Virginia Peoples, Et Ux. v. Fred's Stores of Tennessee, Inc.

• Court: Louisiana Court of Appeal
• Decided: June 2, 2010
• Docket: CA-0009-1270
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-1270

VIRGINIA PEOPLES, ET UX.

VERSUS

FRED’S STORES OF TENNESSEE, INC.

************

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 221,709 HONORABLE MARY L. DOGGETT, DISTRICT JUDGE

DAVID E. CHATELAIN* JUDGE

Court composed of Sylvia R. Cooks, James T. Genovese, and David E. Chatelain, Judges.

AFFIRMED.

Stephen C. Resor Michael M. Meunier Amy D. Hotard Sullivan, Stolier, & Resor 909 Poydras Street, Suite 2600 New Orleans, Louisiana 70112 (504) 561-1044 Counsel for Defendant/Appellant: Fred’s Stores of Tennessee, Inc.

* Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Roy S. Halcomb, Jr. Broussard, Halcomb & Vizzier Post Office Box 1311 Alexandria, Louisiana 71309-1311 (318) 487-4589 Counsel for Plaintiffs/Appellees: Virginia Peoples Wyndell Peoples CHATELAIN, Judge.

The defendant, Fred’s Stores of Tennessee, Inc. (Fred’s), appeals from a

judgment, as amended following the resolution of post-trial motions, rendered in

favor of the plaintiffs, spouses Virginia and Wyndell Peoples, finding it liable for the

damages they suffered following Mrs. Peoples’ trip and fall at a Fred’s discount store.

The plaintiffs answer the appeal. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

On August 10, 2004, shortly after entering the Fred’s store in Tioga, Louisiana,

Mrs. Peoples, then forty-nine years of age, tripped over several boxes containing

gazebos lying on the floor just to the right of the entranceway. She fell forward into

a display of ice chests stacked nearby, hitting her chin before landing on her right

hand and arm.

On August 3, 2005, the plaintiffs filed a petition for damages against Fred’s

and R. G. Williams, the manager who was on duty at the time of the accident. On

January 27, 2009, the matter proceeded to a bench trial. The trial court issued

extensive reasons for judgment on April 1, 2009, finding that the plaintiffs met their

burden of proving negligence on the part of Fred’s, thus making Fred’s “liable for all

damages resulting from Mrs. Peoples’ fall.” The plaintiffs’ claims against

Mr. Williams, personally, were dismissed with prejudice. After noting that the nature

and extent of Mrs. Peoples’ injuries were highly disputed at trial, the trial court

awarded her damages in the amount of $195,554.54. That figure was itemized as

follows:

General damages for shoulder injury $ 55,000.00 General damages for cervical injury $ 85,000.00 General damages for wrist injury $ 25,000.00

1 Past medical expenses $ 10,554.541 Future medical expenses $ 20,000.00 TOTAL $195,554.54

Mr. Peoples was awarded $7,500.00 for loss of consortium. The plaintiffs were

awarded a total of $7,537.16 in fees for expert witnesses, court reporters, and certified

medical records. In addition, Fred’s was ordered to pay all court costs, together with

legal interest on all amounts awarded. Judgment was signed on May 12, 2009.

On May 19, 2009, Fred’s filed a motion for judgment notwithstanding the

verdict or, in the alternative, new trial, or, in the further alternative, remittitur. On

May 21, 2009, the plaintiffs filed a motion for new trial for re-argument only. The

post-trial motions were heard on June 29, 2009, following which the trial court ruled

in open court that it was denying the motions filed by Fred’s and granting in part and

denying in part the motion filed by the plaintiffs. As a result, the judgment was

amended to increase the amount awarded to Mrs. Peoples for past medical expenses

and to give Fred’s a credit against those past medical expenses, the net result being

an increase in her total damages to the amount of $199,887.75.

Thereafter, Fred’s took a suspensive appeal from the amended final judgment.

It is now before this court contending that the trial court erred in the following

respects: (1) in permitting Michael Frenzel to testify as an expert at trial; (2) in

finding that it had actual or constructive notice of the condition that caused

Mrs. Peoples to fall; (3) in finding that it failed to exercise reasonable care; (4) in

granting the plaintiffs’ motion in limine and excluding the testimony and report of

1 The judgment had a handwritten alteration that was initialed by the trial judge changing the amount awarded for past medical expenses from $10,554.54 to $11,490.56, although the total amount of the judgment was not recalculated to reflect the change.

2 Dr. Al Mansour; (5) in finding that the plaintiffs’ injuries were proximately caused

by its conduct; and (6) in issuing excessive damage awards.

The plaintiffs filed an answer to Fred’s appeal, asserting that the trial court

erred in granting Fred’s a credit against Mrs. Peoples’ past medical expenses because

Fred’s had not pled such a credit nor did it prove its entitlement to such a credit at

trial. In the alternative, the plaintiffs asserted that even if Fred’s is entitled to a credit,

the trial court erred in failing to require Fred’s to pay legal interest on the amount of

the credit and in failing to impute the payment first to interest. The plaintiffs further

alleged that the trial court erred in failing to include in its award for future medical

expenses the costs for surgery to her neck and left wrist. Finally, the plaintiffs sought

an increase in each of their general damages awards.

TESTIMONY AND EVIDENCE PRODUCED AT TRIAL

Six live witnesses testified at trial. In their case-in-chief, the plaintiffs each

testified, as did Mrs. Julie Paul, a shopper who entered Fred’s just after Mrs. Peoples

fell, and Mr. Williams, who was called on cross-examination. The plaintiffs called

Mr. Michael Frenzel as an expert witness. After the plaintiffs rested, Fred’s offered

the testimony of Mr. Carl D’Albor, its District Manager. Medical evidence was

presented in the form of doctors’ depositions, medical records, and invoices.

Factual Evidence

Mrs. Paul stated that she and her daughter were approaching the entrance to

Fred’s just as the door was closing behind the Peoples. Immediately after she entered

the store, she saw Mrs. Peoples on the floor about two to three feet past the end of the

door. Mrs. Paul noticed several boxes, each about six feet in length, extending about

one foot into the walkway. When asked by the plaintiffs’ counsel whether the boxes,

3 as they were located that day, would have been apparent to someone entering the

store, Mrs. Paul stated that she would not have noticed the boxes because her

attention was drawn elsewhere. Before leaving the store, the manager asked for her

name, address, and telephone number so that he could include it in the accident

report. She told him that she had not actually seen Mrs. Peoples fall but, nonetheless,

gave him the requested information.

Mrs. Peoples testified that she entered Fred’s around 3:30 p.m. through double

doors that opened into the store. The two boxes that caused her to trip were located

about a foot past the end of the opened right door and were stacked longways, side

by side. The ends of the boxes were lined up, and they extended approximately one

foot into the walkway. She described the boxes as being six to eight feet long and six

to eight inches around. The boxes were white, and they were on a white floor.

