David Guillot v. Dolgencorp, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-587

DAVID GUILLOT

VERSUS

DOLGENCORP, L.L.C.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2011-6810-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, dissents in part and assigns written reasons.

Peter J. Wanek
McCranie, Sistrunk, Anzelmo
909 Poydras St., Suite 1000
New Orleans, LA 70112
(504) 831-0946
COUNSEL FOR DEFENDANT/APPELLANT:
Dolgencorp, L.L.C.

Cory P. Roy
Attorney at Law
Post Office Box 544
Marksville, LA 71351
(318) 240-7800
COUNSEL FOR PLAINTIFF/APPELLEE:
David Guillot

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SAUNDERS, Judge.

While shopping at a Dollar General store owned and operated by

Dolgencorp, L.L.C. in Marksville, Louisiana, David Guillot slipped and fell on a

discarded McDonald’s cup, sustaining soft tissue injuries. Following a bench trial

on the merits, the trial court found Dolgencorp liable and awarded Mr. Guillot

$15,000.00 in general damages and $2,426.45 in special damages. We find that

the trial court abused its discretion in the admission of certain deposition

testimony. Nevertheless, we uphold the trial court’s judgment, and we affirm.

I.

ISSUES

We shall consider:

(1) whether the trial court abused its discretion in admitting the
deposition testimony of the Dollar General assistant manager
into evidence in lieu of live testimony;

(2) whether Mr. Guillot proved by a preponderance of the evidence
that Dolgencorp had constructive notice of the McDonald’s
cup;

(3) whether the trial court erred in finding that Mr. Guillot carried
his burden to prove that the accident caused his alleged injuries;
and

(4) whether the trial court erred in awarding Mr. Guillot excessive
damages.

II.

FACTS AND PROCEDURAL HISTORY

On April 23, 2011, David Guillot was shopping in a Dollar General store in

Marksville, Louisiana, when he slipped on a McDonald’s cup and fell in one of the

store aisles. Kimberly Ragsdale, the assistant manager of the Dollar General, came

to Mr. Guillot’s assistance. Mr. Guillot then left the store. He later filed this

lawsuit.

At trial, Mr. Guillot served as the only witness on his behalf. He testified

that he slipped on the McDonald’s cup that contained a clear liquid and suffered

injuries to his lower back, right hip, and right knee. In addition to his testimony,

Mr. Guillot submitted into evidence video surveillance footage showing that for

the period of roughly two minutes before the incident, no person entered the area

where Mr. Guillot fell. The video further showed a plastic bag discarded on the

floor in another part of the store for roughly ten minutes during the time of the

accident.

At trial, the court admitted into evidence the deposition of Kimberly

Ragsdale in lieu of live testimony. It determined that although Ms. Ragsdale lived

within the subpoena power of the court, her deposition testimony was limited in

nature to her observations of the accident scene and the store’s inspection policies.

Furthermore, the court concluded it should be admitted to minimize resulting court

costs from issuing a continuance and instanter subpoena.

After denying its motion for involuntary dismissal, the trial court held that

Dolgencorp was solely liable for Mr. Guillot’s fall under La.R.S. 9:2800.6,

concluding that a store has a duty to keep its aisles and passageways clear of

objects that might cause injury and a patron does not have a duty to watch every

step that he or she may take while shopping. The trial court reasoned that there

was a McDonald’s cup in the aisle, and given the presence of the neglected plastic

bag in another part of the store, the store had constructive notice of the potential

hazard. The trial court awarded Mr. Guillot $15,000.00 in general damages and

$2,426.45 in special damages.

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III.

LAW AND DISCUSSION

Standards of Review

The decision to admit deposition testimony at trial is discretionary and will

not be disturbed upon appeal absent an abuse of discretion. Bruins v. U.S. Fleet

Leasing, Inc. 430 So.2d 386 (La.App. 3 Cir. 1983); Dickens v. Commercial Union

Ins. Co., 99-698 (La.App. 1 Cir. 6/23/00), 762 So.2d 1193. Furthermore, even if

the trial court’s evidentiary ruling is erroneous, reversal is not warranted unless the

error prejudiced the complainant’s cause. State Farm Mut. Auto. Ins. Co. v. Little,

34,760 (La.App. 2 Cir. 6/20/01), 794 So.2d 927.

