Defendant, Wal-Mart, Incorporated (hereafter Wal-Mart), appeals a judgment of the trial court finding it 100% at fault in the slip and fall of plaintiff, Linda Davis, and awarding her $75,000 in total damages plus costs.
Plaintiff, Linda Davis, alleged she slipped and fell in a "glob" of clear gel in the bicycle aisle of the Jennings Wal-Mart store on June 21, 1986. Ms. Davis, who was permanently and totally disabled as a result of six prior back surgeries before the alleged fall, claimed the fall aggravated her preexisting back problems and further caused a disc problem in her neck which subsequently required surgery.
Wal-Mart disputed her alleged fall, the aggravation of her preexisting medical problems and the relationship of her subsequent neck surgery to any incident on June 21, 1986.
The case was tried to a jury on February 12-14, 1990. The jury returned the following verdict sheet:
4. In what percentages do you find that the fault, if any, of the following parties contributed to the accident? Defendant, Wal-Mart: 20% _________ Plaintiff, Linda Davis: 80% _________ Total 100% _________
5. What amount in dollars and cents will compensate plaintiff, LINDA DAVIS, for her injuries and losses as a result of the accident? Medical expenses, past, present, and future: $100,000.00 ____________ Past, present, and future pain, suffering, mental anguish, and permanent disability: $ 50,000.00 ____________ Loss of enjoyment of life, past, present, and future: $ 25,000.00" ____________
The trial judge rendered judgment in accordance with the jury verdict, setting expert fees and assessing each side with 50% of costs. Both plaintiff and defendant filed motions for judgment notwithstanding the verdict and, alternatively, for a new trial.
Plaintiff contended that her being found at fault and the division of costs were erroneous. Defendant argued that Ms. Davis had failed to prove any medical expenses and that the award for "loss of enjoyment of life, past, present and future" was redundant in light of the award for "past, present and future pain, suffering, mental anguish, and permanent disability" and prayed for the deletion of these items. In the alternative, defendant sought a new trial on all issues.
On March 20, 1990, the trial judge rendered judgment notwithstanding the verdict granting the relief plaintiff sought, part of the relief defendant sought and denying a new trial. That judgment found Wal-Mart to be 100% at fault and cast defendant for all costs. At the same time, it deleted the $100,000 awarded plaintiff for medical expenses. Defendant then timely perfected this appeal. Plaintiff has neither appealed nor answered the appeal.
PLAINTIFF'S FALL AND MEDICAL EXPENSES
Plaintiff claims that on June 21, 1986, she, her daughter, grandchild and mother went to the Jennings Wal-Mart to have photographs taken of the grandchild. While Ms. Davis' daughter and grandchild waited in line for photographs, plaintiff and her mother moved toward the toy department. As they approached the aisle where bicycles were displayed, Ms. Davis' mother turned from the main aisle, called "Action Alley", into a side aisle. Ms. Davis continued down the main aisle to the bicycle aisle where she turned to inspect the bicycles on display. The first inconsistency in the evidence occurs at this point. Ms. Davis claimed that the bicycles were on her left and shelving was on her right, while former Wal-Mart employees who worked at the store during June 1986 testified that the bicycles would have been on plaintiff's right and the shelves on her left.
In any event, plaintiff claims that after taking two or three steps down the bicycle aisle, her right foot slipped in a clear "gooy" substance causing her feet to go out from under her. According to plaintiff, she fell backwards and towards the right striking the lower shelf and floor with her right hip and buttock. Diane Watson, a former Wal-Mart employee who was personally acquainted with Ms. Davis, confirmed that on the day of the alleged incident, plaintiff sought her out and stated that she (plaintiff) had "slipped" in the bicycle aisle.
No one witnessed plaintiff's alleged slip and fall. Ms. Davis' mother, who was one or two aisles away, testified that she heard plaintiff scream and that, upon arriving in the bicycle aisle, saw plaintiff in the process of getting up.
Diane Watson, who was employed as a cashier at the time of plaintiff's accident, stated that, upon receiving Ms. Davis' report, she advised her to report the incident to a manager at the service desk. Brenda LeBlanc, who also has since left the employ of Wal-Mart, was working at the service desk that day as check-out supervisor. As none of the assistant managers nor the
The testimony is likewise inconsistent as to the presence and/or nature of the substance on the floor. Plaintiff and her mother testified to a two to three inch "glob" of clear gel on the floor. Don Owen, manager of the Jennings Wal-Mart, stated that after being informed of the accident, he went to the bicycle aisle where he cleaned up a one to one and one-half inch spot of "Fix-A-Flat" from the floor. On the other hand, Diane Watson, who plaintiff claims was the first person she notified of the incident, testified that she followed plaintiff back to the location of the alleged fall, but saw nothing on the floor. Both Brenda LeBlanc and Nancy Berg, the assistant manager summoned by Ms. LeBlanc after plaintiff reported her fall, testified that they went to the bicycle aisle and found nothing on the floor. Plaintiff attempted to reconcile the difference in testimony by hypothesizing that Owen must have cleaned up the "Fix-A-Flat" before Watson, LeBlanc and Berg inspected the area. However, this hypothesis is weakened by the testimony of Ms. LeBlanc who stated that Owen was out of the store when plaintiff reported her fall.
