Frelow v. St. Paul Fire & Marine Ins.

631 So. 2d 632, 93 La.App. 3 Cir. 759, 1994 La. App. LEXIS 203, 1994 WL 28779
CourtLouisiana Court of Appeal
DecidedFebruary 2, 1994
Docket93-759
StatusPublished
Cited by10 cases

This text of 631 So. 2d 632 (Frelow v. St. Paul Fire & Marine Ins.) 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
Frelow v. St. Paul Fire & Marine Ins., 631 So. 2d 632, 93 La.App. 3 Cir. 759, 1994 La. App. LEXIS 203, 1994 WL 28779 (La. Ct. App. 1994).

Opinion

631 So.2d 632 (1994)

Carolyn FRELOW, Plaintiff-Appellant,
v.
ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellants.

No. 93-759.

Court of Appeal of Louisiana, Third Circuit.

February 2, 1994.

*633 J. Rock Palermo III, Norman Jefferson Thigpen, Lake Charles, for plaintiff-appellant.

James R. Shelton, Lafayette, for defendants-appellants.

Before DOUCET and KNOLL, JJ., and CULPEPPER[*], J. Pro Tem.

WILLIAM A. CULPEPPER, Judge Pro Tem.

This is a trip and fall accident case. Plaintiff, Carolyn Frelow, filed this personal injury suit on behalf of her minor son, James Papillion, against Western Sizzlin Steakhouse (in Lake Charles) and its liability insurer, St. Paul Fire & Marine Insurance Co., on August 14, 1991, alleging negligence on the part of Western Sizzlin and its employees. Western Sizzlin and St. Paul answered with a general denial and alleged the contributory negligence of both James and Carolyn. The trial judge held that James was 40% at fault and Western Sizzlin was 60% at fault for the accident, and awarded to James $905 medical expenses, $500 general damages and $150 expert witness fees, all to be reduced by 40%.

Plaintiffs appeal the allocation of fault and the award of general damages. Western Sizzlin and St. Paul appeal the finding of fault as to defendants.

FACTS

On December 30, 1990, a Sunday afternoon at about 2:00 p.m., James Papillion, ten years old, was having lunch at Western Sizzlin Steakhouse in Lake Charles with his mother, brothers and sisters, cousins and grandmother. James had just been to the salad bar with his mother and sister and was carrying his salad plate back to his family's table. His sister was right behind him. James's mother, Carolyn Frelow, had already returned to the table.

James and his sister chose the most direct route between the tables back to their own *634 table, a fairly straight path. This route took them past a recently vacated booth which was being cleaned by Michael Bruce, a busboy. On the other side of the aisle was an occupied table. As James proceeded to pass this point, at a fast walk, he tripped over Bruce's foot, which was sticking into the aisle as he leaned into the booth he was cleaning. James reeled and hit his back on the corner of a table, then fell onto the floor face down. His salad plate fell on the back of his head.

Bruce testified that, out of the corner of his eye, he saw James approaching the booth he was cleaning. He stated that James was walking fast, but not running. As James attempted to pass by, he tripped over Bruce's heel, which Bruce said was not really in the aisle, but just to the side by the booth. Bruce helped James up and asked him if he was all right, to which James replied, "Yes". Bruce testified that James's mother then appeared and fussed at James for running in the restaurant. She had previously admonished James for running in the restaurant, before they had gone to the salad bar. James and his family then proceeded to eat their meals. They left the restaurant about an hour later.

Two other Western Sizzlin employees, Jenny Busby and Tammy Crysel, witnessed the accident. Both testified that James was not running at the time, but was walking fast. Crysel stated that Bruce was standing in the aisle at the side of the booth, bending over it and leaning on one knee with the other leg "kind of out". James tripped over the foot that was out. Jenny testified that Bruce was bent over the booth, but standing in the aisle when James tripped over Bruce's foot.

Tiffany Coleman, the assistant manager, testified that, although she did not see the accident, she was informed of it immediately. Coleman said that, as James and his family were leaving the restaurant, they stopped to report the accident and show Coleman the red welt on James's back.

James and Carolyn Frelow, James's mother, testified at trial that James complained of headaches and a backache for a week after the accident. Carolyn gave him Tylenol for the headaches. Then, the following Sunday, James developed a severe headache during church, which caused him to break into a cold sweat. The next day, Monday, Carolyn took James to their family doctor, Dr. Kane, for a checkup. There is no evidence in the record of Dr. Kane's findings. His charge for an office visit was $28.

On Tuesday, January 9, 1991, Carolyn took James to her chiropractor, Dr. Carol Butler. Dr. Butler found a slight restriction in James' cervical flexion and extension, a palpable muscle spasm in the trapezius and sternal collateral mastoidius muscle (the shoulder area), a decreased lumbar range of motion, and a bruise on James's back. She diagnosed lumbar facet syndrome. She opined the capsule linings around some of his vertebrae were injured, causing swelling and pain and greatly limiting his ability to bend forward or back. James was also limited in his ability to run or jump. Dr. Butler further diagnosed headache syndrome and a hyperextension, hyperflexion injury of the neck (caused when James's neck went forcibly forward and back further than it would normally have done). Dr. Butler stated that James's injuries were consistent with his history of the trip and fall.

Dr. Butler began treating James on his next visit, on January 11, 1991. By January 30, James was no longer having headaches and his neck was improving. Dr. Butler released James on April 16, 1991, at which time he was asymptomatic.

Carolyn Frelow filed this suit, on behalf of James Papillion, against Western Sizzlin and its liability insurer, St. Paul, on August 14, 1991, asking for medical expenses and general damages. She alleged the liability of Western Sizzlin for the negligence of its employee, Michael Bruce. Defendants answered with a denial as to James's injuries, but admitted the circumstances of the accident and alleged the contributory negligence of James for running in the restaurant, failing to see Bruce's leg and failing to heed his mother's warning not to run. Defendants also alleged negligence on the part of Carolyn Frelow for failing to properly supervise and admonish her child.

The trial judge found James Papillion was negligent for walking too fast and Bruce was *635 negligent for obstructing James's path after he saw James approaching. The court apportioned 40% fault to James and 60% to Bruce, and awarded medical expenses of $905, $500 general damages and fixed $150 expert witness fees.

Both the plaintiff and the defendants appeal. Carolyn Frelow contends on appeal that the trial judge erred in finding James was negligent and in awarding inadequate general damages. Defendants contend the trial judge erred in finding Michael Bruce was negligent.

OPINION

Negligence of Michael Bruce

Defendants contend on appeal that the trial judge erred in finding the busboy, Michael Bruce, was negligent. It is undisputed that James did trip over Bruce's leg or foot. However, defendants contend that Bruce did nothing wrong, that he was cleaning the table as he saw James "out of the corner of his eye" coming so fast that Bruce had no opportunity to move his foot out of the aisle before James tripped. They argue that such conduct was not substandard and that James's own negligence in not seeing and avoiding Bruce's leg was the sole cause of the accident.

An owner of a business who permits the public to enter his establishment has a duty to exercise reasonable care to protect them. This duty extends to keeping the premises safe from unreasonable risks of harm or warning persons of known dangers. When the presence of small children is expected, the duty increases.

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Cite This Page — Counsel Stack

Bluebook (online)
631 So. 2d 632, 93 La.App. 3 Cir. 759, 1994 La. App. LEXIS 203, 1994 WL 28779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frelow-v-st-paul-fire-marine-ins-lactapp-1994.