Taylor v. Dixie Dandy

493 So. 2d 654
CourtLouisiana Court of Appeal
DecidedAugust 20, 1986
Docket17966-CA
StatusPublished
Cited by6 cases

This text of 493 So. 2d 654 (Taylor v. Dixie Dandy) 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
Taylor v. Dixie Dandy, 493 So. 2d 654 (La. Ct. App. 1986).

Opinion

493 So.2d 654 (1986)

Herbert J. TAYLOR, et ux., Plaintiffs-Appellants,
v.
DIXIE DANDY, et al., Defendants-Appellees.

No. 17966-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1986.

C. William Gerhardt & Associates by C. William Gerhardt, Shreveport, for plaintiffs-appellants.

*655 Mayer, Smith & Roberts by Kim Hanson LaVigne, Shreveport, for defendants-appellees.

Before HALL, C.J., and MARVIN and NORRIS, JJ.

HALL, Chief Judge.

Plaintiffs, Herbert J. Taylor and Olivia A. Taylor, appeal from the judgment of the trial court awarding plaintiff, Herbert Taylor, $750.00 in damages and dismissing the claims of Olivia Taylor in plaintiffs' action for damages for personal injuries sustained as a result of a slip and fall in a grocery store. Named as the defendants were the owner of the store, Dixie Dandy d/b/a Shuler's Dixie Dandy, and its liability insurer, Wausau Insurance Company. The primary issue for consideration on appeal is the nature and extent of the injuries suffered by plaintiff, Herbert Taylor, in the fall. For the following reasons, we affirm the judgment of the trial court.

FACTS

On May 20, 1983, at approximately 11:00 a.m., plaintiff, Herbert Taylor, was shopping with his young son at the Dixie Dandy grocery store located in Jonesboro, Louisiana. As plaintiff walked down the aisle in the frozen food section near a freezer, he slipped and fell, injuring his lower back and right elbow. Plaintiff alleged that there was a wet substance on the floor, most probably water, which caused him to fall.

Plaintiff instituted this action for damages generally alleging that the accident was caused by the defendant's negligence in failing to maintain the floors of the store in a clean and safe condition, particularly in allowing a wet substance to remain on the floor thereby rendering it slippery and unsafe to customers. Plaintiff's wife, Olivia Taylor, joined the action seeking damages for loss of love, society, and consortium.

At the trial on the merits, plaintiff testified he was shopping at the defendant's store with his son and slipped on some water near a food freezer. The water wet his clothing when he fell. Plaintiff testified there were no warnings by defendant or its employees, either oral or written, of a wet floor.

The evidence indicated that a food freezer in the defendant's store had been leaking for quite some time preceding the plaintiff's fall and defendant's employees were to keep the area clean when they saw water on the floor. No warning signs to advise customers of the possible hazard had been posted nor had defendant established a regular inspection schedule to inspect and clean the area surrounding the leak. The faulty freezer was repaired by the defendant shortly after the plaintiff's fall.

Plaintiff testified that his back and right elbow were injured as a result of the fall and plaintiff immediately sought medical attention. At the medical examination, plaintiff complained of pain in his right arm and leg and in his back. Plaintiff was ambulating in a normal fashion and the diagnosis at that time was a sprain and contusion to the right forearm. Pain medication was prescribed.

Plaintiff had previously injured his back in three separate work-related injuries in 1981, 1982, and 1983. Plaintiff was off from work for a period of four to six weeks as a result of each accident and testified he had not yet returned to work following the March, 1983 accident. Plaintiff testified that at the time of his fall, he had been released by his treating physicians to return to work and he was both ready and able to do so. However, he was not able to resume his job duties after the fall due to back pain.

Plaintiff was employed as a bag maker at Stone Container Corporation and testified the job required bending and the lifting of heavy bales of paper, approximately fifty to eighty pounds each. Plaintiff's job duties consisted primarily of clean-up duties and bale patching. Plaintiff testified that subsequent to the fall he had not had any jobs which required lifting or bending. Following the fall, plaintiff worked at a restaurant for approximately two to three weeks, in the Louisiana Tech University cafeteria for approximately two *656 months and at Heart Country Shop for approximately three months. Plaintiff testified that he had to quit working at the restaurant as the cleaning duties were hard on his back. Plaintiff was fired from his position at the university cafeteria for absenteeism. Plaintiff stated he missed a lot of work because his back bothered him and he could not perform his work duties. Plaintiff's position at the Heart Country Shop required him to polish brass and plaintiff testified he was fired due to his inability to perform his job duties as a result of his back condition. Plaintiff testified that he had not filed any work-related claims following the fall at the defendant's store.

Plaintiff, who was twenty-six years at the time of the accident, stated that following the accident he could no longer participate in sports activities such as playing baseball, basketball, and jogging and that his sexual relationship with his wife had been adversely affected due to his back pain.

Plaintiff's wife, Olivia Taylor, testified that plaintiff could not participate in sports activities or help with household chores following the injury and their sexual relationship had been greatly affected. Mrs. Taylor stated that plaintiff experienced pain in his back "most all the time."

The medical evidence presented at trial was somewhat conflicting. Dr. Baer Rambach, an orthopedic surgeon, testified he first saw plaintiff on June 20, 1983. Plaintiff gave a history of two work-related injuries and the fall at the defendant's store. Plaintiff complained of pain in his lower back radiating into his leg. X-rays taken at that time revealed a slight narrowing of the intevertebral disk space at the L5-S1 level and a transitional 5th lumbar vertebrae, which meant there was asymmetry of the normal configuration of the vertebrae rather than being symmetrical. Rambach stated that this was a congenital anomaly which may render an individual more vulnerable or susceptible to back injuries. Plaintiff walked with a limp favoring the right lower extremity and there was some limitation of motion. Various tests produced mostly positive findings. Rambach's diagnosis was multiple contusions and sprains of the lumbosacral region of the spine. Rambach recommended a rigid rehabilitation program and no heavy manual labor work.

Rambach next saw the plaintiff in October, 1983 at which time plaintiff continued to have back and leg pain and discomfort with no improvement. X-rays taken at that visit did not show any changes. Rambach recommended further testing such as a myelogram but these tests were not performed. Dr. Etheredge, a partner of Rambach's, next saw the plaintiff on December 19, 1983. Dr. Etheredge was of the opinion that plaintiff had a recurrent sprain of the lumbosacral spine. Etheredge recommended retraining plaintiff to moderate work activity with a fifty pound limit of maximum lifting.

Rambach next saw plaintiff on October 26, 1984. Plaintiff indicated he continued to have pain in his lower back radiating into his right leg which had become more severe. Plaintiff related he had quit three jobs due to pain and discomfort. Rambach's examination revealed essentially no new findings and Rambach felt that plaintiff would be unable to engage in any physical work at that time. Rambach again recommended vocational rehabilitation for the plaintiff.

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493 So. 2d 654, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-dixie-dandy-lactapp-1986.