Boyle v. BD. OF SUP'RS OF LA. STATE UNIV. & AGRIC. & MECHANICAL COLLEGE

672 So. 2d 254, 1996 WL 155278
CourtLouisiana Court of Appeal
DecidedJune 28, 1996
Docket95 CA 1803
StatusPublished
Cited by3 cases

This text of 672 So. 2d 254 (Boyle v. BD. OF SUP'RS OF LA. STATE UNIV. & AGRIC. & MECHANICAL COLLEGE) 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
Boyle v. BD. OF SUP'RS OF LA. STATE UNIV. & AGRIC. & MECHANICAL COLLEGE, 672 So. 2d 254, 1996 WL 155278 (La. Ct. App. 1996).

Opinion

672 So.2d 254 (1996)

James C. BOYLE and Judith Boyle
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL & MECHANICAL COLLEGE.

No. 95 CA 1803.

Court of Appeal of Louisiana, First Circuit.

April 4, 1996.
Writ Granted June 28, 1996.

*256 Hillar C. Moore, III, Baton Rouge, for Plaintiffs-Appellees.

Gail N. McKay, Baton Rouge, for Defendant-Appellant.

Before SHORTESS, PARRO, and KUHN, JJ.

SHORTESS, Judge.

On March 8, 1989, Judith Boyle (Boyle), a 40-year-old student, was injured when she tripped and fell on the campus of Louisiana State University and Agricultural & Mechanical College (LSU) in Baton Rouge. She sued the Board of Supervisors of LSU (defendant), contending her injuries were caused by a defective sidewalk. Her husband, James C. Boyle, joined in the suit seeking damages for loss of consortium.

After trial on the merits, the trial court ruled in favor of Judith and James Boyle (plaintiffs), finding a depression in the sidewalk was a defect, the defect caused plaintiffs' damages, defendant had constructive notice of the defect, and Boyle was free from fault. Judgment was entered in plaintiffs' favor in the total sum of $108,401.65. From this judgment defendant appeals.

Defendant raises seven specifications of error. One deals with an evidentiary issue, one involves quantum, and the remainder concern liability. We shall first address the evidentiary issue.

I. QUALIFICATION OF EXPERTS

Defendant contends the trial court erred in qualifying Michael J. Frenzel and Greer Coursey as experts. Frenzel was accepted as an expert in trip and fall accident investigation. A retired Air Force lieutenant colonel who has worked as a private safety consultant since 1985, Frenzel testified at length regarding his qualifications. He served as a safety officer in the Air Force for approximately ten years, is certified by several national safety organizations, taught a safety course at LSU, teaches safety seminars *257 both locally and nationwide, including slip and fall prevention programs, and has published articles on slip and fall accidents.

Coursey, a civil engineer who worked for the United States Corps of Engineers for 32 years and who now operates an engineering and consulting business, was accepted as an expert "in the area of determining concrete." He testified that his job duties with the Corps involved concrete and that during his career he had "either supervised or been involved with" over a million yards of concrete. His work experience included the design, placement, and repair of sidewalks.

Defendant contends the trial court should not have accepted Frenzel and Coursey as experts because they could not point to written standards upon which they based their opinions that the sidewalk was defective. Our review of Code of Evidence article 702, however, reveals no such requirement. That article provides a witness qualified by knowledge, skill, experience, training, or education may testify as an expert if his scientific, technical, or other specialized knowledge will assist the court. In accepting Frenzel as an expert, the trial court stated:

The qualification of an expert depends upon his knowledge and his experience in the line in which he is offered. And there's no question in this court's mind but that Mr. Frenzel is eminently qualified to serve as an expert in the area of trip and fall and accident investigation.

The trial court has considerable discretion in accepting or rejecting expert testimony. Its decision to accept an expert as credible will not be disturbed absent manifest error. Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1277 (La.1991); Williams v. Regional Transit Auth., 546 So.2d 150, 157 (La.1989); Harris v. Bronco Constr. Co., 93-2139 (La.App. 1st Cir. 10/7/94), 644 So.2d 805, 807, writ denied, 94-2740 (La. 1/6/95), 648 So.2d 931. In oral reasons, the trial court noted: "I know [defense] counsel seems to place little credence upon the testimony of the expert, but the court is particularly impressed with the testimony of Mr. Frenzel because I think it's based on assumptions which appear reasonable."

Considering the extensive knowledge and experience of Frenzel and Coursey regarding the subjects on which they testified, we find no abuse of the trial court's discretion in accepting them as experts and no manifest error in finding them credible.

II. LIABILITY

Defendant asserts five specifications of error regarding liability. Defendant contends the trial court erred 1) in finding the sidewalk was defective, 2) in finding the defect was a cause in fact of Boyle's accident, 3) in failing to apply a balancing test to determine whether the sidewalk was unreasonably dangerous, 4) in finding defendant had constructive notice, and 5) in failing to find Boyle contributorily negligent.

A. Standard of Review

All of these specifications of error allege erroneous findings of fact made by the trial court. A trial court's findings of fact must be reviewed under the manifest error-clearly wrong standard of review. The supreme court explained this standard in Stobart v. State, 617 So.2d 880 (La.1993):

A court of appeal may not set aside a trial court's ... finding of fact in the absence of "manifest error" or unless it is "clearly wrong." This court has announced a two-part test for the reversal of a [fact finder's] determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
*258 Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the [fact finder's] conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.... [T]his Court has emphasized that "the reviewing court must always keep in mind that `if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.'"
This court has recognized that "[t]he reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts." Thus, where two permissible views of the evidence exist, the [fact finder's] choice between them cannot be manifestly erroneous or clearly wrong.

Stobart, 617 So.2d at 882-883 (citations omitted).

B. Was the sidewalk defective?

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Cite This Page — Counsel Stack

Bluebook (online)
672 So. 2d 254, 1996 WL 155278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyle-v-bd-of-suprs-of-la-state-univ-agric-mechanical-college-lactapp-1996.