Court: Louisiana Court of Appeal; December 26, 1990; Louisiana; State Appellate Court
The Court of Appeal of Louisiana affirmed a trial court's judgment awarding damages to plaintiffs Raymond L. and Jerry B. Hoffman for injuries sustained by Ms. Hoffman in a slip and fall accident at a Schwegmann Giant Super Markets store on August 30, 1981. Ms. Hoffman fell while pushing her shopping basket but did not identify the cause of her fall. Witness Sue B. Mallaun provided assistance and did not observe any debris on the floor. Mr. Hoffman arrived shortly after the incident and both remained in the aisle for about fifteen minutes. A Schwegmann employee, referred to only as "Mike," later informed the Hoffmans that hair styling gel had dripped onto the floor where Ms. Hoffman fell. The defense challenged the admissibility of Mike's statement as hearsay but the court ruled it admissible under Louisiana law, specifically La. C.E. art. 801 D(3)(a), which allows statements made by an agent or employee concerning matters within the scope of their employment. Evidence presented at trial established Mike's employment status and his involvement at the scene, including assisting with paperwork and offering to cover medical expenses. The court found sufficient evidence to support the admission of Mike's statements regarding the incident.
Schwegmann acknowledges in its memorandum that "Mike" was identified as employee Tony LaFauci. The trial judge's determination of an employer-employee relationship was not manifestly erroneous due to the lack of rebuttal evidence. A slip-and-fall incident is within a security guard's employment scope, and the defendant's failure to call LaFauci to testify creates a presumption that his testimony would have been unfavorable to the defendant's case. Consequently, the statement attributed to "Mike" was not considered hearsay, and the trial court correctly found that a hazardous substance was present on the floor, contributing to the plaintiff's fall.
The defendant further argues that the trial court abused its discretion in awarding what it deemed excessive damages. However, the assessment of damages is largely within the trier of fact's discretion, and an appellate court will not interfere unless a clear abuse of discretion is demonstrated. In this case, the trial court awarded $30,000 for physical pain and suffering, $60,000 for mental pain and suffering, $8,000 for loss of consortium, and $7,800 for lost wages. Given the circumstances, no abuse of discretion was found, and the awards were deemed supported by credible evidence, leading to their affirmation.
In dissent, Judge Williams contends that the trial court improperly admitted hearsay from a Schwegmann employee without establishing the requisite employer-employee relationship or that the statement was within the scope of employment. The dissent also argues the hearsay should not have been admitted under the res gestae exception due to a lack of evidence connecting the condition observed by the declarant to the time of the plaintiff's fall or the excitement of the incident. Furthermore, it is claimed that there was insufficient credible evidence of a foreign substance on the floor. The plaintiff, Ms. Hoffman, slipped after selecting hair coloring, but she did not ascertain what caused her fall. The only witness present did not observe anything on the floor to suggest a hazardous condition.
Mr. Hoffman testified that he did not see anything on the floor where his wife fell, and both plaintiffs stated that a Schwegmann employee named "Mike" assisted Ms. Hoffman in filling out forms after the incident. They reported that Mike later mentioned hair styling gel had dripped onto the floor where the fall occurred. Schwegmann objected to this testimony as hearsay, arguing that there was no evidence proving Mike's employment or that his statements were within the scope of his duties. The court admitted the testimony as a declaration against interest and under the res gestae exception to the hearsay rule. However, the court found that plaintiffs failed to establish a proper foundation for admitting Mike's statement as an admission of a party opponent under Louisiana law, as they did not provide evidence of Mike's employment relationship with Schwegmann. Furthermore, the court agreed with Schwegmann's argument that the admission of Mike's statement as "res gestae" was improper due to lack of contemporaneity and excitement, which are required for such evidence.
LSA-C.E. art. 803 outlines exceptions to the hearsay rule, specifically present sense impressions and excited utterances. A present sense impression requires a statement made while perceiving an event or immediately thereafter, with strict adherence to immediacy. An excited utterance must be made during the stress of excitement from a startling event. In this case, the declarant did not witness the plaintiff's fall nor observe any hazardous condition at the time of the incident. The declarant's statement, made at least fifteen minutes post-incident, failed to meet the criteria for either exception, leading to the conclusion that the trial court erred in admitting his hearsay testimony.
Additionally, Schwegmann argued that the trial court mistakenly held them liable without credible evidence of a hazardous condition, specifically a foreign substance causing the plaintiff's fall. In slip and fall cases, the plaintiff must prove that such a substance caused the incident before the burden shifts to the defendant. The record lacked admissible evidence of a foreign substance on the floor, with all credible testimony indicating the floor was clear. Without this evidence, the plaintiff did not establish a prima facie case, warranting a reversal of the trial court's judgment.
The judgment of the trial court is to be reversed in favor of defendant Schwegmann. A subpoena was issued to Tyronne Lafauci, served on February 10, 1989, but he was not called to testify. The trial court initially excluded hearsay testimony regarding the plaintiff's fall, allowing only Mr. Hoffman’s testimony about Mike's statement as an admission by a party opponent. Subsequently, Ms. Hoffman was permitted to testify under the res gestae exception to hearsay. It was noted that a statement identifying "Mike" as a Schwegmann employee, made by defense counsel post-trial, did not count as evidence before the court and did not qualify as a judicial confession. The plaintiffs had the burden to establish the employment relationship for Mike's statement to be admissible against interest, and the defendant's choice not to call Mike did not imply unfavorable testimony. Schwegmann's appeal referenced LSA-R.S. 9:2800.6, which pertains to slip and fall cases but is not applicable retroactively as it became effective after the plaintiff's accident.
