Guillot v. Dolgencorp, L.L.C.

127 So. 3d 124, 13 La.App. 3 Cir. 587, 2013 WL 6188822, 2013 La. App. LEXIS 2459
CourtLouisiana Court of Appeal
DecidedNovember 27, 2013
DocketNo. 13-587
StatusPublished
Cited by2 cases

This text of 127 So. 3d 124 (Guillot v. Dolgencorp, L.L.C.) 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
Guillot v. Dolgencorp, L.L.C., 127 So. 3d 124, 13 La.App. 3 Cir. 587, 2013 WL 6188822, 2013 La. App. LEXIS 2459 (La. Ct. App. 2013).

Opinions

JOHN D. SAUNDERS, Judge.

11While shopping at a Dollar General store owned and operated by Dolgencorp, L.L.C. in Marksville, Louisiana, David Guillot slipped and fell on a discarded McDonald’s cup, sustaining soft tissue injuries. Following a bench trial on the merits, the trial court found Dolgencorp liable and awarded Mr. Guillot $15,000.00 in general damages and $2,426.45 in special damages. We find that the trial court abused its discretion in the admission of certain deposition testimony. Nevertheless, we uphold the trial court’s judgment, and we affirm.

I.

ISSUES

We shall consider:

(1) whether the trial court abused its discretion in admitting the deposition testimony of the Dollar General assistant manager into evidence in lieu of live testimony;
(2) whether Mr. Guillot proved by a preponderance of the evidence that Dol-gencorp had constructive notice of the McDonald’s cup;
(3) whether the trial court erred in finding that Mr. Guillot carried his burden to prove that the accident caused his alleged injuries; and
(4)whether the trial court erred in awarding Mr. Guillot excessive damages.

II.

FACTS AND PROCEDURAL HISTORY

|2On April 23, 2011, David Guillot was shopping in a Dollar General store in Marksville, Louisiana, when he slipped on a McDonald’s cup and fell in one of the store aisles. Kimberly Ragsdale, the assistant manager of the Dollar General, came to Mr. Guillot’s assistance. Mr. Guil-lot then left the store. He later filed this lawsuit.

At trial, Mr. Guillot served as the only witness on his behalf. He testified that he slipped on the McDonald’s cup that contained a clear liquid and suffered injuries to his lower back, right hip, and right knee. In addition to his testimony, Mr. Guillot submitted into evidence video surveillance footage showing that for the period of roughly two minutes before the incident, no person entered the area where Mr. Guillot fell. The video further showed a plastic bag discarded on the floor in another part of the store for roughly ten minutes during the time of the accident.

At trial, the court admitted into evidence the deposition of Kimberly Ragsdale in lieu of live testimony. It determined that although Ms. Ragsdale lived within the subpoena power of the court, her deposition testimony was limited in nature to her observations of the accident scene and the store’s inspection policies. Furthermore, the court concluded it should be admitted to minimize resulting court costs from issuing a continuance and instanter subpoena.

After denying its motion for involuntary dismissal, the trial court held that Dolgen-corp was solely liable for Mr. Guillot’s fall [127]*127under La.R.S. 9:2800.6, concluding that a store has a duty to keep its aisles and passageways clear of objects that might cause injury and a patron does not have a duty to watch every step that he or she may take while shopping. The trial court reasoned that there was a McDonald’s cup in the aisle, and given the presence of the neglected plastic bag in another part of the store, the store had constructive notice of the potential hazard. The trial court awarded Mr. Guillot $15,000.00 in general damages and $2,426.45 in special damages.

_b.ni.

LAW AND DISCUSSION

Standards of Review

The decision to admit deposition testimony at trial is discretionary and will not be disturbed upon appeal absent an abuse of discretion. Bruins v. U.S. Fleet Leasing, Inc. 430 So.2d 386 (La.App. 3 Cir.1983); Dickens v. Commercial Union Ins. Co., 99-698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. Furthermore, even if the trial court’s evidentiary ruling is erroneous, reversal is not warranted unless the error prejudiced the complainant’s cause. State Farm Mut. Auto. Ins. Co. v. Little, 34,760 (La.App. 2 Cir. 6/20/01), 794 So.2d 927.

With regard to constructive notice, a trial court’s determination of whether a merchant had constructive knowledge of a condition creating an unreasonable risk of harm is a factual finding that may not be set aside absent manifest error. Smith v. Brookshire Grocery Co., 32,619 (La.App. 2 Cir. 1/26/00), 750 So.2d 450. We cannot disturb the trial court’s ruling unless it is unreasonable or clearly wrong under the record. Mart v. Hill, 505 So.2d 1120 (La. 1987).

Admissibility of Ms. Ragsdale’s Deposition Testimony

Dolgencorp argues that the trial court erred in admitting the deposition of Ms. Ragsdale in lieu of live testimony. We agree.

Louisiana Code of Civil Procedure Article 1450, in part, states:
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
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(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable;
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or
(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Ms. Ragsdale’s deposition was taken for the purpose of discovery, and there was no stipulation by the parties that this deposition could be used at trial in lieu of live testimony. She resided within the subpoe[128]*128na power of the court, and there is no evidence in the record that she was unavailable to testify. As such, Ms. Rags-dale’s deposition may only be admitted if an exceptional circumstance exists as defined under La.Code Civ.P. art. 1450. While the trial court believed the limited nature of Ms. Ragsdale’s testimony combined with a desire to limit court costs amounted to exceptional circumstances, we disagree.

Under Article 1450, an exceptional circumstance must “make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” La.Code Civ.P. art. 1450(A)(3)(c). Here, the only hurdles to Ms. Ragsdale testifying live are court costs from issuing a continuance and instanter subpoena. While burdensome, court costs do not impede the interest of justice nor do they | ¡^outweigh the value of live witness testimony; they are merely expected and inevitable consequences of litigation. To hold otherwise would amount to eliminating live testimony altogether in favor of depositions to save court costs which flies in the face of Article 1450.

Furthermore, while Ms.

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Bluebook (online)
127 So. 3d 124, 13 La.App. 3 Cir. 587, 2013 WL 6188822, 2013 La. App. LEXIS 2459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillot-v-dolgencorp-llc-lactapp-2013.