Ferguson v. LOEWER POWERSPORTS & EQUIPMENT

33 So. 3d 446, 9 La.App. 3 Cir. 990, 2010 La. App. LEXIS 383, 2010 WL 933829
CourtLouisiana Court of Appeal
DecidedMarch 17, 2010
Docket09-990
StatusPublished
Cited by1 cases

This text of 33 So. 3d 446 (Ferguson v. LOEWER POWERSPORTS & EQUIPMENT) 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
Ferguson v. LOEWER POWERSPORTS & EQUIPMENT, 33 So. 3d 446, 9 La.App. 3 Cir. 990, 2010 La. App. LEXIS 383, 2010 WL 933829 (La. Ct. App. 2010).

Opinions

PAINTER, Judge.

| defendants, Loewer Powersports & Equipment (Loewer) and Federated Mutual Insurance, appeal the trial court’s judgment in favor of Plaintiff, Scott Ferguson, finding Loewer liable for damages resulting from Plaintiffs use of a lawn mower loaned to him by Loewer. Finding no error in the trial court’s judgment, we affirm.

Plaintiff operates a lawn maintenance service. He bought a riding lawnmower from Loewer and sometime later, brought the mower to Loewer for service. Loewer loaned Plaintiff the same model mower while his was being repaired. The next day, while mowing a customer’s lawn with the loaner mower, Plaintiff felt a stinging on his back and turned around to see what was happening. As he did so, his right hand became stuck in the damaged armrest of the mower. Finding hot water spraying on him from behind, he jumped off the mower, yanking his hand out of the damaged armrest, and injuring it. He later discovered that the radiator hose had become detached causing the spray of hot water.

He filed this suit against Loewer, and after a trial on the merits, the trial court ruled in his favor and awarded him $50,000.00 as stipulated by Plaintiff prior to trial. Loewer appeals, arguing that the trial court erred in concluding that an accident occurred, in finding that the lawnmower was defective, in finding that Plaintiff carried its burden of proof with regard to the defect, in finding that Plaintiff was not responsible for the defect, in failing to find that Plaintiff failed to mitigate his damages, and in its award of damages.

Standard of Review

The manifest error standard of review is the proper standard to be applied in cases involving findings of unreasonable risks of harm or unreasonably dangerous defects. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Thus, an appellate court may not 12set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

[450]*450Bullock v. The Rapides Foundation, 06-26, pp. 4-5 (La.App. 8 Cir. 10/11/06), 941 So.2d 170, 174, writs denied, 06-2646 (La.l/8/07),948 So.2d 127, 06-2708 (La.1/8/07), 948 So.2d 132

Therefore, we will examine the record to determine whether a reasonable factual basis exists therein for the trial court’s findings and whether the finding was clearly wrong.

Elements of Claim

Plaintiff asserts that his injury was the result of a defect in the lawnmower and that Loewer was the owner and custodian of the mower.

La.Civ.Code art. 2317 provides that:

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 Rare answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

La.Civ.Code art. 2317.1 provides that:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

This court recently outlined the elements of a claim under La.Civ.Code art 2317.1 as follows:

Accordingly, to prevail in [his] claim, the plaintiff [must] prove the following: (1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof any one of these elements, his ... claim fails.

Robinson v. Meaux, 09-374 (La.App. 3 Cir. 11/4/09); 23 So.3d. 1025, 1028 (citing Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, pp. 3-4 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817) (alterations in original).

1) Garde

Defendants first assert that the evidence shows that they did not have custody or garde of the mower at the time of the incident, having turned it over to Plaintiff the previous day. We disagree.

[A]n owner of a thing who transfers its possession, but not its ownership to another, continues to have the garde of its structure and is obliged to protect others from damage caused by structural defects arising before the transfer. As we have previously observed, the principle of legal fault or strict liability underlying Civil Code articles 2317 — 22 is analogous to the principle of strict products liability. Halphen v. Johns-Manville Sales Corp., [484 So.2d 110 (1986)] supra, at p. 116-17.Although the manufacturer usually does |4not have custody of the product when the injury occurs, in order for strict liability to arise, the plaintiff must prove that the product’s unreasonably dangerous condition existed at the time the product left the control of the manufacturer, and that the product reached the user in substantially that same defective condition. As between the innocent consumer of a product and the manufacturer, the man[451]*451ufacturer is in the better position to detect, evaluate and take steps to eliminate an unreasonable risk of harm arising in his product before it leaves his control.

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Related

Ferguson v. LOEWER POWERSPORTS & EQUIPMENT
33 So. 3d 446 (Louisiana Court of Appeal, 2010)

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Bluebook (online)
33 So. 3d 446, 9 La.App. 3 Cir. 990, 2010 La. App. LEXIS 383, 2010 WL 933829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-loewer-powersports-equipment-lactapp-2010.