Akerman v. Dawes

658 So. 2d 1270, 1995 WL 104389
CourtLouisiana Court of Appeal
DecidedJuly 12, 1995
Docket94-CA-0757
StatusPublished
Cited by9 cases

This text of 658 So. 2d 1270 (Akerman v. Dawes) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Akerman v. Dawes, 658 So. 2d 1270, 1995 WL 104389 (La. Ct. App. 1995).

Opinion

658 So.2d 1270 (1995)

Roxanna AKERMAN,
v.
Richard M. DAWES and Scottsdale Insurance Company.

No. 94-CA-0757.

Court of Appeal of Louisiana, Fourth Circuit.

January 19, 1995.
Order Dismissing Rehearing Application and Appeal July 12, 1995.

*1271 Kerry P. Cuccia, New Orleans, for plaintiff.

Charles E. McHale, Jr., and Thomas J. Lutkewitte, New Orleans, for defendants.

KLEES, ARMSTRONG and LANDRIEU, JJ.

ARMSTRONG, Judge.

This is an appeal from a default judgment. The plaintiff, Roxanna Akerman, sued defendants-appellants Leon Greenblatt and Arnold Cooper for personal injury. Both were duly served. Neither Greenblatt nor Cooper answered and preliminary defaults were entered against each. Almost a year later, following a default confirmation hearing, a default judgment was entered against Greenblatt and Cooper solidarily for $1,500,000.00 Greenblatt and Cooper have appealed as to both liability and quantum of damages. We affirm as to Greenblatt and reverse and remand for further proceedings as to Cooper.

As it is uncontested that the default judgment was procedurally proper, our review *1272 is limited to determining whether there was sufficient competent evidence introduced at the default confirmation hearing to support the default judgment entered. Waltzer v. U-Haul Co. of South Louisiana, 503 So.2d 574, 575 (La.App. 4th Cir.1987). The plaintiff must put on a prima facie case. La.Code Civ.Proc. art. 1702(A). A prima facie case shows that it is probable that the plaintiff would prevail if the case were actually tried. Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989).

The evidence at the default confirmation hearing consisted of the testimony of the plaintiff, the testimony of the plaintiff's mother (as to the plaintiff's injuries) and a number of exhibits including many medical reports. Of course, as the defendants made no appearance in the case, there was neither cross-examination nor rebuttal evidence.

The plaintiff testified that she fell from a second-story porch of the apartment building in which she lived onto the concrete below because a rotten railing collapsed. Photographs of the collapsed railing were introduced into evidence. The plaintiff testified, and there was extensive medical documentation on this point, that she suffered a fractured sternum, fractures to several of the vertebrae in her back, a closed head injury to the left side of her head, a broken hand and a contused knee. She also testified as to the extensive and continuing medical treatment that she has received and this was shown in detail by the numerous medical reports which are discussed below.

The plaintiff sued the owner of the apartment building, a Dr. Dawes, but he is not a party to the present appeal. The plaintiff also sued Greenblatt as an alleged lessee of the building from Dawes. Apparently, the plaintiff's theory is that Greenblatt leased the entire building from Dawes and then subleased the individual apartments in the building to tenants such as the plaintiff. Lastly, the plaintiff sued Cooper as the manager (for Greenblatt) of the building. As to both Greenblatt and Cooper, the plaintiff alleges that they had "custody" of the building, that the rotten railing was an unreasonably dangerous defect of the building and that the rotten railing caused her injuries so that both Greenblatt and Cooper are liable to the plaintiff in strict liability pursuant to Article 2317 of the Civil Code.

