Destiny Guidry v. Market Basket Stores, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-1283

DESTINY GUIDRY

VERSUS

MARKET BASKET STORES, INC., ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2012-2407
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Mark A. Delphin
Delphin Law Offices, A Professional Law Corporation
626 Broad Street
Lake Charles, Louisiana 70601
(337) 439-3939
COUNSEL FOR PLAINTIFF/APPELLANT:
Destiny Guidry

Arthur J. O’Keefe
626 Broad Street
Lake Charles, Louisiana 70601
(337) 309-6122
COUNSEL FOR PLAINTIFF/APPELLANT:
Destiny Guidry

Michael J. Williamson
Plauché, Smith & Nieset, L.L.C.
1123 Pithon Street
Post Office Drawer 1705
Lake Charles, Louisiana 70602
(337) 436-0522
COUNSEL FOR DEFENDANTS/APPELLEES:
Market Basket Stores, Inc. and Kenneth Wyant

GENOVESE, Judge.

In this personal injury action, Plaintiff, Destiny Guidry, appeals a judgment

entered pursuant to jury verdict dismissing her lawsuit with prejudice. The jury

found no fault on the part of Defendant, Kenneth Wyant, an employee of

Defendant, Market Basket Stores, Inc. (Market Basket). For the following reasons,

we reverse the jury’s finding as to fault, but affirm the judgment in favor of

Defendants on the basis that Plaintiff failed to prove that her alleged injury was

legally caused by Mr. Wyant’s fault.

FACTUAL AND PROCEDURAL BACKGROUND

On June 14, 2011, Ms. Guidry was a patron at the Market Basket grocery

store on Third Avenue in Lake Charles, Louisiana. Ms. Guidry alleges that while

shopping in the meat department with her cousins, Contrina Cahee and Khadisha

Cahee, she suffered injury to her right ankle as a result of being struck by a stock

cart recklessly operated by Mr. Wyant.1 Ms. Guidry describes the incident as a

violent collision which left her right leg pinned under Mr. Wyant’s stock cart and

which caused her to be struck by several loose cans that were originally on the

stock cart. Ms. Guidry went to the emergency room at W.O. Moss Regional

Hospital for pain and swelling in her right ankle on June 18, 2011. She again

sought treatment for her right ankle on June 28, 2011, at the emergency room of

Lake Charles Memorial Hospital. Ultimately, but not until March 10, 2013, Ms.

Guidry underwent surgery for repair of the peroneal tendon of her right ankle, an

injury she claims resulted from the June 2011 Market Basket incident.

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It is undisputed that Mr. Wyant was employed by Market Basket and was working in the
course and scope of his employment when the alleged incident occurred.

Ms. Guidry filed this personal injury action on June 1, 2012, against Mr.

Wyant and Market Basket. A jury trial was held on March 12–14, 2014, during

which time Ms. Guidry moved for a directed verdict on the issues of liability and

causation.2 The trial court denied the motion, stating in part: “In the matter before

the [c]ourt[,] it does appear that [Ms. Guidry has] established that there has been an

incident. However, the allegations with regard to fault are at issue, specifically as

to the actual mechanics of what occurred on June 14th of 2011.” Subsequently, the

jury returned a verdict finding no fault on the part of Mr. Wyant. On the Jury

Verdict Form, the first question was whether Mr. Wyant was “at fault in causing an

accident on June 14, 2011?” The jury answered in the negative, which terminated

their deliberation. Accordingly, the jury did not proceed to the next question

relative to causation which asked, “Was defendant Kenneth Wyant’s fault a cause

of injury to Destiny Guidry?”

A judgment was signed in accordance with the jury’s verdict. Ms. Guidry

filed a Motion for Judgment Notwithstanding the Verdict, which the trial court

denied. Ms. Guidry appeals.

ASSIGNMENT OF ERROR

In her sole assignment of error, Ms. Guidry asserts: “The jury committed

manifest error and made a decision which was clearly wrong when it concluded

that[] Defendant, Kenneth Wyant, was not at fault in causing an accident on June

14th, 2011.”

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Specifically, the transcript reveals that Ms. Guidry sought a directed verdict “on
questions one and two of the jury verdict form[.]”

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LAW AND DISCUSSION

In Purvis v. Grant Parish School Board, 13-1424, p. 4 (La. 2/14/14), 144

So.3d 922, 926, our supreme court set forth the applicable appellate standard of

review relative to this case as follows:

In Stobart v. State, through DOTD, 617 So.2d 880 (La.1993), this
court set forth a two-part test for the reversal of the fact-finder’s
determinations:

1) The appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court, and

2) the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

This test dictates that a reviewing court must do more than
simply review the record for some evidence that may controvert the
trial court ruling. Rather, it requires a review of the entire record to
determine whether manifest error has occurred. Thus, the issue before
the court of appeal is not whether the trier of fact was right or wrong,
but whether the fact-finder’s conclusion was a reasonable one.
London Towne Condominium Homeowner’s Association v. London
Towne Company, 06-401 (La. 10/17/06), 939 So.2d 1227.

