Buxton v. Allstate Ins. Co.

434 So. 2d 605, 1983 La. App. LEXIS 8947
CourtLouisiana Court of Appeal
DecidedJune 29, 1983
Docket83-99
StatusPublished
Cited by17 cases

This text of 434 So. 2d 605 (Buxton v. Allstate 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
Buxton v. Allstate Ins. Co., 434 So. 2d 605, 1983 La. App. LEXIS 8947 (La. Ct. App. 1983).

Opinion

434 So.2d 605 (1983)

Maggie BUXTON, et al., Plaintiffs-Appellees,
v.
ALLSTATE INSURANCE COMPANY, Defendant-Appellant.

No. 83-99.

Court of Appeal of Louisiana, Third Circuit.

June 29, 1983.

*606 Raggio, Cappel, Chozen & Berniard, G. Michael Bourgeois, Lake Charles, for defendant-appellant.

John P. Navarre, Oakdale, for plaintiffs-appellees.

Before DOMENGEAUX, GUIDRY and YELVERTON, JJ.

YELVERTON, Judge.

This is a wrongful death action brought by the four sisters of the deceased Ether Boultinghouse. Plaintiffs alleged that the condition of the steps to the house where the deceased lived caused her to slip and fall resulting in her death. Defendant, Allstate Insurance Company, the homeowner *607 insurer, appeals from a judgment of the trial court awarding three of the sisters $25,000 each for the wrongful death of their sister. We affirm.

Ether Boultinghouse lived with her sister and brother-in-law, Maggie and Hubbard Buxton, at the Buxton home in Oakdale, Louisiana, for the five and one half years preceding the accident. Ether rented an apartment within the Buxton home. The apartment consisted of a front room, a bedroom, a kitchen, and a bathroom. Her rent consisted of paying one-half the utility bill and approximately $75 per month. Ether cooked her own meals.

On December 16, 1980, Ether and the Buxtons went Christmas and grocery shopping in Alexandria. When they returned home the Buxtons entered the house with their packages. Ether followed carrying one bag in her right hand containing a package of sugar and some fruit. The steps leading into the home consisted of three risers. When she reached for the screen door her foot slipped on the step and she fell into the yard. She was taken immediately to St. Francis Cabrini Hospital by ambulance. She was diagnosed as having a fractured hip and underwent surgery. On December 31, 1980, she returned home. She died suddenly three days later of a pulmonary embolus which the medical testimony attributed to the fall. She was 86 years old.

Plaintiffs—Maggie Buxton, Daisy Sonnier, Beatrice Fuller, and Marjorie Ferrich, sisters of the deceased—filed suit against the Buxtons' homeowner insurer, Allstate. Allstate answered denying all allegations and pleading the affirmative defense that the deceased assumed the risk of her injuries. Following trial judgment was rendered awarding each sister $25,000 for the wrongful death of Ether. In his reasons for judgment the trial court found the steps to be defective and a cause of the accident, thereby creating liability on the part of the defendant. A joint motion to correct the judgment was made and granted eliminating Maggie Buxton from the judgment since she was an insured under the home-owner's insurance policy and thus excluded from recovery of damages.

Allstate's appeal raises the following issues: 1) Were the steps defective? 2) Were the steps a cause of the accident? 3) Did Ether Boultinghouse assume the risk of injury? 4) Were the awards excessive? and 5) Was the deceased an omnibus insured excluding recovery under the terms of the policy? We will now address each issue in the order presented.

Were the Steps Defective?

Under La.Civil Code art. 2315 a person may be held liable for any damage caused by his negligence and/or fault. Strict liability is imposed upon an owner-lessor of premises for injuries sustained because the premises are defective. Wunstell v. Crochet, 325 So.2d 727 (La.App. 4th Cir. 1976). Fault in this instance is analogized from the conduct required of the owner-lessor by articles 2322 and/or 2695, and responsibility for the fault-caused damage attaches under article 2315. Wunstell, supra; and Keller v. Kelly, 378 So.2d 1006 (La.App. 4th Cir.1979), writ denied 380 So.2d 624 (La.1980).

La.Civil Code art. 2695 reads as follows:

Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

In the similar case of Wilson v. Virgademo, 258 So.2d 572 (La.App. 4th Cir.1972), the plaintiff-tenant emerged from her apartment with a pot of soup. She stepped onto the top riser of four cement steps and placed the soup down in order to close the door. While turning to descend before picking up the pot of soup, the step on which she was standing tilted, throwing her off balance and causing her to fall on the sidewalk. In affirming the jury award the *608 appellate court found liability on the part of the landlord and his insurer under article 2695 and stated:

It is beyond dispute that LSA-C.C. art. 2695 places upon the landlord the primary obligation of keeping his premises in repair and that he is liable for injuries due to accidents resulting from defects which can be reasonably expected to cause injury to persons using ordinary care. Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App. 3d Cir. 1966). Furthermore, it is well-settled that this liability of the landlord attaches whether or not he had actual knowledge of the defective condition of the premises. Boutte v. New Orleans Terminal Co., 139 La. 945, 72 So. 513 (1916); Thompson v. Moran, 19 La.App. 343, 140 So. 291 (Orl. 1932). The condition of the steps in the instant case is clearly the type of defect that is contemplated by LSA-C.C. art. 2695.
(emphasis added)

In the present case the condition of the steps is also clearly the type of defect that is contemplated by article 2695. Thilo Steinschulte, an architect, testified that the steps consisted of three risers leading into the residence. He found the steps were in a delapidated condition with three obvious defects: 1) the risers were of different heights; 2) the riser treads were of different width or depths; and 3) the surface was deteriorated. The steps were originally built of brick but had been covered in cement. The treads were at a slant instead of level. The two top corners of the wing wall were loose.

Mr. Buxton, the owner-landlord, testified that he poured concrete over the bricks approximately 10-12 years ago because his grandchildren had broken several of the bricks with a hammer. He stated that the concrete had started to crumble and break. His wife testified that the top was rounded and sloping to the right.

Considering the above testimony we agree with the trial court's finding that the steps were defective.

Were the Steps a Cause of the Accident?

The next issue for our consideration is whether the trial court erred in determining whether the condition of the steps caused the accident.

There were no witnesses to the accident. Three sisters of the deceased testified by deposition that they had talked with the deceased in the hospital after the accident. Beatrice Fuller and Daisy Allen stated that Mrs. Boultinghouse had informed them that as she reached for the door her foot slipped causing her to fall into the yard. Dorothy Ferrill testified as to their conversation as follows:

"Q What conversation did ya'll have about the accident, do you recall?
"A Yes.

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434 So. 2d 605, 1983 La. App. LEXIS 8947, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buxton-v-allstate-ins-co-lactapp-1983.