Benjamin v. Housing Auth. of New Orleans

893 So. 2d 1, 2004 WL 2726055
CourtSupreme Court of Louisiana
DecidedDecember 1, 2004
Docket2004-C-1058
StatusPublished
Cited by30 cases

This text of 893 So. 2d 1 (Benjamin v. Housing Auth. of New Orleans) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benjamin v. Housing Auth. of New Orleans, 893 So. 2d 1, 2004 WL 2726055 (La. 2004).

Opinion

893 So.2d 1 (2004)

Tameko BENJAMIN, on Behalf of Her Minor Child, Darione BENJAMIN
v.
HOUSING AUTHORITY OF NEW ORLEANS.

No. 2004-C-1058.

Supreme Court of Louisiana.

December 1, 2004.
Rehearing Denied February 25, 2005.

*2 Ammon Leon Miller, Jr., New Orleans, for applicant.

Frank Marion Buck, Jr., New Orleans, for respondent.

VICTORY, J.

We granted this writ application to determine whether the trial court committed manifest error in finding that the Housing Authority of New Orleans ("HANO") negligently installed a window screen in plaintiff's apartment which caused her daughter to sustain injuries. After reviewing the facts and the applicable law, we reverse the judgments of the lower courts because their conclusion that HANO was negligent is clearly without evidentiary support and is therefore manifestly erroneous.

FACTS AND PROCEDURAL HISTORY

On March 30, 1996, two and one-half year old Darione Benjamin ("Darione") fell out of a second floor window of her apartment building in the Lafitte Housing Development and landed on the first floor balcony. She was transported by ambulance to Charity Hospital where she was treated for a depressed skull fracture, a hemotoma of the upper lid, a laceration to the center of the forehead, and a left nondisplaced frontal fracture, and a broken left arm and wrist.

Darione's mother, Tameko Benjamin ("plaintiff") filed suit against HANO alleging that HANO, as owner and operator of the premises, negligently caused her injuries by failing to properly maintain and repair the window screen in Darione's bedroom. At trial, plaintiff called the following witnesses: plaintiff, her neighbor Monica Charles and Dr. Mary Christine Webster.[1] Plaintiff testified that around *3 noon on the date of the accident, she put Darione and her five year old sister down for a nap in their bedroom and that she opened one of the two bedroom windows because the air conditioning unit in the other window was not working. She testified that she then went to her own bedroom to take a nap. She was awakened 30-45 minutes later by her older daughter screaming that Darione had fallen out of their bedroom window. When she entered the girls' bedroom, the screen was hanging from the top to one side, and she looked out the window and saw Darione lying on the first floor balcony below.

Regarding the window screens, plaintiff testified that there were never any screens on the window in question for the eight to nine years she lived in the apartment. Plaintiff testified that two-three days before the accident, a HANO employee named "Jeffrey" installed window screens in her apartment subsequent to her request. After the screens were installed, she testified that she signed paperwork indicating that they had been installed. However, on cross-examination, she admitted that she signed a HANO work order on November 25, 1995 for screen installation, which was actually five months before the accident. In any event, she testified that in the girls' bedroom, the bottom of the window was located about eleven inches from the ground. When she opened the window on the date of the accident, she looked at the screen and it appeared to be properly installed. She further testified that she had no knowledge whether or not the screen was locked at the bottom prior to the accident and that she did not notify HANO prior to the accident that the screen was improperly installed.

Plaintiff's neighbor, Monica Charles, testified that she was on her porch at the time of the accident and saw Darione fall out of the window.[2] However, she did not see what caused her to fall because "when [she] looked up she was already coming out of the window."

HANO called two of its maintenance employees, Jeffrey Wilson and Rudolph Dupart. Wilson testified that the screen was installed on November 25, 1995 by a "blitz crew" that was called in from other housing developments to do maintenance work in all the apartment units. He produced the entire maintenance file on plaintiff's unit and testified that there was no HANO work request or order in March of 1996 when plaintiff alleges the screen was installed. He further testified that he did not recall installing the screen in plaintiff's unit and that if he had, there would have been a work order with his name on it.

*4 Dupart, the supervisor of the maintenance workers, testified that the purpose of the screens is decorative and to keep insects out when the window is raised, not to keep children from falling out of the window. Dupart provided the only testimony on how the screens operated, testifying that they had two slats on the top of the window casing on the outside and the screens would go in the slats. He testified that the screens were held in place as follows: "When you put a screen in, you had two hooks and those hooks had two `lil' pins. They weren't nails ... they was `lil' pins and they would come over those pins and hold the screen in place." He testified that there was a "ticket" signed by a member of the blitz crew indicating that the screen was installed in November of 1995. He also testified that the average window in the Lafitte Housing Development was 36 inches off the floor. Finally, he testified that he never inspected this particular window screen. The day after the accident, a new screen was installed.[3]

After hearing the evidence, the trial court awarded damages to the plaintiff for the following reasons:

Considering the testimony produced at trial, this Honorable Courts [sic] finds that Housing Authority of New Orleans failed in its duty to proper [sic] install the window screen that ultimately caused plaintiff's injuries. While this Court does not suggest that window coverings; such as window screens are or should be design [sic] to withstand the weight of a adult who is of normal growth and develop [sic], this court finds that a properly attached and installed window screen should withstand tension associated with the slight use of force.
This Honorable Court further finds that the plaintiff was successful in proving that the improper [sic] installed window screen was a cause in fact of the injuries of which she complained. For the forgoing [sic] reasons this Honorable Court finds that Tamako Benjamin is entitled to damages in the amount of ... $95,000.00 with interest from the date of judicial demand.

The court of appeal, in a two to one decision, affirmed the trial court judgment, finding that the trial court was not manifestly erroneous in its factual finding that HANO failed in its duty to properly install the window screen, and that the trial court could reasonably conclude that HANO's duty to properly install a window screen does encompass the risk that a child would lean against the window screen. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 03-1918 (La.App. 4 Cir. 3/31/04), 871 So.2d 1208. We granted HANO's writ application. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058 (La.7/02/04), 877 So.2d 122.

DISCUSSION

In an action to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows that the fact sought to be proved is *5 more probable than not.

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Bluebook (online)
893 So. 2d 1, 2004 WL 2726055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamin-v-housing-auth-of-new-orleans-la-2004.