* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-30168

Summary Calendar

LOUISE J. CHILDS,

Plaintiff-Appellee,

VERSUS

WAL-MART STORES, INC.,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

(94-CV-1858)

August 28, 1996

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

In this personal injury suit against Wal-Mart Stores, Inc.,

(“Wal-Mart”), the jury returned a verdict in favor of Louise J.
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Childs, (“Childs”), finding that she suffered injuries from being

struck by a swinging automatic door at a Wal-Mart store in

Shreveport, Louisiana and that Wal-Mart was both negligently and

strictly liable for her injuries. Childs sustained a fractured hip

and a fractured knee. 

The jury did not find that Childs was comparatively negligent

and rendered a damages award against Wal-Mart in the amount of $47,

102.93 for medical expenses and $250,000 for physical and mental

pain and suffering and/or disability, plus legal interest and

costs. 

The appellant argues that the evidence was insufficient to

support the jury’s verdict and, alternatively, that the $250,000

damages award for pain and suffering was excessive. Finding the

evidence sufficient and the award not to be excessive, we affirm.

A. SUFFICIENCY OF THE EVIDENCE

Standard of Review

The standard of review for a challenge to the sufficiency of

evidence is well-settled. Unless the evidence is of such quality

and weight that reasonable and impartial jurors could not arrive at

such a verdict, the findings of the jury must be upheld. Ham

Marine, Inc. v. Dresser Industries, Inc., 72 F.3d 454, 459 (5th

Cir. 1995). The most that an appellate court can do is determine

whether there is probative evidence in the record which fairly
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tends to support the verdict. Wood v. Diamond M Drilling Co., 691

F.2d 1165, 1168 (5th Cir. 1982), cert. denied, 460 U.S. 1069, 103

S. Ct. 1523, 75 L. Ed. 2d 947 (1983). Thus, an appellate court

will not overturn a jury’s verdict, even though contradictory

evidence was presented, if there is an evidentiary basis for the

verdict. Lavender v. Kurn, 327 U.S. 645, 652, 66 S. Ct. 740, 744,

90 L. Ed. 916 (1946); Wood, 691 F.2d at 1168. 

Discussion

We hold that there is sufficient evidence in the record to

support the jury’s verdict. Childs presented an evidentiary basis

for finding the required elements of the two Louisiana statutes

under which she sued. Article 2317 of the Louisiana Civil Code

provides for liability for injuries caused by something defective

over which the defendant has custody or control. Childs was

required to prove by a preponderance of the evidence that (1) the

automatic door was defective, that is, that it created an

unreasonable risk of harm, and (2) that the defective condition was

a cause of or a substantial contributing factor to causing the

injuries. (Wal-Mart stipulated to its custody and control of the

doors.)

Childs also sued on the negligence cause of action provided by

Louisiana Civil Code article 2315, and so was required to prove by

a preponderance of the evidence that (1) the appellant failed to
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exercise reasonable care, and (2) that any negligence on Wal-Mart’s

part was a cause of or a substantial factor in bringing about her

injuries.

The record in this case reveals that there is probative

evidence that the outwardly-swinging automatic doors struck and

injured Childs as she stood outside the Wal-Mart store. While WalMart argues that guardrails would have discouraged Childs from

standing in the path of the swinging doors and that motion sensors

should have prevented the doors from swinging open, the jury had

testimony allowing it to decide that the doors, because of defect,

did indeed strike and injure Childs. Thus, a basis for the jury’s

strict liability finding existed. The evidence also justifies a

finding of negligence on the part of the appellant. Testimony and

exhibits were presented regarding the absence of warning or “exit”

signs on the doors, various operational problems with the doors,

and Wal-Mart’s possible failure to follow manufacturer maintenance

guidelines. We cannot say that there was a complete absence of

probative fact to support the jury’s conclusion that Childs’

injuries were caused by Wal-Mart’s negligence. 

B. DAMAGES AWARD

Standard of Review

A trial court’s damage award should not be overturned unless

it is clearly erroneous. Meyers v. Griffin-Alexander Drilling Co.,
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910 F.2d 1252 (5th Cir. 1990). In Wood v. Diamond Drilling Co.,

this Court explained the heavy burden that must be overcome in

order for the Court to overturn a jury damage award.

We have repeatedly held that a jury’s award is not to be

disturbed unless it is so large as to “shock the judicial

conscience,” indicate “bias, passion, prejudice, corruption,

or other improper motive” on the part of the jury, or is

“contrary to all reason.” Thus, before a court of appeals

may set aside an award of damages as being excessive, it must

make a detailed appraisal of the evidence bearing on damages

and find that, in light of such detailed evidence, the amount

of the jury award is so high that it would be a denial of

justice to permit it to stand.

691 F.2d at 1168 (citations omitted). This Court has noted that

deference to a jury’s award is particularly appropriate in an

examination of a pain and suffering award because such is “to a

large degree, not susceptible to monetary qualification, and the

jury thus necessarily has especially broad leeway.” Seidman v.

American Airlines, Inc., 923 F.2d 1134, 1141 (5th Cir. 1991)

(quoting Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1427 (5th

Cir. 1988), cert. denied, 490 U.S. 1106, 109 S. Ct. 3156, 104 L.

Ed. 2d 1019).

Discussion

Wal-Mart argues that the jury’s $250,000 award for pain and

suffering is excessive by reviewing lesser jury awards and the

medical facts in several Louisiana state court cases involving hip

or knee fractures. While each case must be reviewed for its own

facts, this Court has looked to awards in factually similar cases
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decided under the same controlling law for rough guidance. See

Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994).

We do not find the amount of this damages award for pain and

suffering to be excessive. The jury’s award of $250,000 is not so

large as to shock the judicial conscience, indicate bias, passion,

prejudice, corruption, or other improper motive on the part of the

jury, or appear unreasonable. See Wood, 691 F.2d at 1168. Awards

for pain and suffering for similar injuries are wide-ranging, with

Louisiana juries awarding amounts as high as $500,000. See Merritt

v. Karcioglu, 668 So.2d 469, 479 (La. Ct. App. 1996) ($500,000 in

general damages for hip fracture to 92-year old woman); Matthews v.

Ferrer, 665 So.2d 1211 (La. Ct. App. 1995) ($380,000 in general

damages to 68-year old woman for trip-and-fall wrist fracture and

knee injury). The amount awarded in this case is significantly

lower than the high end of the range of such awards. A review of

the evidence presented does not indicate that the amount of this

award is so high that allowing it to stand would be a denial of

justice. Childs, a woman in her late seventies, suffered a

fractured right hip and left knee. She underwent hip surgery for

the insertion of a plate and screws, had a leg cast from her hip to

ankle, was hospitalized for a month, and upon her arrival home,

required home health care and physical therapy. In addition,

Childs had 24-hour sitters for over seven weeks. The injuries’

long-term effects of a reduction in her activities and independence
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were presented at trial. Childs was unable to use a walker until

11 weeks after the incident. Evidence was presented at trial,

approximately two and a half years after the incident, that Childs

was ambulatory only with a walker, was unable to shop alone, drove

infrequently and remained on pain medication. 

CONCLUSION

The jury verdict and award is AFFIRMED.