Berthold v. State Farm Insurance Companies

545 So. 2d 688, 1989 La. App. LEXIS 1176, 1989 WL 62491
CourtLouisiana Court of Appeal
DecidedJune 7, 1989
DocketNo. 89-CA-112
StatusPublished
Cited by2 cases

This text of 545 So. 2d 688 (Berthold v. State Farm Insurance Companies) 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
Berthold v. State Farm Insurance Companies, 545 So. 2d 688, 1989 La. App. LEXIS 1176, 1989 WL 62491 (La. Ct. App. 1989).

Opinion

KLIEBERT, Judge.

Plaintiffs, Jane Berthold, wife of/and Charles Berthold, Jr., sued defendant, State Farm Insurance Company, the public liability insurer of Robert & Myrtle Gros-skopf’s home in Kenner. The suit sought damages for the husband’s loss of consortium and the wife’s personal injuries arising out of Mrs. Berthold’s fall on the walkway leading from the street to the entrance of the Grosskopfs’ home. A jury found damages of $150,000.00 for Mrs. Berthold’s personal injuries and allotted 90% fault to Mrs. Berthold and 10% fault to the property owners. Based on this verdict the trial judge rendered judgment against State Farm for $15,000.00 plus interest and costs. The jury found Mr. Berthold’s claim for loss of consortium was without merit.

Subsequently, on plaintiffs’ motion for judgment, notwithstanding the verdict and/or for an additur (including the husband’s claim for loss of consortium), the trial judge reduced plaintiff’s allotted fault to 75% but did not address the husband’s claim for consortium. Plaintiffs perfected a devolutive appeal. State Farm answered the appeal and also perfected a suspensive appeal.

We amend the judgment to reflect the initial jury allottment of 90% fault to Mrs. Berthold and as thus amended, affirm.

FACTS

Mrs. Berthold was working for Analytic Studies, Inc., a market research company. In September of 1983 Myrtle Grosskopf, a supervisor at Analytic Studies, called Mrs. Berthold about performing a telephone survey for the upcoming gubernatorial election. Mrs. Berthold went to the company’s second floor office, picked up the information, and returned home to do the survey. Before leaving, Mrs. Berthold was told the results were needed for the next morning. There was conflicting testimony as to whether Mrs. Grosskopf told Mrs. Berthold to bring the results of the survey to her home at 29 Forstall Avenue in Kenner, La. that evening or whether Mrs. Berthold had the option to bring them to Mrs. Gros-[690]*690skopf s home or the office the next morning.

In any event, that night Mr. Berthold drove his wife to the Grosskopfs’ home to deliver the survey results. Neither had been to Mrs. Grosskopf’s home before. Upon their arrival, Mrs. Berthold exited the car, walked behind the car, stepped over the curb, and started walking up the walkway toward the entrance to the house. The house was approximately one foot above street level. The walkway leading to the entrance of the house was divided into four segments, none less than five feet in length and each raised four inches above the other to reach the house level. There were no foreign substances, objects, or cracks or missing pieces of cement on the walkway. Most walkways in the same neighborhood did not have steps in the walkway, however, there were some which did. Mrs. Berthold tripped on the first of three four-inch “risers” or steps in the walkway. As she fell, her face hit the second riser.

Mrs. Berthold stated she was looking straight ahead and down, but that it was too dark to see the riser which caused her to fall. The approximate time of the accident was 9:30 P.M. and Mrs. Grosskopf did not have a porch light on. Additionally, the nearest street light to the house was about 95 feet away. However, Mr. and Mrs. Berthold stated that probably the car headlights were left on as she walked to the house.

Mrs. Berthold suffered a broken nose, two broken ribs, a broken finger, abraded knees, a cut above her lip, and allegedly a compression fracture of her spine, first reported about one year after the accident. Since 1970 Mrs. Berthold had suffered from a severe case of rheumatoid arthritis. She testified, however, that the pain and discomfort had been greatly diminished pri- or to the accident. Further, she said her arthritis was made much worse by the accident and moved into the only joint not previously afflicted, her knees. There is evidence, however, that her knees were a problem in the early 1970’s and again following a fall in 1981. Most importantly, her own treating physicians, who were the only medical experts that testified, stated they could not say the accident caused her knee problems. Nevertheless, each felt trauma of this type could adversely affect her arthritis.

In answer to specific interrogatories, nine out of twelve jurors found “Robert and Myrtle Grosskopf [were] at fault or negligent or [that] a defective condition existfed] on their premises as of September 2, 1983.” The defective condition and Mrs. Berthold’s negligence were found to be the proximate causes of the accident. Nine of the jurors allotted fault to the plaintiff of 90%.

FAULT

Counsel for appellants contends the trial court erred in finding Mrs. Berthold at fault in the accident. He argues the sidewalk created an unreasonable risk of harm for two reasons: (1) There was inadequate lighting to illuminate the risers, and (2) The risers were defectively designed in that the height of/and distance between the risers made them difficult to see. On the other hand, counsel for appellee argues the record contains enough evidence to support the jury’s finding and hence should not be disturbed now; nor should it have been disturbed by the trial judge.

Plaintiff submitted in evidence the expert testimony of Mr. Irvin Isaacson, an electrical engineer, and Mr. Wayne Gravois, an architect. They respectively concluded the walkway was defective because inadequately lit and designed, i.e., the risers should have been five inches in height (rather than four) and placed closer together for ease in negotiating same. From this he argues that once the jury found there was a defective condition, it had no basis for finding Mrs. Berthold negligent. In substance he contends, plainly speaking, it was “simply an all or nothing case,” i.e., plaintiff was entitled to full damages or nothing.

In support of his position counsel for plaintiffs cites Kuck v. City of New Orleans, 531 So.2d 1142 (La.App. 4th Cir.1988). Although his quotations are correct, [691]*691he erroneously analyzed the ultimate result in the ease. Although the Fourth Circuit held (1) the City could not shift its tort liability to bordering landowners, and (2) that the plaintiff did not assume the risk of walking on a defective walk, the jury assigned and the court upheld the jury’s allottment of 20% fault to the plaintiff Moreover, we agree with the appellee that the record here supports an allocation of 90% negligence to the plaintiff.

We note that both of plaintiffs’ experts went to the accident site at night and both testified the “steps” or “risers” on the walk were visible. Further, Mr. Berthold said he could see the house numbers on the Grosskopfs’ house as well as the risers and it wasn’t so dark that he was concerned about his wife getting out of the car by herself. Moreover, in addition to the street lights and the moonlight which illuminated the area, both Mr. and Mrs. Berthold said they believed the headlights on the car were on. Also, there were no cracks, chips, foreign objects, or foreign substances on the walkway. The lawn was well maintained and did not obstruct the view of the risers. Given these facts, the jury could easily conclude Mrs. Berthold contributed in part to the accident by failing to keep a proper lookout and seeing what was there for her to see.

Further, given Mrs. Berthold’s shuffling gait and Dr. Levy’s expert testimony, that it was not unusual for someone with that type of gait to have frequent falls, the judge and jury concluded Mrs.

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Related

Lewis v. State
642 So. 2d 260 (Louisiana Court of Appeal, 1994)
Berthold v. State Farm Insurance Companies
551 So. 2d 636 (Supreme Court of Louisiana, 1989)

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Bluebook (online)
545 So. 2d 688, 1989 La. App. LEXIS 1176, 1989 WL 62491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berthold-v-state-farm-insurance-companies-lactapp-1989.