STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-1623
DONALD A. CROSS AND CYNTHIA C. CROSS
VERSUS
TIMBER TRAILS APARTMENTS, T.F. MANAGEMENT, INC., THOMAS L. FRYE, AND TIMBER TRAILS APARTMENTS II, A LOUISIANA PARTNERSHIP IN COMMENDAM
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 198425 HONORABLE HARRY F. RANDOW, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Ulysses G. Thibodeaux, Chief Judge, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Larry B. Minton P.O. Box 13320 Alexandria, LA 71315 Counsel for Plaintiffs-Appellees Donald A. Cross and Cynthia C. Cross
Richard A. Rozanski J.P. D’Albor P.O. Box 13199 Alexandria, LA 71315 Counsel for Defendants-Appellants Timber Trails Apartments, T.F. Management, Inc., Thomas L. Frye, and Timber Trails Apartments II, a Louisiana Partnership in Commendam PAINTER, Judge.
Defendants, Timber Trails Apartments, T.F. Management, Inc., Thomas L.
Frye, and Timber Trails Apartments II, a Louisiana Partnership in Commendam
(“Timber Trails”), appeal the trial court’s judgment finding them 100% at fault in
connection with the injury sustained by Donald Cross when he slipped on icy steps
outside the apartment he rented from Defendants. We affirm.
FACTS
At the time of the accident, the Crosses were renting a second floor apartment
at the Timber Trails Apartment complex in Ball, Louisiana. Mr. Cross was
recuperating from heart surgery and was not working. Mr. Cross’ wife, Cynthia,
testified that when she left for work at 2:15 p.m. on December 22, 1998, the weather
was cold and windy. Patsy Dewitt, the apartment manager, testified that when she left
the complex after finishing work at 5:00 p.m. it was very cold. Mrs. Cross testified
that she first found out that it was sleeting around 9:00 p.m., when someone at work
told her. She further stated that when she left work that night, she had to pour hot
water on her car to melt the ice. During the drive home, her car slid a couple of times
because of ice on the road. She also slipped a little on the ice when she got out of her
vehicle at the apartments.
Mr. Cross stated that he did not leave his apartment that day until he went
outside onto the porch to look for his wife, who was late returning from work. He
testified that it was cold and that, although there was moisture in the air, there was no
accumulation of moisture on his porch or balcony. When Mr. Cross went out onto
the porch to look for her, Mrs. Cross was just driving up. He testified that the light
on the center of the storage unit above the stairs was out. Mr. Cross admitted that he
1 had previously used the stairs when the lights were out. He also admitted that he did
not turn on the light outside his apartment door even though the other light was out.
However, he explained that even had he turned on that light, the light would not have
reached to the top of the stairs, because a storage unit at the top of the stairs jutted out
and blocked the light from reaching the stairs. Mr. Cross called down to see if Mrs.
Cross needed any help. He stated that he heard her answer that she did, but Mrs.
Cross testified that she told him that she did not need any help. Mr. Cross stepped
onto the top stair while holding onto the railing. The steps were icy, and his feet went
out from under him. He fell down the stairs and was unable to get up. Although Mr.
Cross testified that his usual behavior was to watch his step, he could not definitively
say that he did so that night. His wife found him on the stairs. She discovered that,
because of the ice, she could not safely maneuver the stairs on her feet and went up
backwards on her buttocks. In her apartment, she called 911 then went back down
and covered Mr. Cross with a blanket.
The Ball Fire Department, the Ball Police Department, and Acadian
Ambulance came to the scene. Ms. Dewitt testified that the parking lot was
illuminated by two CLECO maintained area lights. However, Mrs. Cross testified
that one of those lights was out. She stated that she left her vehicle’s headlights on
to light the stairs, but that the light did not reach the top of the stairs.
Officer Carl Bordelon testified that when he arrived at the scene, Mr. Cross was
mid-way down the stairs. According to Officer Bordelon, ice on the ground made
walking difficult, but the ice was visible and apparent. However, Mrs. Cross testified
that her car headlights were lighting the area when Officer Bordelon arrived. Officer
Bordelon testified that he found ice on the stairs, which he removed with hot water.
2 The responders first took Mr. Cross back to his apartment where he was loaded
onto a stretcher and taken by ambulance to St. Francis Cabrini Hospital Emergency
Room. X-rays taken in the emergency room showed an acute bi-malleolar fracture.
