Berthelot v. Aetna Cas. and Sur. Co.

623 So. 2d 14, 1993 La. App. LEXIS 2573, 1993 WL 254346
CourtLouisiana Court of Appeal
DecidedJuly 2, 1993
DocketCA 92 1404
StatusPublished
Cited by5 cases

This text of 623 So. 2d 14 (Berthelot v. Aetna Cas. and Sur. Co.) 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
Berthelot v. Aetna Cas. and Sur. Co., 623 So. 2d 14, 1993 La. App. LEXIS 2573, 1993 WL 254346 (La. Ct. App. 1993).

Opinion

623 So.2d 14 (1993)

Eula BERTHELOT
v.
AETNA CASUALTY AND SURETY COMPANY, et al.

No. CA 92 1404.

Court of Appeal of Louisiana, First Circuit.

July 2, 1993.

*16 David W. Robinson, Baton Rouge, for plaintiff-appellee Eula Berthelot.

Arthur H. Andrews, Funderburk and Andrews, Baton Rouge, for defendant-appellant Aetna Cas. and Sur. Co., et al.

Before EDWARDS, SHORTESS and WHIPPLE, JJ.

WHIPPLE, Judge.

Defendants, B. Olinde and Sons Company, Inc., doing business as Baton Rouge Beer Agency (B. Olinde), and Aetna Casualty and Surety Company, appeal the judgment of the trial court in favor of plaintiff, Eula Berthelot, and against defendants. Plaintiff answered the appeal. For the following reasons, we affirm.

*17 FACTS AND PROCEDURAL HISTORY

On the weekend of June 2, 3, and 4, 1989, St. Joan of Arc Catholic Church (St. Joan of Arc) held its annual church fair in Bayou Pigeon, Louisiana. The church had rented beer dispensing trailers to sell beer to fair patrons. The Miller Lite beer trailer was owned by B. Olinde and manufactured by Waymatic, Inc.

Because of a lack of sufficient electrical outlets near the fair grounds, church volunteers had run temporary electrical lines to the grounds for the beer dispensing trailers and a daiquiri machine. The lines were connected to three-hole sockets, but only two wires were used instead of three. A third wire, for grounding, was not used. The Miller Lite trailer was plugged into one of these lines.

Plaintiff attended the fair on Saturday evening, June 3, 1989. Because of rainy weather on Friday evening and Saturday morning, the ground was very wet. Plaintiff purchased a cup of beer at the Miller Lite trailer and then walked over to the Budweiser trailer to speak with relatives. It became apparent that the Budweiser trailer was shocking patrons, and thus, plaintiff suggested to her relatives that they walk over to the Miller Lite trailer which had not shocked her when she purchased her beer.

Plaintiff's brother ordered a round of beers at the Miller Lite trailer. As plaintiff reached to pick up her beer from the metal counter of the trailer, her finger touched the counter, and she received an electrical shock. According to plaintiff, she experienced blurred vision, started shaking and felt like she was "glued to the ground". The force of the shock then caused her to fall to the ground. Plaintiff's relatives helped her up, and she left the fair to change her clothes.

Later that evening, plaintiff returned to the fair and then went to a bar. While she did not have any aches or pains at that time, she testified that as the evening progressed, she developed a headache and red spots on her face.

Over the next few days, plaintiff became very nervous and apprehensive of electrical appliances in her house, including light switches. She developed trouble with her memory and concentration. Plaintiff began to experience episodes of weakness and shaky limbs and was eventually diagnosed as suffering from post-traumatic stress disorder.

On October 4, 1989, plaintiff filed suit against B. Olinde and its insurer, Aetna; and St. Joan of Arc and its insurer, Catholic Mutual Relief Society. St. Joan of Arc and Catholic Mutual Relief Society answered the petition and filed a cross-claim against B. Olinde and Aetna, and a third party demand against Waymatic, Inc., as manufacturer of the beer trailer.[1] Plaintiff then amended her petition to name Waymatic, Inc. as a defendant. Subsequently, St. Joan of Arc and its insurer cross claimed against Waymatic.