Mrs. Peoples explained that after tripping over the boxes, she caught herself with her

right hand, her right knee hit the concrete floor, and her chest hit an ice chest. Her

husband helped her up, and they went to the service desk to tell a female employee

that she had tripped over some boxes. The manager, Mr. Williams, was called; he

joined them at the front of the store and filled out an accident report. According to

Mrs. Peoples, when Mr. Williams saw the location of the boxes, “[h]e told a young

man that worked there to move the boxes [and] that he knew better th[a]n to put them

there.” Later, Mr. Williams told her to go to the doctor of her choice and that Fred’s

would take care of the bill.

Mrs. Peoples was shown two photographs taken by Mr. Williams after the

accident, which had earlier been identified as Plaintiffs’ Exhibit 3, and asked to put

an “X” where the boxes would have been. Mrs. Peoples complied; she explained,

4 however, that the photographs did not accurately reflect the scene as it existed when

she fell. The boxes that she tripped over were not included in the photographs.

Instead, the photographs showed a box of tiki torches next to the door that was not

there when she fell. The stack of ice chests was nearer to the front of the store than

depicted in the photographs, and there were no tables or chairs in the vicinity of the

display.

After leaving Fred’s, Mrs. Peoples went to the Emergency Room of LaSalle

General Hospital (the ER), complaining of a headache and pain in her neck, right

wrist, right arm, right shoulder, and right knee. She returned to the ER several days

later with complaints of right arm and shoulder pain and tingling in her right hand.

The examining physician told her that her symptoms were caused by a pinched nerve

in her neck. Thereafter, she sought treatment as a charity patient at Huey P. Long

Medical Center in Pineville, Louisiana.2 At her first visit, she was diagnosed with

radicular neck pain. In June of 2005, Mrs. Peoples was referred to the charity facility

in Shreveport for an orthopaedic consultation. Over the course of her treatment, she

underwent x-rays, several MRIs of her neck and right shoulder, and a nerve

conduction test. She was told that she had carpal tunnel syndrome in both hands, and

she was prescribed wrist splints to wear when she slept.

Mrs. Peoples did physical therapy and received several steroid injections in her

right shoulder, but her pain persisted. In January of 2007, Dr. Michael Brunet, an

orthopaedic surgeon, performed surgery on her right shoulder and did a carpal tunnel

release on her right wrist. Following the surgery, she developed a bad rash and a

frozen shoulder that eventually “freed up” after additional physical therapy.

2 Mrs. Peoples explained that her husband was disabled and that she had not been employed since she was a teenager.

5 Mrs. Peoples stated that she began treating with Dr. John Cobb, an orthopaedic

surgeon from Lafayette, Louisiana, after Dr. Brunet suggested that she see a private

doctor because of problems with the Shreveport facility not scheduling orthopaedic

appointments for her. Dr. Cobb ordered more x-rays and MRIs. After steroid

injections to her neck failed to offer her much relief from her pain and headaches,

Dr. Cobb recommended that she have surgery to insert metal plates in her neck to

relieve the pressure. According to Mrs. Peoples, she is willing to have the surgery if

it will make her pain go away. Pending surgery, Dr. Cobb gave her a Transcutaneous

Electrical Nerve Stimulation (TENS) unit which she uses twice a day to help manage

her pain. Dr. Cobb also recommended that she have surgery on her left wrist.

Mrs. Peoples testified that she will have that surgery, too, in part because of the

success achieved by the prior surgery to her right wrist. Neither surgery had been

scheduled as of the trial date.

Mrs. Peoples testified that she never had any problems with her neck,

shoulders, arms, wrists, or hands before being injured at Fred’s in August of 2004 and

that she has had pain in those areas since the accident. She described her current neck

pain as “constant like needles sticking and pain shooting through . . . my shoulders

and my arms and my hands.” She has headaches that sometimes last two to three days

at a time. Although her right wrist got much better after the surgery, her left wrist

continues to be symptomatic, with the pain often preventing her from sleeping at

night.

Mrs. Peoples testified that her husband has had to take over most of the

housekeeping and cooking since her accident. She added that her injuries have

prevented her and her husband from shopping and traveling as much as they used to

6 and that she can no longer physically interact with her grandchildren like she did

prior to the accident.

R. G. Williams was called on cross-examination as part of the plaintiffs’ case-

in-chief. He testified that he began employment with Fred’s in 1993 and that he had

been the manager of the Tioga store since it opened in 1998. He was on duty at the

time of the accident but did not witness Mrs. Peoples’ fall. He filled out an accident

report after speaking with the plaintiffs. Therein, Mr. Williams described the accident

as follows: “tripped over boxes coming in the in door. Large gazebo boxes on floor

in clearance area. Sold down only [two] left.” He noted that Mrs. Peoples had hit her

knee and hand on the floor and that her chest had hit an ice chest. He further noted

that Mrs. Peoples’ chin was red and that she had elbow discomfort.

Mr. Williams acknowledged having agreed in his prior deposition3 that the

boxes causing Mrs. Peoples to trip and fall were stacked on the floor by employees

of Fred’s where the injury occurred. He also admitted having stated in his prior

deposition that the boxes may have been in the same position as when Mrs. Peoples

fell for as long as three months. Mr. Williams agreed that the only routine procedure

that Fred’s had for inspecting and cleaning its floor was once a day by an employee

at night and once every two weeks by a service company.

After testifying that the boxes which caused Mrs. Peoples to fall were four to

six feet in length and weighed about thirty-five pounds, Mr. Williams admitted that

he had previously stated in his deposition that the boxes were about eight or ten feet

long, weighed about eighty pounds, and that it took two people to lift each box.

3 Mr. Williams was deposed on April 27, 2007. Although the entire deposition was not introduced as a trial exhibit by either party, the plaintiffs did introduce a single page of the deposition as an exhibit.

7 Mr. Williams explained that the boxes were part of a clearance display at the front of

the store that originally contained about a dozen gazebo boxes. He noted that they

had sold quite a few gazebos on the day of the accident. He had no knowledge of

anyone moving the boxes after they had been placed on the floor by Fred’s

employees.

On cross-examination, Mr. Williams denied having instructed any of his

employees to place the boxes as close to the front door as they were when

Mrs. Peoples fell. He testified that if he had seen boxes blocking the entranceway as

Mrs. Peoples had described, he would have told a stock boy to move them. He

admitted, however, that he instructed a stock boy to move two boxes from the front

of the store after Mrs. Peoples fell so that other customers would not fall over them.

Mr. Peoples testified that his wife fell and hit the floor just as they were

entering Fred’s. He explained that because it happened so fast, he was not able to

catch her. After checking to see if she was okay, he noticed the two gazebo boxes,

laying side by side, with just the ends sticking out, two to three feet past the end of

the opened door. The boxes were six or eight feet long, six or eight inches square,

and heavy enough that they did not move when his wife tripped over them. He

helped his wife up, and they went to get the manager. According to Mr. Peoples,

Mr. Williams sat on the end of the boxes to fill out an accident report. When shown

the photographs marked as Plaintiff’s Exhibit 3, he confirmed his wife’s testimony

that these pictures taken by Mr. Williams did not accurately reflect the scene as it

existed at the time of her accident. He also confirmed that Mr. Williams told another

male employee to move the boxes and that “he knew not to put [th]em there to start

8 with in the walkway.” He, too, related that Mr. Williams told his wife to go to the

doctor of her choice and that Fred’s would pay the bill.

