Quinn v. Wal-Mart Stores, Inc.

774 So. 2d 1093, 2000 La. App. LEXIS 2990, 2000 WL 1781839
CourtLouisiana Court of Appeal
DecidedDecember 6, 2000
Docket34,280-CA
StatusPublished
Cited by34 cases

This text of 774 So. 2d 1093 (Quinn v. Wal-Mart Stores, 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
Quinn v. Wal-Mart Stores, Inc., 774 So. 2d 1093, 2000 La. App. LEXIS 2990, 2000 WL 1781839 (La. Ct. App. 2000).

Opinion

774 So.2d 1093 (2000)

Beatrice QUINN, Plaintiff-Appellee,
v.
WAL-MART STORES, INC., Defendant-Appellant.

No. 34,280-CA.

Court of Appeal of Louisiana, Second Circuit.

December 6, 2000.

*1096 Vicki C. Warner, Shreveport, Counsel for Appellant.

Kenneth Anderson Brister, Lake Providence, Amy Clark Ellender, Daniel Joseph Ellender, Mer Rouge, Counsel for Appellee.

Before NORRIS, CARAWAY and DREW, JJ.

NORRIS, Chief Judge.

Wal-Mart challenges a jury award of damages to a shopper who was injured by a falling television. For the reasons expressed, we amend and affirm.

Factual Background

On July 10, 1996, Mrs. Beatrice Quinn and her husband were shopping for a television at the Bastrop Wal-Mart. Because the 27" television she decided to purchase was located on the top riser of the electronics department, two Wal-Mart employees used a large rolling ladder to retrieve the boxed TV. As the employees attempted to lower the box, they lost control, and the box fell, striking Mrs. Quinn in the neck and left shoulder. One employee saw the TV strike Mrs. Quinn and noted that although she was not rendered unconscious, she was in immediate pain. Mr. and Mrs. Quinn then immediately went to the emergency room, where X-rays showed no displacement or fracture. She was diagnosed with musculoskeletal pain, given medication, and discharged.

*1097 The next day, Mrs. Quinn went to Dr. Marc Horowitz, who had treated her previously for left shoulder problems she sustained while working as a nursing home Certified Nursing Assistant. Dr. Horowitz found her shoulder normal, although he did find tenderness on the back of the shoulder. Five days later, Mrs. Quinn returned to Dr. Horowitz, still complaining of pain despite the painkillers he previously prescribed for her. Notably, Dr. Horowitz' impression was that she may be faking the injury. After a third visit on July 18, 1996, Dr. Horowitz ordered a CAT scan of her head and neck; the test was normal. Thereafter, Mrs. Quinn sought treatment at E.A. Conway Hospital and LSUMC, still complaining of shoulder pain. After physical therapy proved unsuccessful, she underwent arthroscopic surgery at LSUMC on April 16, 1997 to repair a labral tear on the front of her shoulder and some bursitis on the top. By August, 1997, hospital records indicate that she had regained a full range of motion.

Eight months after the 1997 surgery, Mrs. Quinn saw Dr. John Green, who ordered an MRI which disclosed a "massive rotator cuff tear." Dr. Green indicated that surgery may be needed to repair the rotator cuff tear, but it may not be necessary since she was doing well. As of May, 1999, Mrs. Quinn's only work limitations were no lifting over ten pounds and no repetitive pushing or pulling.

Since the Wal-Mart accident, Mrs. Quinn never returned to her full-time work at the nursing home where she had a solid work record. In the instant lawsuit, after a four day trial, the jury found in favor of Mrs. Quinn, awarding her general and special damages and her three children and husband loss of consortium damages. After Wal-Mart's motions for JNOV and Motion for New Trial or Remittitur were denied, this appeal followed.

Discussion-Surveillance Tapes

In its first assignment of error, Wal-Mart contends that the trial judge erred by excluding from evidence two surveillance videos taken of Mrs. Quinn three weeks prior to trial. These tapes, Wal-Mart claims, show Mrs. Quinn engaging in activities which she testified that her ability to do was impaired due to her injury. Wal-Mart contends that since the videos directly impeach her testimony and call into doubt the nature and extent of her injuries as claimed, they should be shown to the jury. Not contesting liability, but solely the damage award, Wal-Mart suggests that since the trial judge excluded the tapes, the fact-finding process has been so tainted that a new trial is necessary because the jury was deprived of an opportunity to assess the true nature and extent of Mrs. Quinn's injuries and to assess damages accordingly. Alternatively, relying on McLean v. Hunter, 495 So.2d 1298 (La.1986) and Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975), Wal-Mart argues that the jury verdict should be reviewed de novo because these tapes were erroneously excluded by the trial court.

The admission of surveillance tapes into evidence is largely within the discretion of the trial court. Olivier v. LeJeune, 95-0053 (La.2/28/96), 668 So.2d 347. Particularly, the trial court must consider whether the videotape accurately depicts what it purports to represent, whether it tends to establish a fact of the proponent's case, and whether it will aid or confuse the jury's understanding. Weighed against those factors, the trial court must consider whether the videotape will unfairly prejudice or mislead the jury, confuse the issues, or cause undue delay. The trial court may exclude the evidence if the factors favoring admission are substantially outweighed by the factors against it. La. C.E. arts. 401-403; Malbrough v. Wallace, 594 So.2d 428, 431 (La. App. 1st Cir.1991), writ denied, 596 So.2d 196 (La.1992); U.S. F. & G. v. Hi-Tower Concrete Pumping, 574 So.2d 424 (La.App. 2d Cir.), writs denied, 578 So.2d 136, 137 (La.1991).

*1098 In the present case, we agree with the trial court's observation that Mrs. Quinn did not claim that she was completely disabled and could not do the activities portrayed in the videos, but rather she claimed that her mobility is restricted so that these activities produce discomfort or pain. Mrs. Quinn testified that she helped care for her great-nephew, which is depicted in the videos. Although the videos show her picking the child up which presumably is contrary to her doctor's restrictions, Mrs. Quinn never denied that she could do so if necessary. She further testified that in that event, she would transfer the child to her uninjured arm precisely what the video shows her doing. Likewise, the videos depict Mrs. Quinn fixing her hair using her left arm; notably, she never denied she could do this, only that prolonged use of her left arm produces discomfort in her injured shoulder. In addition, the tapes do not fairly indicate whether Mrs. Quinn did experience pain after engaging in these activities. Accordingly, showing these tapes to the jury without context or explanation, could, as the trial court concluded, create a prejudicial impression on the jury that outweighs any probative value they may have to impeach Mrs. Quinn's testimony. La. C.E. art. 607 D(2). As noted by the Louisiana Supreme Court, "evidence in the form of moving pictures or videotapes must be approached with great caution because they show only intervals of the activities of the subject, they do not show rest periods, and do not reflect whether the subject is suffering pain during or after the activity." Orgeron v. Tri-State Road Boring, Inc., 434 So.2d 65 (La.1983). As such, the trial court did not abuse its discretion in disallowing the tapes. This assignment has no merit.

Quantum Future Medical Expenses

In its second assignment of error, Wal-Mart contends that the trial court's awards of general damages, loss of future earning capacity, and loss of consortium to her husband and three children are excessive. In addition, Wal-Mart contends that the jury erred in its award of future medical expenses, specifically, $25,000 in future medical expenses for a second surgery to repair her torn rotator cuff.

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Bluebook (online)
774 So. 2d 1093, 2000 La. App. LEXIS 2990, 2000 WL 1781839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinn-v-wal-mart-stores-inc-lactapp-2000.