Pilet v. Schwegmann Giant Supermarkets, Inc.

559 So. 2d 894, 1990 La. App. LEXIS 692, 1990 WL 35493
CourtLouisiana Court of Appeal
DecidedMarch 29, 1990
DocketNo. 89-CA-0607
StatusPublished
Cited by3 cases

This text of 559 So. 2d 894 (Pilet v. Schwegmann Giant Supermarkets, 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
Pilet v. Schwegmann Giant Supermarkets, Inc., 559 So. 2d 894, 1990 La. App. LEXIS 692, 1990 WL 35493 (La. Ct. App. 1990).

Opinion

ARMSTRONG, Judge.

Defendant, Schwegmann Giant Supermarkets, Inc., “Schwegmanns”, appeals the trial court’s judgment finding that it was wholly liable for plaintiff, Lalla Pilet’s, slip and fall accident and its increase of the damage award. We affirm in part, and reverse in part.

On April 14, 1986 Lalla Pilet slipped and fell on a foreign substance located on the floor of Schwegmanns’ store. Mrs. Pilet testified that she was walking down the aisles looking at displays and all at once she slipped and fell. The area where Mrs. Pilet was walking was shiny and Mrs. Pilet testified that if there was anything on the floor a person could not see it if it was light because the floor was shiny. Tonia Thomas, who worked as a porterette for Schwegmanns, testified that after Mrs. Pi-let’s accident she was called to clean up the aisle in which Mrs. Pilet fell. Upon doing so, she saw that there was cooking oil on the floor.

Daniel Norton, another customer in the store who did not know Mrs. Pilet, was an eyewitness to Mrs. Pilet’s accident. He testified that Mrs. Pilet flew up in the air and crashed down on the ground. Immediately after the accident, Mrs. Pilet signed a “Loss Notice” which indicated that she was suffering pain on her right side. She saw her treating physician, Dr. Daniel Seltzer, approximately four days later who confirmed that Mrs. Pilet injured the right side of her body and lower back.

Mrs. Pilet filed suit against Schweg-manns for damages. The matter was tried before a jury and the jury found that Schwegmanns proximately caused Mrs. Pi-let’s injuries. The jury further found that Mrs. Pilet was 25% negligent in causing her own injuries. They awarded Mrs. Pilet $17,000.00 in physical pain and suffering as well as $10,000.00 in medicals. Accordingly, the trial court entered a judgment in the amount of $20,250.00 plus interest in favor of Mrs. Pilet. Mrs. Pilet then filed a mo[896]*896tion for JNOV or in the alternative a motion for additur and new trial. The motion was sought on both the issue of Mrs. Pi-let’s own negligence and on the issue of damages. The trial court granted JNOV and eliminated the 25% negligence which the jury attributed to Mrs. Pilet and assessed 100% fault against Schwegmanns. The trial court further increased the jury award and entered judgment against Schwegmanns in the amount of $85,000.00 plus interest and costs. Damages were itemized as follows: physical and mental pain and suffering, past and future — $30,-000.00; loss of enjoyment of life — $20,-000.00; permanent or partial disability— $15,000.00.

On appeal Schwegmanns argues that 1) the trial court erred in granting Mrs. Pi-let’s Motion for JNOV and eliminating the 25% negligence which the jury attributed to Mrs. Pilet; 2) the trial court erred in granting Mrs. Pilet’s motion for JNOV on the issue of damages and increasing the jury award; 3) the trial court erred in limiting the testimony of Schwegmanns’ expert witness, Dr. Joseph Michalski.