Concerning plaintiff's alleged injury, she testified that she was in immediate pain after the fall and that she has not improved since. She also claimed that beginning in December 1986, she began experiencing neck pain which ultimately resulted in neck surgery in September 1987. Plaintiff denied both previous neck injury or any subsequent injury to her neck.
The evidence in the record is likewise inconsistent in regard to the extent and nature of plaintiff's alleged injury. The record reflects that plaintiff had numerous complaints of neck pain before June 1986, specifically in the years 1983 and 1984. Ms. Davis had serious medical problems and an extensive medical history prior to June 1986. She had undergone approximately six back surgeries and was considered totally and permanently disabled by her treating physician, Dr. Bernauer.
Dr. Bernauer testified that he had been treating plaintiff continuously for the past eleven years and that he had done all of her surgeries except two, which were performed by Dr. Gunderson, his former partner. Dr. Bernauer further testified that, as of June 1986, he was seeing plaintiff no less than monthly for continued complaints of back pain and that he had seen Ms. Davis twice in both April and May of 1986. Dr. Bernauer's records note no complaint of neck pain by Ms. Davis in June of 1986. However, Dr. Bernauer's records make reference to a serious fall by plaintiff in her kitchen which occurred in September 1986. According to Dr. Bernauer, plaintiff made no complaint to him of neck pain until June of 1987.
On appeal, Wal-Mart assigns three specifications of error:
In connection with the three assignments of error, defendant raises seven issues. Because of our ruling on the first specification of error, we need not consider any other assignments or issues raised by appellant.
In McCardie, supra, the Louisiana Supreme Court reiterated the criteria it announced in Brown v. Winn-Dixie Louisiana, Inc., infra, a plaintiff must meet in order to recover in a slip and fall case, stating:
La.R.S. 9:2800.6, as enacted by Acts 1988, No. 714, was passed in response to the Supreme Court's ruling in McCardie, supra, and changed both the burden of proof a plaintiff had to carry and the burden placed on a merchant to exculpate himself from liability in slip and fall cases. That statute read as follows:
The Act was signed by the Governor and became effective July 18, 1988.
We note that under La.R.S. 9:2800.6 (1988), a merchant "need not introduce the testimony of every employee ... or any particular proportion thereof ...". The merchant has to do no more than to introduce testimony from "... any employee shown [by the plaintiff] to have actually created the hazardous condition" and those employees (to include management personnel) who had inspection and/or cleanup responsibility in the area of the accident.
In examining the record, we find that both the plaintiff's closing argument and the trial judge's jury instructions were not in accord with R.S. 9:2800.6 (Act 714 of 1988). The trial court instructed the jury as follows:
Under 9:2800.6, in effect when the instant suit was tried, in order to exculpate itself from liability, the defendant was not required to prove that its employees did not cause the hazard. Rather, the defendant was only required to "introduce the testimony of any employee shown to have actually created the hazardous condition and those employees and management personnel whose job responsibilities included inspection or cleanup of the area where the accident giving rise to the damages occurred". In this case, there is no evidence that a Wal-Mart employee actually created the hazardous condition which allegedly caused plaintiff's injury.
In the case at bar, as in Gonzales v. Xerox Corporation, 320 So.2d 163 (La. 1975), the jury could not apply one of the most important legal principles governing the outcome of the case (La.R.S. 9:2800.6) because it was not part of the trial judge's charge to them. Further, the principle which they were given to apply, as well as being erroneous, placed a more onerous burden on defendant in order to exculpate itself from liability.
Accordingly, as all the facts in the case are before us, we will exercise our constitutional authority to "render judgment on the merits". See Gonzales, supra; La.C.C.P. art. 2164; and, Bossier v. De Soto General Hospital, 442 So.2d 485 (La.App. 2d Cir. 1983), writ denied, 443 So.2d 1122 (La. 1984).
In considering the record, we examine same "de novo", unrestrained by the tenets ordinarily applicable to appellate review of trial court decisions.
DEFENDANT'S CLEAN-UP AND SAFETY PROCEDURES
Testimony at trial established that in addition to normal morning and evening (opening and closing) clean-up measures and spot clean-ups, Wal-Mart had three other programs/procedures aimed at store cleanliness and customer safety: a Safety Committee, a Zone Defense program and the Safety Sweep program.
The Safety Committee consisted of a number of associates who would gather weekly to walk through the entire store in an effort to spot any potential hazards. Any observed problems would be reported to management for corrective action.
Zone Defense was "called" by management two to four times per day, depending on traffic in the store. Upon hearing the call for Zone Defense, associates would check their respective areas for any merchandise or foreign substances on the floor or any other potentially unsafe condition.
