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United States Court of Appeals,
Fifth Circuit.
No. 94-30176
Summary Calendar.
Yvonne ESPOSITO and Louis Esposito, Plaintiffs-Appellees,
Jason C. DAVIS and MKS Productions, Inc., d/b/a Southern Lady
Shows, and Essex Insurance Company, Defendants-Appellants.
March 13, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Appellants/defendants Jason Davis ("Davis"), MKS Productions,
Inc. d/b/a Southern Lady Shows ("MKS"), and Essex Insurance
Company, appeal from a judgment in this trip-and-fall diversity
case. Applying Louisiana substantive law to the jury's findings,
the district court entered judgment for appellees/plaintiffs Yvonne
Esposito and her deceased husband, Louis ("Esposito"). We AFFIRM.
I. Background Facts
As pedestrians exited at the close of an arts and crafts show,
Davis, an MKS employee, was standing on an apron at an entrance of
the Pontchartrain Center when he suddenly and without warning
turned 180 degrees and collided with Esposito, an eighty-year-old
woman. Esposito was knocked to the ground, fracturing her hip.
She was taken to the hospital where she underwent hip-replacement
surgery. She was hospitalized for six-weeks and was left with a

twenty-percent permanent physical impairment to her leg, as well as
aggravation of a pre-existing arthritic condition in her back.
The jury awarded Esposito $45,000 in medical expenses,
$190,000 in general damages, and $5,000 to her husband who died
after suit was filed. The jury also found Esposito twenty-five
percent responsible for the accident; the district court's
judgment reflects this finding.
Appellants contend that Davis was not negligent as a matter of
law; challenge the jury's allocation of fault; argue for a
remittitur; and claim that the district court should have excluded
the testimony of an "undesignated" eyewitness. We find no merit in
any of these complaints.
II. Negligence
Duty. Appellants argue that they cannot be held liable for
negligence because Davis owed no duty to Esposito. Specifically,
they contend that, as a matter of law, it would be unreasonable
under any circumstances to impose a duty upon a pedestrian to keep
a proper lookout prior to turning around.
The Louisiana law governing trip-and-fall cases was recently
detailed in Frelow v. St. Paul Fire & Marine Ins. Co., 631 So.2d
632, 635 (La.Ct.App.1994), as follows:
Generally, negligence is defined as conduct which falls below
the standard established by law for the protection of others
against an unreasonable risk of harm. The test for
determining whether a risk is unreasonable is supplied by the
following formula. The amount of caution demanded of a person
by an occasion is the result of three factors: the likelihood
that his conduct will injure others, taken with the
seriousness of the injury if it happens, and balanced against
the cost of the precaution he must take to avoid the risk. If
the product of the likelihood of the injury exceeds the burden

of the precautions, the risk is unreasonable and the failure
to take precautions is negligence.
In Frelow, the court affirmed the jury's negligence finding when a
patron tripped over a busboy's foot as he was clearing a table.
Applying the test to that particular trip-and-fall, the court
Under the general principles of fault arising from LSA-C.C.
art. 2315, we find that [the employee] did have a duty to the
[defendant's] customers to use reasonable care not to obstruct
the aisles so that the customers could travel freely between
the food service stations and the tables. A reasonable man
would realize that he may trip someone if he extends his leg
into an aisle in a self service restaurant.
Frelow, 631 So.2d at 635. Clearly then, Louisiana law recognizes
a legal duty on the part of employees to exercise reasonable care
not to obstruct the flow of pedestrian traffic. Given the facts of
this case and the balancing test in Frelow, it is plain that the
burden imposed upon Davis to keep a proper lookout in the access
area to a building, is light compared to the likelihood of serious
injury when a patron is knocked to the ground. The burden of such
a precaution is reasonable in order to protect customers or
pedestrians in their use of the access areas to a building.
Consequently, we reject appellants' contention that there is no
legal duty.
Sufficiency of Evidence. Appellants also argue that the
evidence is not legally sufficient to support a finding of
negligence on the part of Davis. When determining legal
sufficiency, we view the record in the light most favorable to the
prevailing party and draw all inferences in their favor. See
Becker v. PaineWebber, Inc., 962 F.2d 524, 526 (5th Cir.1992).