Schwegmanns maintains that the jury’s finding attributing 25% fault to Mrs. Pilet for her injuries should not have been disturbed by the trial court because there was substantial evidence of such quality and weight that reasonable and fair minded persons could have reached this conclusion. The evidence that Schwegmanns refers to is testimony by Schwegmann porterette, Tonia Thomas, that the liquid on the floor was approximately the size of a legal pad and the fact that Mrs. Pilet admitted that she was looking ahead and did not see where she was going. Additionally, Schwegmanns insists that Mrs. Pilet’s credibility was reduced in the eyes of the jury. They argue that the jury clearly did not believe that Mrs. Pilet’s rheumatoid arthritis was related to her fall and thus they may have believed that Mrs. Pilet should have seen the substance on the floor. Finally, Schwegmanns argues that the trial court erred in granting a JNOV because it may not substitute its factual judgment for that of the jury’s.

JNOV is proper when the facts and the inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. Robertson v. Penn, 472 So.2d 927 (La.App. 1st Cir.1985), writ denied 476 So.2d 353 (La.1985). Tonia Thomas’ testimony was that she did not remember how much oil was on the floor but that it might have been the size of a legal pad. This was contrary to Dan Norton’s testimony. He testified that he did not see the oil until after Mrs. Pilet fell and that it was not a big puddle but there were some small drops.

In self-service grocery stores, a multitude of items are displayed upon shelving along the aisles which entice customers to pass their eyes upon the displays rather than on the surface upon which they walk. Brown v. Winn-Dixie of Louisiana, Inc., 452 So.2d 685 (La.1984); Core v. Winn Dixie of Louisiana, Inc., 471 So.2d 240 (La.App. 1st Cir.1985) writ denied 476 So.2d 353 (La.1985).

Mrs. Pilet relies on Raymond v. Safeway Stores, Inc., 522 So.2d 1350 (La.App. 2d Cir.1988). In that case the court held that an elderly gentleman’s failure to scrutinize the floor in front of him in a supermarket was not negligence. The court further found that the plaintiff’s poor vision was not a cause of his fall when a person with good vision did not see the grape that plaintiff fell on either. The small, light green seedless grape was not necessarily conspicuous on the light-tinted, brown-speckled floor.

We agree with Mrs. Pilet. There is absolutely no evidence whatsoever that she was in any way at fault for her injuries. We find no error in the trial court’s entry of JNOV, eliminating the 25% negligence which the jury attributed to Mrs. Pilet.

Schwegmanns maintains that the court erred in increasing Mrs. Pilet’s damages because there was sufficient evidence for the jury to believe that Mrs. Pilet’s arthritis was not caused or aggravated by her fall. In fact it was pre-existing and longstanding.

[897]*897Schwegmanns argues that testimony from Dr. Mayfield, Mrs. Pilet’s general practitioner, establishes that the disease did exist prior to Mrs. Pilet’s fall in its store. Furthermore, Dr. Zelman testified that Mrs. Pilet’s condition was longstanding and severe. Dr. Zelman testified as to both degenerative and rheumatoid arthritis. Concerning degenerative arthritis, he stated that a person suffering it must have suffered trauma to that particular part of the body. Schwegmanns insists that since testimony by Mrs. Pilet and her eyewitness establishes that she did not fall on her knees but on her back and rear she suffered no trauma to the knees. Furthermore, Dr. Zelman testified that if there was direct injury to a knee the arthritis would become symptomatic right away and subside after a number of months. Mrs. Pilet did not complain of knee pain until 4 months after the accident. As to rheumatoid arthritis, there are no studies showing that trauma can aggravate or cause rheum-toid arthritis. Dr. Zelman stated if it was in the active process at the time Mrs. Pilet fell then her injury would have nothing to do with any subsequent spread of the injury-

Dr. Michalski testified as a rheumatologist that it was not probable an injury would aggravate a pre-existing, non-active rheumatoid arthritic condition. But if it did occur, he would expect it to appear very quickly, within a few days or a week. Also, he stated that if there was any aggravation it is not probable that it would appear in any joints other than those injured.

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Bluebook (online)
559 So. 2d 894, 1990 La. App. LEXIS 692, 1990 WL 35493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pilet-v-schwegmann-giant-supermarkets-inc-lactapp-1990.