Tilden v. Blanca, L.L.C.

119 So. 3d 962, 2012 La.App. 4 Cir. 1311, 2013 WL 3214710, 2013 La. App. LEXIS 1322
CourtLouisiana Court of Appeal
DecidedJune 26, 2013
DocketNo. 2012-CA-1311
StatusPublished
Cited by4 cases

This text of 119 So. 3d 962 (Tilden v. Blanca, L.L.C.) 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
Tilden v. Blanca, L.L.C., 119 So. 3d 962, 2012 La.App. 4 Cir. 1311, 2013 WL 3214710, 2013 La. App. LEXIS 1322 (La. Ct. App. 2013).

Opinions

DENNIS R. BAGNERIS, SR., Judge.

_[iThis matter involves a slip and fall accident that happened at Tommy’s Cuisine Restaurant. Plaintiffs, Kathleen Hill Tilden and James Tilden, appeal the trial [963]*963court judgment in favor of defendants, Blanca, L.L.C., 746 Tchouptioulas, L.L.C., 752 Tchoupitoulas, L.L.C., and Essex Insurance Company (collectively, “Tommy’s”). Finding that plaintiffs failed to prove that a condition existed at Tommy’s that caused the fall, we affirm the judgment.

FACTS

Kathleen Tilden and some co-workers went to Tommy’s on December 12, 2006, for an office Christmas celebration. First, each had a drink in the wine bar section of the restaurant. Thereafter, the owner of the restaurant, Tommy Andrade, escorted Mrs. Tilden and her party to their table in the dining area. Upon entering the dining area, she fell, resulting in alleged injuries to her shoulder, back, and neck. The ensuing lawsuit filed by Mrs. Tilden and her husband, James Tilden, alleged that she slipped on a slippery, wet surface and asserted that the accident 1 ^occurred because Tommy’s failed to properly maintain its flooring and failed to warn of a hazardous condition.

Prior to trial, Tommy’s filed a Motion in Limine to exclude testimony from plaintiffs’ witnesses who claimed that after the accident, Tommy’s placed additional rugs on the floor and who also claimed to have seen a waiter slip. Tommy’s argued that the post-accident rugs testimony should be excluded because La. C.E. art. 407 provides that evidence of subsequent remedial measures is not admissible to prove negligence. Tommy’s also contended that the waiter’s alleged slip should be excluded because Mrs. Tilden’s witnesses differed as to where the waiter slipped and none could say what caused the slip.

The plaintiffs countered that the post-accident rugs testimony should be admitted under the exceptions to La. C.E. art. 407 that permit evidence of subsequent remedial measures for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility. In this case, plaintiffs contended that testimony as to the post-accident addition of the rugs should be admitted for the purpose of showing that 1) Tommy’s had knowledge that the floors of the 150 year-old restaurant had a tendency to “sweat” during weather changes; 2) establishing the feasibility of precautionary measures; and 3) attacking Tommy Andrade’s credibility because he had previously given deposition testimony that no rugs were placed on the floor after the accident. The plaintiffs added that the testimony regarding the “slipping” 1 ¡¡waiter should be admitted because it happened at substantially the same place, same time, and under similar conditions as Mrs. Tilden’s fall.

The trial court allowed the testimony regarding the waiter, noting that the alleged slip happened near in time and place to Mrs. Tilden’s slip and fall. On the other hand, the trial court excluded testimony regarding the post-accident placement of the rugs. It considered admitting the testimony to attack Mr. Andrade’s credibility based on plaintiffs’ assertion that Mr. An-drade had previously testified in his deposition that additional rugs were not used after the accident. Upon review, however, the trial court concluded that Mr. An-drade’s deposition testimony made no such clear-cut declaration. Instead, he testified that that he did not remember if he had asked any restaurant personnel to put out additional rugs after Mrs. Tilden’s fall. Accordingly, the trial court determined that any evidence as to the post-accident rug placement was inadmissible evidence of subsequent remedial measures.

At trial, Mrs. Tilden stated that it was humid and somewhat misting on the evening of the fall. In regards to the fall itself, she testified that she walked directly behind Mr. Andrade, followed by co-workers, Carolyn Guidry, Natasha Arabie, [964]*964Lynn Scarengos, and her boss, Dr. Gizelle Richard. As she walked about two or three feet into the dining area, her feet went out from underneath her and she fell backwards. Mrs. Tilden did not identify any particular defect or condition of the floor that caused her to fall. She said she stayed with her party after the fall ¡¿because they had all ridden in one car together and she did not want to ruin the fun for everyone else.

Carolyn Guidry testified that it was somewhat rainy, very humid, and damp on the day of the accident. She was right behind Mrs. Tilden when she fell. She represented that when she helped Mrs. Tilden get to her feet, she felt that Mrs. Tilden’s shirt and pants were soaked and wet. Ms. Guidry first noticed that the floor looked shiny, wet, and damp after she sat down at their table. Ms. Guidry stated that when Mr. Andrade came to their table and gave Mrs. Tilden an ice pack, he told Mrs. Tilden that the restaurant was having trouble controlling the floor because of dampness. She added that she also saw a waiter, who was waiting on a table on the other side of their table and carrying a tray, lose his balance.

On cross-examination, Ms. Guidry acknowledged that she had been to Tommy’s about three or four times before the accident. On those occasions, she found that the restaurant was clean and well maintained; she never noticed any substances on the floor. Ms. Guidry also admitted that on the accident date, she never noticed anything slippery about the flooring before the -fall, Ms. Guidry verified that she did not touch the floor and admitted that she did not see any puddles or drops of water on the floor. She relayed that after the fall, the group tried to figure out what had happened. However, she never heard Mrs. Tilden offer any explanation as to why she fell. Ms. Guidry also conceded that she had previously testified in her deposition that she did not feel Mrs. Til-den’s clothes and | Bthat she did not remember the exact words that Mr. Andrade spoke to Mrs. Tilden when he came to their table.

Lynn Scarengos testified that she did not see the actual fall. After the fall, she inspected Mrs. Tilden’s shoes. However, she did not touch the floors. She also described that she saw a waiter, who was carrying a tray, slip. She claimed that she almost slipped in another part of the restaurant on a slight incline.

On cross-examination, Ms. Scarengos stated that when she previously visited Tommy’s, the restaurant was well-maintained. Ms. Scarengos testified that she did not notice that Mrs. Tilden’s clothes were wet. Ms. Scarengos admitted that she did not see any beads or puddles of water on the floor nor did she observe any sweating or condescension on the floor. She also did not see any moisture on Mrs. Tilden’s shoes or anything that would cause her to fall.

Tommy Andrade, the owner, testified that the restaurant is cleaned at the close of each business day. He said that he and his wait staff had a meeting in the dining area about an hour and a half before Mrs. Tilden’s fall. No one saw or reported a problem with the flooring. Mr. Andrade testified that as part of his owner’s responsibility to greet customers and to be aware of everything that is happening in the restaurant, he had walked the area where Mrs. Tilden fell about thirty or forty times before the fall. He said that the floor was not slippery. He stressed that none of his wait staff or other customers told him that the floor was slippery before the accident. Mr. Andrade did not think that Mrs. Til-den slipped; in his estimation, she seemed to have fainted. He said he tried to reach out to | fibreak her fall. Mr. Andrade denied telling Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
119 So. 3d 962, 2012 La.App. 4 Cir. 1311, 2013 WL 3214710, 2013 La. App. LEXIS 1322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tilden-v-blanca-llc-lactapp-2013.