Carter v. Cox Cable, New Orleans

806 So. 2d 24, 2000 La.App. 4 Cir. 1934, 2001 La. App. LEXIS 3036, 2001 WL 1614159
CourtLouisiana Court of Appeal
DecidedDecember 12, 2001
DocketNos. 2000-CA-1934, 2000-CA-1935, 2000-CA-1936, 2000-CA-1937
StatusPublished
Cited by3 cases

This text of 806 So. 2d 24 (Carter v. Cox Cable, New Orleans) 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
Carter v. Cox Cable, New Orleans, 806 So. 2d 24, 2000 La.App. 4 Cir. 1934, 2001 La. App. LEXIS 3036, 2001 WL 1614159 (La. Ct. App. 2001).

Opinion

JjBAGNERIS, Judge.

Defendants, Cox Cable of New Orleans (“Cox Cable”), and the Sewerage and Water Board of New Orleans (“S & W Board”) seek to reverse the judgment of the trial court. The trial court rendered judgment in favor of the plaintiffs, Cheryl Carter and Alicia Torres. The trial court allocated fault between Cox Cable and the S & W Board, fifty-fifty (50%-50%). For the assigned reasons, we affirm.

FACTS

On November 23,1998, a Regional Transit Authority (“RTA”) bus that was driven by Cheryl Carter, plaintiff, was involved in an accident in the 500 block of Dumaine Street in the French Quarter of New Orleans, Louisiana. The bus struck a pothole in the street that resulted in the driver losing control of the bus causing her to sustain personal injuries. The plaintiff, Alicia Torres, was a passenger on the bus at the time of the accident. As a result of the accident she sustained personal injuries. The bus struck an adjourning building, which caused property damage to the budding and the bus.

| ¡.Cheryl Carter and Alicia Torres, filed lawsuits for their personal injuries, Constitutional State Insurance, as the property insurer of the vehicle for property damage [27]*27and Greyhound Lines, as the owner of the bus for property damage sustained. Named, as defendants were the Sewerage & Water Board for the City of New Orleans, Greyhound Lines, the City of New Orleans through the Department of Streets and Cox Cable of New Orleans.

The trial court heard this consolidated lawsuit on December 7-8, 1998. The matter was taken under advisement and judgment was rendered on December 15, 1998. The trial court rendered judgment in favor of the Plaintiffs, Cheryl Carter and Alicia Torres against Cox Cable and Sewage and Water Board. The trial court found both defendants equally liable for the accident and allocated fifty-fifty (50%-50%) fault. Both appeal the trial court’s judgment.

DISCUSSION

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court announced a two-part test for the reversal of a factfinder’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).
See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

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. Id. The reviewing court must review the record in its entirety to | ¡¡determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, Louisiana Supreme 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.’ ” Housley, supra, at 973 (quoting Sistler, supra, at 1112.)

The Louisiana Supreme 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 [28]*28allocation of trial and appellate 1¿Junctions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716 (La.1978); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, (La. 1993). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

On appeal, Cox Cable argues that the plaintiffs failed to sustain their burden of proof by a preponderance of the evidence all the essential elements of their claims in order to recover. Also, Cox Cable argues there is no evidence that showed that they did any work in the area, which caused the Sewage & Water Board’s pipe to be moved, which created the leak in the sewer line that caused the street to collapse.

S & W Board also appealed the trial court ruling. S & W Board contends the ruling of the trial court was incorrect in that:

A. The sewer line serving the property on Dumaine Street was damaged by the installation of the of the conduit by Cox cable, whose acts and negligence alleges caused all subsequent damages and injuries. Further, that S & W Board did not receive notice of a problem with the sewer line until the collapse of the street.
B. The plaintiff, Cheryl Carter, failed to seek medical treatment and failed to procure medical test to further any treatment she might have needed and received, thus her damages should have been restricted.

In the present case, we conclude, after review of the record, that the trial judge was presented with two permissible views concerning whether a defect existed in the street as well as whether S & W Board had actual or constructive notice of the defect in the street. The trial court’s findings were not manifestly erroneous. Thus, the trial court’s findings are reasonable in light of the record. Accordingly, the S & W Board contention is without merit.

|Jn the instant case, Anthony Najolia testified on behalf of S & W Board. He testified that on November 23, 1988, he received a call regarding an accident in the 500 Block of Dumaine Street between Decatur Street and Chartes Street. He testified he observed a depression in the street near the side of the street between the curb and the center of the street. A dye test was conducted which showed a “break in” had occurred in the sewer pipe. The breakage was in the “sewer house connection to the main, six inch pipe.” Najolia described the area underneath the street as decayed.

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806 So. 2d 24, 2000 La.App. 4 Cir. 1934, 2001 La. App. LEXIS 3036, 2001 WL 1614159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-cox-cable-new-orleans-lactapp-2001.