Aaron Smith, by Next of Friend v. Alexandria Coca Cola Bottling Co., Ltd.

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

05-686

AARON SMITH, BY NEXT OF FRIEND

VERSUS

ALEXANDRIA COCA COLA BOTTLING CO., LTD.

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APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NO. C-97-083 HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion, Judges.

REVERSED AND RENDERED.

David K. Persons Hailey, McNamara, Hall, Larmann & Papale, L.L.P. P.O. Box 8288 Metairie, LA 70011-8288 (504) 836-6500 Counsel for Defendant/Appellee: Ouachita Coca-Cola Bottling, Inc.

J. Craig Jones Jones & Hill, LLC 131 Hwy 165 South Oakdale, LA 71463 (318) 335-1333 Counsel for Plaintiff/Appellant: Alvin R. Smith, Sr. Aaron Smith Craig R. Hill Jones & Hill, LLC P.O. Box 1260 Oberlin, Louisiana 70655 Counsel for Plaintiff/Appellant: Alvin R. Smith, Sr. Aaron Smith DECUIR, Judge.

Both parties appeal the trial court’s apportionment of fault in this case

involving injuries sustained while using a vending machine. For the reasons that

follow, we reverse and render.

FACTS

On August 31, 1996, eleven year old, Aaron Smith, was given four quarters to

purchase colas for himself and his father from a Coca-Cola vending machine located

in the laundry room of the apartment complex where the family lived. Aaron was

familiar with the machine, and knew that it sometimes took money without

dispensing a cola. He had also been instructed not to put his hand in the machine, but

instead to tell his father so that they could be reimbursed. Nevertheless, Aaron put

fifty cents in the machine and heard a buzzing sound, but received no cola. He then

stuck his left arm up into the machine to shoulder depth. Subsequently, the machine

pinched Aaron’s thumb rendering him unable to extract his arm. The exact

mechanics of how his thumb became stuck was a matter of speculation at trial.

After some time, another child heard Aaron yelling and reported his

predicament to Aaron’s father, Alvin Smith. Alvin tried to free Aaron, but was

unable to do so. He then inserted an additional fifty cents in the machine and pressed

a button. Rather than freeing Aaron, this resulted in the machine intensifying its hold.

Police, fire department personnel, and a locksmith were summoned and some four

hours later they were able to free Aaron.

Aaron was taken to the emergency room for treatment and later two physicians

recommended exploratory surgery. The surgery was done and revealed no permanent

defect, and after six weeks of restriction from physical education class, Aaron was

released and future treatment was not indicated. Aaron, at the time of trial, complained of gripping problems and burning, but these subjective complaints do not

seem to have hindered his physical activity.

The trial court found Aaron sixty percent at fault in causing his injury and

Alexandria Coca Cola Bottling, Co. Inc, the owner of the vending machine, forty

percent at fault. On March 2, 2005, the trial court entered judgment awarding Aaron

$4,000.00 in general damages and $3,484.85 in special damages, both sums already

reduced by Aaron’s proportion of fault. In addition, the trial court assessed court

costs including a $1,000.00 expert witness fee under the same percentages utilized

to apportion fault. Both parties appeal the judgment of the trial court.

APPORTIONMENT OF FAULT

Plaintiff contends that the trial court erred in apportioning sixty percent fault

to Aaron in light of his tender years and the allegedly missing or damaged exclusion

devices on the vending machine. Plaintiff argues that Aaron should be assessed with

no more than ten percent fault. Alexandria Coca Cola counters that Aaron is one

hundred percent at fault because the evidence failed to establish a defect in its

machine or its awareness of a problem.

Causation and apportionment of fault are questions of fact, and the fact finder’s

determinations should not be overturned absent a showing of manifest error.

Williams v. Allstate Ins. Co., 599 So.2d 478 (La.App. 3 Cir. 1992). The task of the

appellate court is to determine if the trial court’s findings are reasonable in light of

the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In determining percentages of fault cast, if any, the trier of fact should consider

both the nature of the conduct of each party and the extent of the causal relation

between the conduct and the damages claimed. Tenpenny v. Ringuet, 95-1036

(La.App. 3 Cir. 3/6/96), 670 So.2d 644, writ denied, 96-0880 (La. 5/17/96), 673

2 So.2d 612. After reviewing the record, we find the trial court erred in its allocation

of fault.

It is evident from the record that, though young, Aaron had been instructed

not to try to get a drink if the machine took his money. However, it is also clear from

the record that the machine was damaged in such a way that it failed to prevent Aaron

from being injured and that Alexandria Coca Cola knew or should have known of the

defect. Thus, we are faced with a corporate entity whose machine was designed with

at least two devices to prevent the type of accident at issue. That same entity was

charged with knowledge that not one but both of these devices were damaged and

would not operate as intended. Moreover, Coca Cola was aware that the machine was

operating in a manner that invited the very response that Aaron chose and the

machine was designed to prevent. Namely taking money from customers without

dispensing a product. Despite these factors, the trial court allocated 60% fault to an

eleven year old who did not contemplate the extent of the danger, and 40% to Coca

Cola whose corporate knowledge of the danger had engendered safety design

features on the machine. Under the circumstances, we find the trial court’s allocation

of fault to be manifestly erroneous. Based on the evidence, we find the proper

allocation of fault to be 60% to Coca Cola and 40% to Aaron.

DAMAGES

Plaintiff contends the trial court’s award is abusively low. We disagree.

The standard of review to determine whether a trial court erred in awarding

damages is set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993),

cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994). The initial inquiry is whether the

award for the particular injuries and their effects under the particular circumstances

on the particular injured person is a clear abuse of the “much discretion” of the trier

3 of fact. Id. at 1260. When the award is, in either direction, beyond that which a

reasonable trier of fact could assess for the effects of the particular injury to the

particular plaintiff under the particular circumstances, the appellate court should

increase or reduce the award. Id. In determining whether a particular determination

is reasonable, we are aware that “[t]he trier of fact, actually hearing and observing the

witnesses give live testimony, is in a better position to evaluate credibility than a

reviewing court, which at best can only study the written words of the cold record.”

Burbank v. LeBeouf, 471 So.2d 980, 982 (La.App. 1 Cir. 1985).

After reviewing the record and considering the cases cited by both parties, we

find no abuse of discretion in the trial court’s award of damages. However, as we

have found that the trial court improperly allocated fault, we reverse the judgment of

the trial court and enter judgment as described below.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. It is

hereby ordered and decreed that judgment be entered in favor of Aaron Smith as

follows:

General Damages $6,000.00

Special Damages $5,227.28

Court costs at the trial court including expert witness fees of $1,000.00 are taxed 60%

to defendant and 40% to plaintiff.

All costs of these proceedings are taxed to the defendant.