Daigle v. Legendre

619 So. 2d 836, 1993 WL 188992
CourtLouisiana Court of Appeal
DecidedMay 28, 1993
Docket92 CA 0694
StatusPublished
Cited by28 cases

This text of 619 So. 2d 836 (Daigle v. Legendre) 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
Daigle v. Legendre, 619 So. 2d 836, 1993 WL 188992 (La. Ct. App. 1993).

Opinion

619 So.2d 836 (1993)

Francis A. & Betty J. DAIGLE
v.
Dale & Sandra LEGENDRE and State Farm Insurance Company.

No. 92 CA 0694.

Court of Appeal of Louisiana, First Circuit.

May 28, 1993.

*838 Eugene A. Ledet, Jr., Alexandria, for plaintiffs and appellants—Francis A. and Betty J. Daigle.

Christopher H. Riviere, Thibodaux, for defendants and appellees—Dale and Sandra Legendre and State Farm.

Before CARTER, LeBLANC and PITCHER, JJ.

CARTER, Judge.

This is an appeal from a trial court judgment in a suit for damages resulting from a fall from a roof.

FACTS

On or about September 16, 1989, plaintiff, Francis Daigle, was assisting Dale and Chad Legendre in building a storage shed at the residence of Dale and Sandra Legendre (defendants) in Schriever, Louisiana.[1] The three men were on the roof of the shed laying the tar paper. Daigle was responsible for unrolling the paper and keeping it straight while the other two men nailed it down. Daigle was walking backward and unrolling the paper when he backed off of the roof and fell approximately fifteen (15) feet. As a result of the fall, Daigle sustained serious injuries to his wrist, back, and heel.

On April 25, 1990, plaintiff and his wife, Betty, filed the instant suit for damages against Dale and Sandra Legendre and their homeowner's liability insurer, State Farm Insurance Company, asserting claims in negligence and strict liability.[2] The petition alleged that Francis Daigle sustained serious injuries as a result of the fall and that his wife suffered damages for loss of consortium.

A jury trial began on July 10, 1991. The trial court rendered judgment on July 11, 1991, finding that Daigle was 90% at fault and that defendants were 10% at fault. Daigle was awarded damages in the amount of $16,859.35 (to be reduced by his percentage of fault), and Betty Daigle's loss of consortium claim was dismissed with prejudice.[3]

On July 25, 1991, plaintiffs filed a motion for judgment notwithstanding the verdict or, in the alternative, for an additur or a *839 new trial. Following a hearing on September 4, 1991, the trial judge determined that the evidence supported the jury's assessment of fault, but that the evidence did not support the award for pain and suffering. The trial judge then granted an additur in the sum of $72,500.00 (to be reduced by Daigle's percentage of fault).[4]

From this judgment, plaintiffs appealed, assigning the following specifications of error:

1. The jury and the trial court erred in finding plaintiff ninety percent (90%) comparatively negligent in the accident.
2. The trial court erred in failing to instruct the jury on strict liability.
3. The jury and the trial court erred in failing to find damages for loss of consortium for Mrs. Daigle.

Defendants answered the appeal, claiming that plaintiff was solely at fault and that the trial court erred in assessing 10% of the fault to the defendants.

JURY INSTRUCTIONS

Plaintiffs contend that the trial judge committed error by failing to instruct the jury on strict liability under LSA-C.C. art. 2317, which states the following:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

In a jury trial, the judge is not required to give the instructions submitted by either party; however, he is obligated to give instructions which properly reflect the law applicable in light of the pleadings and facts in each case. Manuel v. Louisiana Farm Bureau Casualty Insurance Company, 563 So.2d 916, 918 (La.App. 3rd Cir. 1990). Adequate instructions are those instructions which fairly and reasonably point up the issues presented by the pleadings and evidence and which provide correct principles of law for the jury's application thereto. Davidson v. Peden, 413 So.2d 568, 573 (La.App. 1st Cir.1982).

The judge has a duty to charge the jury as to the law applicable in a case and a correlative right and responsibility to require that the jury get only the correct law. Sparacello v. Andrews, 501 So.2d 269, 277 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (La.1987). It is the judge's responsibility to reduce the possibility of confusing the jury, and he may exercise the right to decide what law is applicable. Sparacello v. Andrews, 501 So.2d at 277.

An appellate court must exercise great restraint before overturning a jury verdict on a suggestion that jury instructions were so erroneous as to be prejudicial. Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1152 (La.App. 3rd Cir.1991); Creel v. S.A. Tarver & Son Tractor Co., Inc., 537 So.2d 752, 754 (La.App. 1st Cir. 1988). We must therefore inquire as to whether strict liability could be applicable in light of the pleadings and facts in this case.

The theory of strict liability applies only if the plaintiff has shown the following: (1) the thing which caused the damage was in the care, custody, and control of the defendant; (2) that the thing had a vice or defect which created an unreasonable risk of harm; and (3) that the injury was caused by the defect. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106, 1112 (La.1990).

There is no dispute that defendants had custody of the shed and its unfinished roof. The issues are whether the unfinished roof (1) created an unreasonably dangerous defect and (2) caused plaintiff's injuries. Plaintiff alleged in his petition that the accident was caused solely by the negligence, strict liability, and/or fault of the defendants. Although plaintiff made no *840 specific allegations of any vices or defects in the roof of the defendants' shed, plaintiff presented evidence at trial which suggested that the defendants' failure to provide some sort of perimeter protection might have rendered the unfinished roof unreasonably dangerous. If the condition of the worksite could have been a cause of plaintiff's accident, it was error for the trial court to fail to charge the jury on strict liability. Stovall v. Shell Oil Company, 577 So.2d 732, 741 (La.App. 1st Cir.), writ denied, 582 So.2d 1309 (La.1991).

In view of the facts involved in the instant case, we find that the trial court erred in refusing to give the jury instruction on the defendants' strict liability. There is evidence that the unfinished roof, without perimeter protection, could have presented an unreasonable risk of harm and could have been a cause of plaintiff's accident.

However, we do not find such error to be reversible. While the basis for determining the existence of a duty is different in strict liability and ordinary negligence cases, the duty is the same. Manasco v. Poplus, 530 So.2d 548, 549 (La.1988); Williams v. Orleans Parish School Board, 541 So.2d 228, 230 (La.App. 4th Cir.1989). In a strict liability case as opposed to a typical negligence case, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. Sistler v. Liberty Mutual Insurance Company, 558 So.2d at 1112, n. 7; Tipton v. Bossier Parish School Board, 441 So.2d 453, 454 (La.App. 2nd Cir.1983).

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