Domangue v. Mr. Gatti's, Inc.

657 So. 2d 689, 1995 WL 377587
CourtLouisiana Court of Appeal
DecidedJune 23, 1995
Docket93 CA 2392
StatusPublished
Cited by4 cases

This text of 657 So. 2d 689 (Domangue v. Mr. Gatti's, Inc.) 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
Domangue v. Mr. Gatti's, Inc., 657 So. 2d 689, 1995 WL 377587 (La. Ct. App. 1995).

Opinion

657 So.2d 689 (1995)

Thomas James DOMANGUE
v.
MR. GATTI'S, INC., and State Farm Insurance Company.

No. 93 CA 2392.

Court of Appeal of Louisiana, First Circuit.

June 23, 1995.

*691 Norval J. Rhodes, Houma, and William S. Culver, Jr., Metairie, for plaintiff-appellant-appellee.

Michael Grennan, New Orleans, for defendants-appellees-appellants, The Travelers Ins. Co. and Lynn Park Shopping Center.

Jerry H. Schwab, Houma, for defendants-appellants-appellees State Farm and Anko Investments.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

SHORTESS, Judge.

Thomas J. Domangue (plaintiff), a paraplegic, was injured on June 17, 1990, on the premises of a Mr. Gatti's Pizza restaurant in Houma, Louisiana, when his wheelchair rolled off the sidewalk and he was thrown into the parking lot. He originally sued Mr. Gatti's Inc., and its insurer, State Farm Fire & Casualty Company[1] (State Farm). He later amended his petition to substitute Anko Investments, Inc. (Anko), for Mr. Gatti's Inc., and to add Lynn Park Shopping Center (Lynn) as a defendant.[2] Anko was the named insured under the State Farm policy, which included Mr. Gatti's and Lynn as additional insureds. State Farm and Anko filed a third party demand seeking indemnification against The Travelers Insurance Company (Travelers), and Travelers and Lynn then cross-claimed against State Farm and Anko.

The case was tried to a jury on the issues of negligence and damages. The jury found that plaintiff, Anko, and Lynn were all negligent and apportioned the fault 35% to plaintiff, 45% to Anko, and 20% to Lynn. Damages were fixed at $100,000.00 for past and future medical expenses, $35,000.00 for past and future physical pain and suffering, and $25,000.00 for past and future mental anguish. The jury awarded no damages for past, present, and future loss of earning capacity.[3]

*692 The cross-claim and third party demand were submitted to the trial court for decision. The court, in brief written reasons, found it was "satisfied that the jury's division of fault... is substantially correct despite the fact that the jury did not try the third party demand." The court stated it adopted the jury's allocation of fault "as dispositive of the Third Party Demand."

Judgment was then rendered by the court in accordance with the verdict on the main demand. The judgment also dismissed the third party demands and cross-claim. Plaintiff's post-trial motions for judgment notwithstanding the verdict, new trial, and additur were denied.

All parties have appealed. Plaintiff contends that the trial court erred in casting him with 35% of the fault, that the damages awarded for pain and suffering, mental anguish, and medical expenses are inadequate, and that the court erred in denying his post-trial motions. State Farm and Anko contend the trial court erred in applying the jury's findings to its third party demand, in dismissing their third party demand, and in awarding future medical expenses to plaintiff.[4] Travelers and Lynn contend the trial court committed an error of law in dismissing its cross-claim and in failing to determine the State Farm policy provided pro rata coverage to Lynn.

LIABILITY

Neither Anko nor Lynn (defendants) has appealed the finding that its fault caused the accident. However, plaintiff contends the fact finder erred in assessing 35% of the fault in this accident to him.

The accident occurred as plaintiff was exiting the premises. The door was hinged so that it opened away from the handicapped ramp. A patron in a wheelchair was required to come through the doorway, go away from the handicapped ramp, allow the door to close, then make a 180-degree turn back toward the handicapped ramp. Plaintiff testified he was approximately three-fourths of the way through the 180-degree turn when he felt a grabbing or twisting of the front wheel on his wheelchair, as if the wheel had hit a rock. However, he was not certain what had caused the accident. His front wheels went off the edge of the sidewalk, which was six inches higher than the parking lot, and he was catapulted forward into the parking lot.

Thomas J. Kinsella, III, the manager of the restaurant at the time of the accident, testified that when he learned of the accident, he went outside and found plaintiff lying in the parking lot. Plaintiff was coherent but complained he was seeing white specks. Kinsella asked him what had happened, and plaintiff said he thought he had hit a rock. Kinsella testified he inspected the sidewalk but found no rocks.

Kinsella reported this to plaintiff, and plaintiff replied that he "must have had" pizza grease on his hands because his hand had slipped off the back wheel. Plaintiff testified, however, that when he thought about the accident later, he realized this could not have been the cause of the accident. He stated his hands could not have been greasy because he had washed them two or three times while in the restaurant, and while his hand did slip off the back wheel, it was only after his front wheels had dropped off the sidewalk.

The parties stipulated that the 1977 American National Standards Institute (ANSI) code applies to this building. That code requires the entranceway to the building to have a substantially level landing which is a minimum of fifty-four inches wide. It is undisputed that the landing is less than forty-eight inches wide and has a slope of greater than twice that allowable under the code. Plaintiff's expert in the design and construction of buildings, Ronald Shaw, testified that these defects contributed to plaintiff's accident. Shaw also opined that other contributing factors were the poor condition of the exposed aggregate surface of the landing and sidewalk, which allows small pieces of rock to break off, and the lack of parking bumpers, *693 which permitted vehicles to overhang the sidewalk, thus blocking plaintiff's access to a portion of the sidewalk with more room for turning.

Defendant's expert architect, Wilbert L. Argus, Jr., admitted the entranceway deviated from the ANSI code but stated the defects did not cause or contribute to plaintiff's accident. He opined that the cause of the accident "had to be something other than the sidewalk per se." However, he offered no suggestion as to what that other cause might have been.

Defendants argued to the jury and in brief that because plaintiff had been to this restaurant on several previous occasions without incident he "must have done something different to contribute to the accident," that the sidewalk could "not have caused the plaintiff's wheelchair to roll out of control without the assistance of the plaintiff," and that the defective condition of the sidewalk was easily observable. However, there was no evidence presented that plaintiff did anything to contribute to the accident, and Kinsella testified that it is not "obvious to the human eye" that the sidewalk is sloped or slanted in any way.

If there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880, 883 (La.1993). Because the appellate court has a constitutional duty to review facts, however, it has every right to determine whether the trial court verdict was clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112, p. 6 (La. 7/5/94), 639 So.2d 216.

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Cite This Page — Counsel Stack

Bluebook (online)
657 So. 2d 689, 1995 WL 377587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domangue-v-mr-gattis-inc-lactapp-1995.