With regard to constructive notice, a trial court’s determination of whether a

merchant had constructive knowledge of a condition creating an unreasonable risk

of harm is a factual finding that may not be set aside absent manifest error. Smith

v. Brookshire Grocery Co., 32,619 (La.App. 2 Cir. 1/26/00), 750 So.2d 450. We

cannot disturb the trial court’s ruling unless it is unreasonable or clearly wrong

under the record. Mart v. Hill, 505 So.2d 1120 (La.1987).

Admissibility of Ms. Ragsdale’s Deposition Testimony

Dolgencorp argues that the trial court erred in admitting the deposition of

Ms. Ragsdale in lieu of live testimony. We agree.

Louisiana Code of Civil Procedure Article 1450, in part, states:

A. At the trial or upon the hearing of a motion or
an interlocutory proceeding, any part or all of a
deposition, so far as admissible under the Louisiana Code
of Evidence applied as though the witnesses were then
present and testifying, may be used against any party
who was present or represented at the taking of the
deposition or who had reasonable notice thereof, in
accordance with any of the following provisions:
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....

(3) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if
the court finds:

(a) That the witness is unavailable;

(b) That the witness resides at a distance
greater than one hundred miles from the
place of trial or hearing or is out of the state,
unless it appears that the absence of the
witness was procured by the party offering
the deposition; or

(c) Upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with
due regard to the importance of presenting
the testimony of witnesses orally in open
court, to allow the deposition to be used.

Ms. Ragsdale’s deposition was taken for the purpose of discovery, and there

was no stipulation by the parties that this deposition could be used at trial in lieu of

live testimony. She resided within the subpoena power of the court, and there is no

evidence in the record that she was unavailable to testify. As such, Ms. Ragsdale’s

deposition may only be admitted if an exceptional circumstance exists as defined

under La.Code Civ.P. art. 1450. While the trial court believed the limited nature of

Ms. Ragsdale’s testimony combined with a desire to limit court costs amounted to

exceptional circumstances, we disagree.

Under Article 1450, an exceptional circumstance must “make it desirable, in

the interest of justice and with due regard to the importance of presenting the

testimony of witnesses orally in open court, to allow the deposition to be used.”

La.Code Civ.P. art. 1450 (A)(3)(c). Here, the only hurdles to Ms. Ragsdale

testifying live are court costs from issuing a continuance and instanter subpoena.

While burdensome, court costs do not impede the interest of justice nor do they
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outweigh the value of live witness testimony; they are merely expected and

inevitable consequences of litigation. To hold otherwise would amount to

eliminating live testimony altogether in favor of depositions to save court costs

which flies in the face of Article 1450.

Furthermore, while Ms. Ragsdale’s deposition testimony was limited in

scope, it contained discrepancies regarding the inspection times of the store prior to

the accident that not only could have been rectified via live testimony but also

potentially prejudiced Dolgencorp regarding the court’s determination of

constructive notice. Given the ease in which Ms. Ragsdale could have been called

into court via instanter subpoena, the highly favored preference of presenting

witness testimony orally, and the potential prejudice of the deposition, we find the

trial court’s admission of Ms. Ragsdale’s deposition testimony to be an abuse of

discretion. As such, we exclude consideration of this testimony in our review of

the trial court’s finding of constructive notice. See Maricle v. Cloud, 341 So.2d 29

(La.App. 3 Cir. 1976).

Constructive Notice

Dolgencorp contends that the trial court erred in concluding that it had

constructive notice of the unreasonable risk of harm presented by the McDonald’s

cup under La.R.S. 9:2800.6. We do not agree.

Louisiana Revised Statutes 2800.6, in part, provides:

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,
and in addition to all other elements of his cause of
action, that:

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(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; and

(3) The merchant failed to exercise
reasonable care.

C. Definitions:

(1) “Constructive notice” means the condition
existed for such a period of time that it would have
been discovered if the merchant had exercised
reasonable care.

