Shawn Shelton v. Wal-Mart Louisiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-871

SHAWN SHELTON

VERSUS

WAL-MART LOUISIANA, LLC, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 230,508
HONORABLE DONALD T. JOHNSON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Elizabeth A. Pickett, Judges.

REVERSED AND REMANDED WITH INSTRUCTIONS.

R. O’Neal Chadwick, Jr.
Chadwick Law Firm, LLC
Post Office Box 12114
Alexandria, LA 71315
(318) 443-3793
COUNSEL FOR DEFENDANT /APPELLANT:
Wal-Mart Louisiana, LLC
Michael Gremillion

Charles D. Elliott
Vilar & Elliott, L.L.C.
Post Office Box 12730
Alexandria, LA 71315-2730
(318) 442-9533
COUNSEL FOR PLAINTIFF/APPELLEE:
Shawn Shelton

AMY, Judge.

The plaintiff alleges that she injured her post-surgical knee when she fell at the

defendant store. She sought damages related to the injury and a subsequent knee

surgery. A jury apportioned sixty percent of the fault to the defendant and forty

percent to the plaintiff. It awarded only a portion of the damages sought by the

plaintiff. Thereafter, the trial court granted a JNOV, increasing the medical expenses

and the general damages. The defendant appeals the granting of the JNOV. The

plaintiff answers the appeal, seeking an increase in general damages and the

imposition of costs and interest. For the following reasons, we vacate the judgment

granting the JNOV and reinstate the judgment reflecting the jury verdict. As the

record contains an incomplete version of the judgment being reinstated,1 we remand

for supplementation of the appellate record in this regard.

Factual and Procedural Background

The plaintiff, Shawn Shelton, visited the Wal-Mart in Pineville on August 4,

2007. In the petition instituting this suit, she alleged that she “was shopping in the

dairy section when she slipped and fell on a clear, pink, watery substance.” She

asserted that there were no wet floor or caution signs marking the area and that the

accident occurred because Wal-Mart employees improperly cleaned a spill. Ms.

Shelton denied that she could have prevented the fall. She alleged that the fall caused

knee injuries, requiring surgery, as well as injury to her back. Ms. Shelton sought

medical expenses and general damages. The petition listed Wal-Mart, the Pineville

store manager, and one of its employees as defendants.

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The appellate record includes the completed jury verdict form. However, it contains only
the first page of the trial court’s judgment entering that verdict and the Notice and Certificate of the
Signing of Judgment. The portion of the judgment included in the record at page 125 does not
include the entirety of the jury’s verdict, information regarding costs and interest, or the trial court’s
signature. The Notice indicates that the Judgment was signed on February 19, 2009.

In its defense of the case, Wal-Mart pointed out that Ms. Shelton had an

extensive medical history, including a prior knee surgery for which she was still

under a physician’s care at the time of this fall. Furthermore, while it acknowledged

a spill in the dairy section of its store, it contended that the spill was marked with a

cone at the time it was attended to by its employee immediately prior to the fall.

A jury determined that Ms. Shelton proved that Wal-Mart or its employees

were at fault in causing Ms. Shelton’s injuries, that Wal-Mart had actual or

constructive knowledge of the unreasonably dangerous condition, and that the

condition caused/contributed to the accident. The jury also found Ms. Shelton to be

at fault in causing the injuries and assessed her with forty percent of the fault. The

jury awarded $2,788.84 in past medical expenses and $3,000.00 for past physical pain

and suffering.

Thereafter, Ms. Shelton filed a motion for judgment notwithstanding the

verdict and alternative motion for additur. Ms. Shelton argued that the jury

impermissibly ignored the testimony of one of her orthopedic surgeons, Dr. Michael

Brunet. As pointed out by Ms. Shelton, Dr. Brunet testified that the fall at Wal-Mart

was most likely the cause of the subsequent knee injury and need for a second

surgery. Thus, she asserted that she was entitled to the entirety of her medical

expenses claimed rather than the limited portion awarded by the jury and an increase

in general damages. Ms. Shelton also contended that the jury erred in assessing her

with forty percent of the fault as she testified there was nothing marking the spill.

