Jefferson v. K-Mart Corp.

663 So. 2d 36, 94 La.App. 3 Cir. 1550, 1995 La. App. LEXIS 1911, 1995 WL 380657
CourtLouisiana Court of Appeal
DecidedJune 28, 1995
DocketNo. 94-1550
StatusPublished
Cited by2 cases

This text of 663 So. 2d 36 (Jefferson v. K-Mart Corp.) 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
Jefferson v. K-Mart Corp., 663 So. 2d 36, 94 La.App. 3 Cir. 1550, 1995 La. App. LEXIS 1911, 1995 WL 380657 (La. Ct. App. 1995).

Opinions

JiLABORDE, J.

The plaintiff, June Jefferson, seeks to recover damages resulting from an accident which occurred while she was shopping at the K-Mart store in New Iberia, Louisiana. Named as defendant is K-Mart Corporation, the owner of the retail facility where the accident occurred. After a trial on the merits, the jury awarded Ms. Jefferson $13,-000.00 in general and special damages but found her thirty percent at fault in causing the accident. She has appealed the verdict and contends that the jury erred in finding her at fault to any degree in causing the accident. She also seeks an increase in the award for damages.

JaDISCUSSION OF RECORD

In late November or early December of 1991, June Jefferson and her friend, Donna Smith, went to the K-Mart store in New Iberia, Louisiana, to shop for Christmas decorations for Ms. Smith. As they approached the Christmas display aisle, the plaintiff saw a K-Mart employee working on a tall ladder in the adjacent aisle. The employee, John Funk, was in the process of running an extension cord above the ceiling tile from one area of the store to another. When Ms. Jefferson saw him, he was standing on the ladder with his hands above his head working the extension cord through an open ceiling panel.

Funk testified that he saw the plaintiff and Ms. Smith before they entered the adjacent aisle and asked them to step back until he finished his work. The plaintiff denies having heard Funk’s warning. Ms. Jefferson and Ms. Smith then entered the Christmas display aisle to view the merchandise. While [38]*38they were in the aisle, Funk’s ladder shifted as he was repositioning a tile in the ceiling. When the ladder shifted, Funk lost his balance and lost control of the ceiling tile he was holding. He attempted to guide the ceiling tile over the shelving separating his aisle from the one occupied by Ms. Jefferson and released the tile at a point where he believed its release was least likely to injure himself or others. In the process, he knocked some of the merchandise off of the shelving separating the aisles. As he lost his balance, Funk shouted a warning to a co-employee, Gloria Prince, who had just arrived at his aisle to stock merchandise. Ms. Jefferson also heard the warning and instinctively flinched. She was struck in the back of the neck by a falling object. While it is not disputed that an object struck Ms. Jefferson, the record is not clear as to what the object was.

^Immediately after the incident, Funk and another K-Mart employee went over to the aisle occupied by Ms. Jefferson to retrieve the tile. Either Ms. Jefferson or Ms. Smith informed them Ms. Jefferson had been struck by an unspecified object but that she was not injured.. Because no injury was claimed, neither an accident nor an incident report was prepared concerning the event.

The plaintiff and Ms. Smith continued to shop for approximately ten more minutes, but Ms. Jefferson claims that prior to leaving the store she began to have headaches and feel pain at the base of her neck. She borrowed two aspirins from Ms. Smith who dropped her off at her home. According to Ms. Jefferson the pain did not subside, and on January 9, 1992, she contacted K-Mart and requested that the defendant send her to a doctor. K-Mart refused to authorize the medical treatment but asked the plaintiff to come in and give a statement concerning the event.