Greenblatt argues that the evidence at the default confirmation hearing was not sufficient to show that he had "custody" of the building. Specifically, Greenblatt argues that there was not sufficient evidence that he was the lessee, from Dawes, of the building. There were two items of evidence as to the factual issue of whether Greenblatt was the lessee of the building. First, the plaintiff testified that Cooper collected rent and had repairs done on the building "for" Greenblatt. Second, a copy of a recorded lease was introduced into evidence that shows the building leased by Dawes to Greenblatt with the right to sublet. The initial five year term of the lease expired before the date of the plaintiff's fall, but the lease contained options for three extensions of five years each, and such extensions would continue the lease in effect well past the date of the plaintiff's fall. Together, these two items of evidence are just sufficient to support the factual conclusion that Greenblatt was the lessee of the building. The fact that the rents were being collected and repairs were being done "for" Greenblatt indicates that he must have exercised the options to extend the lease (or obtained a new lease from Dawes). The appellants' brief does not deny that Greenblatt was the lessee of the building. As the lessee of the building, Greenblatt had "custody" of the building for purposes of strict liability under Article 2317 of the Civil code. Loescher v. Parr, 324 So.2d 441, 449 n. 7 (La.1975); Catalano v. Walgreen's Corp., 470 So.2d 904, 906 (La.App. 4th Cir.1985).

Cooper also argues that the evidence at the default confirmation hearing was not sufficient to show that he had "custody" of the building. Specifically, Cooper argues that the evidence shows that he was simply a building manager, an agent, for Greenblatt. The plaintiff's testimony was that Cooper *1273 collected the rent and was the person to contact about repairs and that he had repairs done. However, the plaintiff also testified that Cooper did these things "for" Greenblatt. Thus, all of the limited evidence on point indicates that Cooper was only a building manager, an agent, for Greenblatt. There is no evidence that Cooper had any type of ownership, leasehold or other interest in the building. In a case with similar facts, we have held that such a building manager, an agent who collects rents, has repairs performed and does other tasks for the principal, is not subject to strict liability for injuries caused by defects in the building. Brown v. Soupenne, 416 So.2d 170 (La.App. 4th Cir.1982). Also, the Supreme Court has stated that, while a lessee has "custody" for purposes of strict liability under Article 2317 of the Civil Code, an agent does not. Loescher v. Parr, 324 So.2d 441, 449 n. 7 (La.1975). Thus the evidence at the default confirmation hearing was not sufficient to show that Cooper had "custody" of the building. Thus, the default judgment should not have been rendered against Cooper.

Greenblatt also argues that the amount of the judgment is excessive. The judgment is a lump sum which is not divided into special damages versus general damages (Greenblatt does not complain of that on appeal) in the amount of $1,500,000.00. We review the evidence to determine whether the evidence is sufficient to support a judgment of that size.

The plaintiff had medical expenses of $167,586.48. She had been employed as a secretary prior to the time of her injury, and had been employed for many years, but has not worked since her injury. There is very substantial medical evidence, discussed below, that she will not work again because of her injury. She was thirty-six years old at the time of her injury and, presumably, in the absence of her injury she would have worked to normal retirement age. Obviously, there was a large wage loss due to her injury.

There is abundant medical evidence, in the form of doctors' reports, as to the severity of the plaintiff's injuries and the physical and emotional pain and disability that she has suffered continues to suffer. We will give illustrative examples. Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ezzell v. Miranne
84 So. 3d 641 (Louisiana Court of Appeal, 2011)
Gonzales v. BUILD-A-BEAR WORKSHOP, INC.
30 So. 3d 27 (Louisiana Court of Appeal, 2009)
Goldfinch v. United Cabs, Inc.
13 So. 3d 1173 (Louisiana Court of Appeal, 2009)
Arias v. Stolthaven New Orleans, LLC
980 So. 2d 791 (Louisiana Court of Appeal, 2008)
Boutte v. Kelly
863 So. 2d 530 (Louisiana Court of Appeal, 2003)
Butler v. Re/Max New Orleans Properties, Inc.
828 So. 2d 43 (Louisiana Court of Appeal, 2002)
Hedderel v. Merrick
715 So. 2d 609 (Louisiana Court of Appeal, 1998)
Mix v. Krewe of Petronius
675 So. 2d 792 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
658 So. 2d 1270, 1995 WL 104389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/akerman-v-dawes-lactapp-1995.