The trial court granted the motion, in part, explaining as follows in reasons for ruling:

[T]he Court believes that the jury erred in its award of $2,788.84 for Ms.
Shelton’s medical expenses. The jury did not follow the Court’s
instructions as to evidence presented at trial, particularly expert
testimony and evidence of special damages. A reasonable person could

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not find that the medical expenses incurred were not a result of the fall
at the Wal-Mart store. It was apparent from the documents presented
and the testimony of Dr. Brunet that Ms. Shelton sought medical
treatment and continued to receive medical treatment as a result of her
fall and injury at the Wal-Mart store. Her treatment began shortly after
the fall. The testimony of Dr. Brunet was not contradicted nor was there
any objection to the admission of the medical bills. The jury should
have awarded all of the medical expenses.

Therefore, this Court hereby grants the plaintiff’s Motion
Notwithstanding the Verdict as to special damages award. This court
awards the plaintiff $26,142.47 for her medical expenses.

As to general damages, the jury awarded $3,000 to Ms. Shelton
for pain and suffering for the year and a half prior to trial and awarded
zero dollars for future physical pain and suffering, past mental pain and
suffering, future mental pain and suffering, past loss of enjoyment of life
and future loss of enjoyment of life.

This Court believes that the jury erred in its award of $3,000.00
for Ms. Shelton’s past pain and suffering. Ms. Shelton has obviously
suffered as a result of the knee injury. She has had surgery to the knee
and has required continued physical therapy. Therefore, this Court
increases the plaintiff’s award of $3,000 for past pain and suffering to
$75,000.

However, this Court does not believe the jury erred in its award
for the general damages of future physical pain and suffering, past
mental pain and suffering, etc. Therefore, the Court will not change the
jury’s award for those damages.

Wal-Mart appeals, questioning “[w]hether there was sufficient evidence

presented at trial to support the jury’s verdict so that the trial court erred in upsetting

that verdict[.]” Ms. Shelton answered the appeal, asserting that the jury wrongly

attributed her with forty percent of the fault in causing the accident. She also seeks

general damages for future physical pain and suffering as well as past and future

mental anguish and loss of enjoyment of life.

Discussion

JNOV

Wal-Mart contends that the trial court erred in entering the JNOV and that the

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record contained a basis for the jury’s verdict. In particular, Wal-Mart contends that

the trial court’s determination was based on impermissible credibility calls and

weighing of the evidence.

Louisiana Code of Civil Procedure Article 18112 provides for the trial court’s

use of a JNOV, which “is warranted when the facts and inferences point so strongly

and overwhelmingly in favor of one party that the trial court believes that reasonable

persons could not arrive at a contrary verdict.” Forbes v. Cockerham, 08-762, p. 30

(La. 1/21/09), 5 So.3d 839, 857. A trial court should enter a JNOV “only when the

evidence points so strongly in favor of the moving party that reasonable persons

could not reach different conclusions.” Id. It is not sufficient that there is a

preponderance of evidence for the mover. Davis v. Wal-Mart Stores, Inc., 00-445

(La. 11/28/00), 774 So.2d 84. Rather, “[i]f there is evidence opposed to the motion

which is of such quality and weight that reasonable and fair-minded men in the

exercise of impartial judgment might reach different conclusions, the motion should

be denied.” Id. at 89. In considering this point, the trial court should not evaluate the

credibility of the witnesses. Id. Finally, the trial court must resolve all reasonable

inferences or factual questions in favor of the non-moving party. Id.

On review of a JNOV, the appellate court’s inquiry is two-part. Davis, 774

So.2d 84. First, the appellate court must determine whether the trial court erred in

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Article 1811 provides, in part:

A. (1) Not later than seven days, exclusive of legal holidays, after the
clerk has mailed or the sheriff has served the notice of judgment under Article 1913,
a party may move for a judgment notwithstanding the verdict. If a verdict was not
returned, a party may move for a judgment notwithstanding the verdict not later than
seven days, exclusive of legal holidays, after the jury was discharged.

