Hulsey v. Sears, Roebuck and Co.

705 So. 2d 1173, 1997 WL 805395
CourtLouisiana Court of Appeal
DecidedDecember 29, 1997
Docket96 CA 2704
StatusPublished
Cited by8 cases

This text of 705 So. 2d 1173 (Hulsey v. Sears, Roebuck and Co.) 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
Hulsey v. Sears, Roebuck and Co., 705 So. 2d 1173, 1997 WL 805395 (La. Ct. App. 1997).

Opinion

705 So.2d 1173 (1997)

G. Sue Hulsey, Wife of/and James E. HULSEY, Sr.
v.
SEARS, ROEBUCK AND CO. and Allstate Insurance Company.

No. 96 CA 2704.

Court of Appeal of Louisiana, First Circuit.

December 29, 1997.

*1174 Michael A. Lombard, Mandeville, for Plaintiffs-Appellants G. Sue Hulsey and James Hulsey, Sr.

Albert C. Miranda and Jeffrey K. Warwick, Metairie, for Defendant-Appellee Weslo Manufacturing Company, Inc.

David P. Sirera, Covington, for Defendants-Appellees Sears Roebuck & Company and Allstate Insurance Company.

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

LOTTINGER, Chief Judge.

This is an action for personal injuries and lost earnings allegedly sustained by plaintiff while trying out an exercise treadmill at the *1175 invitation of defendant store's employee. From a jury verdict finding no negligence on behalf of defendant store or its employee, plaintiffs now appeal. Defendants separately appeal from the trial court's dismissal of their third-party demand seeking defense and indemnification from the treadmill's manufacturer.

FACTS

On July 2, 1992, plaintiffs, James and Sue Hulsey went to the Sears Roebuck & Company (hereafter, "Sears") store in Slidell, Louisiana to obtain information about a treadmill exercise machine. Mr. Hulsey, then age 59, was interested in purchasing a treadmill to aid him in his physical rehabilitation following heart surgery six months earlier.

Upon entering the sporting goods section of defendant's store, Mr. and Mrs. Hulsey were approached by Bill Zielske, a salesman employed by Sears. After explaining the features of the treadmill to Mr. and Mrs. Hulsey, Mr. Zielske suggested that Mrs. Hulsey walk on the treadmill. After briefly demonstrating the treadmill to Mrs. Hulsey, Mr. Zielske invited Mr. Hulsey to try out the treadmill.

Plaintiffs allege that as Mr. Hulsey was walking on the treadmill, Mr. Zielske placed his arm across the top of the treadmill console as he continued to explain the features of the treadmill to Mrs. Hulsey. According to plaintiffs, the pace of the treadmill increased without warning. This sudden action purportedly caused Mr. Hulsey to loose his footing and fall off of the end of the treadmill twisting his left ankle. Plaintiffs further allege at that point, Mr. Zielske inquired if Mr. Hulsey was all right and offered to get him a chair. Mr. Zielske then purportedly asked if Mr. Hulsey wanted to try out the treadmill again. According to plaintiffs, Mr. Hulsey attempted to walk on the treadmill again, but after a few moments, asked that the machine be turned off. Mr. and Mrs. Hulsey then proceeded to the sales desk where they purchased the treadmill which was delivered to their home several weeks later. Plaintiffs concede that other than themselves, Mr. Zielske was the only witness to this incident, and that no accident report was filled out on that date.[1]

Mr. Hulsey testified that upon the advice of his cardiologist, Dr. Anthony Morales, Jr., he sought treatment on July 8, 1992, from Dr. James Gosey, Jr., an orthopedist, who diagnosed Mr. Hulsey as having sustained a strain or partial rupture of his left Achilles tendon. Due to this injury, Mr. Hulsey sustained a shortened heal cord, or Achilles tendon, and a resultant loss of flexibility in his left foot, as well as chronic swelling in his left leg.[2]

Six to eight weeks following the alleged treadmill incident, Mr. Hulsey claimed that he, fitted with a walking cast and carrying a cane, accompanied his wife on a shopping trip to Sears. On that date, he purportedly looked up Mr. Zielski, and advised him of the injury which resulted from his fall from the treadmill. According to Mr. Hulsey, Mr. Zielske barely acknowledged him.[3] Mr. Hulsey conceded that he thereafter left the store without requesting that an accident report be filled out.

Mr. Hulsey further testified that subsequently in late August or early September of 1992 his boss of thirty-two years, Mr. C.W. Dudley, Jr., advised him that he would be closing the management company which employed Mr. Hulsey due to the anticipated length of Mr. Hulsey's convalescence following his leg injury.[4]

*1176 In a letter dated September 24, 1992, Mr. Hulsey's attorney notified Sears of the Hulseys' pending claim. The Hulseys ultimately filed suit against Sears and its insurer, Allstate Insurance Company (hereafter, "Allstate"), claiming that Mr. Hulsey's injuries resulted from Sears' failure to properly train its employee in the use of the treadmill. Mrs. Hulsey joined in the suit and asserted a claim for loss of consortium.[5] In their answer to the lawsuit filed by the Hulseys, defendants, Sears and Allstate, inserted a third-party demand for defense and indemnification from Weslo Manufacturing Company (hereafter, "Weslo Manufacturing"), the manufacturer of the treadmill. Defendants alleged that Weslo Manufacturing had, in full force and effect, a policy of insurance with the Home Insurance Company with a vendor's endorsement, which would indemnify Sears for any claim for bodily injury arising out of the demonstration of its product on the premises of Sears.

ACTIONS OF THE TRIAL COURT

This matter was tried before a jury of twelve persons on June 3 through June 6, 1997, with the jury ultimately concluding that Sears was not answerable for the injuries purportedly sustained by Mr. Hulsey on the treadmill. In accordance with the jury's finding, judgment was thereafter rendered in favor of defendants, Sears Roebuck & Company and Allstate Insurance Company and against plaintiffs, G. Sue Hulsey, wife of/and James E. Hulsey, Sr., dismissing their claims with prejudice.

The issues raised by defendants, Sears and Allstate, in their third-party demand against Weslo Manufacturing were, by agreement of the parties, decided by the court. The court ruled in favor of third-party defendant, Weslo Manufacturing, and rendered a judgment in accordance therewith which dismissed, with prejudice, the third-party demand of Sears and Allstate.

Following the denial of their subsequent Motion for Judgment Notwithstanding the Verdict and/or New Trial, Mr. and Mrs. Hulsey now appeal. Sears and Allstate also appeal the dismissal of their third-party demand against Weslo Manufacturing.

ASSIGNMENTS OF ERROR

In connection with their appeal, plaintiffs assign as error the jury's finding that Sears, through its employee Bill Zielske, was not negligent. Additionally, defendants, Sears and Allstate, in their capacity as third-party plaintiffs, further assign as error the trial court's finding that the defense and indemnity provisions of the policy issued by Weslo Manufacturing's insurer, the Home Insurance Company, were not brought into play by the allegations contained in plaintiffs' petition for damages.

ANALYSIS AND DISCUSSION

The first issue presented for our consideration is Mr. and Mrs. Hulsey's assertion that the jury's verdict was manifestly erroneous, and must, therefore, be reversed.

In our consideration of this issue, we are mindful that Article V, § 10(B), of the Louisiana Constitution of 1974 provides that the appellate jurisdiction of a court of appeal extends to law and facts.

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Cite This Page — Counsel Stack

Bluebook (online)
705 So. 2d 1173, 1997 WL 805395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hulsey-v-sears-roebuck-and-co-lactapp-1997.