George v. Wal-Mart Stores, Inc.

722 So. 2d 119, 98 La.App. 3 Cir. 850, 1998 La. App. LEXIS 3613, 1998 WL 857871
CourtLouisiana Court of Appeal
DecidedDecember 9, 1998
Docket98-850
StatusPublished
Cited by2 cases

This text of 722 So. 2d 119 (George v. Wal-Mart Stores, 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
George v. Wal-Mart Stores, Inc., 722 So. 2d 119, 98 La.App. 3 Cir. 850, 1998 La. App. LEXIS 3613, 1998 WL 857871 (La. Ct. App. 1998).

Opinion

722 So.2d 119 (1998)

Ronald GEORGE, Plaintiff-Appellee,
v.
WAL-MART STORES, INC., et al., Defendants-Appellants.

No. 98-850.

Court of Appeal of Louisiana, Third Circuit.

December 9, 1998.

*120 Terry G. Aubin, Pineville, for Ronald George.

Philip Andre Fontenot, Lafayette, for Wal-Mart Stores, Inc., et al.

Before COOKS, SAUNDERS and WOODARD, JJ.

WOODARD, Judge.

Alleging negligence pursuant to La.R.S. 9:2800.6, Mr. Ronald George sued Wal-Mart for his injuries arising out of a trip and fall accident in Wal-Mart's Pineville, Louisiana, store, on September 1, 1994. The trial court found Wal-Mart negligent and awarded him $30,000.00 in general damages, $5,168.43 in past medical expenses, $5,452.00 in future medical expenses, with legal interest from the date of the judicial demand, as well as expert and court costs. For the foregoing reasons, we affirm in part and reverse in part.

FACTS

On September 1, 1994 at approximately 2:30 p.m., Mr. George stopped at the Wal-Mart store in Pineville, Louisiana to purchase some carburetor cleaner fluid. Three sets of doors provided a public entrance, and he entered the one to the far right. Immediately, he had to veer to his left because he encountered to his right a plant display lining a rail separating the entrance from the exit. This display consisted of tiers of boards set up on cinder blocks with assorted plants arrangements that were placed on the boards. Wheelchairs were between the plant display and the entrance along the rail. Mr. George noticed the plant, as well as a portion of the wheelchair folded up, facing the entrance aisle.

Wal-Mart had a specific policy concerning wheelchairs. It had to be kept by the entrance of the store for the customer's convenience or in case of an emergency. Once a chair was no longer needed by a customer, a Wal-Mart employee had to take it from the exit area back to the entrance area, fold it, and position it in such a fashion that it faced the rear of the store.

Mr. George also observed Ms. Joyce L. Michael, a Wal-Mart employee, working that day as a greeter, standing in the middle of the entrance, and assisting a customer. Wal-Mart employs greeters to acknowledge customers as they enter the front door, and to tag merchandise that they may be returning. They are also responsible for maintaining the entrance area and making sure that everything is in order. Ms. Michael had been a Wal-Mart employee for only two weeks prior to the accident, but she had received safety training and was aware of Wal-Mart's safety policies, such as wiping up spills, clearing obstructions, taping down rugs, and keeping passageways in order.

Once he entered the store, Mr. George proceeded through an area between the plant display, Ms. Michael, and the customer she *121 was assisting. In doing so, he caught his foot on the unfolded foot-rest of the wheelchair facing the entrance aisle. He had not seen the unfolded foot-rest because it was hidden by vines from the plant display. He fell to the floor with his right hand extended, yanking the wheelchair into the aisle, and knocking over some of the boards and plants. Embarrassed, he quickly got up and apologized to Ms. Michael for disturbing the display. He told her that he was not hurt and proceeded with his shopping.

Ms. Michael testified that she cleaned up the area and pushed the wheelchair into its correct position against the railing facing the back of the store. She was under the impression that the chair "wasn't exactly sticking out" from behind the display but admitted that it was not supposed to be facing the aisle.

Approximately five to ten minutes later, Mr. George told Ms. Kathy Edwards, the Store's assistant manager, that his right arm was hurt and swollen and filed an accident report. Ms. Edwards took pictures of the display once reassembled, but Ms. Michael failed to tell her that she had moved the wheelchair back to its correct position after Mr. George's fall.

The next day, Mr. George sought treatment at Huey P. Long Hospital (HPLH) after experiencing pain in his right wrist. He was examined by Wal-Mart's doctor, Homi S. Cooper, M.D., from whom he received conservative treatment. Dr. Cooper referred him to Dr. John S. McCabe, M.D., in October of 1994. Mr. George received treatment from Dr. Cooper and Dr. McCabe until January of 1995. Because Mr. George was still suffering from swelling and pain, he consulted Dr. Michael C. Genoff, M.D., on February 9, 1995. Dr. Genoff made the following observations:

There was point tenderness over the ulnar head and diffuse tenderness over the ulnar carpus. There was a grinding sensation with pronation and supination. Sensation was decreased over the ulnar one-half of the ring and small finger. Tinel's sign was positive over the ulnar nerve. The temperature in the right hand was less than the left.
....
It is my impression that this patient has a lunatrotriquetral ligament tear with clinical ulnar nerve entrapment at Guyon's canal.

After an arthrogram test performed on February 14, 1995, Dr. Genoff made the following findings:

1. There is an abnormal communication between the radiocarpal and mid carpal joint spaces through the lunate/ triquetrial interspace. This occurs on both the radiocarpal and mid carpal injections and is most in keeping with an L.T. Ligamentous tear.
2. The radioulnar injection has a normal arthrographic appearance. The proximal surface of the TFCC appears smooth. I see no convincing evidence for presence of a TFCC tear.
3. The right wrist otherwise has a normal arthrographic appearance.

Dr. Genoff then recommended surgical procedure which was not performed because Mr. George could not afford it and had no medical insurance. In preparation for litigation, Dr. Genoff reexamined him on September 30, 1997, to determine whether his earlier prognosis was still valid. The examination generated essentially the same findings than that he had presented on previous visits.

Mr. George filed suit against Wal-Mart on September 1, 1995. Trial was held on October 16, 1997. In a judgment rendered on March 10, 1998, the trial court found that Wal-Mart was liable, pursuant to La.R.S. 9:2800.6, and awarded him $30,000.00 in general damages, $5,168.43 in past medical expenses, and $5,452.00 in future medical expenses, as well as $1,867.80 in expert fees. Wal-Mart now appeals.

LAW

Negligence

Wal-Mart alleges that the trial court clearly erred in finding that it was liable for injuries sustained by Mr. George in the trip and fall accident of September 1, 1994. More specifically, it claims that the trial court's finding that the wheelchair presented *122 an unreasonable risk of harm for the customer and a reasonably foreseeable risk of harm for Wal-Mart is a manifest error.

At the outset, we note that an action for negligence, brought by a person against a merchant, for damages resulting from injuries sustained in a trip and fall accident, is governed by the principles set forth in La. R.S. 9:2800.6. That statute provides in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B.

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Bluebook (online)
722 So. 2d 119, 98 La.App. 3 Cir. 850, 1998 La. App. LEXIS 3613, 1998 WL 857871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-wal-mart-stores-inc-lactapp-1998.