Wells v. Winn-Dixie Louisiana, Inc.

572 So. 2d 210, 1990 La. App. LEXIS 2596, 1990 WL 180095
CourtLouisiana Court of Appeal
DecidedNovember 14, 1990
DocketNo. CA 89 1528
StatusPublished
Cited by2 cases

This text of 572 So. 2d 210 (Wells v. Winn-Dixie Louisiana, Inc.) 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
Wells v. Winn-Dixie Louisiana, Inc., 572 So. 2d 210, 1990 La. App. LEXIS 2596, 1990 WL 180095 (La. Ct. App. 1990).

Opinion

LeBLANC, Judge.

The issues in this slip and fall case concern whether plaintiff was guilty of any comparative fault and quantum.

PACTS

On February 7, 1987, Dorothy Wells was shopping at a Winn-Dixie located in Baton Rouge, Louisiana. As she shopped, she pushed a grocery cart in front of her. She had turned the corner from the dairy aisle onto the beverage aisle and proceeded a short distance down the latter when her right leg began sliding and she fell to the floor, landing hard on her buttocks. At that time, plaintiff noticed she had slipped on a foreign substance, which appeared ter be some type of cream dip. Plaintiff immediately reported the accident to the store manager, checked out her purchases and went home. Later that evening, her back and legs began hurting and she went to the emergency room at Baton Rouge General Hospital. After x-rays were taken, she was given medication and allowed to return home.

Thereafter, plaintiff continued to suffer pain in her back and right leg and was treated by several physicians. She was eventually diagnosed as having an abnormal, degenerative disc at L5-S1 and a ruptured disc at L2-3.

Plaintiff subsequently filed the present personal injury suit against Winn-Dixie Louisiana, Inc. (Winn-Dixie). After a trial by jury, a verdict was rendered finding Winn-Dixie fifty-two percent at fault and plaintiff forty-eight percent at fault in causing her injuries. The jury found plaintiff had suffered the following damages, which were subject to a forty-eight percent reduction due to plaintiffs comparative fault: $20,000.00 for physical pain and suffering and mental anguish; $39,000.00 for past and future medical expenses; and $4,800.00 for lost wages. The trial court rendered judgment in accordance with this verdict. Plaintiff now appeals, arguing that the jury erred in assessing her with any comparative fault and in awarding an inadequate amount in general damages. Winn-Dixie answered the appeal, contending the jury erred in awarding an excessive amount for medical expenses and in making any award for lost wages.

COMPARATIVE FAULT

Plaintiff contends that comparative negligence as a matter of law is not applicable in slip and fall cases which occur in the display areas of retail stores/supermarkets, because of the higher duty imposed on the storekeeper due to the distractions to the shopper’s attention created by the displayed merchandise. We disagree.

In Kimble v. Wal-Mart Stores, Inc., 539 So.2d 1212, 1214 (La.1989), the Louisiana Supreme Court observed that:

“An actor’s duty to keep a proper lookout is diminished when shelved merchandise distracts his attention.”

However, the Supreme Court clearly indicated that, while the actor’s diminished duty to maintain a lookout is a major factor in apportioning fault, it does not preclude that actor as a matter of law from being found guilty of comparative fault. The court noted that the apportionment of the parties’ relative degrees of fault required weighing their conduct in light of the five following factors, as delineated in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.

The Court indicated that the plaintiff’s diminished duty to maintain a lookout was pertinent with respect to the fifth factor in that Kimble’s “failing to see the toy rockers [over which he tripped] was extenuated by his attention to the merchandise displayed on the shelves.” Kimble, at 1214. Nevertheless, due to his failure to see the object over which he tripped, Kimble was assessed a percentage of comparative [213]*213fault, although the Supreme Court reduced the amount assessed by the Court of Appeal from fifty percent to twenty-five percent. Thus, the Supreme Court’s analysis in Kimble makes it clear that each slip and fall case must be evaluated upon its own particular facts and that the shopper’s diminished duty is but one factor, albeit a significant one, in determining the parties’ relative degrees of fault, if any.

In the present case, Dorothy Wells was assessed forty-eight percent fault. The jury obviously felt she was negligent in failing to observe the spilled substance in the aisle directly in front of her. During her testimony, plaintiff stated that this spill consisted of an entire container of some sort of dip and she drew a diagram for the jury illustrating the size of the spill. The container itself was also lying in the aisle near the spill. Given this evidence, we can not say the jury committed manifest error in finding plaintiff guilty of some degree of fault.

However, after considering the conduct of the parties in light of the Watson factors, we conclude that, as in Kimble, most of these factors weigh in favor of Mrs. Wells and the jury committed manifest error in assessing such a high percentage of fault to her. First, Mrs. Wells’ failure to observe the spill on the floor was inadvertent. On the other hand, Winn-Dix-ie’s employees were aware of the risks of such accidents and the need to be vigilant for spills. Further, they were in a superior position to prevent the accident because of this knowledge and their control over maintenance of the store. Also, the risk created by Winn-Dixie’s negligence was significant, as evidenced by the serious injury which occurred to plaintiff and the even more serious injuries which might have resulted.1

When an appellate court has found an assessment of fault manifestly erroneous in being too high, as in the present case, it can modify the assessment only by reducing it to the highest percentage a reasonable finder-of-fact could have found. Scott v. Barclay’s Amer. Leasing Service, 506 So.2d 823, 829 (La.App. 1st Cir.), writ denied, 508 So.2d 88 (1987). Under the facts present, we conclude plaintiff can be assessed with no more than twenty percent fault. See, Kimble, supra; Lloyd v. TG & Y Stores Co., 556 So.2d 629 (La.App. 2d Cir.1990).

GENERAL DAMAGES

Plaintiff contends that the $20,-000.00 award made by the jury for her general damages is grossly inadequate.

The evidence presented at trial indicated that plaintiff has two distinct disc problems. The discs at L-5/S-1 are abnormal and have undergone some degenerative changes. Although there was medical testimony that this condition could have been congenital or of a chronic nature which could occur with aging, there was also medical testimony that plaintiff’s problems at this level could have been caused by trauma (i.e., the fall). Plaintiff also has a herniated disc at L2. Although she had not had surgery at the time of trial, the medical evidence indicated it was more probable than not she would require separate surgeries at both levels at some point in the future. There was also medical evidence plaintiff would probably suffer a ten to twenty percent disability of the body as a whole after such surgeries. Plaintiff explained that she had not had surgery at the time of trial because she did not have the money to pay for it.

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Bluebook (online)
572 So. 2d 210, 1990 La. App. LEXIS 2596, 1990 WL 180095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-winn-dixie-louisiana-inc-lactapp-1990.