Lozier v. Ninth Street Food Store, Inc.

Louisiana Court of Appeal

Lozier v. Ninth Street Food Store, Inc.

293 So. 2d 543, 1974 La. App. LEXIS 3855

CourtLouisiana Court of Appeal

DecidedFebruary 7, 1974

DocketNo. 5767

StatusPublished

Cited by2 cases

This text of 293 So. 2d 543 (Lozier v. Ninth Street Food Store, 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

Lozier v. Ninth Street Food Store, Inc., 293 So. 2d 543, 1974 La. App. LEXIS 3855 (La. Ct. App. 1974).

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Opinion

FRANK V. ZACCARIA, Judge Pro Tem.

Plaintiff sustained a lumbar strain when she slipped and fell in defendant’s store. According to her testimony her foot “went out from under her” and she fell flat on her back. As she was assisted to her feet her husband found a string bean clinging to the back of her dress. She was taken by police crash truck to Touro Hospital, examined and told to return home and apply heat to her back. She made three or four visits to Charity Hospital and had a number of prescriptions filled for pain reliever pills and muscle relaxants. After several months her back improved and she gradually became asymptomatic. The lower court awarded her $2500.00 for her physical pain and suffering together with her medical and drug bills and the cost of a heat lamp. Defendants have lodged their appeal.

The evidence produced by plaintiff indicates that the store was customarily maintained in an untidy manner. A number of witnesses, in addition to plaintiff and her husband, testified to the effect that the store normally had a dirty, cluttered floor. One of these witnesses was a former employee.

Defendant produced witnesses who testified opposite to plaintiff’s witnesses. One lady who was in the store at the time of the accident said that she had called the attention of an employee to some spilled beans on the floor where plaintiff fell some moments before the accident and that the floor had been swept.

The trial judge decided for plaintiff. He was in the best position to deter[544]*544mine the creditability of the witnesses. He chose to believe those of the plaintiff over those of the defendant. The record contains ample proof to sustain his position. Absent a showing of manifest error the findings of the trier of fact will not be disturbed.

The court has previously indicated that a victim of a slip and fall injury has a severe burden of proof. Fontanille v. Winn Dixie La. Inc., La.App., 260 So.2d 71.

In this- instance the trial judge opined that said burden had been met. We find no error in his ruling.

Affirmed.

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FRANK V. ZACCARIA, Judge Pro Tem.

Plaintiff sustained a lumbar strain when she slipped and fell in defendant’s store. According to her testimony her foot “went out from under her” and she fell flat on her back. As she was assisted to her feet her husband found a string bean clinging to the back of her dress. She was taken by police crash truck to Touro Hospital, examined and told to return home and apply heat to her back. She made three or four visits to Charity Hospital and had a number of prescriptions filled for pain reliever pills and muscle relaxants. After several months her back improved and she gradually became asymptomatic. The lower court awarded her $2500.00 for her physical pain and suffering together with her medical and drug bills and the cost of a heat lamp. Defendants have lodged their appeal.

The evidence produced by plaintiff indicates that the store was customarily maintained in an untidy manner. A number of witnesses, in addition to plaintiff and her husband, testified to the effect that the store normally had a dirty, cluttered floor. One of these witnesses was a former employee.

Defendant produced witnesses who testified opposite to plaintiff’s witnesses. One lady who was in the store at the time of the accident said that she had called the attention of an employee to some spilled beans on the floor where plaintiff fell some moments before the accident and that the floor had been swept.

The trial judge decided for plaintiff. He was in the best position to deter[544]*544mine the creditability of the witnesses. He chose to believe those of the plaintiff over those of the defendant. The record contains ample proof to sustain his position. Absent a showing of manifest error the findings of the trier of fact will not be disturbed.

The court has previously indicated that a victim of a slip and fall injury has a severe burden of proof. Fontanille v. Winn Dixie La. Inc., La.App., 260 So.2d 71.

In this- instance the trial judge opined that said burden had been met. We find no error in his ruling.

Affirmed.

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293 So. 2d 543, 1974 La. App. LEXIS 3855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lozier-v-ninth-street-food-store-inc-lactapp-1974.

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