Rhodes v. Winn-Dixie Louisiana, Inc.

638 So. 2d 1168, 1994 WL 278419
CourtLouisiana Court of Appeal
DecidedJune 24, 1994
Docket93 CA 1848
StatusPublished
Cited by13 cases

This text of 638 So. 2d 1168 (Rhodes v. Winn-Dixie Louisiana, 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
Rhodes v. Winn-Dixie Louisiana, Inc., 638 So. 2d 1168, 1994 WL 278419 (La. Ct. App. 1994).

Opinion

638 So.2d 1168 (1994)

Tessie RHODES Rhodes & Kirby F. Rhodes, II, individually and on behalf of their Minor Child, Kirby F. Rhodes, III
v.
WINN-DIXIE LOUISIANA, INC.

No. 93 CA 1848.

Court of Appeal of Louisiana, First Circuit.

June 24, 1994.

*1169 Dexter Gary Houma, for plaintiffs and appellees, Tessie Rhodes, et al.

Carlos Lazarus, Jr., Houma, for defendant and appellant, Winn-Dixie, Louisiana, Inc.

Before LOTTINGER, C.J., and CRAIN and LeBLANC, JJ.

CRAIN, Judge.

Defendant, Winn Dixie of Louisiana, Inc., (Winn Dixie) appeals from the jury's verdict which cast it with fifty per cent liability for the injuries sustained by plaintiff, Tessie Rhodes, as a result of an accident in defendant's store, wherein an employee of the store chased an alleged shoplifter. We affirm the jury's verdict.

There are two assignments of error presented by Winn Dixie: 1) The jury committed manifest error in finding defendant's conduct fell below the standard of care owed plaintiff and that this fault was the legal cause of her injuries; 2) The trial court erred in failing to sufficiently instruct the jury and in refusing the defendant's jury charges.

The facts as revealed by the record are as follows:

On December 30, 1991, Tessie Rhodes and her husband, Kirby travelled to the Prospect Avenue Winn Dixie store in Houma, Louisiana, in order to purchase some soup for Mrs. Rhodes' sick father. After entering the store, Mrs. Rhodes went to the aisle where the soup was located and Mr. Rhodes went to retrieve a carton of beer. The couple again met in the front of the store near the check-out counter. They engaged in conversation wherein Mr. Rhodes advised his wife that he was going to the bathroom and would return. Mr. Rhodes turned to leave, and as he did, he felt someone rub against his shoulder. His wife was, at the time, and unbeknown to Mr. Rhodes, thrown against the checkout counter where she suffered physical injuries.

Mr. Rhodes, unaware of his wife's injury and after observing a store employee chasing an unknown male subject, realized that this was an apparent shoplifting incident. Since he had formerly worked for this store and was familiar with the store personnel, Mr. Rhodes offered his assistance to apprehend the apparent shoplifter. The shoplifter was initially chased from the store by Richard Scott, Sr., the meat market manager. Mr. Scott initially saw the suspect in the meat department, as he secreted some meat products in his coat and attempted to flee the store.

Mr. Scott, Mr. Rhodes, and an unnamed bag clerk thereafter pursued the suspect out of the store and into the parking lot area where they were unable to apprehend him.

Following this incident, Mr. Rhodes and his wife left the store and she drove to her father's house to deliver the soup they had purchased. They then proceeded home, with Ms. Rhodes driving. During the drive, the couple once parked on the side of the road because of the pain Ms. Rhodes was experiencing. She continued that night in pain. She took Tylenol and administered cold packs to reliever her discomfort.

The next morning, Mr. Rhodes contacted Mr. Ross at the defendant store, in order that a full report of the incident could be filed.

Mrs. Rhodes was given medical treatments for the injuries she sustained. This suit for damages followed.

Liability

Defendant contends that the jury committed manifest error in concluding that its conduct fell below the standard of care and that their fault caused plaintiff's damages.

The standard of review utilized in cases such as this is set forth in Stobart v. State of Louisiana, through Department of Transportation and Development, 617 So.2d 880, (La.1993) at 882-883:

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). This court has announced a two-part test for the reversal of a factfinder's determinations:
*1170 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).

See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

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. Id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
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. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La. 1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. Esco, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that `the reviewing court must always keep in mind that if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.' Housley v. Cerise, 579 So.2d 973 (La. 1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).
This court has recognized that `[t]he reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.' Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

In particular, defendant, Winn Dixie, alleges that the jury erred in assessing it with 50% liability. It argues that Mr. Scott's actions were not the cause-in-fact of the accident and that they did not owe plaintiffs a duty to protect them against the unanticipated criminal acts of the shoplifter. We disagree.

In the Louisiana Supreme Court case of Mundy v. Department of Health & Human Resources, 620 So.2d 811, at 813-814 (La. 1993) the court discussed the duty-risk analysis to be applied in cases such as this:

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Bluebook (online)
638 So. 2d 1168, 1994 WL 278419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rhodes-v-winn-dixie-louisiana-inc-lactapp-1994.