Mr. Cross was also diagnosed with back pain and posterior neck pain secondary to
a muscle strain. The treating physician put a splint on Mr. Cross’ left ankle and
instructed him to use crutches.
When the Crosses arrived back at their apartment, Mrs. Cross was unable to
help Mr. Cross up the stairs and called the Ball Police Department for help. Officer
Bordelon came back to the apartments and helped Mrs. Cross melt the ice on the
stairs so they could get Mr. Cross back upstairs. As it turned out, Mr. Cross was too
heavy for Officer Bordelon to carry and he had to go up the stairs on his buttocks.
Mr. Cross testified that he did not know when the ice formed on the stairs. Ms.
Dewitt testified that she first found out about the ice on the stairs and the accident
when Mrs. Cross called her at her daughter’s house the morning after the accident.
Ms. Dewitt admitted that it was her responsibility to know about dangers such as ice,
and stated that if she had been aware of the ice, she would have put out sand and salt
and would have posted notices, particularly to the upstairs tenants. Mrs. Cross
testified that, after being informed of the ice, Ms. Dewitt brought some rock salt to
put on the stairs. A couple of days later, she sent sand to be put on the stairs. Mrs.
Cross testified that, prior to the accident, she had notified Ms. Dewitt in written notes
that the light at the head of the stairs and the CLECO-maintained area light were not
functioning. Ms. Dewitt could not recall receiving the notes.
Plaintiffs filed suit asserting that Defendants were at fault in the accident
because of their failure to correct the non-functioning light fixtures and that the ice
3 on the stairs created a hazardous condition. Prior to trial, the parties stipulated that
damages would not exceed $50,000.00. As a result, the matter was tried to the court.
After hearing evidence, the trial court found that the burned out lights caused a
hazardous condition of which the apartment manager was aware. The court rendered
judgment in favor of Plaintiffs finding Timber Trails to be 100% at fault in the
accident. Timber Trails appeals.
DISCUSSION
On appeal, Timber Trails asserts that the trial court erred in finding that
Plaintiffs were entitled to recover under theories of negligence, strict liability under
La.Civ.Code art. 2317.1, or lessor liability under La.Civ.Code art.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-1623
DONALD A. CROSS AND CYNTHIA C. CROSS
VERSUS
TIMBER TRAILS APARTMENTS, T.F. MANAGEMENT, INC., THOMAS L. FRYE, AND TIMBER TRAILS APARTMENTS II, A LOUISIANA PARTNERSHIP IN COMMENDAM
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 198425 HONORABLE HARRY F. RANDOW, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Ulysses G. Thibodeaux, Chief Judge, J. David Painter, and James T. Genovese, Judges.
AFFIRMED.
Larry B. Minton P.O. Box 13320 Alexandria, LA 71315 Counsel for Plaintiffs-Appellees Donald A. Cross and Cynthia C. Cross
Richard A. Rozanski J.P. D’Albor P.O. Box 13199 Alexandria, LA 71315 Counsel for Defendants-Appellants Timber Trails Apartments, T.F. Management, Inc., Thomas L. Frye, and Timber Trails Apartments II, a Louisiana Partnership in Commendam PAINTER, Judge.
Defendants, Timber Trails Apartments, T.F. Management, Inc., Thomas L.
Frye, and Timber Trails Apartments II, a Louisiana Partnership in Commendam
(“Timber Trails”), appeal the trial court’s judgment finding them 100% at fault in
connection with the injury sustained by Donald Cross when he slipped on icy steps
outside the apartment he rented from Defendants. We affirm.
FACTS
At the time of the accident, the Crosses were renting a second floor apartment
at the Timber Trails Apartment complex in Ball, Louisiana. Mr. Cross was
recuperating from heart surgery and was not working. Mr. Cross’ wife, Cynthia,
testified that when she left for work at 2:15 p.m. on December 22, 1998, the weather
was cold and windy. Patsy Dewitt, the apartment manager, testified that when she left
the complex after finishing work at 5:00 p.m. it was very cold. Mrs. Cross testified
that she first found out that it was sleeting around 9:00 p.m., when someone at work
told her. She further stated that when she left work that night, she had to pour hot
water on her car to melt the ice. During the drive home, her car slid a couple of times
because of ice on the road. She also slipped a little on the ice when she got out of her
vehicle at the apartments.
