Collins v. Christophe

479 So. 2d 537
CourtLouisiana Court of Appeal
DecidedNovember 19, 1985
DocketCA 84 0936
StatusPublished
Cited by17 cases

This text of 479 So. 2d 537 (Collins v. Christophe) 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
Collins v. Christophe, 479 So. 2d 537 (La. Ct. App. 1985).

Opinion

479 So.2d 537 (1985)

Yvonne J. COLLINS
v.
Carolyn C. CHRISTOPHE, et al.

No. CA 84 0936.

Court of Appeal of Louisiana, First Circuit.

November 19, 1985.
Rehearing Denied December 26, 1985.

*538 James A. Carnes, Baton Rouge, for plaintiff-appellant Yvonne J. Collins.

Donald R. Smith, Baton Rouge, for defendants-appellees Carolyn C. Christophe, et al.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

LANIER, Judge.

This is a suit for damages in tort alleging a fall during a party at a private residence. The homeowner's insurer[1] defended on the grounds that the premises were not defective, the homeowner was not negligent and, in the alternative, that the plaintiff was either contributorily negligent or assumed the risk. A trial by jury ended with a general verdict in favor of the insurer. The plaintiff filed an application for a new trial which was denied. The plaintiff then qualified as a pauper and took this devolutive appeal.

*539 FACTS

Effective April 3, 1981, Carolyn C. Christophe purchased a homeowners policy of insurance from Prudential Property and Casualty Insurance Company (Prudential). This policy had a term of one year and insured the premises located at 5668 Jackson in Baton Rouge, Louisiana. The policy had liability insurance limits of $25,000.

Commencing at approximately noon on Friday, November 13, 1981, Christophe and her sister, Myrtis E. Coleman, sponsored a "supper" at Christophe's home at which food and drinks were sold to raise funds to help defray the legal expenses of one of Christophe's nephews. The "supper" apparently was to last until November 15, 1981.

At approximately midnight or 1:00 a.m. on Sunday, November 15, 1981, Yvonne Jenkins Collins and a girlfriend went to Parker's Lounge. Collins had two scotch drinks and left the lounge between 2:00 or 2:30 a.m. Collins had her sister drop her off at the "supper" at Christophe's home at about 3:00 a.m. Collins got a drink and watched a card game for a while. Approximately thirty minutes later, Collins was standing at the portable bar at Christophe's home, turned to go towards the rented jukebox on the premises and fell. Collins was helped up, carried to a car and taken to Baton Rouge General Hospital.

Collins was treated in the emergency room of the hospital. X-rays were taken which revealed a fracture of the right ankle with an associated fracture of the anterior lip of the distal tibia. The fracture was reduced and the leg set in a plaster cast. Collins was then released to go home.

Two weeks later during a follow-up visit, it was discovered that the fracture was not healing properly. Collins was readmitted to the hospital on December 2, 1981, for surgery (open reduction and internal fixation) during which three small screws were placed in the bone to stabilize the fractures. Collins was discharged from the hospital on December 7, 1981.

On January 5, 1982, Collins was allowed to start walking and putting weight on her ankle. On January 26, 1982, her leg cast was removed and she was allowed to proceed to full weight bearing. Her treating physician testified she had regained "five degrees of dorsiflexion of her ankle, which is bending the ankle up and sixty degrees bending it down, which is very close to what is normal." Collins will require minor surgery on an outpatient basis to remove the screws in her ankle.

ERRONEOUS JURY INSTRUCTIONS AND INTERROGATORIES

(Assignments of Error 2 and 3)

Collins contends the trial court's "instructions to the jury were incomplete, unclear and confusing" and the "trial court erred in denying appellant's requested special charges and interrogatories to the jury and in charging the jury as to the effect of a previous injury or tort claim." Specifically, Collins complains about the jury instruction on the demeanor of a witness and the failure to give instructions on the strict liability of La.C.C. art. 2317 and the principle of respondeat superior in La.C.C. art. 2320.

The record reflects that, after the last witness testified (Christophe), the trial court recessed for fifteen minutes and a charge conference was held off the record during this period. The trial court then delivered its charge to the jury. After the jury retired, the trial court went on the record (out of the presence of the jury) and ordered that the jury instructions requested by Collins be filed of record and indicated that the "Court does not believe that Article 2317 of the Civil Code is applicable nor the 2320." A review of the jury charges shows the jury was not advised of strict liability or respondeat superior. The following then occurred:

THE COURT: At this time, we will invite the plaintiff to make what objections they have to the charge. Then, I will go to the defense attorney. All right. Mr. Simmons?
*540 MR. SIMMONS: To the extent that out [sic] proposed instructions were not given, we would object, Your Honor.
THE COURT: All right.
MR. SIMMONS: Whatever else might be prejudicial to the plaintiff.

Collins did not specifically object to the trial court's charge on the demeanor of witnesses. Her requested jury instructions do not contain a charge on this subject matter. Accordingly, this objection has been waived. La.C.C.P. art. 1793. A blanket objection to jury charges is not sufficient to preserve the objection. Lea v. Baumann Surgical Supplies, Inc., 321 So.2d 844 (La.App. 1st Cir.1975), writ denied, 325 So.2d 279 (La. 1976).

The trial court was correct in refusing to give a charge on the strict liability of La. C.C. art. 2317. As indicated in the discussion in assignment of error 1 hereafter, strict liability is not applicable to the facts of this case.

The trial court committed error by not giving the requested charge on the principle of respondeat superior in La.C.C. art. 2320. In the trial court, Collins' theory of recovery was that Linda Jenkins was employed by Christophe as a bartender for the supper, Jenkins was responsible for "policing the area immediately adjacent to the bar", Jenkins negligently performed this duty and allowed water and/or a lemon slice to accumulate on the carpet and failed to warn patrons, such as Collins, of the wet and slippery condition of the carpet, and this condition caused Collins to fall. The evidence shows Christophe gave the supper as a profit-making venture to pay legal fees for her nephew. She paid Linda Jenkins $75 for her services in this endeavor. From this evidence, a jury could reasonably infer that an employer-employee relationship existed. Respondeat superior is obviously a key element of this claim. Failure to give the requested instruction was prejudicial error.

Because Louisiana appellate courts have jurisdiction over the facts in civil cases, such a prejudicial error does not necessarily require a remand. La.Const. of 1974, art. V, § 10; La.C.C.P. art. 2164. Where prejudicial error (such as that in the instant case) impeaches the validity of a jury verdict and the trial court record is complete, an appellate court should, if it can, render a judgment on the record before it. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). In making such a judgment, an appellate court is not bound by the manifest error (clearly wrong) rule for appellate review of trial court facts, but is required to make an independent evaluation of the record and determine a preponderance of the evidence. Suhor v. Gusse, 388 So.2d 755 (La. 1980); Rayford v.

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Bluebook (online)
479 So. 2d 537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-christophe-lactapp-1985.