Broussard v. CNA Insurance Co.

628 So. 2d 1267, 1993 La. App. LEXIS 3865, 1993 WL 503762
CourtLouisiana Court of Appeal
DecidedDecember 8, 1993
DocketNo. 93-216
StatusPublished
Cited by1 cases

This text of 628 So. 2d 1267 (Broussard v. CNA Insurance 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
Broussard v. CNA Insurance Co., 628 So. 2d 1267, 1993 La. App. LEXIS 3865, 1993 WL 503762 (La. Ct. App. 1993).

Opinion

STOKER, Judge.

Harold and Gloria Broussard filed this personal injury suit against Errol Romero and his liability insurer, Continental Casualty Company.1 Harold Broussard sustained injuries to his face when a tree limb struck him. Harold and James D. Rhodes pushed the tree limb off of a shed located on Romero’s property, and it bounced off of the ground and struck Harold in the face. Gloria Broussard sought damages for loss of consortium. The trial court granted summary judgment for defendants, and plaintiffs appeal. We affirm.

FACTS

Harold Broussard and Errol Romero are brothers-in-law, having married sisters. James D. Rhodes is Romero’s son-in-law and he was generally referred to as “Dusty.”

On July 3, 1990, a thunderstorm caused broken branches to be scattered across Romero’s property. A large limb broke free from a tree and fell across a shed or “wishing well” which Romero owned. The shed was apparently located next to Romero’s swimming pool fronting his driveway.

Rhodes volunteered to go over and help Romero clean up and remove the branches they could remove. On July 4,1990, Romero cleared branches and leaves from the yard and Rhodes cut back the smaller branches from the large limbs which fell across the shed. Romero stated in affidavit that as far as he knew at the time, Rhodes was simply cutting back the large branches which fell across the shed. Romero told Rhodes not to try to move any of the large limbs; Romero was expecting that when Rhodes had finished what he was doing, he would call a tree surgeon to remove the large limbs. Rhodes stated in affidavit that he had finished cutting up everything that was on the ground, so he then took a stepladder to cut up some of the smaller branches that would hinder the removal of the limb which rested across the shed, but he stated he was not going to remove it.

In the meantime, Broussard went to Romero’s house to pick up his wife, Gloria Broussard. He had dropped his wife off at Romero’s house earlier that day so that she could have her hair done by her sister, Romero’s wife. When Broussard returned for his wife, he observed Romero working with some branches at the road. Broussard also observed Rhodes standing on the stepladder cutting a large branch on the shed. Broussard approached Rhodes and suggested that Rhodes take the limb and throw it off the building because Rhodes could cut it easier while it was on the ground.2 Brous-sard stated that Rhodes said “Yes.” Brous-sard stated that Rhodes grabbed one end of [1269]*1269the limb and he grabbed the other and the two threw the limb off of the shed. Rhodes stated that he told Broussard not to move the limb, but that Broussard did not acknowledge the suggestion, and he was not sure if Broussard heard him. Rhodes stated that it was only after he saw that Broussard was trying to move the limb on his own that he went over to try to help. This difference in the recollections of Broussard and Rhodes is not material with reference to disposal of the case by summary judgment.

Through the efforts of Broussard and Rhodes the tree limb began to fall from the shed and they let go of it. When the limb hit the ground it bounced up and struck Brous-sard in the jaw.

Romero stated that he did not remember seeing Broussard on his property before the accident and did not know he was there. Broussard stated that he told Romero “hello” when he arrived; however, he did not think that Romero knew of his attempt to push the tree limb off of the shed.

Neither Romero nor Rhodes asked Brous-sard to remove the limb, it was Broussard’s idea. Broussard testified that “[wjhen we see something to be done, we do it.”

As this appeal involves the appropriateness of granting a dismissal of plaintiffs’ suit through summary judgment, we think it is proper to set forth certain facts as stated by Harold Broussard in his own words as taken from his deposition (pages 22, 23, 27, 28, 30 and 31):

“Q. And what happened?
A. And he was cutting on that branch. So I said, ‘Dusty,’ I said, “why don’t you take the branch and throw it off the building.’ And I said, ‘When it’s going to hit the ground, you can cut it off on the ground.’ I said, ‘It’s easier.’ He was on a ladder.
Q. Excuse me. Now, let me ask you something so that I understand. He was cutting the branch — he was standing on the ladder, cutting the branch?
A. Yes — well, on this side.
* * * * * *
Q. Was the branch still attached to the tree in any way?
A. It fell off.
Q. It had fallen off completely and was not connected to the tree.
A. (Witness nods affirmatively).
Q. You have to answer, now. Don’t forget.
A. Okay.
Q. And he was cutting off the end of it?
A. No, a piece off of it.
Q. And standing on the ladder. What was he cutting with?
A. A chain saw.
Q. And you went up to him, and you made a suggestion to him?
A. Yes, sir.
Q. And you said, ‘Dusty’ — what did you say? Tell us again.
A. I said, ‘Why don’t we just throw it off the little building?’ I said, ‘When it will hit the ground,’ I said, ‘you can cut it off the ground.’
Q. And what did he say to that?
A. He said, “Yes.’ So he grabbed the other end next to the swimming pool, and I grabbed this end.
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Q. And Dusty didn’t ask you to remove the branch?
A. No.
Q. You went and you did that on your own; is that right?
A. Yes, sir.
Q. That was your own idea?
[1270]*1270A. Yes, sir.
Q. And when you went there, you were able to see — (Interrupted)
A. It would have been easier to cut on the ground than on the building.
Q. Yes. You were able to see that?
A. Yes, sir.
Q. And you were able to see the way the branch was resting on the shed; is that right?
A. Yes, sir.
Q. And you were able to make a decision as to what was the best way to cut it; is that right?
A. Yes.
Q. And you did all this, Mr. Broussard, voluntarily on your own, without anybody calling you and asking you to do it?
A. No, sir.
Q. Well, you mean, yes, you did it on your own; is that correct?
A. On my own.
Q. And nobody called and asked you to do it?
A. No, sir.

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Bluebook (online)
628 So. 2d 1267, 1993 La. App. LEXIS 3865, 1993 WL 503762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-cna-insurance-co-lactapp-1993.