Mr. Peoples’ testimony with regard to the pain suffered by his wife and the

medical treatment that she had received since the accident essentially mirrored that

of his wife. He stated that because of the pain his wife was still experiencing, she

intended to have surgery, and he supported that decision.

Mr. Frenzel testified that he was a board-certified safety professional who had

practiced in the field of safety for approximately thirty-five years. He explained that

his company provides safety program management services, including writing safety

programs, doing safety inspections and audits, and providing safety training to

businesses. He taught several seminars and published several articles on the subject

of trip and fall prevention, and he had investigated hundreds of trip and fall accidents.

Over defense counsel’s objection, the trial court accepted the plaintiffs’ tender of

Mr. Frenzel as a safety professional with experience in hazard recognition and

accident investigation.

Mr. Frenzel stated that before trial, he reviewed a copy of the petition, Fred’s

answer, and Fred’s original and supplemental and amending answers to

interrogatories and requests for production of documents, as well as the depositions

of Mr. and Mrs. Peoples and Mr. Williams. He watched a safety video and reviewed

a Standard Operating Procedures Manual (SOP Manual)4 created by Fred’s.

Mr. Frenzel stated that, before he testified, he had looked at all of the trial

exhibits, including the accident report, photographs taken by Mr. Williams after the

4 Fred’s SOP Manual was attached to Defendants’ Second Supplemental and Amended Answers to Interrogatories and Request for Production of Documents, which was identified as Plaintiffs’ Exhibit 9.

9 accident when the area had been cleared and organized, and a diagram of the front of

the store drawn by Mr. Williams during his deposition. Mr. Frenzel testified that

although most of the Fred’s stores across the nation have very similar layouts, he

visited the Fred’s in Tioga on his way to trial to get “a visual” of where the accident

had taken place. While there, he took measurements to enable him to better

understand the dimensions of the area shown in the photographs and in the diagram.

Based on all of the testimony he heard and evidence he reviewed,5 Mr. Frenzel opined

that the two gazebo boxes that caused Mrs. Peoples to fall amounted to a trip hazard

that presented an “unacceptable level of risk” to Fred’s customers. He explained that,

regardless of their exact location, two boxes laying flat on the floor would pose an

unacceptable level of risk to customers entering the store with their attention drawn

to the sale merchandise, especially given the fact that the boxes in question were

white and had a low profile on a white background.

Mr. Frenzel testified that the universal, industry-wide standard minimum height

recommended for floor displays to prevent tripping hazards was three feet or thirty-

six inches, and that Fred’s Safety Inspection Form, which had earlier been identified

as Plaintiffs’ Exhibit 8, provided that, in the sales areas, aisle displays were to be

stable and at least three feet high with no loose stock on the floor. Mr. Frenzel also

identified a section of Fred’s SOP Manual, entitled “Trip Hazards,” which provided:

Make sure that aisles are kept clear of any obstacle that might cause a customer to trip and fall. Merchandise should be properly placed on a shelf, an apparel rack, table or stack-out in a manner which will not present a trip hazard. If a stack-out becomes empty it should be re- stocked or removed.

5 The plaintiffs, Mr. Williams, and Mrs. Paul had all testified by the time Mr. Frenzel was called as an expert witness.

10 Mr. Frenzel stated that, in his opinion, Fred’s had violated its own policy by letting

the gazebo box display sell down to such a low height and not restocking or removing

it. He next identified another section of Fred’s SOP Manual, entitled “Preventing

Trip & Fall Accidents,” which provided, in pertinent part, that “[t]he store manager

will assign an employee to inspect, hourly, the aisles, entrance and exit ways . . .

looking for conditions that could cause a slip or fall injury” and that “[h]azards found

should be corrected immediately.” Mr. Frenzel stated that, given the testimony by

Mr. Williams regarding Fred’s routine inspection procedures, Fred’s had violated its

own policy.6 Mr. Frenzel explained that displays are always changing, depending on

sales, and that a display that was once safe could be unsafe several minutes later.

Finally, although he stated that he did not like to assign fault, Mr. Frenzel opined that

Mrs. Peoples did nothing wrong, and, thus, she bore no responsibility for the accident

and that only Fred’s could have taken corrective action in this situation.

Mr. D’Albor, Fred’s District Manager, was the only witness to testify on behalf

of Fred’s. Upon questioning from counsel for Fred’s, he agreed that if someone put

gazebo boxes near the front door, that would be improper because it would create a

tripping hazard. He identified a gazebo box, which was marked as Defendants’

Exhibit 27, which, as he recalled, was the only type of gazebo that Fred’s carried in

2004 when this accident occurred. He estimated that the box weighed approximately

eight pounds. On cross-examination, however, Mr. D’Albor admitted that

Mr. Williams testified that the gazebo boxes that were on the floor when Mrs. Peoples

tripped were much larger and heavier than the box identified at trial.

6 Counsel for Fred’s objected to this line of questioning, insisting that Mr. Williams was referring to those times when the floors were cleaned, as opposed to when they were inspected. The trial court noted the objection but allowed the testimony.

11 Medical Evidence

According to the LaSalle General Hospital records, Mrs. Peoples presented to

the ER on August 10, 2004, complaining of a headache and pain in her neck, right

wrist, right arm, right shoulder, and right knee. She was diagnosed with neck strain

and contusions to her right hip, knee, shoulder, and arm, and she was discharged with

prescriptions for pain medications. X-rays were taken of her chest, pelvis, cervical

spine, right shoulder, right hip, right forearm, right elbow, right wrist, right hand,

right knee, and right ankle. No fractures or dislocations were disclosed in the

radiology report; however, it was noted that Mrs. Peoples had some degenerative

disease or degenerative changes in her cervical spine, right wrist, right hand, and right

shoulder. She was diagnosed with a neck strain and contusions to her right hip, knee,

shoulder, and arm. She was prescribed pain medication and advised to follow up with

her doctor. Mrs. Peoples returned to the ER several days later with complaints of

right arm and shoulder pain, numbness, and tingling in her right hand. She was

diagnosed with radicular arm pain, given additional medications, and discharged.

An EMG (electromyogram)/nerve conduction study was performed on

Mrs. Peoples on December 10, 2004. The attending physician interpreted the results

as indicating that Mrs. Peoples had bilateral carpal tunnel syndrome affecting the

sensory fibers of the median nerve.

