Opinion
NO. 21-CA-633
05-25-2022
Sandra DORSEY v. DON'S SEAFOOD HUT OF METAIRIE, et al.
COUNSEL FOR PLAINTIFF/APPELLANT, SANDRA DORSEY, Connie P. Trieu, Brandon Melerine COUNSEL FOR DEFENDANT/APPELLEE, DON'S SEAFOOD HUT OF METAIRIE, THE PHOENIX INSURANCE COMPANY, DON'S SEAFOOD HUT, INC., DON'S SEAFOOD AND STEAKHOUSE OF BATON ROUGE, INC. AND TRAVELERS PROPERTY, CASAULTY COMPANY OF AMERICA, Michael R. Zsembik, Metairie
COUNSEL FOR PLAINTIFF/APPELLANT, SANDRA DORSEY, Connie P. Trieu, Brandon Melerine
COUNSEL FOR DEFENDANT/APPELLEE, DON'S SEAFOOD HUT OF METAIRIE, THE PHOENIX INSURANCE COMPANY, DON'S SEAFOOD HUT, INC., DON'S SEAFOOD AND STEAKHOUSE OF BATON ROUGE, INC. AND TRAVELERS PROPERTY, CASAULTY COMPANY OF AMERICA, Michael R. Zsembik, Metairie
Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and John J. Molaison, Jr.
MOLAISON, J.
In this case, which arises from a slip and fall accident, the plaintiff appeals the trial court's grant of the defendants’ motion for a directed verdict. For the reasons that follow, the judgment of the trial court is affirmed.
PROCEDURAL HISTORY
On June 8, 2017, the plaintiff/appellant, Ms. Sandra Dorsey, filed a petition for damages at the Twenty-Fourth Judicial District Court in which she alleged that on June 9, 2016, she was a patron at Don's Seafood Hut ("Don's") in Metairie and sustained injuries after she "tripped and slipped" on the floor in a dining area of the restaurant. On August 10, 2017, Don's answered the petition and denied all of Ms. Dorsey's allegations. On September 15, 2020, Don's filed a motion for summary judgment on the issues of whether there was a slight elevation to the floor in the area where Ms. Dorsey fell, and whether the floor was slippery at the time of the fall. A hearing on Don's motion was held on December 16, 2020. In an order dated December 23, 2020, the trial court denied Don's motion for summary judgment as to Ms. Dorsey's claim that the site of the fall had an elevation change, but granted summary judgment on the issue of whether Don's had notice of a slippery condition on the floor at the time Ms. Dorsey fell. The case proceeded to a jury trial on May 10, 2021. At the close of Ms. Dorsey's case, which consisted of the deposition testimony of her former co-worker, Mr. Richard Jackson, as well as the testimony of Ms. Dorsey herself, Don's orally moved for the trial court to grant a directed verdict. In ruling from the bench, the trial court opined that it would grant a directed verdict on the basis that Ms. Dorsey had not established causation for her alleged fall. This timely appeal followed.
The record contains a written judgment granting Don's directed verdict dated May 10, 2021.
ASSIGNMENT OF ERROR
The sole assignment of error on appeal is whether the trial court erred in granting the defendants’ motion for a directed verdict.
LAW AND ANALYSIS
The testimony at trial
In the instant case, at trial Ms. Dorsey first offered during her case-in-chief the redacted deposition testimony of Richard Jackson, a former co-worker who was with her at Don's on the date of her fall. Mr. Jackson recalled that Ms. Dorsey fell close to the middle of the restaurant, near what he identified as a "little silver drain." Mr. Jackson was not sure if the floor at Don's was uneven, and he described it as "a regular floor like at all restaurants." He did not recall the type of flooring in Don's at that time. On cross-examination, Mr. Jackson stated that, in his experience from working in a restaurant, the drain sits a "little lower" than the floor.
At trial, Ms. Dorsey testified, in relevant part, that while walking across the main dining room floor of Don's on the date of the accident, one of the short heeled shoes she was wearing "caught into something in the floor." On cross-examination, Ms. Dorsey stated that she had not mentioned the presence of a drain in her previous deposition, but did mention "an elevation in the floor and some type of indentation in the floor." However, at no time after the accident did Ms. Dorsey examine the area where she fell. Ms. Dorsey also clarified that she did not know what caused the fall, only that her "heel was caught on something in the floor."
