Buchignani v. Lafayette Ins. Co.

938 So. 2d 1198, 2006 La. App. LEXIS 1850, 2006 WL 2422899
CourtLouisiana Court of Appeal
DecidedAugust 23, 2006
Docket41,384-CA
StatusPublished
Cited by13 cases

This text of 938 So. 2d 1198 (Buchignani v. Lafayette Ins. 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
Buchignani v. Lafayette Ins. Co., 938 So. 2d 1198, 2006 La. App. LEXIS 1850, 2006 WL 2422899 (La. Ct. App. 2006).

Opinion

938 So.2d 1198 (2006)

Nancy C. BUCHIGNANI, Plaintiff-Appellee
v.
LAFAYETTE INSURANCE COMPANY, et al., Defendant-Appellant.

No. 41,384-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 2006.

*1200 Lunn, Irion, Salley, Carlisle & Gardner, by James A. Mijalis, Shreveport, for Defendant Appellant, Lafayette Ins. Co. and Sci-Port Discovery Center.

Sockrider, Bolin, Anglin, Batte, by James E. Bolin, Jr., Shreveport, for Plaintiff Appellee, Nancy C. Buchignani.

The Malone Law Firm, by Dannye W. Malone, Shreveport, for Defendant Appellee, City of Shreveport.

Before STEWART, CARAWAY and PEATROSS, JJ.

STEWART, J.

Nancy C. Buchignani, the plaintiff, tripped at an expansion joint and fell down six concrete steps. She sued Sci-Port Discovery Center, Lafayette Insurance Company (Sci-Port's insurer), and the City of Shreveport for damages. The claims against the City of Shreveport were dismissed at trial and are not at issue. As to the claims against Sci-Port and its insurer, the trial court determined that the defect at the expansion joint presented an unreasonable risk of harm and found Sci-Port at fault. The trial court assessed Ms. Buchignani with thirty percent comparative fault and awarded total damages of $50,000, reduced by her percentage of fault to $35,000. On appeal, Sci-Port argues that the trial court erred in finding the defect to be an unreasonably dangerous condition and in assessing the plaintiff with only thirty percent comparable fault. Ms. Buchignani answered the appeal, asserting error in the trial court's assessment of fault to her. Finding no reversible error, we affirm.

FACTS

The accident occurred on November 28, 2003, as Ms. Buchignani, age 66, was departing Sci-Port with her two sons, daughter-in-law, and grandchild. They walked along the outdoor plaza to the steps leading down to the north parking lot. Mrs. Buchignani's oldest son, Dan, was about ten feet ahead of her with his family, and her younger son, Brian, was about six to ten feet behind her.

The plaza was made of poured concrete slabs with numerous expansion joints. The expansion joints facilitated independent movement of the slabs to reduce the potential for stress cracking. Photographic evidence shows an expansion joint at the top of the steps alongside a concrete slab just ahead of the top step and in front of the handrails. The steps have handrails on both sides and a rail in the middle. Ms. Buchignani tripped at the expansion joint before reaching the first step.

*1201 Ms. Buchignani, whose left hand was in a cast at the time of the accident, gave the following account of how the accident occurred:

Well, I was walking toward the steps at a reasonable pace, and what I remember is when my right foot landed on the platform before you go down the stairs, and then my left foot tripped. And I think I was in the process of probably getting ready to hold on to the rail on the right-hand side, but I was in the middle. And I guess my plan was to walk off toward where I could reach the rail, but where my foot caught on something. . . .

Ms. Buchignani marked her approach to the steps on a photograph. She placed herself just to the right of the middle rail. She testified that when she tripped, she was unable to grab the nearest rail, which was the middle rail, due to the cast on her left hand, so she turned her body to try to grab the middle rail with her right hand. She was unable to reach the rail and fell down the six concrete steps. She sustained injuries to her head and right hip area, and she lost consciousness momentarily.

Brian Buchignani saw his mother's foot catch on something and then watched her fall down the steps. He rushed to her aid and held her head until she regained consciousness. Dan Buchignani did not see the accident, but he saw his mother lying on the pavement at the bottom of the steps. After having someone call 911, Dan, who worked as a claims adjuster, retrieved a camera from his vehicle and photographed the accident scene. He measured and photographed the difference in elevation at the expansion joint where his mother tripped. The photograph taken by Dan shows a height variance of one and one-half inches at the joint.

Mr. Harold E. Hunt, III, an operations assistant at Sci-Port, was notified after the accident occurred and saw Ms. Buchignani at the bottom of the steps. He testified that there was a slight raise in elevation between the step and the plaza area and that the condition had been there since he began working at Sci-Port in August 2002. He used the steps numerous times and did not see the defect as a problem. He knew of no prior accidents.

Mr. Munkith Al-Najjar, Sci-Port's CEO who was senior vice-president with responsibility for operations and building maintenance at the time of the accident, also had not noticed the difference in elevation at the joint by the steps prior to the accident. Mr. Al-Najjar testified that he sometimes used the steps. He also used the ramp, which was available as an alternative route to the parking lot at the time of the accident. According to Mr. Al-Najjar, Sci-Port receives around 200,000 visitors each year. Most visitors use the north entrance where the accident occurred, because it is nearer to the parking lot. He did not know of any prior accidents at the steps or of any complaints regarding the condition of the area around the steps. Mr. Al-Najjar testified that he was notified about the accident on the following Monday. He inspected the area and noticed a separation between the plaza and a slab by the steps. He said the separation looked to be "an inch or less." He then contacted the architect who designed the building and learned that the problem was due to normal settling and that it would get worse. The steps were closed to traffic. Signs directing visitors to use the ramp instead of the steps were made by the graphic arts department at Sci-Port and posted at the steps.

An agreement entered into by the City of Shreveport and Sci-Port in 1998 sets forth the duties of each party. Though the *1202 City of Shreveport owns the immovable property and building in which Sci-Port operates, Section 2.2 of the agreement gives Sci-Port the exclusive right to possession and occupancy of the property and "to manage, operate and provide all services for the Center and the Outdoor Exhibits, including but not limited to the maintenance of all buildings, exhibits and facilities (except for major repairs . . . to be done by the City of Shreveport)." Mr. Al-Najjar testified that he notified the City of Shreveport about the defect either Tuesday or Wednesday after the accident. A purchase order and an invoice for the City of Shreveport shows that the repairs were made in August 2004, at a cost of $1,790.00.

Following the accident, Ms. Buchignani was diagnosed with cervical strain and blunt trauma to the right hip at the emergency room. She was given pain medication and advised to follow-up with her physician. On December 2, 2003, she saw Dr. Wen Liu, an internal medicine specialist, for complaints of neck pain, chest wall pain, and blurred vision in her right eye. She also sought treatment for blurred vision and headaches from her ophthalmologist, Dr. David D. Bryan, who related her problems to the accident. Dr. Bryan J. Verkovius, a specialist in neuro-ophthalmology, also found Ms. Buchignani to have suffered some visual loss with headaches as well as significant dry eye syndrome related to the closed heard injury she sustained. In February 2004, she sought treatment from Dr. Henry J.

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Cite This Page — Counsel Stack

Bluebook (online)
938 So. 2d 1198, 2006 La. App. LEXIS 1850, 2006 WL 2422899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchignani-v-lafayette-ins-co-lactapp-2006.