Mrs. Peoples underwent an MRI of her cervical spine on January 6, 2005. The

radiologist’s impression was that she had a small central disc bulge at C3-4; mild

bilateral foraminal narrowing, slightly greater on the right than the left, at C4-5; and,

mild left foraminal narrowing at C5-6 and C6-7 secondary to osteophyte formation.

Further, degenerative changes were greatest at C4-5 where there was effacement of

12 the CSF (central spinal fluid) on the ventral aspect of the cord, which the radiologist

described as secondary to a combination of a posterior bulging disc and posterior

osteophyte formation. According to a note from an orthopaedic consult that

Mrs. Peoples had at the Louisiana State University Health Sciences Center in

Shreveport, the examining physician interpreted the MRI as showing mild stenosis

(narrowing) at C3-4-5-6 with the worst area being C4-5 with HNP,7 and facet

arthropathy effacing the thecal sac. At another orthopaedic consult in Shreveport on

September 16, 2005, the examining physician noted that Mrs. Peoples complained of

progressively worsening neck and shoulder pain that radiated to her arms and hands

but more to the right. She described her pain as constant with an intensity of six out

of ten. The physician further noted that Mrs. Peoples had received minimal relief

after three months of physical therapy and medication.

Mrs. Peoples had an MRI of her right shoulder on December 21, 2005. The

radiologist’s impression was that she had minimal AC joint hypertrophy that narrows

the subacromial arch contacting the superior aspect of the supraspinatus muscle and

that she had mild AC joint degenerative change with minimal impingement on the

superior aspect of the supraspinatus muscle without associated alterations to suggest

injury.

A second EMG/nerve conduction study performed on Mrs. Peoples on

October 13, 2006, as a result of her continued shoulder and hand pain was interpreted

by the attending physician as indicating bilateral carpal tunnel syndrome, greater on

the right than the left, and right C5 and C6 radiculopathies. Dr. Brunet opined that

the spinal stenosis noted on the January 2005 cervical MRI would account for the

7 Dr. Michael Brunet explained in his January 22, 2009 deposition, which was admitted as Plaintiffs’ Exhibit 11, that he interpreted “HNP” to mean “herniated nucleus pulposus.”

13 changes shown on the EMG, that is, the radiculopathy in the extremity was caused

by the stenosis. He interpreted the results of both the MRI and EMG as showing that

the source of the pain radiating from Mrs. Peoples’ neck into her shoulders, arms, and

hands was her spinal stenosis.

When Dr. Brunet first examined Mrs. Peoples on December 20, 2006, he found

that she had pain in the “empty can position” of the right shoulder, consistent with

rotator cuff pain, and he recommended that she undergo arthroscopic surgery of her

right shoulder, with a simultaneous carpal tunnel release of her right wrist.

Dr. Brunet performed the recommended surgery on January 3, 2007, wherein he

decompressed Mrs. Peoples’ right shoulder and debrided a 15-20% superficial tear

in her rotator cuff. He noted that, after the right carpal tunnel release, there was a fair

amount of synovitis (inflammation) in the carpal tunnel canal. Several weeks after

the surgery, Dr. Brunet noted stiffness in Mrs. Peoples’ right shoulder, and he

recommended aggressive physical therapy to stretch it out. At a May 2, 2007 follow-

up visit, he noted that she had developed a frozen shoulder as a complication from her

shoulder surgery.

After she continued to complain of neck pain and headaches, another MRI of

Mrs. Peoples’ cervical spine was done on September 7, 2007. The radiologist’s

impression was that the test showed minimal broad-based disc protrusions as C4-5,

C5-6, and C6-7. Dr. Brunet last treated Mrs. Peoples on June 11, 2008. At that time,

he thought that she needed to see a neurosurgeon to address the radiculopathy and

pain caused by the condition of her neck. When the “charity system” failed to timely

arrange for her to have an orthopaedic consult, Dr. Brunet recommended that she see

14 a private neurosurgeon. He discussed with her that the next step would be to have

epidural steroid injections and possibly surgery to her neck.

Dr. Brunet was of the opinion that, based on her history and the diagnostic

studies, the pre-existing degenerative condition of Mrs. Peoples’ cervical spine

became symptomatic and chronic following her fall. He further believed that she may

have had a predisposition to carpal tunnel syndrome that manifested itself after her

neck pathology became symptomatic and the nerve root at C5-6 got sensitized from

radiculopathy. He described Mrs. Peoples as a cooperative patient who was always

honest, sincere, and consistent in her complaints.

In July of 2008, Mrs. Peoples began treating with Dr. Cobb, and she remained

under his care until the trial of this matter. He reviewed Mrs. Peoples’ January 6,

2005 cervical MRI and October 13, 2006 EMG and determined that she had disc

spurring and protrusions at the C4-5 and C5-6 levels which explained the

radiculopathy and pain that was occurring. Dr. Cobb explained that someone’s nerve

root irritation had to be “pretty severe” before they would have a positive EMG.

Dr. Cobb ordered another cervical MRI, which was performed on July 17, 2008. His

impression was that the MRI showed multilevel disc-related conditions of

spondylosis, instability, and significant intermittent nerve root compression.

Dr. Cobb’s examination of her left wrist indicated that she had decreased sensation

and a positive Tinel’s (a test used to detect carpal tunnel syndrome), indicating that

she had a carpal tunnel syndrome.

Dr. Cobb administered three injections to Mrs. Peoples’ neck on November 14,

2008. On that same date, he prescribed a TENS unit to help relieve some of

Mrs. Peoples’ pain. At a follow-up visit on December 3, 2008, Mrs. Peoples reported

15 that the injections provided her with only temporary relief and that they gave her a

headache but that she had gotten better.

Dr. Cobb was of the opinion that the injuries to Mrs. Peoples’ neck and left

wrist were caused by her August 2004 trip and fall accident, given the history that had

been provided to him and the fact that he had seen nothing to the contrary to indicate

otherwise. He agreed that a person can have a degenerative condition, such as that

suffered by Mrs. Peoples, which, after a trip and fall incident, can become

symptomatic and start to cause pain. As of her last visit with him, Dr. Cobb

recommended to Mrs. Peoples that if she was having enough pain, she would need

to undergo an anterior cervical decompression, discectomy, and fusion of the three

problematic levels indicated in the July 2008 MRI. He cautioned, however, that the

surgery would speed up the degenerative process and increase the risk of injury at the

levels above and below the fusion. Dr. Cobb advised that the left carpal tunnel

release could be performed, which would resolve her left wrist problem, even if she

chose not to have the cervical surgery. If she were to not have either surgery,

Dr. Cobb recommended that she see a pain management specialist and learn to live

with her pain.