The Louisiana Supreme Court has explained that the constructive notice

requirement of La.R.S. 2800.6 includes a mandatory temporal element, such that

“[t]he claimant must make a positive showing of the existence of the condition

prior to the fall.” White v. Wal-mart Stores, Inc., 97-393, p. 4 (La. 9/9/97), 699

So.2d 1081, 1084. While the supreme court concluded it was unnecessary to show

precisely how long the hazard existed, the claimant must show that the period of

time is “sufficiently lengthy” such that a merchant should have discovered the

hazard. Id.

In proving the temporal element, the plaintiff may rely on circumstantial

evidence over direct evidence to show that constructive knowledge can be inferred

from the totality of the circumstances. Broussard v. Wal-Mart Stores, Inc., 98-813

(La.App. 3 Cir. 1/20/99), 741 So.2d 65, writ denied, 99-486 (La. 4/1/99), 742

So.2d 562. For example, in Broussard, this court relied on circumstantial evidence

regarding the size and scope of a dishwashing detergent spill to conclude that the

merchant had constructive notice of the spill. The court reasoned that the spill

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spread over a considerable period of time given that it was fairly large and

elongated. Moreover, given the evidence that this part of the store was unmanned

during one of the busiest days of the year, the court found that under the totality of

the circumstances the merchant had constructive notice.

In light of the White and Broussard decisions, we agree with the trial court

that Mr. Guillot proved that Dolgencorp had constructive notice of the

unreasonable risk of harm presented by the McDonald’s cup. Even absent Ms.

Ragsdale’s deposition testimony, the evidence in the record supports a finding that

a Dolgencorp had a “sufficiently lengthy” period of time that it should have

discovered the hazard. The video surveillance indicated that the cup was on the

floor for at least two minutes prior to Mr. Guillot’s accident. This fact, coupled

with the ten minutes of video surveillance of a discarded plastic bag before and

after the accident in another part of the store, supports the trial court’s findings.

We find this court’s decision, in Davenport v. Albertson’s, Inc., 00-685

(La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La. 3/23/01), 788

So.2d 427, instructive. In Davenport, this court relied on circumstantial evidence

of negligent store upkeep to find that the plaintiff had proven the temporal element

under La.R.S. 2800.6, even after the actual occurrence of the event. Similarly,

here, the circumstantial evidence Mr. Guillot relies upon, a discarded plastic bag,

indicates Dolgencorp’s knowledge of the bag, a hazard, and a general disregard for

the safety of it customers from slip and fall hazards. As such, we affirm the trial

court’s finding that Dolgencorp had constructive notice of the McDonald’s cup.

Causation

Next, Dolgencorp asserts that the trial court erred in finding that Mr. Guillot

proved that the accident caused the injuries he allegedly sustained because Mr.

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Guillot did not present the testimony of a medical doctor expressly stating that the

alleged injuries were more probably than not caused by the April 23, 2011 slip and

fall. Thus, according to Dolgencorp, the trial court erred as a matter of law.

“Whether an accident caused a person’s injuries is a question of fact which

should not be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.

2d 973, 979 (La.1991).

In Louisiana tort cases and other ordinary civil actions, the
plaintiff, in general, has the burden of proving every essential element
of his case, including the cause-in-fact of damage, by a preponderance
of the evidence, not by some artificially created greater standard.
Proof by direct or circumstantial evidence is sufficient to constitute a
preponderance, when, taking the evidence as a whole, such proof
shows that the fact or causation sought to be proved is more probable
than not.

. . . While expert medical evidence is sometimes essential, it is
self-evident that, as a general rule, whether the defendant’s fault[] was
a cause in fact of a plaintiff’s personal injury or damage may be
proved by other direct or circumstantial evidence.

Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993) (citations omitted).