The first time the plaintiff sought medical treatment was in mid-January of 1992 when she brought her son to Dr. Andre Perron for treatment. She contends that limited access to medical care discouraged her from seeing a physician sooner. Dr. Perron examined Ms. Jefferson for a multitude of complaints, s^pst of which were unrelated to the accident. With respect to the accident complaints, he found no objective signs of injury or trauma and diagnosed her condition as a cervical strain or contusion or both. She was next examined by Dr. Perron on February 12, 1992, for numerous complaints, including neck pain. Dr. Perron maintained his diagnosis of cervical strain, but the diagnosis was based entirely on the plaintiffs subjective complaints. It was his opinion the symptoms would dissipate with time, and he did not find it necessary to prescribe medication or to refer Ms. Jefferson to any specialists. Apparently he did not see her again after February 12, 1992.

ROn February 13, 1992, Ms. Jefferson began to see Dr. Ernest Lisenby, a New Iberia, Louisiana chiropractor. It appears that Ms. Jefferson selected Dr. Lisenby in part because he did not require his patients to pay in advance for their care. Dr. Lisenby concluded that Ms. Jefferson had sustained ligament damage and a floating bone chip in her back. He released Ms. Jefferson from his care on June 17, 1992, concluding that she had reached maximum medical improvement from a chiropractic standpoint. Dr. Lisenby also noted in a report of June 18, 1992, that Ms. Jefferson’s continuing pain and discomfort presented “a possible need for orthopedic attention or surgery.”

Dr. John Cobb, an orthopedic surgeon, began treating the plaintiff on September 21, 1992, pursuant to a referral by her attorney. Between September 21, 1992, and December 27, 1993, he saw the plaintiff on three occasions. Based upon his examination of the plaintiff, Dr. Cobb concluded that Ms. Jefferson’s problems could not be relieved surgically, and he recommended physical therapy. After physical therapy also proved unhelpful, Dr. Cobb referred the plaintiff to Dr. Sanjib Jindia, an anesthesiologist with a clinical sub-specialty in pain management.

Ms. Jefferson first saw Dr. Jindia on January 11, 1994. Dr. Jindia recommended a series of trigger point injections in conjunction with physical therapy. She underwent several injections on February 1, 1994, and March 2, 1994, which she testified provided immediate relief. However, she also testified that the neck pains returned after a couple of [39]*39weeks. Notwithstanding Dr. Jindia’s opinion that continuous injections in conjunction with therapy would alleviate the complaints of most persons suffering with Ms. Jefferson’s problems, Ms. Jefferson declined to undergo additional cortisone injections due to a combination of fear, pain, and |sexpense.

At the request of the defendant, the plaintiff was also examined by Dr. Douglas Bernard, an orthopedic surgeon. After examining Ms. Jefferson on one occasion and reviewing the results of an MRI, Dr. Bernard concluded that the plaintiffs medical condition was essentially normal.

OPINION

Apportionment of Fault

The first issue is whether the jury erred in assessing Ms. Jefferson with thirty percent fault. An appellate court has a constitutional duty to review facts and determine whether the facts support the fact finder’s conclusions. Welch v. Winn-Dixie La., Inc., 94-2331 (La. 5/22/95), 655 So.2d 309 [citing Ambrose v. New Orleans Police Dep’t. Amb. Serv., 93-3099 (La. 7/5/94), 639 So.2d 216]. However, an appellate court should not disturb a fact finder’s reasonable evaluations of credibility and reasonable inferences of fact where conflict exists in the testimony or the facts. Id. [citing Stobart v. State of La. Through Dep’t. of Transp. and Dev., 617 So.2d 880 (La.1993) and Rosell v. ESCO, 549 So.2d 840 (La.1989) ]. Even if the appellate court would have decided differently, the fact finder’s determinations should be affirmed unless clearly wrong or manifestly erroneous. Id.

Furthermore, the manifest error-elearly wrong standard extends to review of a fact finder’s apportionment of fault.

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Bluebook (online)
663 So. 2d 36, 94 La.App. 3 Cir. 1550, 1995 La. App. LEXIS 1911, 1995 WL 380657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-v-k-mart-corp-lactapp-1995.