Prestenback v. Schwegmann Giant Supermarkets, Inc.

688 So. 2d 149, 96 La.App. 5 Cir. 793, 1997 La. App. LEXIS 525, 1997 WL 29400
CourtLouisiana Court of Appeal
DecidedJanuary 28, 1997
DocketNo. 96-CA-793
StatusPublished
Cited by6 cases

This text of 688 So. 2d 149 (Prestenback 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
Prestenback v. Schwegmann Giant Supermarkets, Inc., 688 So. 2d 149, 96 La.App. 5 Cir. 793, 1997 La. App. LEXIS 525, 1997 WL 29400 (La. Ct. App. 1997).

Opinion

|!WICKER, Judge.

This appeal arises from a petition for damages filed on behalf of Mary Ann Pres-tenback and Norman J. Prestenback, plaintiffs/appellants, against Schwegmann Giant Supermarkets, Inc. (Schwegmann), defendant/appellee. Mary Ann Prestenback (Mrs. Prestenback) alleges she was injured while shopping in defendant’s store when she was struck from behind by a metal rack containing meat which was being moved by an employee of the store. The jury found Schwegmann negligent but did not find that negligence to be a proximate cause of any damages sustained by the plaintiffs. The trial judge rendered a judgment in conformity with the jury verdict, dismissing plaintiffs’ claims. The trial judge also denied subsequently filed motions for judgment notwithstanding the verdict and a new trial. The plaintiffs have appealed. We reverse.

Appellants specify as error the jury was manifestly erroneous in finding that the accident at Schwegmann’s store was not the proximate cause of any damages. We agree for the following reasons which are discussed more fully below: (1) the jury was manifestly erroneous to rely on speculative evidence, and (2) the jury committed legal error in failing to apply the presumption of causation in Orgeron v. Prescott, 93-926 (La.App. 5th Cir. 4/14/94) 636 So.2d 1033, 1041, writ denied, 94-1895 (La.10/28/94) 644 So.2d 654.

The testimony at trial set forth the following. Mrs. Prestenback testified that on November 26, 1991 she was shopping in Schwegmann’s store while accompanied by her ^daughter, • Lisa Prestenback and her daughter’s friend, Benigna Laino (Laino). She stated she was standing at the meat section and had turned to face her daughter and Laino, who were across the aisle approximately five-to-six-feet away from her, when she was struck in the back approximately five inches down from her shoulder between the shoulder blade and vertebrae. She testified she was knocked forward into the case by a meat rack loaded with meat. The impact caused her to have trouble catching her breath. Laino witnessed the accident.

Laino testified she saw Edward Escude (Escude), a Schwegmann’s meat cutter at the time of the accident, filling the meat case from a heavily loaded meat rack. She stated the meat rack was taller than Escude. She saw Escude push the cart without looking, and strike Mrs. Prestenback.

Escude denied pushing the cart into Mrs. Prestenback. He stated he was unloading the meat from a stationary cart at the time he noticed Mrs. Prestenback rubbing her back. Despite his testimony that he did not push the rack and strike her, he nevertheless went over to her and asked if she was all right. He testified he could not understand what Mrs. Prestenback was saying although he denied she was having trouble breathing. Escude did not fill out an accident report at the time. He stated Mrs. Prestenback did not discuss this with him.

Leon Schneider, Schwegmann’s store manager on the date of the incident, testified it was company policy for an employee to report an accident.

The jury found that Schwegmann was negligent but did not find that negligence was a proximate cause of the damages alleged.

Mrs. Prestenback testified she had prior back surgery in 1985 for a ruptured disc. She also stated she has Graves disease, a thyroid condition. She has had radiation to dissolve the thyroid gland. On the night of the accident the spot where she was struck bothered her. The pain worsened the following day. That day was Thanksgiving. She could not see her physician, Dr. Roger Smith, because it was a holiday. The earliest appointment she could get was for December 5, 1991. Dr. Smith, a neurosurgeon, had been treating her for her back. She denied hurting her neck prior to this accident. Dr. Smith recommended a cervical collar, physical therapy, traction, ice, and heat. She was having trouble sleeping and had to use a pillow between her neck and head in order to sleep at night.