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granting the JNOV. Id. Therefore, the appellate court considers “whether the facts

and inferences point so strongly and overwhelmingly in favor of the moving party

that reasonable persons could not arrive at a contrary verdict.” Forbes, 5 So.3d at

858. If the appellate court concludes that reasonable persons might reach a different

conclusion, the trial court’s granting of the motion was erroneous and the jury verdict

should be reinstated. Id. However, if the trial court applied the correct standard, the

appellate court reviews the JNOV using the manifest error standard of review. Davis,

774 So.2d 84.

The evidence in this case indicates that reasonable persons could have found

as the jury did in its judgment. The jury awarded $2,788.84 in medical expenses.

This figure equals that amount sought for Ms. Shelton’s ambulance transport from the

scene ($1,136.00), the related emergency room visit ($1,004.84), the emergency room

physician’s charges ($508.00), and two physical therapy treatments at $70 per

treatment. The jury awarded no additional expenses. Thus, it appears that the jury

found that Ms. Shelton reasonably sought medical evaluation at that time given the

pain experienced in the fall and the fact that she was still under medical care for the

knee surgery she had undergone in June 2007, approximately two months prior to the

Wal-Mart incident. The record supports a determination that Ms. Shelton failed to

prove that the subsequent treatment sought was related to the fall.

In particular, the jury was presented with Ms. Shelton’s medical records which

evidenced her history of knee complaints. Her June 2007 knee surgery was

performed by Dr. Erik Bruce, an orthopedic surgeon. Dr. Bruce continued to treat

Ms. Shelton following that surgery, including at the time of and after Ms. Shelton’s

fall. The office’s records indicate that on August 3, 2007, the day before the fall at

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Wal-Mart, Ms. Shelton reported to Dr. Bruce for an office visit. The notes from that

visit reflect that:

Patient is a 47 year old female status post left VMO advancement.
Wednesday afternoon her car stalled and she was pushing her car and
felt a pop in her left leg. Since that time she has had pain in the left leg.
She has 7 out of 10 pain.

Dr. Bruce aspirated both of Ms. Shelton’s knees, gave her an injection, and prescribed

continued physical therapy. Dr. Bruce instructed Ms. Shelton to return to the clinic

in six to eight weeks.

It was the day following this incident in which she reported pushing her car,

feeling a “pop” in her left leg, and experiencing increased pain, that she fell in Wal-

Mart. Although Ms. Shelton explained at trial that the incident involving the car was

inaccurately recorded and that she did not push the car, but instead struck her knee

on the steering wheel, the jury could have placed little weight on Ms. Shelton’s

testimony in light of the medical notation. This type of credibility assessment is

within the province of the trier of fact and is inappropriate in a trial court’s review of

a motion for JNOV. Joseph v. Broussard Rice Mill, Inc., 00-628 (La. 10/30/00), 772

So.2d 94.

Two days after the fall at Wal-Mart, Ms. Shelton returned to the orthopedic

surgeon’s office where she reported the fall and that “she sustained a hyperflexion

type injury to her knee and landed directly on her patella.” Yet, the examination

revealed: “No effusion. 0-90 degrees range of motion. Little tender about patella.

No prepateller swelling. As far as I can tell, she can do a good straight leg raise. Her

VMO advancement appears intact.” The report indicates that the x-rays taken at the

emergency room after the fall did not evidence a fracture. At her subsequent visit on

August 22, 2007, Dr. Bruce recorded that Ms. Shelton was “very scared and

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apprehensive” after the Wal-Mart fall and that she reported pain as 9 out of 10.

However, his examination revealed that her left knee had “full range of motion.

Patient is neurovascularly intact distally. She has a stable patella and no effusion.”

In the subsequent months, Ms. Shelton returned to the office with continued

complaints of pain.

Eventually, Dr. Brunet became Ms. Shelton’s treating orthopedic surgeon. In

addition to Dr. Bruce’s relocation to another state, Ms. Shelton explained that she

became dissatisfied with Dr. Bruce’s care after her fall at Wal-Mart because he felt

that her first knee surgery had proven a success. Thereafter, Dr. Brunet began

treating Ms. Shelton. While he testified at trial that he felt that the Wal-Mart fall was

most likely the cause of the need for Ms. Shelton’s second knee surgery, the entirety

of his statement was as follows:

It - - it’s the only thing, historically, that - - that I was able to
determine from talking with - - with Ms. Shelton, that as a reasonable
source of - - of the patella not necessarily dislocation, but enough to
have stretched out some of the reconstruction where she was continuing
to be symptomatic.