Motion for a directed verdict
A motion for a directed verdict is a procedural device available in trials by jury with an eye toward judicial economy. Reed v. Columbia/HCA Info. Sys., Inc ., 00-1884 (La. App. 5 Cir. 4/11/01), 786 So.2d 142, 145, writ denied , 01-1384 (La. 6/22/01), 794 So.2d 796. The motion is appropriately made at the close of the evidence offered by the opposing party and should be granted when, after considering all of the evidence in the light and with all reasonable inferences most favorable to the movant's opponent, it is clear that the facts and inferences point so overwhelmingly in favor of granting the verdict, that reasonable jurors could not arrive at a contrary result. Id . However, if there is evidence produced in opposition to the motion that has such quality and weight that reasonable and fair-minded men, exercising impartial judgment, might reach different conclusions, then the motion should be denied and the case should be submitted to the jury. Id . The trial court has much discretion in determining whether or not a motion for a directed verdict should be granted. Joseph v. Cannon , 609 So.2d 838, 843 (La. App. 5 Cir. 1992), writ denied , 623 So.2d 1330 (La. 1993), cert. denied , 510 U.S. 1097, 114 S.Ct. 935, 127 L.Ed.2d 226 (1994). The standard of review for the appellate court is whether, viewing the evidence submitted, reasonable people could not reach a contrary result. Reed, supra at 146. Moreover, the propriety of a directed verdict must be evaluated in light of the substantive law related to the claims. Id .
At the close of Ms. Dorsey's case, Don's argued in its motion for a directed verdict that Ms. Dorsey did not prove the existence of a defect in the floor at the time of her fall or that a defect, if one existed, presented an unreasonable risk of harm. In granting Don's motion, the trial court agreed that Ms. Dorsey did not meet her burden of showing a cause for the fall or that an unreasonably dangerous defect existed.
In a similar case, Baudy v. Travelers Indem. Co. of Connecticut , 13-832 (La. App. 5 Cir. 4/9/14), 140 So.3d 125, the plaintiff alleged that she was injured while walking on a sloped driveway in a shopping center. At trial, the plaintiff testified inconsistently with her deposition as to the cause of her fall. In addition, the defendants’ expert, who testified by agreement during the plaintiff's case-in-chief, testified that the slope in question conformed to the relevant building code and further that he did not find any unreasonably dangerous conditions in the area where the plaintiff's fall occurred. At the close of the plaintiff's case, the defendants moved for a directed verdict on the basis that the plaintiff had failed to establish the existence of an unreasonably dangerous condition on the defendants’ property, or that the defendants knew, or should have known, of an unreasonably dangerous condition. The trial court granted the directed verdict. On appeal, this Court affirmed the trial court's ruling, reasoning:
Plaintiffs presented no additional evidence, expert or lay testimony, to support their claim that defendants' property was defective. Conversely, defendants offered testimony from their expert, Argus, establishing that the curb, sidewalk and driveway of defendants' property all measured within code limits, and that no unreasonably dangerous or defective conditions existed in the area of Mrs. Baudy's fall. Considering all the evidence submitted at trial, we find that there was no evidence of a dangerous condition upon which reasonable people could reach a contrary result and find defendants liable for Mrs. Baudy's injuries. Accordingly, we find no error in the trial court's grant of defendants' motion for directed verdict.
Id . at 132.
Similarly, in the instant case, our review of the record confirms the trial court's finding that Ms. Dorsey had not identified the cause of her fall at Don's. While she mentioned the existence of a "drain" in her trial testimony, in her deposition she did not. To the extent Ms. Dorsey argued that a slight elevation or indentation in the restaurant's flooring may have caused her to fall, she produced no evidence that such as condition existed or, if it did, that it was unreasonably dangerous. Ms. Dorsey also did not meet her burden of showing that Don's knew or should have known of an unreasonable risk of harm that existed in the area where she fell.
Conclusion
After a review of the record in light of the substantive law, and giving all reasonable inferences most favorable to Ms. Dorsey, we find no error in the trial court's ruling granting defendants’ motion for a directed verdict. For the reasons stated above, Ms. Dorsey did not produce evidence of the existence of an unreasonably dangerous condition which caused her to fall, or that Don's knew or should have known of any such condition. We also agree with the trial court that, given the evidence presented, reasonable people could not reach a contrary result as to Don's liability in this case. Accordingly, the judgment of the trial court is affirmed.