Mr. Cross stated that he did not leave his apartment that day until he went
outside onto the porch to look for his wife, who was late returning from work. He
testified that it was cold and that, although there was moisture in the air, there was no
accumulation of moisture on his porch or balcony. When Mr. Cross went out onto
the porch to look for her, Mrs. Cross was just driving up. He testified that the light
on the center of the storage unit above the stairs was out. Mr. Cross admitted that he
1 had previously used the stairs when the lights were out. He also admitted that he did
not turn on the light outside his apartment door even though the other light was out.
However, he explained that even had he turned on that light, the light would not have
reached to the top of the stairs, because a storage unit at the top of the stairs jutted out
and blocked the light from reaching the stairs. Mr. Cross called down to see if Mrs.
Cross needed any help. He stated that he heard her answer that she did, but Mrs.
Cross testified that she told him that she did not need any help. Mr. Cross stepped
onto the top stair while holding onto the railing. The steps were icy, and his feet went
out from under him. He fell down the stairs and was unable to get up. Although Mr.
Cross testified that his usual behavior was to watch his step, he could not definitively
say that he did so that night. His wife found him on the stairs. She discovered that,
because of the ice, she could not safely maneuver the stairs on her feet and went up
backwards on her buttocks. In her apartment, she called 911 then went back down
and covered Mr. Cross with a blanket.
The Ball Fire Department, the Ball Police Department, and Acadian
Ambulance came to the scene. Ms. Dewitt testified that the parking lot was
illuminated by two CLECO maintained area lights. However, Mrs. Cross testified
that one of those lights was out. She stated that she left her vehicle’s headlights on
to light the stairs, but that the light did not reach the top of the stairs.
Officer Carl Bordelon testified that when he arrived at the scene, Mr. Cross was
mid-way down the stairs. According to Officer Bordelon, ice on the ground made
walking difficult, but the ice was visible and apparent. However, Mrs. Cross testified
that her car headlights were lighting the area when Officer Bordelon arrived. Officer
Bordelon testified that he found ice on the stairs, which he removed with hot water.
2 The responders first took Mr. Cross back to his apartment where he was loaded
onto a stretcher and taken by ambulance to St. Francis Cabrini Hospital Emergency
Room. X-rays taken in the emergency room showed an acute bi-malleolar fracture.
Mr. Cross was also diagnosed with back pain and posterior neck pain secondary to
a muscle strain. The treating physician put a splint on Mr. Cross’ left ankle and
instructed him to use crutches.
When the Crosses arrived back at their apartment, Mrs. Cross was unable to
help Mr. Cross up the stairs and called the Ball Police Department for help. Officer
Bordelon came back to the apartments and helped Mrs. Cross melt the ice on the
stairs so they could get Mr. Cross back upstairs. As it turned out, Mr. Cross was too
heavy for Officer Bordelon to carry and he had to go up the stairs on his buttocks.
Mr. Cross testified that he did not know when the ice formed on the stairs. Ms.
Dewitt testified that she first found out about the ice on the stairs and the accident
when Mrs. Cross called her at her daughter’s house the morning after the accident.
Ms. Dewitt admitted that it was her responsibility to know about dangers such as ice,
and stated that if she had been aware of the ice, she would have put out sand and salt
and would have posted notices, particularly to the upstairs tenants. Mrs. Cross
testified that, after being informed of the ice, Ms. Dewitt brought some rock salt to
put on the stairs. A couple of days later, she sent sand to be put on the stairs. Mrs.
Cross testified that, prior to the accident, she had notified Ms. Dewitt in written notes
that the light at the head of the stairs and the CLECO-maintained area light were not
functioning. Ms. Dewitt could not recall receiving the notes.
Plaintiffs filed suit asserting that Defendants were at fault in the accident
because of their failure to correct the non-functioning light fixtures and that the ice
3 on the stairs created a hazardous condition. Prior to trial, the parties stipulated that
damages would not exceed $50,000.00. As a result, the matter was tried to the court.
After hearing evidence, the trial court found that the burned out lights caused a
hazardous condition of which the apartment manager was aware. The court rendered
judgment in favor of Plaintiffs finding Timber Trails to be 100% at fault in the
accident. Timber Trails appeals.
DISCUSSION
On appeal, Timber Trails asserts that the trial court erred in finding that
Plaintiffs were entitled to recover under theories of negligence, strict liability under
La.Civ.Code art. 2317.1, or lessor liability under La.Civ.Code art. 2695.