Thus, this court must not set aside the jury’s verdict unless we find that it is

manifestly erroneous or clearly wrong.

After hearing testimony from all who witnessed the incident—Ms. Guidry,

Contrina Cahee, Khadisha Cahee, and Mr. Wyant—the jury determined that, under

the facts and circumstances of this case, Mr. Wyant was not at fault in causing an

accident. Ms. Guidry argues that the jury erroneously determined that Mr. Wyant

was not at fault. We agree.

Mr. Wyant and Market Basket do not deny that an incident occurred on June

14, 2011. The record indicates, and it is undisputed, that Mr. Wyant, and Mr.

Wyant alone, was in exclusive control of the stock cart on the date of the incident

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and that he was pushing the stock cart, loaded with cans, when the cans fell off the

stock cart. No one else had control of the stock cart. No one testified to the

contrary. Though it is heavily disputed as to whether the stock cart, or the cans, or

both, actually struck Ms. Guidry, it is uncontroverted that Mr. Wyant was solely in

control of the stock cart and the cans prior to cans leaving the stock cart.

Thus, our review of the record clearly indicates that there is no reasonable

factual basis for the jury’s finding that Mr. Wyant was not at fault in causing an

accident on June 14, 2011, and the record clearly establishes that the jury’s finding

is manifestly erroneous and clearly wrong. Therefore, we reverse the jury’s

finding as to fault and find that Mr. Wyant was at fault in causing an accident on

June 14, 2011.

Having found legal error, the manifest error standard of review no longer

applies. As set forth by this court in Clement v. Citron, 13-63, p. 4 (La.App. 3 Cir.

6/19/13), 115 So.3d 1260, 1264:

Where . . . legal error interdicts the fact-finding process, the manifest
error standard no longer applies. Ferrell v. Fireman’s Fund Ins. Co.,
94-1252 (La. 2/20/95), 650 So.2d 742. In such instances, if the record
is complete, the appellate court is charged to make its own
independent de novo review of the record.

We find that the record before us is complete; hence, we shall make an

independent de novo review of the record and decide this case.

In Detraz v. Lee, 05-1263, p. 8 (La. 1/17/07), 950 So.2d 557, 562 (quoting

Fowler v. Roberts, 556 So.2d 1, 4 (La.1989)), our supreme court defined liability

in a negligence case as:

The determination of liability in a negligence case usually requires
proof of five separate elements: (1) proof that the defendant had a
duty to conform his conduct to a specific standard (the duty element);
(2) proof that the defendant’s conduct failed to conform to the
appropriate standard (the breach element); (3) proof that the

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defendant’s substandard conduct was a cause-in-fact of the plaintiff’s
injuries (the cause-in-fact element); (4) proof that the defendant’s
substandard conduct was a legal cause of the plaintiff’s injuries (the
scope of liability or scope of protection element); and (5) proof of
actual damages (the damages element). (Emphasis added.)

Having determined that Mr. Wyant was at fault in causing the June 14, 2011

accident, we now address the issue of causation. Mr. Wyant and Market Basket

unequivocally refute Ms. Guidry’s contention that she was hit by the stock cart and

was injured as a result thereby. In addition to proving fault, Ms. Guidry also bears

the burden of proving legal causation. See Vita v. City of Lake Charles, 12-594

(La.App. 3 Cir. 12/12/12), 106 So.3d 232. To do so, Ms. Guidry must prove

through medical or lay testimony that it is more probable than not that the

subsequent injuries were caused by the accident. Id.

The jury in this case was faced with staunchly conflicting testimony in its

effort to determine whether Mr. Wyant was negligent and caused Ms. Guidry’s

personal injury. Ms. Guidry’s version of what occurred at Market Basket on June

14, 2011, was starkly different from Mr. Wyant’s version. Ms. Guidry describes a

violent collision. Mr. Wyant recalls a very minor incident. Mr. Wyant claims that

the stock cart did not touch Ms. Guidry; however, he testified that cans may have

rolled toward Ms. Guidry and that he was uncertain whether any cans ever made

physical contact with Ms. Guidry.

Mr. Wyant testified at trial by video deposition. Two other accounts

evincing Mr. Wyant’s explanation were also introduced at trial: a written statement

and a recorded statement. In all three, Mr. Wyant is consistent in stating that he

was pushing the stock cart when cans fell off the stock cart. According to Mr.

Wyant’s written statement:

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There were 3 boxes (flats) of can goods on the cart. When I turned
the corner[,] some of the can goods fell off of the cart and landed on a
customer’s lower leg and foot area. I immediately asked her if she
was okay and she said she was fine[,] and she walked away
continuing to shop.

In the recorded statement, Mr. Wyant was asked: “[Y]ou’re saying that cans hit

her, not the cart?” He answered:

[T]he cart did not hit her. The cans, they was [sic] in a case, it
was like 24 to a case. The cans hit the floor and when they did it
busted the plastic and the cans came out and one of them had hit her, I
guess it was her shin or her ankle or whatever. I[t] was on the bottom
of her leg down there.