Accordingly, the jury could have permissibly rejected Dr. Brunet’s theory of

causation as it was based on a history as reported by Ms. Shelton. While Ms. Shelton

argued both in support of her motion on JNOV and again in her brief on appeal that

the jury could not have disregarded Dr. Brunet’s testimony because it was

uncontradicted, this is incorrect. Just as with lay witnesses, a factfinder can reject

expert testimony in part or in full. Green v. K-Mart Corp., 03-2495 (La. 5/25/04),

874 So.2d 838.

Construed in favor of the nonmoving party, the jury was presented only with

a plaintiff who had a history of a variety of health complaints, including treatment for

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pain in both knees, who personally attributed her escalating knee complaints to her

fall at Wal-Mart. As Dr. Brunet’s history was dependant on Ms. Shelton’s own

history of the fall, the jury clearly could have determined that his statement regarding

causation was insufficient for Ms. Shelton to carry her burden of proof as to causation

of all of her claimed damages.

Accordingly, as the record supports the jury’s determination as to the damages

awarded, we reverse the judgment granting the JNOV and reinstate the jury’s verdict.

Allocation of Fault

In her answer to the appeal, Ms. Shelton contests the jury’s determination that

she was forty percent at fault in causing the accident resulting in her injuries. She

asserts that the jury should have accepted her testimony that the spill was not marked

in any way.

Issues of causation and apportionment of fault are factual in nature. Smith v.

Alexandria Coca Cola Bottling Co., 05-686 (La.App. 3 Cir. 12/30/05), 918 So.2d

522. A factfinder’s determination as to these issues will not be overturned absent

manifest error. In this case, the jury reasonably determined that conditions were such

that Ms. Shelton either saw or should have seen the condition of the floor at the

accident scene, thus failing to exercise reasonable care as a patron. It is not disputed

that the floor was still wet and that Wal-Mart was responsible for that condition under

the facts as presented. Yet, Michael Gremillion, the Co-Manager at Wal-Mart at the

time of the accident, testified that when he arrived at the scene, Ms. Shelton was lying

on a wet floor sign. Similarly, Robert Sluss, Assistant Manager at the store, also

testified that a wet floor sign was underneath Ms. Shelton when he responded to the

scene.

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Although Ms. Shelton testified that there were no signs in the area, the jury

could have rejected this in finding that at least one sign was in place and should have

alerted Ms. Shelton to the floor’s condition if she had exercised reasonable caution.

Accordingly, the jury’s determination as to Ms. Shelton’s fault and its apportionment

of fault are not manifestly erroneous.

Damages

As pointed out by Ms. Shelton the jury only awarded general damages for past

physical pain and suffering. It awarded zero dollars for future physical pain and

suffering, past and future mental anguish, and past and future loss of enjoyment of

life. She contends that no reasonable fact finder could have denied damages for these

elements.

As explained above, the jury’s award of medical expenses seemingly

demonstrates that it found the fall at issue only caused the expenses of the ambulance

transport from the scene, the emergency room visit, and the physical therapy sessions

completed within two weeks of the fall. The jury obviously found that the

consequences of Ms. Shelton’s fall were limited and that her other claimed damages

were caused by other events or conditions. In light of this circumstance, we find no

abuse of discretion in the jury’s award of $3,000 for past physical pain and suffering

in general damages. See La.Civ.Code art. 2324.1. Accordingly, we do not disturb the

general damages award on review.

Costs and Interests

In her answer, Ms. Shelton seeks the imposition of costs and interest in the

judgment in the event that this court affirmed the judgment granting the JNOV. In

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light of the determination that the JNOV was erroneously entered, this decision is

rendered moot.

DECREE

For the foregoing reasons, the May 5, 2009 judgment granting the motion for

judgment notwithstanding the verdict is reversed. The trial court’s judgment of

February 19, 2009 is reinstated. This matter is remanded with orders to the trial court

to file a copy of the judgment reflecting the jury’s verdict in its entirety into the

appellate record. Costs of this proceeding are assessed to the plaintiff/appellee,

Shawn Shelton.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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