Thompson v. American National Fire Insurance Co.

617 So. 2d 171, 1993 La. App. LEXIS 1405, 1993 WL 105599
CourtLouisiana Court of Appeal
DecidedApril 7, 1993
DocketNo. 92-460
StatusPublished
Cited by2 cases

This text of 617 So. 2d 171 (Thompson v. American National Fire Insurance 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
Thompson v. American National Fire Insurance Co., 617 So. 2d 171, 1993 La. App. LEXIS 1405, 1993 WL 105599 (La. Ct. App. 1993).

Opinion

DOMENGEAUX, Chief Judge.

Marie and J.W. Thompson filed suit for injuries sustained when Mrs. Thompson tripped and fell over a 4V2 inch step leading to a raised display area in the Brown’s Discount Furniture Store of Alexandria. After a trial, the jury returned a verdict finding Brown’s 70% at fault and Mrs. Thompson 30% at fault. The jury found Mrs. Thompson sustained total damages of $28,432.10 and failed to award any damages for Mr. Thompson’s loss of consortium claim. The Thompsons appeal, assigning as errors the assessment of any fault to Mrs. Thompson, the inadequacy of the damages awarded, and the failure to award any damages for loss of consortium. The plaintiffs also allege as error the trial court’s failure to grant a JNOV on these three issues. For the following reasons, we affirm.

COMPARATIVE FAULT

On December 28, 1989, Mr. and Mrs. J.W. Thompson, accompanied by their son, their grandson, and a friend, went to Brown’s Furniture Store to buy some bedding for their camp in Toledo Bend. A Brown’s salesman, Carlton Arvie, greeted them at the door and informed them that the merchandise they wished to see was on the second floor. Mr. Arvie then led them through what he considered to be the most direct route to the escalator, this path requiring the group to cross a raised island display area. As the group approached the raised area, Mr. Arvie and Mr. J.W. Thompson were in front and Mrs. Thompson was [172]*172two or three feet behind them, with the other members of the group behind Mrs. Thompson. Although the two men in front successfully negotiated the step up, Mrs. Thompson did not. She tripped over the step and fell with a twisting motion, scraping her knees and landing on her right side.

Photographs taken two months after the accident show the step to be about 4½ inches high with beige carpeting covering both levels. The photographs depict the step marked with red tape along the top and bottom levels, although the tape is worn off and peeling in some places. The witnesses for the plaintiffs testified that the tape was not there on the day of the accident or that they did not remember seeing it that day. Mr. Arvie, the salesman, and David Small, an assistant manager, testified that the tape was in place on the day of the accident.

Michael Frenzel, a safety consultant hired by the plaintiffs, testified that the step was unreasonably dangerous. The same color carpet on both levels made the step difficult to notice as did the cluttering of furniture near the step. Without the red tape, which was worn in some places, Mr. Frenzel testified that the step would have been virtually disguised. He also cited several safety and insurance manuals which listed raised or sunken display areas as undesirable conditions because of the tripping hazards they created.

Mrs. Thompson testified that she just ran into something “like a brick wall.” She did not see the two men in front of her step up, nor did she see any tape on the step. On cross examination, she admitted that she was not distracted by merchandise or advertisements as she approached the step. She stated that she simply did not see the step.

La.R.S. 9:2800.6 imposes a duty on a merchant to keep his premises free of any hazardous conditions which might reasonably give rise to damage. Under the version of the statute in effect on the date of Mrs. Thompson’s accident, once a plaintiff proved that the accident was caused by a hazardous condition, the burden then shifted to the defendant to prove that he acted in a reasonably prudent manner. The defendants have not appealed nor answered the plaintiffs’ appeal; hence, the jury’s finding of fault on the part of Brown’s is not before us. The question presented for review is whether the jury’s assessment of 30% comparative fault to Mrs. Thompson is manifestly erroneous.

In Hutchinson v. Wal-Mart, Inc., 573 So.2d 1148 (La.App. 1st Cir.1990), the First Circuit held that the trial court erred in granting a JNOV to reduce the jury’s assessment of 35% fault to the plaintiff. In that case, the plaintiff tripped over a six inch high display pallet as she stepped backwards while looking at merchandise on the shelves. The court stated:

In reaching this conclusion, we are mindful of the jurisprudence to the effect that a customer in the display area of a retail store has a diminished duty to maintain a lookout because of the intentional distractions created by the displayed merchandise. Nevertheless, the customer still has a duty to exercise appropriate care for his own protection and cannot be oblivious to hazards observable with the exercise of reasonable care. See, Kimble v. Wal-Mart Stores, Inc., 539 So.2d 1212 (La.1989); Lloyd v. TG & Y Stores Co., 556 So.2d 629 (La.App. 2d Cir.1990); Ritchie v. S.S. Kresge Co., Inc., 505 So.2d 831 (La.App. 2d Cir.), writ denied, 507 So.2d 227 (1987).

573 So.2d at 1151.

In the instant case, Mrs. Thompson was not distracted by the displayed merchandise. Although the lack of color contrast between the two floor levels may have disguised the step, the jury was presented with evidence that the step was marked with red tape. It was within the jury’s province to accept or reject this evidence. Mrs. Thompson did not see the two men directly in front of her step up nor did she see the step. We can find no error in the jury’s allocation of comparative fault.

QUANTUM

At about 8:30 p.m. on the date of the accident at Brown’s, Mrs. Thompson was taken to the emergency room at Rapides [173]*173General Hospital where she was treated and released for pain in her neck, shoulders, back and knees. On January 2, 1990, she was seen by Dr. William McBride. An examination revealed normal range of motion, with tenderness and soreness in the back muscles of the neck, and x-rays revealed degenerative arthritis of the cervical spine. Although Mrs. Thompson denied any weakness in the extremities, Dr. McBride noted a subtle decreased pin prick response. He diagnosed muscle strain, with deep contusions to the neck, shoulder and arm. He then referred her to a neurologist, Dr. Riad Hajmurad.

Dr. Hajmurad performed several diagnostic tests which revealed such abnormalities as a possible nerve root irritation, degenerative disc disease and a minimal bulge at L4-5. Even with these findings, Dr. Hajmurad believed that Mrs. Thompson was suffering from mechanical back pain of the muscles and ligaments, as opposed to nerve pain. He did not consider her to be a candidate for surgery, believing physical therapy and medication to be the most appropriate treatment.

Mrs. Thompson was also treated by Dr. John Patton, a neurosurgeon. He diagnosed her condition as an aggravation of her pre-existing, multilevel degenerative disc disease, with her present pain being triggered by the accident at Brown’s. He too, however, did not believe that surgery was an appropriate treatment. Rather, he suggested a program with medication, lum-bosacral support, weight reduction and limitation of activities. He noted that her condition was not incapacitating. He did not assign a disability rating nor did he testify as to how long he expected her complaints to persist.

Dr. John Clifford, another neurosurgeon, examined Mrs. Thompson at the request of the defendants. Dr. Clifford believed that Mrs. Thompson’s complaints were not rooted in pathology. His examination produced marked inconsistencies which led him to believe that Mrs. Thompson was more convinced that she was suffering as opposed to actually experiencing any pain.

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617 So. 2d 171, 1993 La. App. LEXIS 1405, 1993 WL 105599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-american-national-fire-insurance-co-lactapp-1993.