On April 18, 2006, Fred’s sent Mrs. Peoples to Dr. Douglas Gamburg, a board-

certified orthopaedic surgeon, for an independent medical examination (IME). Her

complaints at that time were of sleeplessness and pain in the base of her neck, right

shoulder, and right collarbone, and numbness in her right pinky finger. According

to a letter sent to counsel for Fred’s on April 19, 2006, Dr. Gamburg had reviewed

Mrs. Peoples’ medical records pertaining to the August 2004 trip and fall prior to

their first meeting. His impression was that she had cervical osteoarthritis with

16 foraminal stenosis and acromioclavicular arthritis of her right shoulder with probable

impingement syndrome, which he opined was not caused, but may have been

aggravated, by her fall. He disagreed that the findings on the December 2004 nerve

conduction study, coupled with her complaints, indicated that she had actual carpal

tunnel syndrome. Further, Dr. Gamburg saw no need, at that time, for Mrs. Peoples

to have surgical intervention to address her pre-existing cervical osteoarthritis.

DISCUSSION

The standard of review applicable to this matter was set out by the Louisiana

Supreme Court in Siverd v. Permanent General Insurance Co., 05-973, pp. 3-4 (La.

2/22/06), 922 So.2d 497, 499-500:

A court of appeal should not set aside the factual findings of a trial court absent manifest error or unless clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, if a court of appeal finds that the trial court committed a reversible error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 00-0157 (La.10/17/00), 770 So.2d 766. Although appellate courts should accord deference to the factfinder, they nonetheless have a constitutional duty to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. Because appellate courts must perform this constitutional function, they have every right to determine whether the trial court verdict was clearly wrong based on the evidence or clearly without evidentiary support. Ambrose at p. 8-9, 639 So.2d at 221. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State of Louisiana, through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable. Stobart, 617 So.2d at 882. We have previously emphasized the principle that “if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Stobart, 617 So.2d at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990))).

17 Louisiana Revised Statutes 9:2800.6 governs merchant liability, providing, in

pertinent part, as follows:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.

B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:

(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.

(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.

(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

C. Definitions:

(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Thus, “[i]n order to prove merchant liability in a slip and fall case, the plaintiff

must prove, in addition to the usual negligence requirements (duty, breach, cause in

fact, and damages), those elements found in La.R.S. 9:2800.6(B).” Dotson v.

Brookshire Grocery Co., 04-83, p. 1 (La.App. 3 Cir. 5/12/04), 872 So.2d 1284, 1285.

18 The Plaintiffs’ Expert Witness - Michael Frenzel

Fred’s contends that the trial court clearly erred in qualifying Mr. Frenzel as

an expert and/or in admitting his testimony at trial. It submits that Mr. Frenzel’s

testimony could not aid the trier of fact in determining any facts at issue because he

was not an eyewitness to the accident and because expert testimony is not necessary

in a trip and fall case. Fred’s further objected to Mr. Frenzel’s expertise in the fields

of accident investigation and reconstruction.

The plaintiffs point out that, at trial, Fred’s did not object to Mr. Frenzel’s

qualifications but instead questioned whether any testimony that he could offer would

be relevant and of assistance to the trier of fact.

Louisiana Code of Evidence Article 702 provides that “[i]f scientific, technical,

or other specialized knowledge will assist the trier of fact to understand the evidence

or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion or

otherwise.” In Mistich v. Volkswagen of Germany, Inc., 95-939, p. 8 (La. 1/29/96),

666 So.2d 1073, 1079, the Louisiana Supreme Court stated that “[a] trial judge has

wide discretion in determining whether to allow a witness to testify as an expert, and

his judgment will not be disturbed by an appellate court unless it is clearly

erroneous.”

In accepting Mr. Frenzel as an expert witness, the trial court noted that he was

board certified nationally as a safety professional and that it thought that his

testimony would be relevant. Moreover, the trial court relied extensively on

Mr. Frenzel’s testimony in finding that the plaintiffs met their burden of proving that

Fred’s was liable under La.R.S. 9:2800.6. We are convinced that the trial court did

19 not abuse its wide discretion in allowing Mr. Frenzel to testify as an expert, given his

extensive experience in the field of safety and his thorough preparation with regard

to this case. Clearly, his testimony “assist[ed] the trier of fact to understand the

evidence” and “to determine a fact in issue.” La.Code Evid. art. 702.

Did Fred’s Have Actual or Constructive Notice of the Hazardous Condition?

Fred’s readily admits that a box protruding in the aisle near the front door

would present a hazardous condition. Nevertheless, it insists that the plaintiffs failed

to prove that it either created the hazard or knew of the location of the boxes prior to

the accident. The more likely scenario, Fred’s submits, is that one of its customers

moved the boxes to the area just minutes before Mrs. Peoples entered the store.

The plaintiffs counter that Mr. Williams admitted that the boxes that caused

Mrs. Peoples to fall were put on the floor where the injury happened by employees

of Fred’s and that he had no knowledge of anyone moving the boxes after they had

been arranged by its employees. Mr. Williams had further explained that, when the

gazebo boxes were first put out for sale, there were as many as fifteen of them, but,

as he noted in the accident report, they had sold down to just two by the time of

Mrs. Peoples’ accident. Finally, Mr. Williams described the boxes as being eight to

ten feet long and weighing seventy-five to eighty pounds, too heavy for just one

person to move. Given the foregoing testimony by Fred’s manager on duty at the

time of the accident, the plaintiffs submit that there was more than enough evidence

to support the trial court’s factual determination that Fred’s had actual notice of the

hazardous condition presented by the boxes because its own employees had created

the condition by placing the boxes as they did and by failing to move the display once

it had sold down to an unsafe height.

20 The trial court found that the boxes which caused Mrs. Peoples to trip “were

part of a display that was created by Fred’s. Therefore, Fred’s did have actual or

constructive knowledge of the condition.” In doing so, the trial court noted that it

found the plaintiffs, Mrs. Paul, Mr. Williams, and the plaintiffs’ expert, Mr. Frenzel,

to be credible witnesses.8

The plaintiffs and Mrs. Paul testified consistently as to the location of the

boxes that caused Mrs. Peoples to trip, and Mr. Williams confirmed that location in

the accident report. Mr. Williams testified to having acknowledged in his earlier

deposition that Fred’s employees had stacked the boxes in the location where the

accident occurred, although he later testified that he had not instructed them to place

the boxes so close to the front door. However, Mr. Frenzel testified that regardless

of their exact location, two low-profile white boxes laying flat on a white floor near

the entrance of a store created an unacceptable level of risk. In our opinion, the fact

that Mr. Williams included in the accident report a statement that the boxes had sold

down to only two supports the statement that Mr. Williams gave in his deposition,

i.e., that Fred’s employees had stacked the boxes near the store’s entrance.

On the other hand, Fred’s offered no support for its claim that customers must

have moved the two gazebo boxes to the area near the front door only minutes before

the plaintiffs entered the store; and, in fact, the testimony of its manager,

Mr. Williams, weighs against the likelihood of that scenario. As noted by the trial

court, Mr. Williams testified in his deposition that the boxes “weighed as much as 80

pounds” each and “were too heavy to be lifted by one person,” making it unlikely

8 Although the trial court included Mr. Williams on the positive side of its credibility assessment, it concluded that the photographs taken by him did not accurately depict the scene of the accident, and it noted some disparity between his deposition testimony and his trial testimony.