The Safety Sweep program consisted of two or three specified employees who, in addition to other duties such as stocking shelves, were designated to sweep the aisles of the store several times a day. Although Don Owen, the store manager, maintained that this program worked well, he readily admitted that the documentation (Safety Sweep cards) of the program was such a problem that the use of Safety Sweep cards was abolished. All management or ex-management personnel who testified agreed that the lack of documentation of safety sweeps in no way indicated that the sweeps were not done as planned.
Both the Zone Defense and Safety Sweep programs were routinely conducted during
Further, employees were to constantly look for spills or other unsafe conditions on the floor as they checked, marked and/or put up stock.
In addition to these routine safety measures, Wal-Mart also had a "spill" policy whereby any employee responsible for or discovering a spill of any type at any location in the store was to remain at the spill site until it was cleaned up to guard against anyone slipping in the spill. In order to encourage employees to participate aggressively in the spill policy program, it was tied to the store's profit sharing program.
Although the issue is close, considering the record as a whole, we conclude that plaintiff proved by a preponderance of the evidence that she slipped and fell because of a foreign substance on the floor in the bicycle aisle of the Jennings Wal-Mart in June 1986. However, plaintiff offered no proof to show that a Wal-Mart employee actually created the hazardous condition.
Under the circumstances, the burden of proof mandated by R.S. 2800.6 (1988), in order for Wal-Mart to exculpate itself from liability, was to prove that it exercised reasonable care and exerted reasonable efforts in its cleanup/maintenance procedures such that under most circumstances it would have known and been able to correct any hazard caused by its customers.
We conclude that, considering all the programs instituted by Wal-Mart, two over-all cleanups outside of business hours, Zone Defense, Safety Sweep, and the "spill" policy tied to the store's bonus program, defendant's efforts in the area of customer safety were more than "reasonable" and thus adequate to exculpate it from any liability in connection with plaintiff's accident.
Further, in our view, the record fails to establish, by a preponderance of the evidence, that plaintiff suffered any injury as a result of her alleged fall on June 23, 1986.
Insofar as plaintiff's physical complaints are concerned, we find her lacking in credibility. She denied any previous neck problems and denied a fall subsequent to her fall at Wal-Mart in June 1986. Evidence admitted at trial proved otherwise on both issues.
Further, the medical records from plaintiff's former and present physicians and from the various hospitals where she obtained treatment speak for themselves. They show no marked increase in doctor's visits or hospitalizations between June 23, 1986, the date of her alleged fall, and September 4, 1986, the date of her subsequent serious fall in the kitchen of her home. While Dr. Bernauer's records do indicate some increase in plaintiff's complaints of pain beginning with her June 23, 1986 visit, they reveal no mention of neck pain until June of 1987.
Plaintiff had a total of twenty doctor's visits between June 23, 1986 and June 5, 1987, or 5 visits per quarter. Ms. Davis had five visits for April, May and June 1986 not counting her visit of June 23, 1986.
Under cross-examination, the following colloquy took place between defense counsel and Dr. Bernauer:
In sum, plaintiff neither increased her visits to her physician, nor changed her medication profile, nor proved a recognizable link between her June 1986 fall and her neck surgery in September 1987, especially considering her intervening fall in September 1986.
It is well settled that "[i]n any civil case, plaintiff has the burden of proving each and every essential element of ... [her] claim by a preponderance of the evidence". Gustafson v. Koch, 460 So.2d 655 (La.App. 1st Cir.1984). See also Lincoln Big Three, Inc. v. Thomas, 444 So.2d 171 (La.App. 1st Cir.1983), and Green v. City of Alexandria, 413 So.2d 321 (La.App. 3rd Cir.1982).
In the case at bar, it is undisputed that plaintiff was permanently and totally disabled and making regular visits to her physician with complaints of continued back pain before her alleged fall at Wal-Mart. It is also undisputed that after her alleged fall in 1986, plaintiff continued to see her physician at approximately the same interval with the same basic complaints. Further, it was clearly shown that plaintiff sustained a subsequent fall in September 1986.
Considering plaintiff's medical history, her subsequent fall, her medical records and her treating physician's, Dr. Bernauer's, testimony, we conclude that plaintiff failed to prove any injury resulting from her fall in June 1986 beyond mere possibility or speculation. As stated in Mayes v. McKeithen, 213 So.2d 340 (La. App. 1st Cir.1968), writ denied, 215 So.2d 130 (La.1968), certiorari denied, 396 U.S. 868, 90 S.Ct. 108, 24 L.Ed.2d 121 (1969):
Accordingly, for the reasons stated, we reverse the judgment of the trial court. Plaintiff's suit against Wal-Mart, Inc. is hereby dismissed with prejudice. All costs at both the trial level and on appeal are taxed against plaintiff, Linda Davis.
REVERSED AND RENDERED.
Although the constitutionality of R.S. 9:2800.6 was not raised by either party at either the trial or appellate level, we note that a party has no vested right in any particular remedy and cannot insist upon application of any other than existing rules of procedure. Brown v. Indemnity Insurance Company of North America, 108 So.2d 812 (La.App. 2d Cir.1959).
16A C.J.S. Constitutional Law § 273.