINGER, C.J., and SHORTESS and FOGG, JJ.

LOTTINGER, Chief Judge.

This action arises as a result of a fall by plaintiff-patron while shopping at defendant's store. Following a trial by jury, plaintiff was awarded damages in the amount of $120,078.82, reduced to $72,047.29, by her 40% of fault. The trial judge thereafter granted defendants' motion for JNOV, and reallocated fault 70% to plaintiff, 30% to defendants. Plaintiff now appeals.

FACTS

On March 17, 1994, plaintiff, Harriet Greer Dupre (hereinafter, "Ms. Greer")[1], was shopping at the Maison Blanche department store (hereinafter, "Maison Blanche") located on Main Street in Baton Rouge. At trial, Ms. Greer testified that she went to the Main Street location to purchase a pair of shoes because the Maison Blanche store at Cortana Mall did not have her size. Upon finding the shoe department crowded, Ms. Greer continued down the main aisle of the store, and entered the ladies' designer dress department. Her attention was drawn to a rack of moderately-priced dresses; however, after circling the rack, Ms. Greer was unable to locate the dress in her size. Ms. Greer testified that as she turned to walk away from the dress rack, something on the carpet "grabbed" at the heel of her right shoe, and she was unable to extricate herself.

*569 Realizing that she was about to fall, Ms. Greer stated that she hoped to break her fall and land on a carpeted display platform, which had been moved to the edge of the store aisle in preparation for a fashion show the following day. Unfortunately, Ms. Greer swiped the platform as she fell, and landed on the adjacent marble floor.

As a result of this accident, Ms. Greer sustained a fracture and dislocation of her right shoulder and a contusion to her left hip. Ms. Greer's shoulder was relocated through a closed reduction procedure performed at the emergency room. In a follow-up visit with her orthopedist, it was determined that the fractured portion of Ms. Greer's right humerus had become displaced and would require surgical correction. Ms. Greer underwent surgery on March 29, 1994, to openly reduce the fracture which was thereafter held in place with an internal fixation device. Ms. Greer underwent physical therapy, and several months later, underwent a second surgery for removal of the screw. As a result of this accident, Ms. Greer was assigned a ten percent disability for her shoulder or a six percent overall disability.

ACTION OF THE TRIAL COURT

Following a two-day trial, the jury returned a verdict finding Maison Blanche sixty (60%) percent at fault in causing Ms. Greer's accident, and assigned to Ms. Greer the remaining forty (40%) percent of fault. The jury assessed the following damages:

Past Medical Expenses..............$19,078.82
Future Medicals.....................$1,000.00
Mental Pain and Suffering, Past
 and Future........................$50,000.00
Physical Pain and Suffering,
 Past and Future...................$50,000.00
                    TOTAL.........$120,078.82

The court further ordered that defendants pay all costs and expenses incurred by the plaintiff in bringing this action.

Thereafter, defendants, Maison Blanche and its insurer, Liberty Mutual Insurance Company, filed a Motion for JNOV, and in the alternative, for a New Trial. Ms. Greer responded by filing a Cross-Motion for JNOV.

Following a hearing, the trial court ruled that because she did not prove what condition caused her to fall, Ms. Greer failed to meet her burden of proof pursuant to La. R.S. 9:2800.6. Nevertheless, the trial court conceded that under the general liability articles, particularly La. Civ.Code art. 2315, the jury could find that the empty display platform in the store's aisle may have aggravated her fall. The trial court upheld the jury's finding of fault but reduced same, finding Ms. Greer seventy (70%) percent at fault, with thirty (30%) percent attributable to Maison Blanche. Defendants were further cast with all costs.

Thereafter, the trial court amended and supplemented its previous judgment on JNOV, to state that Ms. Greer's Cross-Motion for JNOV had been denied. The trial court further ordered that defendants pay $670.00 of the litigation costs incurred by Ms. Greer.

Ms. Greer now appeals all three judgments—the original jury verdict, the trial court's judgment granting defendant's motion for JNOV, and the trial court's amended judgment denying her cross-motion for JNOV.

ISSUES ON APPEAL

On appeal, Ms. Greer asserts that the trial court erred in the following respects:

1) In ruling that she failed to meet her burden of proof;
2) In reallocating fault, finding her to be 70% at fault, and Maison Blanche only 30% at fault;
3) In denying her cross-motion for JNOV;
4) In allocating to her any legal fault;
5) In awarding her only $50,000.00 in damages for physical pain and suffering; and
6) In arbitrarily reducing the original judgment's award of all costs and expenses incurred by plaintiff, to an award of $670.00.

LAW

La.Code Civ. P. art. 1811 permits a trial judge to grant a party's motion for judgment notwithstanding the verdict or JNOV; however, the article does not specify the grounds upon which such a motion may be granted. *570 For this reason, the Louisiana Supreme Court, in its opinion in Scott v. Hospital Service District No. 1, 496 So.2d 270 (La. 1986), enumerated certain criteria to be used in determining whether a JNOV is proper. In its subsequent opinion in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991), the court reiterated these same criteria stating:

A JNOV is warranted when 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. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion.

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Cite This Page — Counsel Stack

Bluebook (online)
712 So. 2d 567, 1998 WL 166978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dupre-v-maison-blanche-inc-lactapp-1998.