Stark v. National Tea Co.

655 So. 2d 769, 1995 WL 296976
CourtLouisiana Court of Appeal
DecidedMay 16, 1995
Docket94-CA-2633
StatusPublished
Cited by14 cases

This text of 655 So. 2d 769 (Stark v. National Tea Co.) 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
Stark v. National Tea Co., 655 So. 2d 769, 1995 WL 296976 (La. Ct. App. 1995).

Opinion

655 So.2d 769 (1995)

Janice Marie STARK and Carlos Stark
v.
NATIONAL TEA COMPANY, et al.

No. 94-CA-2633.

Court of Appeal of Louisiana, Fourth Circuit.

May 16, 1995.
Rehearing Denied June 19, 1995.

*771 Wayne M. Leblanc, Metairie, for plaintiffs/appellees, Janice Marie Stark and Carlos Stark.

Roger J. Larue, Metairie, for defendant/appellant, Nat. Tea Co.

Before PLOTKIN, BYRNES and JONES, JJ.

PLOTKIN, Judge.

This appeal presents the unique, but increasingly common, situation in which the entire incident in question is captured on video tape. As such, it requires us to apply the manifest error/clearly wrong standard of review to a record that consists of more than just cold transcripts. We are thus afforded the opportunity to see what the jury saw and thereby gauge the correctness of its decision, while still circumscribed by the governing standard of appellate review.

Defendant, National Tea Company ("NTC"), appeals a jury verdict in favor of plaintiffs, Janice Marie Stark and Carlos Stark, finding Mrs. Stark not at fault and awarding plaintiffs $81,750.00 for damages resulting from a slip and fall inside one of NTC's Canal Villere Supermarkets. Based on our review of the record, including a video tape on which the entire accident in question was captured, we amend the trial court's judgment, and, as amended, affirm that judgment.

FACTS

On February 25, 1992, Mrs. Stark slipped and fell in the produce section of National Canal Villere Supermarket Store Number 8. The entirety of the accident was caught on the store's surveillance video system. The video shown at trial and contained in the record on appeal shows a National Tea Company employee, Kenny Gross, spraying an unidentified substance onto the floor of the produce aisle. As the employee is spraying this substance, Mrs. Stark and her husband are seen perusing the produce.

Gross left the wet area briefly to retrieve a "Wet Floor" sign to place over the area that he had just sprayed. Mrs. Stark, while reaching for some green onions, slipped and fell. She suffered damage to her neck, lower back, ankle, left wrist, and left shoulder. Nearly fifteen months after the fall, Mrs. Stark underwent surgery to alleviate constant pain in her elbow. As a result of this fall and the ensuing surgery, Mrs. Stark has lost approximately 25% of the strength in her left hand. Mrs. Stark is left-handed.

The jury found that as a result of the dangerous condition that created an unreasonable risk of injury, National Tea was 100% at fault for the injury to Mrs. Stark. It awarded her general damages of $33,000, loss of past and future wages of $35,000, and *772 $12,000 in past and future medical expenses. Mr. Stark was awarded $1,750 for his claim for loss of consortium.

In this appeal, NTC contends that the jury erred in finding it 100% negligent. NTC avers that the video reveals that Mrs. Stark was comparatively negligent in causing her accident and that the jury's verdict must be amended accordingly. NTC also complains that the jury's awards for past and future medical expenses and loss of past and future earnings are excessive and must be reduced. Plaintiffs answered the appeal, alleging that the trial court erred in failing to give a separate jury charge and interrogatory concerning a separate award of damages for the scar on Mrs. Stark's elbow resulting from her surgery.

ISSUES

Three issues are presented by this appeal:

1) Was the jury manifestly erroneous in finding NTC 100% at fault in causing Mrs. Stark's accident?

2) Did the jury abuse its discretion by awarding Mrs. Stark $12,000 for past and future medical expenses?

3) Did the jury abuse its discretion by awarding Mrs. Stark $35,000 for loss of past and future wages?

We will discuss each of these in turn.