21 “that two or more customers moved two heavy boxes to the front entrance of the store

(an area . . . located between the manager’s office and the customer service desk)

without anyone noticing.”

The record contains ample support for the factual finding made by the trial

court that Fred’s created the floor display that caused Mrs. Peoples to trip and fall.

The trial court did not err in finding that the plaintiffs proved that Fred’s had actual

or constructive knowledge of the hazardous condition that caused Mrs. Peoples to trip

and fall, thus satisfying their burden of proof under La.R.S. 9:2800.6(B)(2).

Did Fred’s Fail to Exercise Reasonable Care?

Fred’s contends that the plaintiffs offered no evidence that it failed to exercise

reasonable care, thus failing to meet its burden of proof under La.R.S. 9:2800.6(B)(3).

Mr. Frenzel testified that Fred’s had violated its own policy, as well as the

industry-wide standard regarding the minimum height that a floor display should be

to prevent tripping hazards, i.e., three feet, by letting the gazebo box display sell

down to such a low height. Based on the testimony of Mr. Williams, Mr. Frenzel

opined that Fred’s had also violated its own policy requiring hourly inspections to

look for and correct conditions that could cause slip and fall injuries.

In its reasons for judgment, the trial court found that “Fred’s failed to exercise

reasonable care in correcting the dangerous condition” created by the gazebo boxes.

The record before us contains sufficient evidence to support that finding. The trial

court did not err in concluding that the plaintiffs satisfied their burden of proof under

La.R.S. 9:2800.6(B)(3).

22 Motion in Limine - Dr. Mansour

This matter was fixed for trial on January 27, 2009; the discovery cutoff date

was December 28, 2008. On December 18, 2008, Fred’s sent the plaintiffs a copy of

its witness list, disclosing for the first time that it may call Dr. Mansour as an expert

witness.9 Dr. Mansour is a radiologist practicing with Central Louisiana Imaging,

Inc. (CLI), the facility where Mrs. Peoples underwent an MRI on July 17, 2008,

although Dr. Mansour was not the physician who reviewed her films.

On January 7, 2009, the plaintiffs filed a motion in limine seeking an order

preventing Fred’s from calling Dr. Mansour as a witness because of the untimely

disclosure of their intent to use him as a witness.10 The plaintiffs argued that although

the witness list had technically been timely filed, albeit only three days before the

discovery cutoff date, Fred’s had not updated its response to discovery propounded

to it on September 22, 2005, asking it to identify all witnesses with any knowledge

of this matter and which of those witnesses they intended to call at trial, along with

a brief description of each witnesses’ anticipated testimony, thereby causing the

plaintiffs undue prejudice and preventing them from being able to adequately prepare

for trial.

Fred’s opposed the motion in limine, contending that the plaintiffs could hardly

claim prejudice by the timing of its disclosure that Dr. Mansour would be an expert

witness given the fact that the plaintiffs had scheduled the depositions of two of

Mrs. Peoples’ treating physicians within three weeks of the trial date. Fred’s further

9 The witness list also disclosed for the first time that Fred’s may call Dr. Joe Rankin or Dr. Lillian Garvin of Huey P. Long Medical Center, and Carl D’Arbor, Fred’s District Manager, as witnesses. 10 The plaintiffs’ motion in limine also sought to prevent Fred’s from calling Dr. Rankin or Dr. Garvin and Mr. D’Arbor as witnesses. The motion was denied as to those witnesses; however, the plaintiffs have not appealed that portion of the trial court’s ruling.

23 claimed that the purpose of its calling Dr. Mansour was to have him summarize the

MRI films taken of Mrs. Peoples in the past four years and that the plaintiffs should

not be prejudiced by the testimony of a physician who treated Mrs. Peoples and

whose business performed an MRI on her.

The trial court heard the motion for limine on January 20, 2009. Later that day,

the trial court dictated an oral rendition of judgment granting the motion with regard

to Dr. Mansour, declaring that his testimony and any report generated by him would

be excluded from the trial. The trial court placed special emphasis on the fact that

Fred’s had admitted in its opposition that Dr. Mansour was one of Mrs. Peoples’

treating physicians. It further noted that counsel for Fred’s had participated in ex

parte communications with Dr. Mansour in violation of La.Code Evid. art. 510, the

article concerning the privilege between health care providers and their patients.

Although it recognized that an exception to the privilege may exist when a patient

puts her physical condition at issue in a judicial proceeding, the trial court observed

that any such waiver of the privilege applied only as to testimony at trial or to

discovery of the privileged communication by certain authorized discovery methods,

neither of which applied to the information about Mrs. Peoples’ condition exchanged

between and discussed by Dr. Mansour and defense counsel.

On appeal, Fred’s ignores the fact that it originally dubbed Dr. Mansour as one

of Mrs. Peoples’ treating physicians in an attempt to show that the plaintiffs would

not be prejudiced by the timing of its disclosure of him as its expert witness. Instead,

Fred’s argues that the trial court’s exclusion of Dr. Mansour’s testimony was

prejudicial because it was prevented from presenting expert testimony regarding the

extent of Mrs. Peoples’ injuries.

24 A motion in limine is an evidentiary matter in which the trial court is afforded

great discretion. Randall v. Concordia Nursing Home, 07-101 (La.App. 3 Cir.

8/22/07), 965 So.2d 559, writ denied, 07-2153 (La. 1/7/08), 973 So.2d 726. See also

Heller v. Nobel Ins. Group, 00-261 (La. 2/2/00), 753 So.2d 841.

The plaintiffs were clearly caught off guard by the timing of Fred’s disclosure

that it intended to call Dr. Mansour as an expert witness, and Fred’s should not be

allowed to benefit from having ex parte communications with Dr. Mansour. See

Wood v. Am. Nat’l Prop. & Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1 So.3d

764. In addition, any prejudice that Fred’s may have suffered as a result of not having

an expert radiologist at trial was caused by its waiting until the last minute to name

an expert and choosing to name one of Mrs. Peoples’ treating physicians as its expert.

Given the totality of the circumstances, we cannot say that the trial court abused its

great discretion in granting the plaintiffs’ motion in limine with regard to

Dr. Mansour.

Were the Plaintiffs’ Injuries Proximately Caused by Fred’s Conduct?

Fred’s contends that Mrs. Peoples’ complaints of pain are simply the result of

degenerative processes and/or pre-existing conditions and that she failed to prove a

causal connection between the accident and her subsequent injuries. The plaintiffs

counter that Mrs. Peoples was in good health and enjoyed an active life before being

injured but that since her injury, she has experienced continuous and progressively

worsening pain in her neck, right shoulder, wrists, and hands, in addition to

headaches and frequent sleeplessness.