While state law provides the substantive rules and tests in
diversity cases, the applicable federal standard of review for a
jury's verdict is one of reasonableness. See Ayres v. Sears,
Roebuck & Co., 789 F.2d 1173, 1175 (5th Cir.1986).
The record reveals that for five or ten minutes at closing
time, Davis and another employee were standing on the apron of the
Pontchartrain Center talking to each other, talking to people
exiting, and talking to people in the parking lot about getting a
car to pick them up. Esposito and her family exited the Center and
headed toward the parking lot. Davis and the other employee
started to walk off. Esposito, a paid attendee of the craft show,
followed behind and to the side of Davis. Esposito was walking in
a straight line when Davis suddenly and sharply turned, without
looking, took a step or two, and knocked her to the ground. To at
least one witness, it appeared as if Davis had forgotten something
because he snapped his fingers while quickly turning. Davis
admitted that he did not look when he turned. Davis also admitted
that he knew that elderly persons would be on the premises and
exiting at this time.
We conclude that the evidence adduced at trial is legally
sufficient and that a jury could reasonably conclude that Davis was
III. Damages
Appellants next contend that the district court erred by not
granting their motion for new trial or remittitur, complaining of
excess damages. First, we point out that the jury's findings are

not being attacked directly, as in a sufficiency challenge.
Instead, the award is challenged through the district court's
discretionary decision not to grant a new trial or remittitur.
Thus, our standard of review is abuse of discretion of the district
court, rather than the reasonableness of the jury's award. See
Stokes v. Georgia-Pacific Corp., 894 F.2d 764 (5th Cir.1990).
Under these circumstances, there is no abuse of discretion
denying a motion for new trial unless there is a complete absence
of evidence to support the verdict. Vallot v. Central Gulf Lines,
Inc., 641 F.2d 347, 349 (5th Cir.1981) (per curiam). Esposito
presented the following evidence on the issue of damages. Esposito
endured hip replacement surgery, requiring a six-week hospital
stay. Because of her injury, she was unable to care for her
husband as he died of cancer. She has lost the freedom of
independent living, no longer able to walk, shop, cook, or clean
without pain. Moreover, the permanent disability to her hip has
aggravated a pre-existing arthritic condition in her back. There
is obviously not an absence of evidence to support the verdict.
Interestingly enough, the appellants did not seriously contest
any of the damage evidence. In fact, during their jury argument,
the appellants never discussed the quantum of damages. We are
puzzled, if not dismayed, that the appellants complain after the
fact of the amount of the jury's award. We also note that the jury
awarded less than the sums suggested by appellees.
The district court observed the witnesses, weighed the
evidence, and assessed the fairness of the damages awarded.

Plainly, the award of damages is not so excessive as to be the
product of passion or prejudice. See Allen v. Seacoast Prods.,
Inc., 623 F.2d 355, 364 (5th Cir.1980). Consequently, the district
court did not abuse its discretion in denying appellants' motions.
IV. Lisa Audibert's Testimony
Finally, appellants contend that the district court abused
its discretion by allowing Lisa Audibert, an eyewitness, to
testify. In July, 1991, Audibert was identified by appellees in
response to interrogatories as a "witness," but not specifically
identified as an "eyewitness." She was subsequently identified in
writing on numerous occasions as a witness and, on at least one
occasion, was identified during a deposition as being present at
the scene of the accident when it occurred; she was one of the
five women with Esposito when she was knocked to the ground. In
February, 1992, the pretrial order identified Audibert as an
"eyewitness." All parties signed the pretrial order.
This case came to trial in January, 1994, almost two years
after the pretrial order had been submitted to the district court.
When Audibert was called to testify about what she saw, appellants
objected on the ground that she was not identified as an
"eyewitness" in the July, 1991, interrogatories. The district
court ruled that Audibert was properly disclosed as a witness and,
as such, would be allowed to testify. While appellants claim that
they were severely prejudiced by Audibert being allowed to testify,
they never voiced any claims of prejudice or surprise when the
district court made its ruling.

A district court's ruling on the admissibility of evidence is
reviewed for an abuse of discretion. See United States v. Abel,
469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Moreover, it
almost goes without saying that this type of decision is within the
sound discretion of the district court. Jon-T Chems., Inc. v.
Freeport Chem. Co., 704 F.2d 1412, 1417 (5th Cir.1983). Given the
facts set out above, clearly the district court did not abuse its
discretion in allowing Audibert to testify.
We AFFIRM the district court's judgment.


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