Powell v. Brookshire's Grocery Co., Inc.

705 So. 2d 286, 1997 WL 772497
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket30,047-CA
StatusPublished
Cited by6 cases

This text of 705 So. 2d 286 (Powell v. Brookshire's Grocery Co., 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
Powell v. Brookshire's Grocery Co., Inc., 705 So. 2d 286, 1997 WL 772497 (La. Ct. App. 1997).

Opinion

705 So.2d 286 (1997)

Dewandya POWELL, Plaintiff-Appellant,
v.
BROOKSHIRE'S GROCERY COMPANY, INC., d/b/a Super One Foods and Hartford Insurance Company, Defendant-Appellee.

No. 30,047-CA.

Court of Appeal of Louisiana, Second Circuit.

December 10, 1997.

*287 Guerriero & Guerriero by Joe D. Guerriero, Monroe, for Plaintiff-Appellant.

Theus, Grisham, Davis & Leigh by Sharon Ingram Marchman, Monroe, for Appellee.

Before MARVIN, STEWART and GASKINS, JJ.

GASKINS, Judge.

The plaintiff, Dewandya Powell, appeals from a trial court judgment rejecting her claim for damages allegedly arising from a knee injury that occurred when the plaintiff picked up a can of milk in a grocery store and found a dead mouse attached to it. The plaintiff claimed that she was startled and struck her knee on a pole, causing severe injury. We affirm the trial court judgment.

FACTS

On June 7, 1994, the plaintiff accompanied her friend, Eula Green, to the Super 1 grocery store in Monroe. The store is operated by Brookshire's. Each lady selected a shopping cart and proceeded to collect her groceries. When the plaintiff picked up a can of milk, she claims that her hand came into contact with a small, dead mouse that was attached to the can. The plaintiff contends that she threw the can down, screamed and began running to try to get away. She also claimed that the mouse's tail came off and contacted the back of her hand. The plaintiff asserted that she struck her knee on a post in the store aisle, causing a severe injury which ultimately required her to have arthroscopic surgery to correct a ligament tear and to clean out material that was floating in the space in her knee.

On May 22, 1995, the plaintiff filed suit for damages against Brookshire's Grocery Company d/b/a Super 1 Foods and its insurer, Hartford Insurance Company. The matter was tried on November 12 and 13, 1996.

Ms. Green, the plaintiff's shopping companion, testified that she heard the plaintiff *288 "holler" and went to her aid. She said in pretrial discovery that she saw the plaintiff strike her knee on a pole in the aisle. At trial, Ms. Green testified that she did not see the plaintiff strike her knee on the post but that she saw the mouse, saw that her friend was upset and stated that the plaintiff nearly tipped over with her buggy. Ms. Green stated that she steadied the plaintiff and then sought store personnel to report the incident.

Store employees testified that there was a mouse on the can of milk, but that the can was sitting upright on the shelf with the mouse on top, disputing the plaintiff's testimony that she threw the can. They also denied that the plaintiff reported any injury to them at that time.

The plaintiff presented the testimony of her orthopedic surgeon, Dr. Douglas C. Brown. Dr. Brown stated that he had treated the plaintiff for an injury to her left knee in February, 1994 when the plaintiff, who is a nightclub singer, slipped and fell on stage, twisting her knee. He also saw the plaintiff on June 23, 1994, over two weeks after the grocery store incident, for treatment of the left knee. He testified that he thought the June injury was a new one and not the same injury as the plaintiff had in February.

The plaintiff underwent physical therapy following the surgery and was seen regularly by Dr. Brown. By August, 1995, the plaintiff's x-rays showed that she was developing arthritis behind the knee cap. In February, 1996, Dr. Brown determined that the plaintiff had a 35% disability in her leg.

The trial court was convinced that there was a mouse on the milk can, but was not persuaded that the plaintiff suffered any serious injury. The court acknowledged that Dr. Brown felt that the plaintiff had a new injury in June, 1994. However, the court was concerned over the numerous versions of the incident related by the plaintiff. Finding that the plaintiff was not credible, and based upon the totality of the testimony and evidence, the court found that the plaintiff failed to meet her burden of proof of showing that she was injured. The trial court entered judgment in favor of the defendant, rejecting the plaintiff's claims at her cost.

The plaintiff filed a motion for new trial, arguing that the uncontradicted evidence established that the plaintiff reached for a can of milk, touched the mouse and sustained great mental anguish, emotional upset and distress. The plaintiff further argued that the evidence shows that she injured her knee at the time of this incident and that any discrepancy between the plaintiff's testimony and that of Ms. Green concerning whether the post caused the injury or whether the plaintiff twisted her knee when she fell into the buggy "is of no import." The plaintiff claimed she should be awarded damages for touching the mouse, regardless of whether the court accepts that her knee was injured. The motion for new trial was denied on December 3, 1996. The plaintiff then appealed the trial court judgment.

PHYSICAL INJURY

As her only assignment of error, the plaintiff claims that "the trial court conclusion that the plaintiff's testimony was not credible is contrary to the other eye witness testimony and general evidence and fails to account for the uncontradicted evidence that there was a dead rodent stuck to the milk can on the shelf of defendant's grocery store as no award was made for that part of plaintiff's claim." The plaintiff seems to argue that the trial court erred in finding her testimony not to be credible and erred in failing to award damages, even for touching the mouse.[1] We find this argument to be without merit.

*289 A court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court has announced a two-part test for the reversal of a factfinder's determinations: 1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120 (La. 1987); Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La.1993).

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Stobart v. State, Through Department of Transportation and Development, supra.

In applying the manifestly erroneous-clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, supra.

Nevertheless, the 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.

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705 So. 2d 286, 1997 WL 772497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-brookshires-grocery-co-inc-lactapp-1997.