25 In Housley v. Cerise, 579 So.2d 973, 980 (La.1991) (alteration in original),

quoting Lukas v. Insurance Co. of North America, 342 So.2d 591 (La.1977), the

Louisiana Supreme Court stated:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Several years later, the supreme court reiterated that, “[i]n order to defeat the

[Housley] presumption, defendant must show some other particular incident could

have caused the injury in question.” Maranto v. Goodyear Tire & Rubber Co., 94-

2603, p. 6 (La. 2/20/95), 650 So.2d 757, 761 (citation omitted).

Moreover, as this court noted recently in Bienemann v. State Farm Mutual

Automobile Insurance Co., 08-1045, p. 4 (La.App. 3 Cir. 2/4/09), 3 So.3d 621, 623

(alteration in original) (citations omitted):

[t]he defendant’s liability for damages is not mitigated by the fact that the plaintiff’s pre-existing physical infirmity was responsible in part for the consequences of the plaintiff’s injury by the defendant. It is clear that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.

In its reasons for judgment in this case, the trial court noted that:

The record is completely devoid of anything to suggest that Mrs. Peoples had any of her post-accident symptoms prior to her fall on August 10, 2004. To the contrary, the evidence supports a finding that Mrs. Peoples was in good health and did not have any problems relating to her neck, right shoulder and her wrists.

Accordingly, the trial court applied the Housley presumption in Mrs. Peoples’ favor,

and because Fred’s produced no evidence to show that some other incident could

have caused her complaints, the trial court concluded that Mrs. Peoples was entitled

to be compensated by Fred’s for the injuries she received as a result of her August

26 2004 fall. In a very thorough and detailed analysis, the trial court dissected the

medical evidence and determined that Mrs. Peoples was entitled to general damages

with regard to the injuries to her right shoulder, her neck, and her right wrist, which

it separately assessed as to each injured area. The trial court explained that, although

Mrs. Peoples “may at times experience some radicular pain in her left arm, wrist[,]

or hand, the evidence supports a finding that this pain is a result of and/or associated

with her neck injury[,] and, therefore[,] compensation of the left wrist was addressed

therein[, i.e., in the general damage award for her cervical injury].”

We have reviewed the testimony and evidence in its entirety and find that they

support the trial court’s conclusion that Mrs. Peoples was entitled to be compensated

by Fred’s for the neck, right shoulder, and right wrist injuries she received as a result

of her August 2004 fall. Likewise, the law supports the trial court’s finding that a

defendant takes its victim as it finds her and that Fred’s must compensate

Mrs. Peoples to the full extent of her injuries, including the aggravation of any pre-

existing conditions. The trial court did not err in finding that Fred’s conduct caused

Mrs. Peoples’ injuries.

Did the Trial Court Issue Excessive or Inadequate Damage Awards?

The trial court awarded Mrs. Peoples general damages as follows: (1)

$55,000.00 for her right shoulder injury; (2) $85,000.00 for her cervical injury and

left-sided pain; and (3) $25,000.00 for her right wrist injury. The judgment also

awarded Mrs. Peoples all of the past medical expenses that she incurred as a result of

each of those injuries.

In brief, Fred’s contends that “there was absolutely no evidence” to support any

of those awards. Alternatively, Fred’s contends that the amounts awarded for

27 Mrs. Peoples’ injuries are excessive and out of line with the damages awarded for

similar injuries in other cases. The plaintiffs, on the other hand, submit that the

general damages awarded to each of them are too low and that the jurisprudence

actually supports much higher awards.

In Guillory v. Lee, 09-75, p. 14 (La. 6/26/09), 16 So.3d 1104, 1116-17, the

Louisiana Supreme Court offered the following guidance with regard to the appellate

standard of review of damage awards:

It is well-settled that a judge . . . is given great discretion in its assessment of quantum, both general and special damages. Louisiana Civil Code article 2324.1 provides: “In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge . . . is a determination of fact, one entitled to great deference on review.

....

Because the discretion vested in the trier of fact is so great, and even vast, an appellate court should rarely disturb an award on review.

The supreme court further explained that:

Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.

Id. at 1117 (quoting Wainright v. Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d

70, 74).

Mrs. Peoples’ Right Shoulder Injury

In making its $55,000.00 general damage award to compensate Mrs. Peoples

for the injury to her right shoulder, the trial court took into account the fact that the

injury required her to seek medical treatment, including surgery, which left her with

a frozen shoulder, a condition that lengthened her recovery period. The trial court

28 noted, however, that the surgery was successful and that no further treatment was

indicated.

After having examined the medical evidence in its entirety, we conclude that

the record supports the trial court’s award of $55,000.00. Given the vast discretion

afforded the trial court in setting general damage awards, we cannot say that the

award is either too high or too low, and, thus, we affirm the award.

Mrs. Peoples’ Cervical and Left-sided Injuries

In awarding Mrs. Peoples $85,000.00 in general damages to compensate her

for her cervical and left-sided pain, the trial court found that while it was undisputed

that she suffered from pre-existing arthritic problems in her neck, Fred’s was

nonetheless liable for the aggravation of her cervical condition due to the August

2004 accident. Nonetheless, the trial court took into account the fact that the records

reflected “gaps in treatment of the cervical spine and a number of medical visits

where Mrs. Peoples either specifically denied or failed to indicate any pain or other

problems in her cervical region.” The trial court noted that “Dr. Cobb was very

candid in his assessment of [Mrs. Peoples’] current condition being the result of pre-

existing osteophytic formations that were aggravated by the fall” and that if such

aggravation did not resolve within six months, the condition “could become chronic.”

With regard to Mrs. Peoples’ left hand and wrist issues, the trial court referenced

Dr. Cobb’s opinion that those problems “could be related to the spinal conditions

and/or to positional intolerance” and that “Mrs. Peoples was predisposed to this

syndrome.”

The trial court noted that Dr. Cobb’s surgery recommendations were “primarily

based on Mrs. Peoples’ continued subjective complaints of pain (in conjunction with

29 objective findings)” and that Dr. Cobb had also given Mrs. Peoples the option of

seeing a pain management specialist to learn to live with her pain. The trial court

found “significant the fact that at the time of trial, over four years had passed since

the accident and no surgery was scheduled.”

The trial court’s award of $85,000.00 as compensation for Mrs. Peoples’ neck

injury and left-sided pain is supported by the medical evidence. Although we may

feel that a different award would have been more appropriate given the length of time

since the accident and the fact that Mrs. Peoples has yet to schedule any surgeries

with regard to her neck or left wrist, factors that the trial court did consider, we are

unable to say that the trial court abused its great discretion in making its award. In

deference to the applicable standard of appellate review, the trial court’s $85,000.00

award for these injuries is affirmed.

Mrs. Peoples’ Right Wrist Injury

In awarding Mrs. Peoples $25,000.00 in general damages to compensate her

for the pain and suffering she endured as a result of the injury to her right wrist, the

trial court observed that Mrs. Peoples had broken her fall with her right hand and that

her injury had required her to undergo a carpal tunnel release surgery.