Prior to trial, plaintiff settled her claims against St. Joan of Arc, Catholic Mutual Relief Society, and Waymatic and the case proceeded to trial against B. Olinde and Aetna. In written reasons for judgment dated September 30, 1991, the trial stated that plaintiff had suffered damages in the amount of $204,072.00, consisting of $28,340.00 in past loss of wages; $118,121.00 for future loss of wages; $7,611.00 in medical expenses; and $50,000.00 in general damages. Fault was apportioned to B. Olinde in the amount of 33% with the remaining fault apportioned to Waymatic and St. Joan of Arc, the parties dismissed prior to trial.

Accordingly, on January 3, 1992, the trial court rendered judgment in favor of plaintiff and against B. Olinde and Aetna for damages in the amount of $67,343.76 plus $3,530.00 for expert witness fees. B. Olinde and Aetna appeal this judgment, alleging the trial court erred: (1) in assessing any fault whatsoever to B. Olinde, (2) in awarding excessive damages for plaintiff's post-traumatic stress disorder, and (3) in awarding excessive damages for future loss of earnings.

*18 Plaintiff answered the appeal, contending that the trial court erred: (1) in assessing any fault to St. Joan of Arc and Waymatic; or alternatively (2) in apportioning fault equally among St. Joan of Arc, Waymatic, and B. Olinde; and (3) in awarding general damages which were inadequate.

FAULT OF THE PARTIES

(Defendants' Assignment of Error No. 1; Plaintiff's Assignments of Error Nos. 1 & 2)

The parties challenge the trial court's findings of fault as to each of the named defendants.[2] B. Olinde contends that the trial court erred in assessing any fault to it. Plaintiff, on the other hand, contends that B. Olinde was solely at fault, and thus, that the trial court erred in assessing any fault against St. Joan of Arc or Waymatic. After carefully considering the record, we find no error in the trial court's finding of fault on the part of each of these alleged tortfeasors or in its apportionment of fault.

St. Joan of Arc Catholic Church

As stated in written reasons for judgment, the trial court found that the volunteer electrician who installed the electrical lines for the church was negligent in improperly connecting the wires. The court further found that other church volunteers were negligent in installing metal poles in the ground which were wired to the beer trailer in an attempt to ground the trailer after it became apparent that patrons were being shocked. The trial court concluded that St. Joan of Arc was responsible for the negligence of its volunteers.

Plaintiff challenges this finding, alleging there was no showing made that the church knew or should have known that a grounded connection would be required; and that the church can not be held vicariously liable for the acts of its volunteers. We find that both of these arguments lack merit and conclude St. Joan of Arc was at fault as the owner or entity having custody of immovable property with an unreasonably dangerous condition or defect.

St. Joan of Arc, as the owner or custodian having custody of the fair grounds, had a duty to keep such property in a reasonably safe condition. The church had a duty to discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of its existence. Wallace v. Slidell Memorial Hospital, 509 So.2d 69, 73 (La.App. 1st Cir.1987). This duty is the same under both the strict liability theory of LSA-C.C. art. 2317 and the negligence theory of LSA-C.C. art. 2315. Carter v. Board of Supervisors of Louisiana State University, 459 So.2d 1263, 1265 (La. App. 1st Cir.1984), writ denied, 462 So.2d 1248 (La.1985).

The difference in proof between the theories is that under LSA-C.C. art. 2315, the plaintiff must show that the owner or custodian either knew or should have known of the risk, whereas under LSA-C.C. art. 2317, the plaintiff is relieved of proving scienter on the part of the defendant.

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

Related

Hansen v. Thorpe
E.D. Louisiana, 2020
Sloan v. Mouton
82 So. 3d 364 (Louisiana Court of Appeal, 2011)
Cece Sloan v. Renee Mouton
Louisiana Court of Appeal, 2011
Morrison v. Kappa Alpha Psi Fraternity
738 So. 2d 1105 (Louisiana Court of Appeal, 1999)
Williams v. City of Monroe
658 So. 2d 820 (Louisiana Court of Appeal, 1995)
Black v. Gorman-Rupp
655 So. 2d 717 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
623 So. 2d 14, 1993 La. App. LEXIS 2573, 1993 WL 254346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berthelot-v-aetna-cas-and-sur-co-lactapp-1993.