Finally, in his trial deposition, Mr. Wyant remained consistent in his testimony that

he was pushing the stock cart when cans fell off the stock cart. The evidence

clearly establishes that Mr. Wyant was in control of the stock cart which was

loaded with cans. While pushing the stock cart, cans fell off the stock cart and

rolled toward Ms. Guidry. Mr. Wyant acknowledged Ms. Guidry and asked her

whether she was okay. Mr. Wyant admitted an accident; however, he adamantly

denies that Ms. Guidry was struck by the stock cart as she alleges.

Having reviewed the record to determine whether Ms. Guidry proved legal

causation, our examination reveals testimony which varied greatly as to the

circumstances surrounding Ms. Guidry’s injuries. The statements of Ms. Guidry

and her liability witnesses, Contrina Cahee and Khadisha Cahee, were particularly

divergent and irregular. The record reveals critical inconsistencies in their

testimonies which did little to shed clear light on what actually transpired.

Unquestionably, we are, as were the jurors, faced with serious credibility issues.

At her September 2012 deposition, Ms. Guidry described being violently

struck by Mr. Wyant’s stock cart, which caused it to fall over and pin her right leg

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to the ground for five minutes.3 Neither of her two eyewitnesses, however,

corroborated this element of Ms. Guidry’s version of the incident. At trial,

Ms. Guidry attempted to rectify her statements by claiming that she really meant to

say “seconds” when she said “minutes” during her deposition.

Contrina Cahee denied that Ms. Guidry was ever pinned under Mr. Wyant’s

stock cart. Khadisha Cahee also disputed that Ms. Guidry was pinned by the stock

cart. There were also inconsistencies in the deposition and trial testimonies of

Contrina Cahee and Khadisha Cahee as to the color of the stock cart that struck

Ms. Guidry and exactly which portion of the stock cart struck Ms. Guidry.

According to Mr. Wyant, he did not strike Ms. Guidry with a stock cart on

June 14, 2011. He testified that he recalled seeing Ms. Guidry, Contrina Cahee,

and Khadisha Cahee on that day in the Market Basket grocery store standing near

the meat case. He admits that as he pushed his stock cart towards them, he had to

stop abruptly because another customer walked into his path. This, he admits, did

cause cans to fall off the stock cart; however, Mr. Wyant unequivocally denied that

his stock cart flipped and pinned Ms. Guidry’s leg to the floor. He recalls cans

falling from the stock cart and rolling towards Ms. Guidry, but he was unsure

whether or not Ms. Guidry was struck by a can. However, at that time, Ms. Guidry

indicated to him that she was fine, and she acted as though nothing had happened.

In his defense at trial, Mr. Wyant exposed serious questions relative to

Ms. Guidry’s veracity. Questions were posed as to why the accident was not

reported to Market Basket personnel on June 14, 2011. Ms. Guidry claimed that

she tried to file a report, but she could not do so because Mr. Wyant disappeared

3
At her September 2012 deposition, Ms. Guidry initially claimed that her leg was pinned
beneath the stock cart for ten minutes.

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after the accident occurred. According to Mr. Wyant, Ms. Guidry indicated she

was fine, and there was neither a discussion of nor a need for an accident report

since there was no injury.

Ms. Guidry testified at her deposition that her injury prohibited her from

working on the days immediately following the accident. Ms. Guidry’s

employment records, which were introduced at trial, refute this claim. Other

inconsistencies were exposed relative to Ms. Guidry reporting to her treating

physicians that she was unable to work when her employment records showed that

she was, in fact, working.

Questions were posed as to why Ms. Guidry did not seek treatment for her

alleged ankle injury until June 18, 2011. Contrina Cahee testified that although

Ms. Guidry was in pain immediately after her alleged injury, she did not seek

treatment because she did not have medical insurance and did not know that Lake

Charles had a charity hospital. This testimony, however, was debunked by

evidence that Ms. Guidry had been to the charity hospital in Lake Charles on

several prior occasions.

Weighing the entirety of the evidence as to causation, we find the sworn

testimony most fatal. Ms. Guidry vacillated as to what transpired on June 14,

2011, falsehoods relative to her employment were exposed, and her own witnesses’

testimonies failed to corroborate her testimony and failed to substantiate her claim

of injury. Our de novo review of the record clearly establishes that Ms. Guidry

failed to prove that the legal causation of her injury was a result of the accident

caused by Mr. Wyant; hence, the trial court judgment denying and dismissing all of

her claims with prejudice was proper.

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DECREE

For the foregoing reasons, we reverse the jury’s finding as to fault, but

affirm the judgment in favor of Defendants, Kenneth Wyant and Market Basket

Stores, Inc., on the basis that Plaintiff, Destiny Guidry, failed to prove that her

alleged injury was legally caused by Mr. Wyant’s fault. All costs are assessed to

Plaintiff/Appellant, Destiny Guidry.

AFFIRMED.

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