Kirklin v. Winn-Dixie Louisiana, Inc.

391 So. 2d 87, 1980 La. App. LEXIS 4687
CourtLouisiana Court of Appeal
DecidedNovember 12, 1980
DocketNo. 11254
StatusPublished
Cited by3 cases

This text of 391 So. 2d 87 (Kirklin v. Winn-Dixie Louisiana, 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
Kirklin v. Winn-Dixie Louisiana, Inc., 391 So. 2d 87, 1980 La. App. LEXIS 4687 (La. Ct. App. 1980).

Opinion

GARRISON, Judge.

This is an appeal from a judgment of the trial court, dismissing plaintiffs’ slip and fall case on the basis that plaintiff failed to prove that she slipped or fell and that she was injured thereby. From that judgment which we affirm, plaintiff appeals.

On appeal, plaintiff raises factual issues as the basis on which she seeks reinstatement or reversal; plaintiff’s brief enumerates the following as the issues raised on appeal:

“I. Had the Winn-Dixie store been fully swept five to ten minutes before the accident?
II. Did the testimony of Nettie Petit corroborate the testimony of Grace St. Pierre that although Mrs. Kirklin stepped on an okra pod, there was no evidence that she slipped on the okra pod in a manner to cause her injury?
III. Did Mrs. Kirklin make complaints of pain and discomfort at the time of the accident?
IV. Did the plaintiffs-appellants prove that there was evidence of slippage resulting from the accident?
V. Did the plaintiffs-appellants prove that Mrs. Kirklin slipped and injured herself as alleged in her petition?”

On credibility determinations and questions of fact, the trial judge is given considerable discretion. Although, there is some conflicting testimony contained in the record, our independent review of the testimony presented convinces this court that the trial judge was not manifestly erroneous in his factual determinations. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

[88]*88The trial judge provided this court with six excellent pages of written reasons for judgment which we now incorporate as our own:

“This is a suit for damages for personal injuries resulting from an alleged accident that occurred on or about July 3, 1976. In their petition, the plaintiffs, Mr. James Kirklin and his wife, Dorothy Kirklin, allege that on or about that date, Mrs. Kirklin slipped and fell in a supermarket owned and operated by the defendant, Winn-Dixie Louisiana, Inc. (hereinafter referred to as ‘Winn-Dixie’) located in Gramercy, La. The plaintiffs allege that as Mrs. Kirklin was about to pay for groceries purchased in defendant’s store, she slipped and fell on a foreign object believed to be an okra plant near the cash registers resulting in painful and disabling injuries to her back and neck. It is the plaintiffs’ contention that the accident was caused solely by the negligence of Winn-Dixie in one or more of the several acts or omissions listed in their petition. As a result of the accident, plaintiffs allege that they have incurred damages for medical expenses, physical pain and suffering, and mental anguish and distress and permanent injuries totaling $36,180.00.
In its answer, Winn-Dixie denied that plaintiff’s alleged damages were caused by its negligence and asserted that the sole and proximate cause of the accident was the negligence of Dorothy Kirklin, and, alternatively, that the contributory negligence of Dorothy Kirklin caused the accident.

The trial of this matter was held on June 5, 1979. Testifying at the trial on behalf of the plaintiffs were Dorothy Kirklin and her mother, Mrs. Louvenia Russell. Winn-Dix-ie presented the testimony of Grace St. Pierre and Nettie Petit, two of its employees who were on duty on the date of the accident. It was stipulated prior to trial that plaintiff James Kirklin, if called to testify, would corroborate his wife’s complaints of pain, and that his testimony would not be entered at trial. The medical reports and depositions of Dr. Carl J. Poch and Dr. Joseph M. Nadell were also introduced into evidence by stipulation.

The court must first decide if, as alleged in plaintiff’s petition, an accident did occur. If such an accident did occur, then the court must decide if that accident was caused by the sole negligence of Winn-Dixie, or by the sole negligence of Dorothy Kirklin, or by the combined negligence of both Winn-Dixie and Dorothy Kirklin. Finally if the accident was solely caused by Winn-Dixie negligence, the court must then decide what, if any, damages the plaintiffs are entitled to recover from Winn-Dixie.

From the evidence introduced at trial, it is undisputed that on or about July 3,1976, Mrs. Dorothy Kirklin and her mother, Mrs. Louvenia Russell, went shopping at Winn-Dixie’s supermarket in Gramercy, Louisiana, in this Parish. After choosing the groceries they wanted to purchase, they proceeded toward the check-out counter or cashier to pay for the items they had chosen. Just before they got to the check-out counter, an incident occurred. It is at this point the evidence is contradicting. Basically, the plaintiffs claim that Mrs. Kirklin slipped on an okra pod and received injuries thereby, whereas, Winn-Dixie claims that no such slip or injuries actually occurred. This contradiction presents a fact question for the court to decide and its decision must be based on the most credible evidence introduced.

The plaintiffs’ version of what happened was presented by Mrs. Kirklin and her mother, Mrs. Russell. Mrs. Kirklin testified that immediately prior to arriving at the check-out counter, she actually, slipped on an okra pod located on the floor. She stated that when she stepped on the okra pod, her feet split apart and she fell backwards, twisting her body in the process.

According to her testimony, she did not fall to the floor, but rather was able to keep her balance by holding on the shopper’s cart she was pushing. She stated that Mrs. Grace St. Pierre, an employee of Winn-Dix-ie, approached her and asked if she was hurt and that she felt a pain in her back at [89]*89the time of the incident. She and her mother then checked out and went home. Mrs. Kirklin further testified that several days after the accident she went to Dr. Carl J. Poche for treatment of the injuries she received in the accident. She stated that she telephoned Mrs. St. Pierre to tell her she was going to seek medical treatment for her injuries and that Mrs. St. Pierre told her that Winn-Dixie’s insurer would pay her doctor bills. Mrs. Kirklin also testified extensively as to the nature of her injuries and the extent of medical treatment she received as a result of her injuries.

Under cross-examination, Mrs. Kirklin admitted that at the time of the accident, she did not ask Mrs. St. Pierre to complete an accident report. She also admitted that since the Winn-Dixie incident she was involved in two automobile accidents, but denied that the subsequent accidents aggravated her earlier injury. She denied that she was injured in any way prior to the Winn-Dixie incident.

Mrs. Louvenia Russell’s testimony substantially corroborated the testimony of her daughter. However, she stated that Mrs. St. Pierre talked to her and her daughter after the accident but she did not remember any specifics of that conversation.

Mrs. Grace St. Pierre was the principal witness to testify as to the defendant’s version of what happened. She testified that she had been an employee of Winn-Dixie for thirteen years at the Gramercy supermarket and that she has several duties around the store including guarding against shoplifters and investigating and making accident reports on accidents that occur on the store premises. She stated that she knew Mrs. Kirklin and her mother since they were frequent customers of Winn-Dixie and that she saw them enter the store on the date of the alleged accident.

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391 So. 2d 87, 1980 La. App. LEXIS 4687, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirklin-v-winn-dixie-louisiana-inc-lactapp-1980.