At trial, Mr. Guillot testified that as a result of the incident, he fell and

landed on his right side and sustained a busted lip and injuries to his lower back,

right knee, right hip, and right shoulder. Mr. Guillot’s testimony that the accident

caused his injuries is bolstered by his medical records that were admitted into

evidence from Rapides Regional Medical Center, Dr. Bryan C. McCann, and

Leglue Physical Medicine Clinic. These medical records indicate that Mr. Guillot

visited Dr. McCann on April 27, 2011, and explained that he had fallen at Dollar

General on April 23, 2011. He complained of anxiety and pain in his right knee,

right hip, and lower back due to the fall to Dr. McCann. Mr. Guillot again treated

with Dr. McCann on May 2, 2011, complaining that his right knee was hurting

worse daily and his lower back and right hip were still hurting.

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Mr. Guillot testified that due to transportation problems, he was unable to

continue seeing Dr. McCann, and, thereafter, reported to the emergency room at

Rapides Regional Medical Center when the pain continued. At trial, the parties

introduced additional medical records indicating additional visits to the Rapides

Regional Medical Center emergency room subsequent to the accident. According

to the records, Mr. Guillot presented to Rapides Regional Medical Center on May

1, 2011, stating that he had fallen on April 23, 2011, and complaining of pain to his

lower back, right knee, and right hip.

Finally, Mr. Guillot testified that between the completion of his treatment

with Dr. McCann in May of 2011, and the commencement of his treatment with

Leglue Physical Medicine Clinic in March 2012, he continued to experience pain

in the aforementioned areas of his body, and, in addition to his treatment with

Rapides Regional Medical Center, he treated the pain by taking over-the-counter

pain medication such as Aleve and Tylenol.

Given the above, we find that there is ample evidence in the record to

support the trial court’s finding that Mr. Guillot proved the April 23, 2011 accident

caused his injuries. Accordingly, we find no error by the trial count on this issue.

Damages

Finally, Dolgencorp argues that Mr. Guillot presented no evidence to

support a finding that his alleged injuries lasted beyond three weeks, and, as such,

the award of $15,000.00 for those injuries was excessive. We do not agree.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert.

denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994) (citations omitted), our supreme

court stated:

[T]he role of an appellate court in reviewing general damages is not to
decide what it considers to be an appropriate award, but rather to
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review the exercise of discretion by the trier of fact. Each case is
different, and the adequacy or inadequacy of the award should be
determined by the facts or circumstances particular to the case under
consideration.

. . . The initial inquiry is whether the award for the particular
injuries and their effects under the particular circumstances on the
particular injured person is a clear abuse of the “much discretion” of
the trier of fact. Only after such a determination of an abuse of
discretion is a resort to prior awards appropriate and then for the
purpose of determining the highest or lowest point which is
reasonably within that discretion.

Mr. Guillot has presented testimony that as a result of the April 23, 2011

incident, he has suffered pain in his lower back, right hip, right shoulder, and right

knee spanning from April 23, 2011, through the trial date of January 23, 2013, a

twenty-one month period. Clearly, the trial court found Mr. Guillot credible,

despite Dolgencorp’s attempts to show otherwise. As we stated above, this

testimony is corroborated by the medical records of Dr. McCann and Rapides

Regional Medical Center indicating treatment shortly after the incident. Mr.

Guillot then cited transportation problems concerning his continued treatment with

Dr. McCann and sporadic treatment with Rapides Regional Medical Center.

Furthermore, he testified that his pain continued through the period between his

last visit to Dr. McCann and the first to Leglue Physical Medicine Clinic, during

which he treated at Rapides Regional Medical Center and with over the counter

pain medication.

After a thorough review of the record, we find no abuse of discretion by the

trial court in awarding Mr. Guillot $15,000.00 for his damages. A reasonable view

of the evidence is such that Mr. Guillot suffered pain for twenty-one months, and

such an award as given by the trial court is not abusively high.`

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IV.

CONCLUSION

For the foregoing reasons, we find that the trial court abused its discretion in

the admission of certain deposition testimony. Nevertheless, we find that a

reasonable view of the evidence exists to support the results reached in the

judgment of the trial court, and we affirm. Costs of this appeal are assessed against

Dolgencorp, LLC.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-587

DAVID GUILLOT

VERSUS

DOLGENCORP, L.L.C.

