Opinion
No. 98-CA-417.
October 14, 1998.
Appeal from the 24th Judicial District Court, Parish of Jefferson, No. 498-693, Charles V. Cusimano, J.
Steven K. Faulkner, Jr., Metairie, for plaintiff-appellant.
Frederick R. Campbell, Adrian F. LaPeyronnie, Catherine M. Williams, Campbell, McCranie, Sistrunk, Anzelmo Hardy, Metairie, for defendant-appellee.
Before GAUDIN, DUFRESNE and CANNELLA, JJ.
This is an appeal from a judgment of the 24th Judicial District Court dismissing Betty Lannes' claim for injuries sustained in a slip and fall accident. We affirm.
No doubt Ms. Lannes fell on March 9, 1997 outside Denny's restaurant on South Causeway Boulevard in Jefferson Parish. The trial judge, however, placed no credibility in either Ms. Lannes' testimony or that of the only other testifying witness, Ms. Lannes' niece Michelle Mauer, particularly with regard to exactly where Ms. Lannes fell. She said she went down "halfway in and halfway out" the restaurant's front doors while Mrs. Mauer's testimony appears to indicate that Ms. Lannes fell in the parking lot. This is from Mrs. Mauer's testimony:
Q . . . did your aunt fall that day? Did you see her fall?
A — Yeah she did fall.
Q Okay. Where were you when she fell?
A — In the parking lot.
Q In . . .
A — Denny's parking lot. We were walking to the car.
The trial judge assigned these written reasons for judgment:
"After considering the record, the testimony, the evidence, and the law, the court is of the opinion that the plaintiff is not entitled to judgment in her favor. The Court bases its ruling on the following. This Court finds that the plaintiff, a customer of Denny's has not met her burden of proof that she slipped and fell at Denny's. The Court noted that plaintiffs testimony conflicted numerous times with the testimony of Michelle Mauer, the plaintiffs niece, regarding the circumstance surrounding the accident leaving the Court to find neither testimony credible. In particular, the plaintiff testified that she slipped and fell on a foreign substance in the doorway of Denny's while Ms. Mauer testified that the plaintiff fell on some food that Ms. Mauer had seen earlier that was located clearly outside of the restaurant. Additionally, the plaintiff testified that she was seated in the car when Ms. Mauer remembered that her keys were in the restaurant and asked the plaintiff to retrieve them. Ms. Mauer, however, testified that they were walking to the car in the parking lot when her brother remembered that he had left his keys in the restaurant and asked the plaintiff to retrieve them. Finally, the plaintiff testified that they had gone straight to Denny's while Ms. Mauer testified that they had done several errands prior to their breakfast at Denny's."
This is, we believe, a manifest error case. This Court's function is not to set aside findings of fact based on reasonable evaluations of credibility. Here, the record supports the judgment.
AFFIRMED.
CANNELLA, J., dissents with reasons.
I respectfully dissent from the majority determination that the trial court decision, "based on reasonable evaluations of credibility," should be affirmed.
There was no credibility determination to be made in this case. Plaintiffs evidence was uncontradicted. The defendant put on no defense. Plaintiff presented evidence establishing that she slipped and fell in the parking lot, directly outside the front doors of the restaurant, on a food substance that had been on the ground for over an hour. Defendant put on no witnesses, testimony or evidence.
The Supreme Court has directed that "[t]he principles of appellate review do not require an appellate court to affirm the trier of fact's refusal to accept as credible uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles." Mart v. Hill, 505 So.2d 1120 (La. 1987); Butler v. Zapata Haynie Corp., 92-71 (La.App. 3rd Cir. 2/23/94), 633 So.2d 1274; Butler v. Zapata Haynie Corp., 94-1171 (La.7/5/1994), 639 So.2d 1186, amended judgment as to damages only; Dugas v. Fontenot Motors, 510 So.2d 1374 (La.App. 3rd Cir. 1987). "To extend the quality of immutability to a fact finder's determinations simply because it articulates the magical word, `credibility' effectively limits and circumvents an appellate court's constitutionally given power to review facts." Butler, 633 So.2d at 1279.
The trial judge and the majority herein find support in their judgment by citing discrepancies in the plaintiffs witnesses' testimony. However, the record clearly indicates that any discrepancies were on minor points, like how many stops they made before eating at the restaurant, and were not relevant to the essential facts of plaintiffs case. The record as a whole indicates consistency in the witnesses' testimony on the essential facts, that the plaintiff slipped and fell outside the doorway to the restaurant on a food substance that the witness had seen there over an hour earlier on her way into the restaurant.
Accordingly, I find the trial court's refusal to accept as credible the uncontradicted testimony of plaintiff and her niece on the essential facts of the case to be manifestly erroneous, and dissent from the majority opinion affirming the trial court judgment.