Richard v. McCrory Corp.

666 So. 2d 371, 95 La.App. 1 Cir. 0434, 1995 La. App. LEXIS 3547, 1995 WL 743572
CourtLouisiana Court of Appeal
DecidedDecember 15, 1995
DocketNo. 95 CA 0434
StatusPublished
Cited by2 cases

This text of 666 So. 2d 371 (Richard v. McCrory Corp.) 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. McCrory Corp., 666 So. 2d 371, 95 La.App. 1 Cir. 0434, 1995 La. App. LEXIS 3547, 1995 WL 743572 (La. Ct. App. 1995).

Opinion

JAGONZALES, Judge.

Cheryl Ann Richard, individually and as tutrix of her minor child, Junia Richard, filed suit on April 30, 1993, against McCrory Corporation. Ms. Richard alleged that on May 9, 1992, four-year-old Junia was injured in the ladies room at MeCrory’s store on Third Street in Baton Rouge when an employee of MeCrory’s closed the restroom door on Ju-nia’s finger. Junia’s ring finger was smashed and the tip of the finger cut off. Ms. Richard alleged that a mechanical spring loaded closing device on the restroom door contained a vice or defect that caused an unreasonable risk of harm, resulting in strict liability, and further, alleged that MeCrory’s and its employee were negligent.

After trial on the merits, the trial court ruled in favor of the Ms. Richard, finding that “McCrory Corporation, defendant herein, breached its duty of care towards the plaintiff, which breach caused damages to the plaintiff.” The court further found the plaintiff free of fault, and awarded general damages in the amount of $6,500.00 and special damages in the amount of $3,421.25.

McCrory Corporation is appealing this judgment, and makes three assignments of error.

1. The trial court committed reversible error in finding for plaintiff in that plaintiff failed to prove the allegation that MeCrory’s was strictly hable for an automatic closure mechanism on the restroom facility door which allegedly contained a vice or defect which created an unreasonable risk of harm to plaintiff herein.

2. The trial court committed reversible error in finding for plaintiff in that plaintiff failed to show that a MeCrory’s employee was even involved in the alleged incident.

3. The trial court committed reversible error in finding for plaintiff, in that plaintiffs failed to meet their burden of proof to show negligence on the part of an alleged employee in its “failure to observe the minor child standing next to the restroom facility door and take proper precaution to prevent injury to petitioner, Junia Richard.”

ASSIGNMENT OF ERROR NO. 1

Our review of the record reveals that the trial court based its finding of liability on [373]*373negligence, not strict liability, therefore, this assignment of error has no merit.

I ¡¡ASSIGNMENT OF ERROR NO. 2

We are aware of McCrory Corporation’s argument that their store employee was not involved in this accident. That determination is a factual finding by the trial court which cannot be overturned by this court in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether a factfinder’s conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. Department of Transportation and Development, 617 So.2d 880, 882 (La.1998); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

We accept the trial court’s finding of fact that it was a McCrory Corporation employee who came through the bathroom door when Junia was injured.

ASSIGNMENT OF ERROR NO. 3

The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the eause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of the liability or scope of protection element); and (5) proof of actual damages (the damages element). The first element is usually a judge question, and the other four are usually jury questions unless reasonable minds could not differ. Fowler v. Roberts, 556 So.2d 1, 4 (La.1989); Retif v. Doe, 93-1104 (La.App. 4th Cir. 2/11/94) 632 So.2d 405, 407, writ denied, 94-1000 (La. 6/17/94) 638 So.2d 1095.

We understand the law to be that a child of Junia’s age, 4 years old, is not capable of appreciating the hazard and thus is not guilty of any negligence. However, based upon Lthe facts in the record, we find no breach of a duty to the child by McCrory Corporation’s employee.

An examination of the photographs in evidence show that the space between the inside hinged portion of the door and the wall it opened against was extremely small, only a matter of inches. This space was barely large enough for a small child to stand behind the door once it opened. The door opened into a small hall-like area. Under normal circumstances, when the door opened it would almost hit this wall. An employee of the store, or anyone else opening the door could not possibly see a small child in this hazardous area, so they would be completely concealed by the door once it was opened.

[374]*374For there to be any negligence under the facts of this case, the store employee who opened the door would have to know of the hazard the child was exposed to, and have an opportunity to prevent that hazard. There is absolutely no evidence whatsoever in this record that the store employee either knew of the presence of the child, or had the time, ability or opportunity to prevent the closing of the door. There is no evidence of injury I r,caused' when the door was opened, it was only upon the door closing that Junia’s finger was smashed. Prior to opening the door, there was no gap in the hinge portion of the door into which the child could have inserted her fingers.

Nine-year old Marcella Blakes, who was supervising Junia at the time of the accident, described the accident as follows:

Q. And you took Junia into the bathroom?
A. Yes.
Q. Tell us what happened?
A. After she finished—
Q. She went to the restroom?
A. Yes. I went up there with her and then came out and she washed her hands and I told her to stand right there and I was washing my hands.
Q. So you all were still in the bathroom?
A. Yes, and she was sliding against the wall and I told her to stop so she stopped and I kept checking on her but when I
[375]*375heard the door open, I had looked back and I saw her when she came in and — I don’t know if Junia slided up [sic] against the door or if she tried to catch it, but I heard her when she was crying and [s]he said she had slammed her finger in the door. I called someone out of the bathroom but she didn’t come out so I—
Q. Okay. Slow down a little bit. Junia had used the bathroom?
A. Yes.
Q. And she was standing next to the wall. You told her to stand next to the wall.
A. Yes.
Q. And you’re washing your hands.
A. Yes.
Q.

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Bluebook (online)
666 So. 2d 371, 95 La.App. 1 Cir. 0434, 1995 La. App. LEXIS 3547, 1995 WL 743572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-mccrory-corp-lactapp-1995.