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Melder v. Brookshire's Grocery Co.

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

ESTHER G. MELDER
v.
BROOKSHIRE'S GROCERY COMPANY, ET AL

APPEAL fro THE TENTH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES, NO. C-85464, DIV. A HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE.

AFFIRMED AS AMENDED.

David A. Hughes, Hughes Law Firm, Alexandria, LA, COUNSEL FOR DEFENDANTS/APPELLANTS: Brookshire's Grocery Company, DeRon Floyd, Allen Hudson, Richard Cogburn.

Otis E. Dunahoe, Jr., Dunahoe Law Firm, Natchitoches, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Esther G. Melder.

Gayla M. Moncla, Kean Miller LLP, Baton Rouge, LA, COUNSEL FOR PLAINTIFF/APPELLEE: Esther G. Melder.

Court composed of John D. Saunders, Jimmie C. Peters, and James T. Genovese, Judges.

OPINION

Page 782

[14-669 La.App. 3 Cir. 1] PETERS, J.

The defendants in this litigation, Brookshire's Grocery Company (Brookshire's), Richard Cogburn, Deron Floyd, and Allen Hudson, appeal a trial court judgment rendered against them awarding the plaintiff, Esther Gay Melder, $343,331.12 in compensatory damages for injuries she sustained in an accident which occurred in a Natchitoches, Louisiana Brookshire's grocery store on July 23, 2011. For the following reasons, we amend the judgment to reflect that Deron Floyd and Allen Hudson were not cast in judgment, but affirm the judgment in all other respects.

DISCUSSION OF THE RECORD

Esther Gay Melder, a Natchitoches, Louisiana resident, was shopping in a Natchitoches Brookshire's grocery store on July 23, 2011, when a sign located over a cooler in the meat and seafood department fell and struck her. The sign

Page 783

weighed approximately five pounds and measured twenty-three and five-eighths inches by forty-eight inches by one-half inch. The sign had been in place for approximately four years and was installed by Richard Cogburn, the Marketing Manager of Brookshire's Natchitoches store.

Mrs. Melder filed a petition for damages on July 18, 2012, alleging that the negligence and fault of Brookshire's, concurrently with the negligence and fault of its employees, Deron Floyd, Allen Hudson, and Richard Cogburn, caused the accident and her injuries. The matter ultimately went to trial on November 7, 2013, and upon completion of the evidence, the trial court factually found that Brookshire's breached its duty to keep its premises safe for patrons, as did its employee, Mr. Cogburn. The trial court also found no fault on the part of Mrs. Melder or the remaining two defendants. After allowing the parties to submit [14-669 La.App. 3 Cir. 2] quantum briefs, the trial court issued written reasons for judgment which set the quantum recovery as follows:

General damages

Pain and suffering since the accident

$84,000.00

Future pain and suffering, including surgery

150,000.00

Loss of enjoyment of life

40,000.00

Totals

$274,000.00

Special damages

Past Medical:

Natchitoches Regional Medical Center

$3,644.50

Ashley Ridge Imaging

3,100.00

Dr. Russell Tynes

2,286.12

Dr. Anil Nanda

487.50

Totals

$9,518.12

Future Medicals for surgery:

Willis Knighton Medical Center

$42,000.00

Dr. Nanda

17,813.00

Totals

$59,813.00

Total Award

$343,331.12

After the trial court executed a judgment corresponding to its reasons for judgment, the defendants perfected this appeal. In their appeal, they assert four assignments of error:

1. The trial court erred in not considering the evidential contradictions of Mr. and Mrs. Melder and their son's testimony (as to her health problems prior to the incident at issue) as opposed to records and testimony of fact.
2. The trial court erred in its award of both the past and future physical and mental pain and suffering as well as future medical and loss of enjoyment of life.
3. The trial court erred in including the estimated cost of Dr. Nanda's future services with his ...

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