IgAfter the incident she had good days and bad days. She had trouble using her hand to hold the telephone or to drive a car. She [152]*152had pains in the base of her neck and in the muscle from the neck to the shoulder. She began having “considerable pain and numbness” in her arm and hand in 1995. She often used a heating pad at home. Some days she could not do her housework. If she mopped she found she would have more pain the following day.

She described her worst days during the period from the accident to the time of trial in February 1996, as days where she had to stay in bed.

She had a cervical myelogram in 1995. Although Dr. Smith had recommended one on two occasions, she did not have one done as early as he had recommended because her endocrinologist recommended against it due to her elevated blood pressure.

She testified she had the myelogram in 1995 because her left hand was always numb and she could not use it. However, she had a bad experience with a myelogram in 1985, prior to low back surgery, and was fearful of having another one done. After the 1995 myelogram Dr. Kenneth E. Vogel recommended surgery. Mrs. Prestenback stated she had a cervical fusion approximately four months before trial. At the time of trial the pain in her neck was gone and her hand was no longer numb. She still has problems with a muscle between her neck and shoulder but she has had substantial relief.

Dr. Smith’s deposition was read into evidence. Prior to this accident he treated Mrs. Prestenback several years for chronic back pain. In 1985 she had a lumbar discectomy after a myelogram showed a ruptured disc at L-5, S-l. Four years later, on September 28, 1989, she had a relapse with pain in the lower back. She told Mm on that date that she had never been pain-free following the back surgery.

He saw her on December 5, 1991 following the accident in the instant case. She complained to him of pain in her neck as well as headaches. She told him that if she clenched her left fist her whole hand went numb. He examined her and found no obvious bruising or inflammation. She was not particularly tender over the spine. There was no weakness in her arms. He diagnosed her as having a contusion and sprain in the thoracic area. He saw no objective signs of injury or trauma such as muscle spasm or neurological impairment that date. However, x-rays taken that day showed mild scoliosis and straightening in the cervical spine. ^Dr. Smith testified tMs finding was consistent with spine and muscle tightening. He further stated that Mrs. Prestenbaek’s x-rays were consistent with cervical and thoracic sprain. He related the mild scoliosis toward the left to the accident. He did so to a reasonable degree of medical certainty. He explained that the x-rays supported the symptoms she described. He recommended a heating pad and a soft cervical collar. He also prescribed a muscle relaxant and pain medication.

Dr. Smith asked her to return in two weeks, but she did not return for two months. In the interim she had developed pneumoma. Dr. Smith stated that although she may have continued with neck problems during this two-month period, she had a more acute problem of the pneumoma. On tMs second visit of February 6, 1992 he was more concerned about addressing the respiratory problem and referred her to an inter-mst.

Mrs. Prestenback returned to see Dr. Smith on April 9, 1992 with continued complaints of interscapular pain, or pain between the base of the neck and the shoulder blades. He attributed her complaints of low back pain to her prior lumbar disc problem.

Dr. Smith did not find it unusual that Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

King v. Nat'l Gen. Assurance Co.
260 So. 3d 1298 (Louisiana Court of Appeal, 2018)
Babin v. State Farm Mutual Automobile Insurance Co.
113 So. 3d 251 (Louisiana Court of Appeal, 2013)
Powell v. Chabanais Concrete Pumping, Inc.
82 So. 3d 548 (Louisiana Court of Appeal, 2011)
Sarhan v. Florists Mutual Insurance Company
10 So. 3d 894 (Louisiana Court of Appeal, 2009)
Lee v. Huong Lu
931 So. 2d 365 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
688 So. 2d 149, 96 La.App. 5 Cir. 793, 1997 La. App. LEXIS 525, 1997 WL 29400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prestenback-v-schwegmann-giant-supermarkets-inc-lactapp-1997.