DISCUSSION

NTC's Fault

In its first assignment of error, NTC argues that the jury erred in absolving Mrs. Stark from any fault in causing her accident. The jury's finding in this regard is one of fact that may not be disturbed by this court in the absence of manifest error or clear wrongness. In its most recent pronouncement on the issue of appellate court review of facts, the Louisiana Supreme Court stated as follows:

Reversal of the jury's factual finding should only occur where the factfinder is manifestly erroneous or clearly wrong. Where there are conflicts in testimony, the factfinder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the reviewing court may feel its own evaluations and inferences are just as reasonable. However, the reviewing court's function requires more than just a review of the record to find a reasonable factual basis for the finding; it requires a reviewing court to view the record in its entirety to determine whether the jury was clearly wrong. Finally, where two permissible, i.e. reasonable, views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous. Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099, 93-3110, 93-3112 (La. 7/5/94); 639 So.2d 216; Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Hines v. Remington Arms Co, Inc., 94-0455, pp. 6-7 (La. 12/8/94), 648 So.2d 331, 335. However, in applying this standard, we must bear in mind the supreme court's admonition that

[w]here 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 fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

Rosell, 549 So.2d at 845.

Following our careful review of the record in its entirety, we conclude that the jury was clearly wrong and committed manifest error in absolving Mrs. Stark of any fault in causing her accident. In particular, our review of the videotape introduced at trial, reveals the following events at the indicated times:

13:23:31: Gross is seen picking up a can from his supplies.
13:23:34-13:24:04: Gross is seen spraying foam on the aisle. The foam is plainly visible as Gross moves down the aisle. It extends from underneath the produce counter into the aisle, covering approximately 25%-30% of the entire aisle.
13:23:57: Mr. and Mrs. Stark become visible at the end of the produce aisle.
*773 13:24:07: Gross is seen returning to his supplies and retrieving a new can of foam.
13:24:37-13:24:55: Gross resumes spraying the floor. The foam again is patently obvious on the floor as he moves from one location to the next.
13:24:40: Mr. and Mrs. Stark begin moving down the aisle toward the area in which Gross is working.
13:24:52: Mrs. Stark reaches for something on the produce counter, which she subsequently drops.
13:24:56: Gross ceases spraying and begins to walk back toward his supplies to retrieve a "Wet Floor" sign.
13:25:01: Gross picks up the "Wet Floor" sign and begins walking back toward the Starks.
13:25:02: Mrs. Stark slips and falls.

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

Related

Saraphine Green v. Breaux Bridge Ventures, LLC
Louisiana Court of Appeal, 2022
Baltazar v. Wolinski
53 So. 3d 591 (Louisiana Court of Appeal, 2010)
Woolfolk v. TRISM, INC.
976 So. 2d 216 (Louisiana Court of Appeal, 2008)
Misewicz v. Gamso
860 So. 2d 119 (Louisiana Court of Appeal, 2003)
Dorvilier v. Gagliano
855 So. 2d 393 (Louisiana Court of Appeal, 2003)
Hoyt v. Gray Ins. Co.
809 So. 2d 1076 (Louisiana Court of Appeal, 2002)
Lofton v. Hayward
806 So. 2d 877 (Louisiana Court of Appeal, 2002)
Kose v. Cablevision of Shreveport
755 So. 2d 1039 (Louisiana Court of Appeal, 2000)
DUPRE' v. Maison Blanche, Inc.
712 So. 2d 567 (Louisiana Court of Appeal, 1998)
Jones v. Proctor
697 So. 2d 304 (Louisiana Court of Appeal, 1997)
Medice v. Delchamps, Inc.
694 So. 2d 528 (Louisiana Court of Appeal, 1997)
Myles v. Brookshires Grocery Co.
687 So. 2d 668 (Louisiana Court of Appeal, 1997)
Reichert v. Bertucci
684 So. 2d 1041 (Louisiana Court of Appeal, 1996)
Broussard v. Wal-Mart Stores, Inc.
682 So. 2d 894 (Louisiana Court of Appeal, 1996)
Peck v. Wal-Mart Stores, Inc.
682 So. 2d 974 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
655 So. 2d 769, 1995 WL 296976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stark-v-national-tea-co-lactapp-1995.