Richard v. Dollar General Store

606 So. 2d 831, 1992 La. App. LEXIS 2709, 1992 WL 233169
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1992
Docket23882-CA
StatusPublished
Cited by4 cases

This text of 606 So. 2d 831 (Richard v. Dollar General Store) 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
Richard v. Dollar General Store, 606 So. 2d 831, 1992 La. App. LEXIS 2709, 1992 WL 233169 (La. Ct. App. 1992).

Opinion

606 So.2d 831 (1992)

Mary Skaggs RICHARD, Plaintiff-Appellant,
v.
DOLLAR GENERAL STORE, Defendant-Appellee.

No. 23882-CA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1992.
Writ Denied November 30, 1992.

*832 Foster and Foster by Mark O. Foster, Minden, for plaintiff-appellant.

Locke Purnell Rain Harrell by Stephen C. Resor, New Orleans, for defendant-appellee.

Before NORRIS, HIGHTOWER and VICTORY, JJ.

VICTORY, Judge.

This appeal involves a slip and fall accident in which a jury awarded plaintiff damages, but found her 25%, at fault. Plaintiff appeals contending the damages were insufficient, and that her percentage of fault is excessive. The defendant answers the appeal, contending the damages awarded are excessive, and that the percentage of fault allocated to plaintiff is insufficient. Finding no error in the jury's verdict, we affirm.

FACTS

On September 11, 1989, Mary Skaggs Richard, a 39-year-old divorced mother of two, met her sister, Royce Harper, at the Dollar General Store (operated by Dolgencorp, Inc.) in Minden. When they arrived, the store had just opened and they were the first customers to enter. Each of them got a shopping cart and proceeded through the store together. As they reached the rear of the store, they separated and plaintiff headed toward the front of the store to get shampoo.

With her shopping cart in front of her, plaintiff turned down the detergent aisle. The cart began to slip away from her, and as she attempted to reach for it, her feet slipped and she lost her balance. The center and lower parts of her back hit a plywood display, and her elbow and ankle were scraped on the plywood as she fell into a puddle on the floor.

When plaintiff cried out for help, Harper and Delandra Thompson, a store clerk, came to the scene of the fall. As Harper arrived, plaintiff was on the floor, crying and complaining of pain. They attempted to help plaintiff up, but she complained of such pain, that Harper, a licensed practical nurse, decided it would be best to leave her on the floor in order to prevent additional trauma.

Thompson and Lois Stegall, the manager, were the only two employees on duty that day. Stegall was helping unload a delivery truck at the front door when Thompson brought her to where plaintiff was lying on the floor.

Stegall searched for the source of the liquid, and noticed, on the top shelf, a 64-oz. bottle of detergent with the lid sitting crooked on top, and a little liquid running down its side and ultimately onto the floor. She then filled out an accident report form, and instructed the clerk to clean up the spill. After telling Stegall that her right ankle and elbow were injured, plaintiff was transported, by ambulance, to the Minden Medical Center, where she was X-rayed and given pain medication before being released. Although the x-rays revealed no fractures or dislocations, plaintiff complained of right elbow, right foot and low back pain.

Two days after the accident, plaintiff saw Dr. Michael Allen, a chiropractor, who diagnosed her as having a sprain or strain to her cervical and lumbar spine and a contusion to her right elbow. Dr. Allen also took an x-ray which revealed a cervical degenerative arthritic condition at C-5 and C-6 levels. He treated her for two weeks and then released her to return to work on September 27, 1989.

On October 5, 1989, plaintiff saw Dr. A.R. Ebrahim, an internist, who hospitalized her for testing from October 9-18, 1989, pursuant to her complaints of headaches, neck and back pain. A CAT scan revealed a bulging disc on the left side at L4-5, but because plaintiff complained of pain in her right leg, Dr. Ebrahim felt the pain was unrelated to the bulge.

While plaintiff was in the hospital, Dr. Ebrahim requested the assistance of Dr. Phillip Osborne and Dr. Warren Long as consulting physicians. Dr. Long, a neurosurgeon, felt plaintiff suffered from a muscle ligament sprain rather than a disc problem. He never tested her cervical region, because she made no complaints of upper *833 back or neck pain. Dr. Osborne, a specialist in occupational medicine, gave plaintiff several tests, but all tests produced invalid results. Based on the invalid tests and the lack of abnormalities in X-rays, Dr. Ebrahim did not assign plaintiff an impairment or disability rating and advised her to return to work on November 22, 1989.

Plaintiff attempted to return to work, but stated she could not because of neck and back pain and returned to Dr. Ebrahim three days later. He discharged her from his care on February 27, 1990, stating that the tenderness would clear up with time.

Plaintiff had been a housewife until she began working for TLC Home Health Care, owned in part by her sister, Royce Harper. She began working there in June 1989, three months prior to the accident, as a nurse's assistant. She took care of one invalid patient, turning him regularly and performing household duties such as mopping, sweeping and the laundry. From March, 1990 until May 3, 1990, plaintiff worked with a lighter schedule, but still could not perform all her previous tasks, such as turning the patient.

Meanwhile in March 1990, plaintiff began seeing Dr. Edwin Simonton, an orthopedic surgeon. His examination revealed pain on the left side of plaintiff's neck and pain in her left shoulder blade. He released her to return to work on April 26, 1990, but she instead sought care from Dr. Felix Prakasam, an anesthesiologist who also specializes in pain management. On June 26, 1990, Dr. Prakasam ordered an MRI which revealed a herniated disc at C6-7, and bulging discs at C3-4, C5-6.

Dr. Prakasam recommended epidural steroid injections in the neck, and an operation to fuse the two vertebrae. He estimated at trial that she would require another six months of treatment, followed by six months of therapy. He assigned plaintiff a 20% disability rating, because in his opinion she could not stand or sit for a prolonged time, and was unable to lift, push or pull over 30-35 pounds.

On September 6, 1990, plaintiff sued the store for her injuries. At the time of trial, July of 1991, plaintiff was still seeing Dr. Prakasam and had seen him for one full year, albeit with a six month lapse, from August 1990 until February 1991, in which she saw no doctor. During the eight weeks before the trial, he performed six epidurals on her lower and upper back and six ligament injections in her neck.

At the conclusion of the trial, the jury returned the following verdict:

(1) plaintiff met her burden of proving there was a foreign substance on the floor which caused a hazardous condition,
(2) plaintiff proved she sustained personal injuries from the fall,
(3) defendant did not meet its burden of proving that it acted in a reasonably prudent manner in keeping the store free from hazardous conditions,
(4) plaintiff was 25% at fault, and
(5) awarded plaintiff $24,039.05 in damages.

The trial judge then reduced this amount to $18,029.29, to reflect plaintiff's proportion of fault. Following a denial of defendant's motion for JNOV, plaintiff appealed, and defendant answered the appeal.

LIABILITY

The initial burden of proof rested on the plaintiff to prove she suffered injury as a result of a hazardous condition on the defendant's premises. Once proven, the burden then shifted to the defendant in accordance with LSA-R.S. 9:2800.6:

A.

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Bluebook (online)
606 So. 2d 831, 1992 La. App. LEXIS 2709, 1992 WL 233169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-dollar-general-store-lactapp-1992.