Angel Ockman VS Wal-Mart Louisiana, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 CA 2270 ANGEL OCKMAN VERSUS WALMART LOUISIANA L C Judgment rendered September 21 2012 Appealed from the 21 Judicial District Court in and for the Parish of Tangipahoa Louisiana Trial Court No 2009 0001961 Honorable Elizabeth P Wolfe Judge RUSSELL W BEALL ATTORNEY FOR BATON ROUGE LA PLAINTIFF APPELLEE ANGEL OCKMAN THOMAS P ANZELMO ISIDRO RENE DEROJAS ATTORNEYS FOR DEFENDANT APPELLANT METAIRIE LA WALMART LOUISIANA LLC BEFORE PETTIGREW MCCLENDON AND WELCH J sat MCC J cyfs Dom Z ems yAJ PETTIGREW J Defendant appellant Wal Mart Louisiana L WalMart appeals from the C trial court judgment in favor of plaintiff appellee Angel Ockman which awarded plaintiff s damages for personal injuries sustained as a result of a slip and fall at Wal Mart on September 27 2008 For the reasons that follow we hereby affirm According to the record Ms Ockman alleges that several days after delivering a child she was shopping for sanitary napkins at the Wal Mart Super Center in Hammond Louisiana when she slipped and fell on shampoo that had been inexplicably spilled in an aisle of the store health and beauty aid section Ms Ockman claims her left leg went in s front of her while her right leg went behind her causing her right knee to strike the floor Ms Ockman also alleges that as a result of this fall she sustained a 2millimeter disruption of a previouslysutured 4millimeter perineal laceration that had been repaired following the birth of her child Ms Ockman testified that as a result of this accident certain undergarments cause her discomfort and she is embarrassed because she claims the sides of her vagina are not uniform in appearance This causes Ms Ockman anxiety with regard to sexual intimacy and as a result Ms Ockman claims to abstain from sex Ms Ockman subsequently filed suit against Wal Mart in the 21 Judicial District Court on June 3 2009 The matter proceeded to a bench trial on April 12 2011 At the conclusion of the evidence the trial court ruled in favor of Ms Ockman and awarded outofpocket medical expenses of 121 together with general damages of 40 plus legal interest 00 00 000 from the date of judicial demand and court costs The trial court signed a judgment in accordance with these findings on May 5 2011 It is from this judgment that Wal Mart 1 During the birth of her child Ms Ockman sustained a first degree laceration of the perineum that was repaired by three stitches In his deposition testimony Dr Gary Agena stated that a resuture of this laceration would have required another procedure and it was felt that such a procedure would not be warranted and would only cause Ms Ockman more pain Accordingly Dr Agena allowed the disruption to heal on its own with the application of topical anesthetics 2 has appealed Ms Ockman has answered the appeal seeking an increase in damages together with attorney fees On appeal Wal Mart initially challenges the trial court findings of fact on the s issues of liability and causation WalMart contends that pursuant to La R 9 S 2800 6 Ms Ockman failed to prove it had either actual or constructive notice of the spilled shampoo on the floor of the hair products aisle or that it failed to exercise reasonable care WalMart further argues that the court was clearly wrong in failing to require Ms Ockman to prove that her injuries were caused by her fall A manifest error review is applicable to these factdriven determinations It is well settled in Louisiana law that a trial court findings of fact may not be s reversed absent manifest error or unless clearly wrong Stobart v State of Louisiana Through Department of Transportation and Development 617 So 880 882 2d La 1993 The reviewing court must do more than just simply review the record for some evidence that supports or controverts the trial court findings it must instead s review the record in its entirety to determine whether the trial court findings were s clearly wrong or manifestly erroneous Id The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong but whether the fact finder s conclusion was a reasonable one Id If the findings are reasonable in light of the record reviewed in its entirety an appellate court may not reverse even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently Id at 882 883 The manifest error standard demands great deference to the trier of s fact findings for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener understanding and belief in what is s said Rosell v ESCO 549 So 840 844 La 1989 2d Thus where two permissible views of the evidence exist the fact finder choice between them cannot be manifestly s erroneous or clearly wrong Id In the present case the trial court opined Ms Ockman has satisfied all the elements of La R 9 There S 2800 6 was a foreign substance on the floor That again is undisputed in action alley on the date of the accident The condition existed for a time period 3 sufficient for Walmart employees to have discovered it if it had exercised reasonable care Again the Walmart employee Ms Martha Davis was near or in the area before the accident She did not testify she saw the spilled substance before the accident yet the substance was on the floor The spilled liquid created an unreasonable risk of harm to Ms Ockman and the risk of harm was foreseeable by Wal mart considering their employee was in the area of the spill The unreasonable risk of harm led to Ms s Ockman slip and fall There wasn any comparative negligence on Ms t s Ockman part that I heard Her attention was drawn to displayed merchandise that she was looking for Based upon a thorough review of the record we find that the trial court s conclusions are reasonable and that its findings are not manifestly erroneous WalMart s assignments of error numbers 1 2 3 and 4 are without merit WalMart also challenges the trial court damage award s Specifically WalMart attacks the trial court award of 40 in general damages to Ms Ockman for the s 00 000 partial disruption of the sutures that were used to repair the perineal laceration that she sustained during the birth of her child WalMart contends that an award of 40 is 00 000 grossly excessive for the exacerbation of a soft tissue injury sustained during childbirth that resolved itself within three weeks Because the purported disfigurement is barely noticeable and then only in the most intimate situations Wal Mart argues that the trial court abused its discretion in making such a high award In the assessment of damages in cases of offenses quasi offenses and quasi contracts much discretion must be left to the trier of fact La Civ Code art 2324 The 1 standard for appellate review of general damages is set forth in Youn v Maritime Overseas Corp 623 So 1257 1261 La 1993 cert denied 510 U 1114 114 2d S Ct S 1059 127 L 379 1994 wherein the Louisiana Supreme Court stated that 2d Ed the discretion vested in the trier of fact is great and even vast so that an appellate court should rarely disturb an award of general damages The appellate court initial s 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 Youn 623 So at 1260 The role of the appellate court 2d in reviewing general damage awards is not to decide what it considers to be an Ci appropriate award but rather to review the exercise of discretion by the trier of fact Millican v Ponds 991052 p 6 La App 1 Cir 6 762 So 1188 1192 00 23 2d Based upon our review of the evidence before us we find no abuse of discretion by the trial court in the damages awarded While the damage awards in this case may be on the high side they are not so high as to constitute an abuse of the trial court vast s discretion Given the particular injuries and their effects under the particular circumstances on Ms Ockman the trial court damage award is not beyond that which a s reasonable trier of fact could assess See Youn 623 So at 1260 2d Wal Mart s assignment of error number 5 is similarly without merit For the above and foregoing reasons we affirm the judgment of the trial court and reject Ms Ockman request for an increase in damages put forth in her answer to the s appeal All costs associated with this appeal shall be assessed against defendant appellant Wal Mart Louisiana L We issue this memorandum opinion in accordance C with Uniform Rules Courts of Appeal Rule 2 16 1B AFFIRMED 5 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 2270 ANGEL OCKMAN VERSUS WALMART LOUISIANA L C McCLENDON J dissents and assigns reasons Plaintiff failed to establish that the condition existed for some time prior to her fall as required by LSA9 6 800 Absent some showing of this temporal element the statute does not allow for the inference of constructive notice See White v WalMart Stores Inc 970393 La 9 699 So 1081 1084 97 2d Therefore I respectfully dissent
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