Melder v. Brookshire's Grocery Co.

154 So. 3d 781, 14 La.App. 3 Cir. 669, 2014 La. App. LEXIS 2910, 2014 WL 6916850
CourtLouisiana Court of Appeal
DecidedDecember 10, 2014
DocketNo. 14-669
StatusPublished
Cited by4 cases

This text of 154 So. 3d 781 (Melder v. Brookshire's Grocery Co.) 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
Melder v. Brookshire's Grocery Co., 154 So. 3d 781, 14 La.App. 3 Cir. 669, 2014 La. App. LEXIS 2910, 2014 WL 6916850 (La. Ct. App. 2014).

Opinion

PETERS, J.

_JjThe defendants in this litigation, Brookshire’s Grocery Company (Brook-shire’s), Richard Cogburn, Deron Floyd, and Allen Hudson, appeal a trial court judgment rendered against them awarding the plaintiff, Esther Gay Melder, $343,331.12 in compensatory damages for injuries she sustained in an accident which occurred in a Natchitoches, Louisiana Brookshire’s grocery store on July 23, 2011. For the following reasons, we amend the judgment to reflect that Deron Floyd and Allen Hudson were not cast in judgment, but affirm the judgment in all other respects.

DISCUSSION OF THE RECORD

Esther Gay Melder, a Natchitoches, Louisiana resident, was shopping in a Natchitoches Brookshire’s grocery store on July 23, 2011, when a sign located over a cooler in the meat and seafood department fell and struck her. The sign [783]*783weighed approximately five pounds and measured twenty-three and five-eighths inches by forty-eight inches by one-half inch. The sign had been in place for approximately four years and was installed by Richard Cogburn, the Marketing Manager of Brookshire’s Natchitoches store.

Mrs. Melder filed a petition for damages on July 18, 2012, alleging that the negligence and fault of Brookshire’s, concurrently with the negligence and fault of its employees, Deron Floyd, Allen Hudson, and Richard Cogburn, caused the accident and her injuries. The matter ultimately went to trial on November 7, 2013, and upon completion of the evidence, the trial court factually found that Brookshire’s breached its duty to keep its premises safe for patrons, as did its employee, Mr. Cog-burn. The trial court also found no fault on the part of Mrs. Melder or the remaining two defendants. After allowing the parties to submit 1 ^quantum briefs, the trial court issued written reasons for judgment which set the quantum recovery as follows:

General damages

Pain and suffering since the accident $84,000.00

Future pain and suffering, including surgery 150,000.00

Loss of enjoyment of life 40,000.00

Totals $274,000.00

Special damages

Past Medical:

Natchitoches Regional Medical Center $8,644.50

Ashley Ridge Imaging 3,100.00

Dr. Russell Tynes 2,286.12

Dr. Anil Nanda 487.50

Totals $9,518.12

Future Medicals for surgery:

Willis Knighton Medical Center $42,000.00

Dr. Nanda 17,813.00

Totals $59,813.00

Total Award $343,331.12

After the trial court executed a judgment corresponding to its reasons for judgment, the defendants perfected this appeal. In their appeal, they assert four assignments of error:

1.The trial court erred in not considering the evidential contradictions of Mr. and Mrs. Melder and their son’s testimony (as to her health problems prior to the incident at issue) as opposed to records and testimony of fact.
2. The trial court erred in its award of both the past and future physical and mental pain and suffering as well as future medical and loss of enjoyment of life.
3. The trial court erred in including the estimated cost of Dr. Nanda’s future services with his deposition and in-[784]*784elusion of the estímate into the trial court records.
4. The trial court erred in the inclusion of two of the defendants, Deron Floyd and Allen Hudson, in the court’s opinion of determining fault | owhen, at the end of the trial, the court verbally had found them NOT to be in fault in this proceeding.

OPINION

Assignment of Error Number One

In their first assignment of error, the defendants argue that the trial court erred in not considering the evidentiary contradictions present in the testimony of Mr. and Mrs. Melder and them son as those contradictions relate to her medical history. This assignment of error questions factual findings of the trial court, and it is well settled that a reviewing court may not set aside a factfinder’s determinations absent manifest error. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). This court reasserted that basic rule of appellate review in Poole v. Poole, 08-1325, p. 5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806, 810, wherein it stated the following:

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. [Stobart, 617 So.2d 880 (La.1993).] Where there is conflict in the testimony presented at trial, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court’s credibility determinations are subject to the strictest deference, and the manifest error or clearly wrong standard demands great deference for the trial court’s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. Thus, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, 549 So.2d 840.

The evidence presented at trial established that Mr. Cogburn was the Marketing Manager for Brookshire’s Natchitoches store at the time of the accident and was the individual who installed the sign that struck Mrs. Melder. The record |4also established that Mrs. Melder sought medical treatment from Dr. Paul Wheeler, an emergency room physician at Natchitoches Regional Medical Center (Natchitoches Regional) in Natchitoches, Louisiana; Dr. Russell Tynes, a Shreveport, Louisiana internist; and Dr. Anil Nanda, a Shreveport, Louisiana neurosurgeon.

Dr. Wheeler was the first physician to see Mrs. Melder after the accident. Mrs. Melder reported the accident to Brook-shire’s store manager before she left the store, but did not immediately seek medical attention. Instead, she purchased her items and returned home, where she informed her husband of the incident, told him she was in pain, and asked him to take her to the hospital. Part of her concern at the time was that she previously underwent two cervical surgeries that resulted in a fusion of her spine from the C-3 through the C-6 area. She testified that she feared the accident may have caused further damage to her neck.

[785]*785Mr. Melder drove his wife to Natchi-toches Regional where she was examined by Dr. Wheeler in the emergency room. Dr. Wheeler testified that Mrs. Melder complained to him of neck and left shoulder pain caused by being hit by a falling sign. According to Dr. Wheeler, an x-ray of her neck revealed arthritic changes as well as evidence of her prior surgery. Dr. Wheeler rated Mrs. Melder’s pain as one or two on a scale of one to ten, provided her with a prescription for pain medication, and released her. Mrs.

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Bluebook (online)
154 So. 3d 781, 14 La.App. 3 Cir. 669, 2014 La. App. LEXIS 2910, 2014 WL 6916850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melder-v-brookshires-grocery-co-lactapp-2014.