Ford v. Sears

552 So. 2d 497, 1989 La. App. LEXIS 1817, 1989 WL 126197
CourtLouisiana Court of Appeal
DecidedOctober 24, 1989
DocketNo. 88-CA-1659
StatusPublished
Cited by1 cases

This text of 552 So. 2d 497 (Ford v. Sears) 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
Ford v. Sears, 552 So. 2d 497, 1989 La. App. LEXIS 1817, 1989 WL 126197 (La. Ct. App. 1989).

Opinion

BECKER, Judge.

Defendants appeal the judgment finding them liable for the damages plaintiff sustained as a result of a slip and fall on their property. Plaintiff initiated this action seeking damages for the injuries she sustained when she slipped and fell in the parking lot of the Sears Automotive Center. The jury rendered a verdict in favor of plaintiff and awarded her damages in the amount of $66,800.00. Defendants ap[498]*498peal seeking reversal of the jury’s verdict, or in the alternative, a decrease in the damage award. Plaintiff has answered the appeal seeking an increase in the damage award.

On appeal, defendants allege, as specifications of error, that

(1) the trial judge erred in failing to grant a directed verdict in favor of Sears and Allstate;

(2) the jury erred in finding the area which plaintiff fell unreasonably dangerous;

(3) the jury erred in finding Sears negligent;

(4) the jury erred in finding that Sears’ negligence caused plaintiff’s accident; and

(5) the jury abused its discretion in the amount of damages awarded.

On December 2, 1985, plaintiff, Mary Ford, arrived at the Sears Lake Forest Automotive Service Center at approximately 7:15 a.m. She parked her car in the parking lot, walked to the service center and attempted to enter the accessory shop. Mrs. Ford was informed by a Sears employee that the store would open at 7:30 a.m. As the weather that day was cool, Mrs. Ford decided to return to her car to await the opening of the store. Upon stepping down into the parking lot from the sidewalk adjacent to the service center, plaintiff slipped and fell, fracturing her ankle in two places. Subsequent to the fall, Mrs. Ford found sand in her shoes, and pebbles and a wet spot on the back of her pants.

Immediately after the accident, plaintiff was taken to Pendleton Memorial Methodist Hospital where she remained for ten days. Dr. Rosenkrantz, the physician on call at the emergency room, diagnosed plaintiff as having fractured her left ankle in two places. A short leg cast was applied. Upon discharge from the hospital, the plaintiff remained in a short leg cast and ambulated with a walker. Dr. Rosen-krantz indicated that the plaintiff was not to place any weight on her left side. The cast was removed in January 1986, and plaintiff was instructed to begin full weight bearing on the left leg and foot. In March 1986, plaintiff progressed to ambulating with the assistance of a walking cane, and in June, plaintiff was instructed to use an elastic ankle support. X-rays taken in September 1986 revealed that both fractures had healed. However, in November 1986, x-rays taken showed mild degenerative changes in the joints of the left ankle. X-rays of the right ankle were normal. Plaintiff was still under the care of Dr. Rosenkrantz at the time of the trial.

At trial, Dr. Rosenkrantz assigned plaintiff a twenty per cent permanent physical impairment and loss of function of the left foot and ankle. He testified that the arthritic changes in plaintiff’s left ankle were the result of the fractures, and would probably worsen over time. He also stated that Mrs. Ford would need to stay on some type of arthritic medication, and may walk with a limp on occasion. Dr. Rosenkrantz further noted that plaintiff had developed bone spurs on the left ankle which would require further surgery. He testified that it was his opinion that the bone spurs were also a result of the fractures plaintiff sustained to her left ankle.

Eugene Woods, an insurance adjuster hired by defendants to investigate the accident scene, testified at trial that he saw “loose asphalt near the curb in the sidewalk, some visible stains and also what appeared to be a difference in the level of asphalt next to the curbing.” Wilford Gal-lardo, plaintiff’s expert, upon examining photographs of the accident scene taken by Woods, noted the area had peaks and valleys which were cause by uneven settling. Mr. Gallardo testified further that there was a discoloration to the area which made the uneven surface difficult to see. According to plaintiff’s expert, the camouflaged peaks and valleys in the asphalt created an extremely hazardous condition because a person stepping down on the asphalt could not see the uneven surface.

Defendants’ expert, Dennis Howard, while concluding there was no hazardous conditions in the parking lot, did note the existence of the discoloration of the asphalt. However, it was his opinion that the discoloration did not create a defect in [499]*499the property. The discoloration, according to Mr. Howard, may have been “some oil residue or some lubrication residue.” Defendants’ only other witness, Jonell Preston, Sears’ Automotive Center manager at the time of the accident, testified that he knew of no other accidents in the area except for plaintiff’s, and that Sears had personnel who cleaned the parking lot every morning. He also testified that he had assisted plaintiff after the accident and did not see any debris.

After plaintiff presented her case, defendants moved for a directed verdict, arguing that the plaintiff had not met her burden of proof. The trial judge denied the motion. After a full trial on the merits, the jury rendered a verdict in favor of plaintiff and awarded $66,800.00 in damages. Upon the motion of plaintiff, the trial judge made the jury verdict the judgment of the court.

A directed verdict may be granted only when, after considering all the evidence in the light and with all reasonable inferences most favorable to the party opposed to the motion, the facts and evidence are so overwhelmingly in favor of the moving party that the trial judge believes reasonable men could not arrive at a contrary verdict. L.S.A.-C.C.P. Article 1810; Roberts v. St. Bernard Parish School Board, 427 So.2d 676 (La.App. 4th Cir.1983); writs denied, 433 So.2d 1053 (La.1983). Oppenheim v. Murray Henderson, 414 So.2d 868 (La.App. 4th Cir.1982); Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir.1979). However, if there is substantial evidence opposed to the motion, that is, evidence of such quality and weight that reasonable and fair minded men, in exercise of impartial judgment, might reach different conclusions, the motion should be denied, and the case submitted to the jury. Roberts, supra; Oppenheim, supra.

We cannot say the trial judge erred in denying defendants’ motion for a directed verdict in light of the standard set out above. The evidence presented does not exclude the possibility that reasonable minds could find in favor of the plaintiff. We find that there was sufficient evidence for a jury to conclude that plaintiff could prove her case by a prepondance of the evidence.

The true issue on appeal is the assessment of credibility of the witnesses in the light of the conflicting lay and expert testimony. The jurisprudence is clear that where there is a conflict in testimony given among witnesses, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review absent a finding that the trier of fact’s determinations are clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Nailor v. International Harvester Co., 430 So.2d 784 (La.App. 5th Cir.1983), writ denied, 437 So.2d 1148 (La.1983); Dieudonne v. Guidry, 336 So.2d 990 (La.App. 3rd Cir 1976), writ denied, 339 So.2d 853 (La.1976).

There is no dispute that Mrs.

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Bluebook (online)
552 So. 2d 497, 1989 La. App. LEXIS 1817, 1989 WL 126197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-sears-lactapp-1989.