Matthews v. Ferrer

665 So. 2d 1211, 1995 WL 707901
CourtLouisiana Court of Appeal
DecidedNovember 30, 1995
Docket95-CA-0266
StatusPublished
Cited by7 cases

This text of 665 So. 2d 1211 (Matthews v. Ferrer) 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
Matthews v. Ferrer, 665 So. 2d 1211, 1995 WL 707901 (La. Ct. App. 1995).

Opinion

665 So.2d 1211 (1995)

Annie Chaney MATTHEWS
v.
John FERRER, d/b/a Octave's Super News Stand, South Carolina Insurance Company, et al.

No. 95-CA-0266.

Court of Appeal of Louisiana, Fourth Circuit.

November 30, 1995.

*1212 Frank A. Milanese, Michael F. Somoza, New Orleans, and Louis B. Merhige, Metairie, for Plaintiff.

Sophia G. Pappas, New Orleans, for Defendants-Appellees.

David M. Cambre, Lozes and Cambre, New Orleans, for Defendant-Appellant.

Before LOBRANO, ARMSTRONG and WALTZER, JJ.

ARMSTRONG, Judge.

This is an appeal by one of the defendants in a trip-and-fall personal injury case. Issues are raised on appeal as to the jury's failure to find any fault by another defendant, the jury's failure to find any comparative *1213 fault of the plaintiff and quantum of damages. We affirm.

The plaintiff, Annie Chaney Matthews, a 68 year old woman, was walking on the sidewalk in University Place in downtown New Orleans. As she was passing in front of Octave's Super News Stand, an establishment run by John Ferrer, she tripped and fell. When she attempted to get up, she fell again. She was assisted by two passers-by, one of whom was a physician from out of town who testified by deposition.

It was discovered that Mrs. Matthews had fallen because her feet had become entangled in a plastic loop which was used to bundle Gambit newspapers for delivery. The loop was about a quarter inch wide, yellow in color, and made of flexible plastic. Apparently, the loop had been used to bundle approximately fifty Gambit newspapers together. It is uncontested that defendant Landmark Communications, Inc. publishes Gambit and that a Gambit delivery person dropped off bundles of Gambit in front of Octave's News Stand. Six bundles of fifty papers each would be dropped off in an alcove that led from the sidewalk proper to the front door of Octave's News Stand. They would be placed in two stacks, one on each side of the alcove, of three bundles each. Each bundle was bound with a plastic loop identical to that with which Mrs. Matthews become entangled.

The Gambit newspapers were free to anyone who wished to take one. Landmark derived its revenues from the sale of advertising in Gambit. Octave's News Stand received no compensation for the Gambit newspaper being distributed in its alcove but, instead, consented to the distribution of the newspapers there as a convenience for customers. Presumably, Octave's hoped that some of the people who stopped to pick up a Gambit would come into the newsstand to purchase something.

There is various testimony, sometimes conflicting, as to how the Gambit newspapers would come to be unbound and as to how and by whom the binding loops should be disposed of. The Gambit delivery person testified that he would remove the binding loops from the top bundle of each stack of three bundles so that two bundles would be unbound and four would remain bound. He testified that he would take the two removed binding loops and throw them in the back of his delivery truck. He admitted that, on occasion, he could have dropped a binding loop. He did not testify as to anything in particular Landmark did to provide for the disposal of the other binding loops.

Mr. Ferrer, the proprietor of Octave's news stand, first testified that he directed his employees to unbind the top two bundles and to place a piece of 2 × 4 lumber on top of them to keep the newspapers from blowing away. Later, he testified that he directed his employees to unbind all of the bundles. He also testified that his employees were instructed to put the binding loops in the trash and to pick up any loops that fell onto the ground. Sometimes, before the bundles were unbound, passers-by would remove Gambits from the bundles which, of course, would loosen the binding loops which could then fall to the ground.

Mrs. Matthews was taken to Southern Baptist Hospital after her fall. Her treating physician, Dr. Russo, testified that Mrs. Matthews suffered a colles-type comminuted displaced fracture of her right wrist and contusions of both knees. He followed her wrist injury and recovery for a period of some six months. Her injuries will be discussed in more detail below in connection with the issue of quantum of damages.

Mrs. Matthews sued both Mr. Ferrer and his insurer and also Landmark and its insurer. Mr. Ferrer and his insurer cross-claimed against Landmark and its insurer. The case was tried to a jury. The jury found Mr. Ferrer and his insurer liable. The jury found no liability of Landmark, and also found no comparative fault of Mrs. Matthews and determined her total damages to be $400,000.00. Mr. Ferrer and his insurer argue on appeal that the jury erred by: (1) finding no liability on the part of Landmark; (2) finding no comparative fault of Ms. Matthews; and (3) awarding allegedly excessive damages. Landmark, in case it might be assessed some percentage of liability on appeal, also argues that the jury erred by *1214 awarding allegedly excessive damages. Mrs. Matthews argues on appeal that the jury erred by finding no liability of Landmark.

Possible Liability of Landmark

We may disturb the jury's determination of no liability of Landmark only if that determination is clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, DOTD, 617 So.2d 880 (La.1993). The question of whether we would have reached a different result is of no moment because the issue on appeal is not whether the jury was right or wrong but, instead, whether the jury's decision was a reasonable one. Id. If two permissible views of the evidence exist, including the reasonable inferences to be drawn from the evidence, then the jury's choice between those two views cannot be clearly wrong or manifestly erroneous. Id.

We have described the relevant evidence above and, as noted, there is some conflict in that evidence. Such conflicts, of course, are primarily for the jury to resolve. Id.

Mr. Ferrer and Mrs. Matthews argue that Landmark received a pecuniary benefit by its distribution of Gambit newspapers at Octave's newsstand (and elsewhere) because, although Gambit is distributed free of charge, Landmark wishes to maximize its circulation among its target audience so as to earn advertising revenue. They contrast the comparatively lesser (as they characterize it) economic benefit that Mr. Ferrer receives from the distribution of Gambit in his newsstand's alcove (i.e., possible increased patronage from passers-by).

We do not believe that the economic benefit derived by Landmark from the distribution of Gambit at Octave's Newsstand, even if that benefit is greater than whatever benefit is received by Mr. Ferrer, renders clearly wrong or manifestly erroneous the jury's determination as to Landmark's lack of liability. Although Mr. Ferrer and Mrs. Matthews argue on appeal that Landmark was negligent, the jury did not have to conclude that Landmark was negligent just because it received a pecuniary benefit. Indeed, it would seem entirely proper for the jury to focus on the hazard presented by the binding loop and the question of which party was responsible for its presence on the sidewalk.

Mr. Ferrer and Mrs. Matthews also argue that the binding loop at issue originated with Landmark. That is apparently correct because it is uncontested that the binding loops are placed on the bundles of Gambit newspapers by Landmark and the bundles are delivered by Landmark.

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Cite This Page — Counsel Stack

Bluebook (online)
665 So. 2d 1211, 1995 WL 707901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matthews-v-ferrer-lactapp-1995.