CLEMENT III v. Armoniet

527 So. 2d 1004, 1988 WL 51557
CourtLouisiana Court of Appeal
DecidedMay 16, 1988
Docket87-CA-884
StatusPublished
Cited by6 cases

This text of 527 So. 2d 1004 (CLEMENT III v. Armoniet) 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
CLEMENT III v. Armoniet, 527 So. 2d 1004, 1988 WL 51557 (La. Ct. App. 1988).

Opinion

527 So.2d 1004 (1988)

Earl CLEMENT III, and his parents, Mr. and Mrs. Earl Clement, Jr.
v.
Kevin ARMONIET, Dennis Armoniet, George Armoniet, Jr., and XYZ Insurance Company.

No. 87-CA-884.

Court of Appeal of Louisiana, Fifth Circuit.

May 16, 1988.

*1006 Joseph R. Ward, Jr., Ward & Clesi, New Orleans, for defendants-appellants.

Lowell Dye, Andry & Andry, New Orleans, for plaintiffs-appellees.

Before KLIEBERT, BOWES and GRISBAUM, JJ.

GRISBAUM, Judge.

This personal injury matter relates to a social host's liability for the actions of third parties. The appellant, Earl Clement III, sustained injuries while fighting at a party given by Wayne Jones, one of the named defendants, at the Jones' residence. Clement and his parents sued various parties for damages, and the case was settled before trial by a "Mary Carter Agreement" as to all defendants except Jones. The trial court presided over a four-day jury trial and rendered a verdict in favor of the plaintiff, which was basically in accord with the jury's findings. Jones appeals suspensively; Clement and his parents answer the appeal, asking for an increase in damages and further complaining that the trial court erred in its apportionment of fault. We affirm.

FACTS

Eighteen-year-old Wayne Jones lived with his parents. While Mr. and Mrs. Jones were vacationing in Texas, Wayne and his friend Mark Clement decided to throw a party at the Jones' residence. This decision was made on Saturday, August 12, 1982, the day of the party. Invitation was by word-of-mouth. Testimony of Wayne and others present at the party indicates that, at various times in the evening, anywhere from 9 to 35 people were present.

The party was "B.Y.O.B." ("Bring Your Own Booze"). Wayne contributed a fifth of Tequila and several others each brought a fifth. A mixture known as "Long Island Tea" was prepared and made available throughout the evening to all who were present. When the punch bowl was empty, everyone "passed the hat" around. Wayne contributed money at that time for the purchase of more liquor.

Wayne testified that he knew several of the people present were under the legal drinking age of 18, including his 17-year-old friend, Dennis Armoniet. Wayne had known Armoniet since the sixth grade, and he stopped by Armoniet's house in Kenner to personally invite Dennis and his brother Kevin, who was 21, to the party. Wayne testified that he did not warn anyone under the age of 18 not to drink the punch, even after some of the minors were obviously very drunk and fighting broke out. He said he himself was "pretty busted" that evening.

Although the witnesses' memories of the time each of the following events occurred is somewhat faulty, at some point in the evening the police were summoned. Wayne Jones was not even aware of the first visit until someone informed him of it later, because he was upstairs with his girlfriend when the police arrived. The police asked that the music be lowered. At that time, Earl Clement III lowered the stereo and asked everyone to quiet down. The police returned later to ask Wayne to stop riding his motorcycle up and down the street because it was disturbing the neighbors.

Sixteen-year-old Skippy Scioneaux became so intoxicated that he fell through a glass coffee table. Nineteen-year-old Greg Dunn helped him to his feet and began to brush the glass off of him. Dennis Armoniet apparently thought Greg Dunn was going to harm Skippy Scioneaux, and obscenities were exchanged. Kevin Armoniet intervened to stop the fight. Wayne Jones was upstairs when this happened; someone told him what had happened, and he came downstairs to see if everything was all right. In the meantime, Greg took Skippy out to a van to "sleep off" the effects of the alcohol. Wayne did not check on Skippy's condition after Skippy fell through the table. He testified that he stayed downstairs for about two minutes to smooth *1007 things over between Greg and Dennis. Wayne did not ask either one of them to leave the party. Then he went upstairs again because Greg and Dennis had promised him they had calmed down, and he did not think it necessary at that point to stay downstairs and supervise the conduct of the guests at the party. When asked during the trial if he felt the party was getting out of control at that point, Wayne answered, "I imagine it was, and being Skippy fell through the table."

About half an hour after Wayne went back upstairs, a second altercation between Dennis and Greg broke out in the upstairs hallway. Three of the four upstairs bedrooms were occupied at that time by Wayne and his date, Carla; Kevin and his girlfriend; and Earl Clement III and his girlfriend. Wayne came out of the bedroom he was in and stood between Greg and Dennis, trying to control Greg, who was a large individual. Dennis began banging on the door to the room Kevin was in, yelling for help from his brother Kevin, who was larger than Dennis and knew karate. Earl heard the ruckus and came out of the room where he had been napping to ask them to quiet down. When he saw Dennis attacking Greg and Wayne trying to restrain Greg, he thought they were both ganging up on Greg, who was one of his closest friends. In an effort to break the fight up, he pulled Dennis away from Greg. By that time, Kevin had appeared and saw Earl drag his brother to the side. When Earl turned around, Kevin hit him in the eye with the fiberglass cast he wore on his arm. Earl's eye was cut pretty badly and bled profusely. The boys all tumbled into Kevin's bedroom. Other people from downstairs had heard the noise and had come upstairs as well. Brian Guidry saw Earl's eye, pulled him out of Kevin's room, and brought him downstairs to attend to his eye. Earl was dizzy and worried about passing out while Brian cleaned his eye. At that point, Brian thought about bringing him to the hospital.

Then Earl and Brian heard the people upstairs run downstairs. Mark Clements had come to Wayne's aid to try to stop the fighting. Wayne saw Dennis run through the living and dining rooms and enter the kitchen. He went into the kitchen and helped Mark pull Greg off of Dennis. He saw Dennis run out of the house; by the time he ran out of the front door, he saw Earl and Brian lying on the street.

Brian Guidry testified that he saw Dennis and Kevin Armoniet walk out of the house. He told Earl, "We got to get these people out of here. This stuff is, you know, crazy." Brian and Earl went outside and approached Kevin. Both of them testified that they were not sure if Kevin intended to leave the party for good at that point, because Kevin's girlfriend was still in the house, and he was barefooted and wasn't wearing a shirt. Both Earl and Brian testified that they had no intention of fighting Kevin when they approached him. Earl testified that he was trying to ask the Armoniets to leave the party because there was too much tension in the air. Brian testified that he saw Kevin two houses away, banging on the door and saying, "Call the police, they're trying to kill me." Earl did not see Kevin knocking on doors or screaming for help. Earl explained that he approached Kevin because Kevin seemed to be more in control and Earl figured he had "a little bit more responsibility and ... knew it was time to get out of there...." He surmised that since everyone upstairs had been yelling at them to take the fight outside, Kevin might have thought Earl was looking for a fight.

Neither Earl nor Brian were carrying a weapon, and neither had the chance to speak to Kevin before he kicked them. When Earl and Brian were three to five feet away from Kevin, he gave Earl a karate kick in the face and then kicked Brian in the chest.

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Bluebook (online)
527 So. 2d 1004, 1988 WL 51557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clement-iii-v-armoniet-lactapp-1988.