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Darton v. Kroger Company8/25/1998
DARTON v. KROGER CO., 30771 (La.App. 2 Cir. 8/25/98);
APPEAL FROM TWENTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BOSSIER, NO. 94,020, STATE OF LOUISIANA, HONORABLE CECIL P. CAMPBELL, II, J.
In this personal injury case, the plaintiffs, Jo Hale Darton and Robert Darton, appeal the trial court's judgment granting an involuntary dismissal in favor of the defendants, The Kroger Company and Continental Casualty Company. For the following reasons, we reverse the trial court's judgment of dismissal and remand for further proceedings.
FACTS
On October 25, 1995, plaintiffs were shopping at the Kroger Grocery Store ("Kroger") located at 4100 Barksdale Boulevard, Bossier City, Louisiana. Jo Darton approached the end of an aisle in the store and tripped and fell as she attempted to turn and proceed up the adjacent aisle. According to Darton, she tripped over a wooden pallet. The wooden pallet, located at the end of the aisle, was being used as a base for a soft drink display. At the time of the accident, the soft drink vendors were in the process of changing the display and the pallet was empty.
Plaintiffs filed suit against defendants to recover damages for injuries sustained as a result of the accident. In preparation for the trial, the defendants deposed Jo Darton regarding her claim. According to plaintiffs, they made several requests for a copy of the transcript of the deposition, but they never received a copy. Plaintiffs filed a motion to compel production of the deposition transcript and defendants filed an opposition to plaintiffs' motion. After a hearing, the trial court informed plaintiffs that they could either pay $67 to the court reporter to secure a copy of the transcript or take their own copier to the opposing counsel's office to copy the transcript.
A bench trial was held on July 1, 1997. At the close of plaintiffs' case, the defendants moved to dismiss the case. The trial court granted defendants' motion, finding that plaintiffs had failed to prove their case by a preponderance of the evidence. Plaintiffs appeal this judgment of dismissal asserting that the trial court erred in denying plaintiffs motion to compel defendants to produce the transcript of Jo Darton's deposition, in allowing defendants to use the deposition during trial and in granting defendants' motion to dismiss.
DISCUSSION
Plaintiffs assign as error the trial court's grant of the defendant's motion to dismiss. They argue that the trial court erred in finding that they had failed to prove their case by a preponderance of the evidence.
LSA-C.C.P. art. 1672 (B) provides that in an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal on the grounds that upon the facts and law, the plaintiff has failed to show a right to relief. In a non-jury case, the appropriate standard for the trial court's determination of a motion to dismiss is whether the plaintiff has presented sufficient evidence to establish her claim by a preponderance of the evidence. Vig v. City of Shreveport, 28,530 (La. App. 2d Cir. 8/21/96), 679 So.2d 524.
Proof by a preponderance of the evidence means that, when taken as a whole, the evidence shows that the fact or cause sought to be proved is more probable than not. Vig v. City of Shreveport, supra; Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366 (La. App. 2d Cir. 1988). A dismissal based on Article 1672 (B) should not be reversed in the absence of manifest error or unless clearly wrong. Vig v. City of Shreveport, supra.
Claims against merchants for damages arising from injuries sustained
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