The law applicable to an attempt to recover damages from an owner or person
having custody of immovable property is well settled:
The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. This duty is the same under the strict liability theory of La. Civ.Code art. 2317 and the negligence liability theory of La. Civ.Code art. 2315. Under either theory, the plaintiff has the burden of proving that: (1) the property that caused the damage was in the “custody” of the defendant; (2) the property had a condition that created an unreasonable risk of harm to persons on the premises; (3) the unreasonably dangerous condition was a cause in fact of the resulting injury; and (4) the defendant had actual or constructive knowledge of the risk.
Bozeman v. Scott Range Twelve Ltd. P’ship, 03-903 (La.App. 1 Cir. 4/2/04), 878
So.2d 615, 619 (citations omitted). See also Johnson v. Bellefonte Ins. Co., 449 So.2d
1134, 1137 (La.App. 3 Cir.), writs denied, 456 So.2d 164, 456 So.2d 165 (La.1984).
On appeal, Timber Trails disputes the trial court’s findings with regard to the
existence of a dangerous condition or risk of harm and with regard to whether it had
notice of the dangerous condition, if any existed.
4 The trial court found the existence of an unreasonably dangerous condition in
the burned out lights. The court further found that Timber Trails, in the person of its
resident manager, had actual notice of the condition. The court also found that the
lack of adequate lighting was the cause-in-fact of the accident. The trial court also
noted the conflicting evidence both with regard to the burned-out lights and the notice
requirement. However, the court stated:
The Court is confronted with the differing testimony of the Crosses and the apartment manager, Ms. DeWitt regarding her knowledge as to the burned out lights. The Court accepts the testimony of Ms. Cross that she had informed Ms. DeWitt of the burned out light. This had occurred previously. Ms. DeWitt did not deny receiving a written note from Ms. Cross only that she did not recall receiving one. The Court is familiar with Officer Bordelon as a local law enforcement officer. In assessing his testimony regarding lighting on the night of the accident, the Court observed with some uncertainty as to whether the light was working that night. Further, the Court is mindful that Ms. Cross testified that she left her car lights on and that they illuminated partially the stairway where Mr. Cross fell. Accordingly, the Court finds that the porch light was not on nor was the CLECO dusk to dawn light near the Crosses’ porch working.
“In situations involving a conflict in the testimony, reasonable determinations
of credibility and reasonable inferences of fact should not be disturbed, even if the
appellate court might consider its own evaluations and inferences to be as
reasonable.” Cooper v. Louisiana State Dep’t of Transp. and Dev., 03-1847, p. 8
(La.App. 1 Cir. 6/25/04), 885 So.2d 1211, 1216, writ denied, 04-1913 (La. 11/8/04),
885 So.2d 1142. The trial court’s evaluations of credibility and findings of fact were
reasonable. The finding that Plaintiffs’ testimony established the existence of an
unreasonably dangerous condition and that Defendants had notice of the condition
is not manifestly erroneous. Having been presented with conflicting testimony
concerning these elements, and in the absence of totally conflicting or implausible
evidence or internal inconsistency that would contradict the witnesses’ story, we must
5 accept the trial court’s findings. See Rosell v. ESCO, 549 So.2d 840 (La.1989).
Given the reasonable credibility evaluations made by the trial court, the record
supports a finding that Defendants were negligent in failing to correct the lighting
problems. Accordingly, we find no error in the trial court’s determination that
Defendants were at fault in the accident.
Finally, Defendants argue that the trial court erred in failing to attribute any of
the fault for the accident to Plaintiffs.
The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. Like the assessment of damages, fault allocation is a factual determination and the trier of fact, unlike the appellate court, has the benefit of viewing firsthand the witnesses and evidence.
Owens v. Brown, 37,573, p. 3 (La.App. 2 Cir. 9/24/03), 864 So.2d 640, 642. See also
Duncan v. Kansas City S. Ry. Co., 00-0066(La. 10/30/00), 773 So.2d 670.
Given the conflicts in testimony, the record herein could have supported
different conclusions with regard to fault. In light of its superior ability to evaluate
the credibility of the witnesses, we defer to the trial court with regard to allocation of
fault.
CONCLUSION
For these reasons, the judgment of the trial court is affirmed. Costs of this
appeal are assessed to Defendants.