Martin v. Performance Motorwerks, Inc.

879 So. 2d 840, 2003 La.App. 4 Cir. 1219, 2004 La. App. LEXIS 1646, 2004 WL 1433389
CourtLouisiana Court of Appeal
DecidedJune 16, 2004
DocketNo. 2003-CA-1219
StatusPublished
Cited by3 cases

This text of 879 So. 2d 840 (Martin v. Performance Motorwerks, 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
Martin v. Performance Motorwerks, Inc., 879 So. 2d 840, 2003 La.App. 4 Cir. 1219, 2004 La. App. LEXIS 1646, 2004 WL 1433389 (La. Ct. App. 2004).

Opinions

I, DAVID S. GORBATY, Judge.

Defendants, Performance Motorwerks, Inc., and Charles Healy, III 1, d/b/a Performance Motor Car Gallery, appeal a judgment rendered in favor of Gladys Martin for $466,500.00. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

Gladys Martin, her daughter and niece visited the defendants’ automobile showroom on May 27, 1993 to look at a vehicle Ms. Martin was interested in buying. According to both Ms. Martin and her daughter, Dana Brown, it was Ms. Martin’s intention to test drive the vehicle and have it [842]*842inspected by a private mechanic. The three women drove to the dealership, where Ms. Brown, who was driving her personal automobile, was instructed to park in a covered building next to the showroom that served as both a service and detailing area. Ms. Brown testified that the spot where she was instructed to park was immediately adjacent to the detailing area where a man was steam cleaning a car engine. As Ms. Martin |¡>was alighting from the car, she claims to have lost her footing because of either water or some other substance on the ground. She struck her back on the running board of the car and her head on the frame between the front and rear doors, and landed on her back on the concrete floor. Ms. Martin claims to have lost consciousness, a claim corroborated by her daughter, a registered nurse. Following the incident, Ms. Martin testified that the man detailing the car brought her a towel to place under her head. Ms. Martin claims that a woman came out of the office and told her to be careful because it is always slippery in that area. The woman explained that she takes her shoes off everyday. Because the woman claimed to be at the dealership everyday, Ms. Martin assumed that she was an employee. Ms. Martin also testified that another woman, whom she identified at trial as Mrs. Healy, came out of the office and proceeded to yell at Mr. Lee, the salesman with whom she had scheduled the appointment, because of where he had told the Martin party to park. Mrs. Healy did not talk to Ms. Martin at all. When Ms. Martin was able to move, her daughter and niece helped her into the dealership showroom where they sat for a while. Ms. Martin told Mr. Lee that she would not be able to test drive the car that day, but would like to come back to do so.

Mr. Michael Lee, who had been employed by defendants since 1982, testified that he did not instruct Ms. Martin’s daughter on where to park. He saw them pull up in front of the dealership, but was distracted by some activity in the street. When he entered the service area, he noticed Ms. Martin seated in the passenger seat of the car with the door open and her feet on the ground. He |3approached the car, and was told by either Ms. Martin or her daughter that Ms. Martin had fallen. He did not observe anything on the ground near where she claimed to have fallen. Mr. Lee said the floor was a pebble concrete painted with epoxy paint. The detail area was about thirty feet to the left of where the car was parked; the floor sloped toward a drain near the wall. Mr. Lee denied that Mrs. Healy yelled at him, and he believed it may have been Mrs. Healy who asked Ms. Martin to go into the showroom lounge area. Mr. Lee testified that Ms. Martin test drove the vehicle the day of the accident, but returned the next day to take it to a mechanic.

Mrs. Mary Healy testified that when someone reported to her that a customer had fallen, she left her office and found Ms. Martin seated in the lounge area. Mrs. Healy inspected the area where the car was parked, but found no water, wax, or other substance on the floor. She claimed that she asked Ms. Martin if she was hurt, and she denied being so. She remembers all three women continuing to look at cars on the showroom floor, and did note that they were all barefooted. On cross-examination, Mrs. Healy admitted that Michael Lee told her he had directed the Martin party to the parking space.

Following a bench trial, the trial court rendered judgment in favor of Ms. Martin, awarding her the lump sum of $466,500, with costs and interest. The reasons for judgment explain that the trial court accepted Ms. Martin’s version of how the accident happened. The trial court specifically found that, although Ms. Martin’s [843]*843medical records indicated that she had previously suffered from | ¿headaches, loss of concentration and memory loss, those conditions had cleared up at least six years prior to the accident in question. Therefore, the court attributed Ms. Martin’s claims of injury in this suit to the accident of May 27,1993.

DISCUSSION:

Defendants make three assignments of error. First, the trial court erred in its application of La.Rev.Stat. 9:2800.6 because there was an absence of proof of constructive notice of a dangerous condition. Second, the trial court erred in attributing Ms. Martin’s injuries to the slip and fall. Last, the trial court abused its discretion in awarding $466,500 in general damages for the injuries allegedly sustained.

Louisiana Revised Statute 9:2800.6 was amended in 1996. Prior to that amendment, and at the time of the subject incident, the pertinent parts of the statute read as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, and in addition to all other elements of his cause of action, that:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable;
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence; and
ls(3) The merchant failed to exercise reasonable care.

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless such finding is clearly wrong. Stobart v. State, 92-1328 (La.4/12/93), 617 So.2d 880; Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, supra; Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990). The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one in light of the evidence in the record. Stobart, supra.

Although not specifically stated in its reasons for judgment, it can be inferred that the trial court accepted plaintiffs version of how the accident occurred, that is, there was some substance on the floor that caused Ms. Martin to slip and fall.

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Bluebook (online)
879 So. 2d 840, 2003 La.App. 4 Cir. 1219, 2004 La. App. LEXIS 1646, 2004 WL 1433389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-performance-motorwerks-inc-lactapp-2004.