When read as a whole, the record supports the trial court’s general damage

award in this regard. As with her right shoulder injury, Mrs. Peoples’ right wrist

injury resolved after a successful surgical procedure. Given the vast discretion

afforded a trial court in its assessment of damages, we cannot say that the $25,000.00

awarded represents an abuse of that discretion or that the award is either too high or

too low; the award is affirmed.

30 Mr. Peoples’ Loss of Consortium Award

In Bellard v. South Central Bell Telephone Co., 96-1426, p. 21 (La.App. 3 Cir.

8/27/97), 702 So.2d 695, 707, writ denied, 97-2415 (La. 12/12/97), 704 So.2d 1202

(citations omitted), this court explained:

In order to prove a claim for loss of consortium, a plaintiff must prove three things: (1) the liability of the defendant, (2) his or her spouse’s damages, and (3) his or her consequent loss of consortium damages. Loss of consortium is more than just a loss of general overall happiness, it also includes love and affection, society and companionship, sexual relations, the right of performance of material services, the right of support, aid, and assistance, and felicity. The trier of fact is given much discretion in awards for loss of consortium and will not be overturned on appeal in the absence of manifest error.

The plaintiffs contend that the $7,500.00 awarded to Mr. Peoples for the loss

of consortium that he suffered as a result of his wife’s 2004 injury is inadequate to

fully compensate him for his losses.11 In making its award, the trial court noted that

both Mr. and Mrs. Peoples testified that they were unable to enjoy some of the

activities that they had enjoyed prior to the accident and that Mr. Peoples “has had to

assume more of the daily household chores.” Nevertheless, the trial court stated that

because the “[e]vidence established that Mr. Peoples also suffers from a debilitating

illness and was, in fact, receiving disability income as a result of his illness . . . it is

assumed that their lifestyle changes may be due in part to Mr. Peoples’ own

limitations.”

Keeping in mind the great discretion afforded to the trier of fact in awarding

the spouse of an injured party damages for loss of consortium and given the record

before us, we are unable to say that the trial court committed manifest error in

11 The cases which the plaintiffs cite in support of their argument were previously cited to the trial court in the plaintiffs’ post-trial memorandum.

31 assigning the value that it did to Mr. Peoples’ damages; hence, the $7,500.00 loss of

consortium award is affirmed.

Did the Trial Court Err in Failing to Include in its Award for Future Medical Expenses the Costs for Surgery to Mrs. Peoples’ Left Wrist and Neck?

The plaintiff bears the burden of proving special damages by a preponderance of the evidence. In meeting her burden of proof on the issue of future medical expenses, the plaintiff must show that, more probably than not, these expenses will be incurred and must present medical testimony that they are indicated and the probable cost of these expenses. An appellate court reviews an award of special damages pursuant to the manifest error standard of review.

Cormier v. Colston, 05-507, p. 9 (La.App. 3 Cir. 12/30/05), 918 So.2d 541, 547-48

(citations omitted).

The trial court awarded Mrs. Peoples $20,000.00 in future medical expenses,

stressing that the medical evidence was “not clear cut” and that Dr. Cobb had given

Mrs. Peoples the option of having a cervical fusion and/or a left carpal tunnel release,

or, alternatively, the option of continuing with conservative measures.

The plaintiffs presented evidence concerning the total estimated costs for her

to undergo a three-level cervical fusion ($66,848.76) and a carpal tunnel release of

the left hand ($6,785.00). On the other hand, Dr. Cobb’s office charged $2,750.00

for the three epidural steroid injections that Mrs. Peoples received on November 14,

2008, and the anesthesia bill associated with the injections totaled $690.00. We infer,

based upon the amount that the trial court awarded for future medical expenses, that

it did not believe that Mrs. Peoples met her burden of proving, more probably than

not, that she would actually undergo the cervical fusion and incur the expenses

associated with such a procedure. Inasmuch as the trial court’s factual findings were

based on its appreciation of what future treatment Mrs. Peoples was most likely to

actually seek, we cannot say that the trial court committed manifest error in awarding

32 Mrs. Peoples an amount sufficient to cover continued conservative treatment for the

injuries that she incurred as a result of her August 2004 trip and fall at Fred’s. We

find that there is sufficient medical evidence to support the trial court’s $20,000.00

future medical expenses award, and the award is affirmed. The trial court did not err

in failing to include in its future medicals award an amount sufficient to cover

surgeries to both her neck and her left wrist.

Did the Trial Court Err in Granting Fred’s a Credit Against Mrs. Peoples’ Past Medical Expenses or, Alternatively, Did the Trial Court Err in Failing to Require Fred’s to Pay Legal Interest on the Amount of the Credit?

The plaintiffs claim that the trial court erred in granting Fred’s a credit for

medical expenses that it had paid to Huey P. Long Medical Center and Medicaid on

behalf of Mrs. Peoples because Fred’s did not plead or prove its entitlement to such

a credit. In the event that this court affirms the trial court’s decision to allow Fred’s

a credit, the plaintiffs claim that the trial court erred in failing to require Fred’s to pay

them legal interest on all amounts awarded to them from the date of judicial demand

until paid and with any payments made by Fred’s to be imputed first to interest.

Fred’s counters that the issue of credit was addressed at both the trial and at the

hearing on post-trial motions. In fact, Fred’s submits that the plaintiffs’ attorney

admitted at the June 29, 2009 post-trial hearing that there was no outstanding debt

owed to Huey P. Long Medical Center. Further, Fred’s claims that no legal interest

is owed on the $18,010.40 credit because that amount was not outstanding.

Louisiana Code of Civil Procedure Article 1154, entitled “Amendment to

conform to evidence,” provides as follows:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to

33 raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

In Kold, Inc. v. H & A Gas Purchasing, Inc., 609 So.2d 328, 329-30 (La.App.

3 Cir. 1992), this court held that, “Amendment of pleadings should be liberally

allowed, providing the movant is acting in good faith, the amendment is not sought

as a delaying tactic, the opponent will not be unduly prejudiced, and the trial of the

issues will not be unduly delayed.”

We are convinced that the trial court did not err in allowing Fred’s to submit

evidence that it was entitled to a credit due to its having compromised the debt owed

by the plaintiffs to Huey P. Long Medical Center. Despite Fred’s failure to have pled

such a credit before trial, the plaintiffs offered no proof that Fred’s acted in bad faith

or that it sought to delay the matter in seeking the credit, nor did they prove that they

were unduly prejudiced by the trial court’s application of the credit to plaintiffs’

damage award. Moreover, because the plaintiffs failed to offer any relevant

jurisprudence in support of its argument that the trial court should have awarded them

interest on the amount credited to Fred’s from the date of judicial demand until that

amount was paid, we decline to disturb the trial court’s decision in that regard.

DECREE

For the foregoing reasons, the judgment of the trial court, as amended

following the resolution of post-trial motions, is affirmed in its entirety. Costs of this

appeal are assessed equally amongst the parties.

34 AFFIRMED.