THIBODEAUX, Chief Judge, dissenting in part.

I agree with the majority that the deposition testimony of Ms.

Ragsdale was erroneously admitted. I disagree that the plaintiff met his burden in

proving constructive notice under La.R. 9:2800.6 or that the evidence was

sufficient to show cause-in-fact of plaintiff’s injuries.

In light of the White and Broussard decisions relied upon by the

majority, I conclude Mr. Guillot failed to prove that Dolgencorp had constructive

notice of the allegedly hazardous McDonald’s cup. Absent Ms. Ragsdale’s

deposition testimony, the only evidence in the record regarding the temporal

element is the video surveillance indicating the cup was on the floor for roughly

two minutes prior to Mr. Guillot’s accident. Unlike Broussard, even if the cup was

full of water as stated in Mr. Guillot’s testimony, there is no evidence as to the

size, state, and scope of a spill that would indicate the cup was there for any more

time than the two minutes in the video. While I recognize this was a busy time of

year given the Easter season, two minutes, without more, is not a “sufficiently

lengthy” time to put a merchant on notice of hazardous conditions. To hold

otherwise is unreasonable because it forces a merchant to constantly monitor the

physical state of his place of business rather than engage in the primary goal of

selling goods.

Mr. Guillot argues that Dolgencorp had constructive notice given the

ten minutes of video surveillance of a discarded plastic bag before and after the

accident in another part of the store. The majority relies upon this court’s decision

in Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340,

writ denied, 01-73 (La. 3/23/01), 788 So.2d 427), where we held that one may

prove constructive notice by introducing circumstantial evidence of the hazardous

condition after the actual occurrence of the event. While we recognized that

circumstantial evidence of potential hazards can lead to an inference of

constructive notice, I find this case distinguishable from the Davenport decision.

In Davenport, this court relied on circumstantial evidence of negligent store

upkeep in the same location where the actual slip and fall occurred. Further,

Davenport involved a summary judgment proceeding where this court concluded

that the evidence was sufficient to create a genuine issue of material fact as to

constructive notice. We did not determine sufficient proof of the temporal element

necessary to establish constructive notice. Similarly, a review of other Louisiana

slip and fall cases relying on circumstantial evidence all used evidence that could

lead to an inference of constructive notice of the hazard in the specific location of

the accident.1 In contrast, the only circumstantial evidence Mr. Guillot relies upon

1
See Treadaway v. Shoney’s, Inc., 93-1688 (La.App. 4 Cir. 2/25/94), 633 So.2d 841
(medical technician rendering aid to plaintiff after fall testified that floor was wet); Oalmann v.
K-Mart Corp., 630 So.2d 911, 913 (La.App. 4 Cir. 1993), writ denied, 94-244 (La. 3/18/94), 634
So.2d 859 (plaintiff proved constructive notice of slippery floors through evidence that it rained
prior to the fall); Saucier v. Kugler, Inc., 628 So.2d 1309 (La.App. 3 Cir. 1993) (circumstantial
evidence that lemon display was often piled high causing lemons to roll onto the floor sufficed to
meet plaintiff’s burden); Cobb v. Wal-Mart Stores, Inc., 624 So.2d 5 (La.App. 5 Cir. 1993)
(constructive notice satisfied through evidence of customers carrying bags of popcorn throughout
store, thus risking popcorn being dropped on the floor).

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is a discarded plastic bag in a completely different part of the store. While this

evidence indicates knowledge of the bag, this alone cannot lead to an inference of

constructive notice of hazards in a different part of the store.

As such, the majority errs in finding that Dolgencorp had constructive

notice of the McDonald’s cup.

While the medical records might indicate an injury of some sort, there

is no correlative linkage between Mr. Guillot’s injury and his slip and fall. It is

somewhat of a stretch to automatically infer, without more, that medical causation

exists. Indeed, many of these visits, according to the medical records, were

unrelated to Mr. Guillot’s fall. Moreover, the only medical testimony is that of Dr.

Henry who opined that plaintiff’s injuries are unrelated to this accident. His

testimony went unrebutted.

For the foregoing reasons, I respectfully dissent.

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