Evans v. Tudor Const.

670 So. 2d 447, 95 La.App. 3 Cir. 1029, 1996 La. App. LEXIS 240, 1996 WL 34633
CourtLouisiana Court of Appeal
DecidedJanuary 31, 1996
Docket95-1029
StatusPublished
Cited by8 cases

This text of 670 So. 2d 447 (Evans v. Tudor Const.) 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
Evans v. Tudor Const., 670 So. 2d 447, 95 La.App. 3 Cir. 1029, 1996 La. App. LEXIS 240, 1996 WL 34633 (La. Ct. App. 1996).

Opinion

670 So.2d 447 (1996)

E.C. EVANS, Plaintiff-Appellant,
v.
TUDOR CONSTRUCTION, Defendant-Appellee.

No. 95-1029.

Court of Appeal of Louisiana, Third Circuit.

January 31, 1996.

*449 John Taylor Bennett, Marksville, Edward Kaplan, Alexandria, for E.C. Evans.

Russell L. Potter, Alexandria, for Tudor Construction.

Henry Gregory Walker Jr., Alexandria, for Brookshire Grocery Company.

Daniel G. Brenner, Alexandria, for City of Alexandria.

Joseph B. Stamey, Natchitoches, for J.B.C. &E.

George Carnal Gaiennie III, Alexandria, for Charlie Carlisle.

Before YELVERTON, WOODARD and AMY, JJ.

WOODARD, Judge.

The plaintiff E.C. Evans and the intervenor, the City of Alexandria, appeal a jury verdict finding that the defendant, Brookshire Grocery Company, was not liable for the injury Evans sustained as a result of a mishap on Brookshire's property.

FACTS & ACTIONS OF THE COURT

On May 12, 1993, Evans was in the course and scope of his employment as an electrical inspector for the City of Alexandria when he allegedly hurt himself at Brookshire's Super One Food Store in Alexandria. Evans alleged in his petition, and maintained at trial, that upon arriving at Super One Foods to *450 conduct an electrical inspection, he stepped on a piece of concrete as he was exiting his truck, twisting and injuring his back. However, Brookshire presented evidence at trial that Evans initially related to clerk Nina Tyler on the day of the accident, for the purpose of completing an accident report, a different version of how he hurt himself. According to the report, he had stepped on a piece of concrete as he was traversing the store's parking lot, after he had already left his truck and not as he was getting out of it.

Individually and on behalf of his minor son, Evans sued Brookshire and a number of other parties, including construction contractors and subcontractors. The City of Alexandria, who had paid Evans worker's compensation benefits, intervened in the suit. The other defendants settled or were otherwise dismissed before the trial commenced. After a trial of the matter, a unanimous jury returned a verdict in favor of Brookshire, finding that it was not at fault for any injury Evans may have sustained as a result of the accident alleged. Evans and the City of Alexandria have appealed that verdict.

ASSIGNMENTS OF ERROR

Evans represents that the trial court erred: 1) in not holding that Brookshire was solely at fault in causing his injuries; 2) in not allowing OSHA (Occupational Safety and Health Administration) and ANSI (American National Standards Institute) materials to be admitted into evidence and in not allowing Evans to question witnesses about OSHA and ANSI standards; 3) in not allowing testimony about loss of future earning capacity; and 4) in modifying, or not giving, five of Evans's jury instructions.

We find all of the plaintiff's assignments meritless and affirm.

LAW & ARGUMENT

MANIFEST ERROR—CLEARLY WRONG

The manifest error—clearly wrong standard is the standard to be applied to appellate review of fact. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). This means that this court may not set aside a trial judge or jury's finding of fact unless that finding is manifestly erroneous or clearly wrong. Id. To reverse the judge or jury on its finding of fact, we must both find, after a review of the record in its entirety, that there is no factual basis for its finding, and that the finding is clearly wrong or manifestly erroneous. Id. The issue is not whether the jury or judge is right or wrong; it is whether the conclusion was reasonable. Id.

As to conflicting testimony, if the judge or jury's inferences of fact and evaluations of credibility are reasonable, they should not be disturbed by us, even if we think our own evaluations and inferences are more reasonable. Id. The Louisiana Supreme Court has emphasized that we may not reverse the trier of fact, even where we would have weighed the evidence differently than it, if the trier's finding is reasonable in light of the record reviewed in its entirety. Id. Thus, the factfinder's choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. Id. Nevertheless, even a finding purportedly based on a credibility determination may be clearly wrong-manifestly erroneous, where documents or objective evidence so contradict the witness's story, or the story itself is so internally implausible on its face, that a reasonable factfinder would not credit the witness's story. Id.

The Louisiana Supreme Court has held that this well-settled principle of review is based on the trial court's better capacity to evaluate live witnesses, whereas a court of appeal has access only to a cold record, and on the proper allocation of trial and appellate functions between the respective courts. Id.

The plaintiff has the burden of proving that the property which caused the damage was in the "custody" of the defendant, that the property had a condition that created an unreasonable risk of harm to persons on the premises, and that the defect was a cause in fact of the resulting injury. Gardner v. Campbell, 532 So.2d 292 (La.App. 3 Cir.), writ denied, 534 So.2d 446 (La.1988). Hence, the threshold question of whether Brookshire had custody of the property could *451 have been reasonably resolved in Brookshire's favor.

Additionally, even if Brookshire had been found to have had custody of the premises, that does not make it, as owner, the guarantor of the safety of pedestrians on his premises. Id. Brookshire, as owner and custodian, had only a duty to keep its property in a reasonably safe condition. Id. Brookshire, if it were first found to have custody, then had a duty to discover any unreasonably dangerous condition on the premises and either correct the condition or warn potential victims of the condition's existence. Id. Evans was fully familiar with the condition of the premises, having visited the site numerous times and should have needed no warnings. Notwithstanding, there were plenty of warnings on the property, as we discuss below.

Furthermore, evidence was presented that Evans may have given disparate versions of how he was hurt. At trial, Evans attempted to explain away the different versions by contending that Nina Tyler, who typed the accident report from handwritten notes she took as he told her what had happened, must have misunderstood him. Tyler's testimony is clear, however: it was her understanding that the accident happened in the parking lot between Evans's truck and the store. To further complicate matters, after insisting all through trial that the "truck version" was the way it really happened, the plaintiff then states in his appellate brief that "he tripped over a piece of concrete ... in the parking lot of Super One Foods." (Emphasis added.) As the sine qua non of this case is whether his injuries were caused by the fault of Brookshire, the variant versions may have had a bearing on the jury's appreciation of Evans's credibility, and thus on their ultimate finding in favor of Brookshire, as they pondered, for instance, whether he in fact was injured because of an accident on Brookshire property, and if so, whether the accident was caused by Brookshire's fault or his own.

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Cite This Page — Counsel Stack

Bluebook (online)
670 So. 2d 447, 95 La.App. 3 Cir. 1029, 1996 La. App. LEXIS 240, 1996 WL 34633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/evans-v-tudor-const-lactapp-1996.