McHALE v. SCHWEGMANN BROS GIANT SUPER MARKETS INC (1998)

Court of Appeal of Louisiana,Fifth Circuit.

Edward M. McHALE v. SCHWEGMANN BROS. GIANT SUPER MARKETS, INC.

No. 97-CA-788.

Decided: November 23, 1998

Before GAUDIN, C.J., and CANNELLA and DALEY, JJ.

JUDGMENT ON REHEARING

We have carefully considered the content of Schwegmann's application for a rehearing.

Initially, we note that there is no proffered testimony of Eva Perrilloux in the record regarding her alleged inspection of the isle Edward McHale fell in. On this issue, she did not testify and was therefore not cross-examined as required by C.C.P. art. 1636(B).

An attorney's statement about what Ms. Perrilloux would say does not meet the requirements of Art. 1636 unless followed up by either testimony “during a recess” or by subsequent deposition.

In any event, Ms. Perrilloux's testimony, if allowed, would not have changed the outcome in McHale's favor.

The judgment previously rendered in this case is hereby entered with one amendment: The motion for sanctions is denied.

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