Flint v. Trolley Stop

843 So. 2d 635, 2002 La.App. 4 Cir. 1423, 2003 La. App. LEXIS 1111, 2003 WL 1879138
CourtLouisiana Court of Appeal
DecidedApril 9, 2003
DocketNo. 2002-CA-1423
StatusPublished
Cited by4 cases

This text of 843 So. 2d 635 (Flint v. Trolley Stop) 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
Flint v. Trolley Stop, 843 So. 2d 635, 2002 La.App. 4 Cir. 1423, 2003 La. App. LEXIS 1111, 2003 WL 1879138 (La. Ct. App. 2003).

Opinion

11 TERRI F. LOVE, Judge.

Trolley Stop, Inc. appeals the trial court’s judgment, which found the Trolley Stop and its waitress, Dana Maurice, negligent based on injuries Gregory Flint, Sr., sustained as a result of coffee spilling onto his hand, stomach, legs, and groin area. The trial court awarded $15,000 in general damages, $1,502.82 in lost wages, and $544 in lost details to the plaintiff. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 22, 1996, Gregory Flint (“Flint”), a New Orleans police officer, entered the Trolley Stop, Inc.(“Trolley Stop”) to purchase a cup of coffee. A Trolley Stop employee, Dana Maurice, served Flint along with several other police officers. While raising his cup for a refill of coffee, the coffeepot collided with the cup and shattered. Hot coffee spilled onto [638]*638Flint’s hand, stomach, legs, and groin area. Flint was taken to the emergency room and admitted to the hospital. As a result of his injuries, Flint underwent physical therapy for his hand. Upon Flint’s return to work on December 15, 1996, he was assigned to work desk duty Lfor several months. Flint’s hand was discolored immediately after the incident and remains slightly discolored where the coffee spilled onto his hand, stomach, legs and groin area.

The defendant filed suit against the Trolley Stop and its insurer, Essex Insurance Company (“Essex”), for damages. Essex was dismissed from the suit for failure to produce a copy of the insurance policy. After a bench trial, judgment was rendered in favor of the plaintiff awarding $15,000 in general damages, $1,502.82 in lost wages, and $544 in lost details. Trolley Stop filed a Motion for a New Trial, which was denied by the trial court. Subsequently, Trolley Stop filed a Motion and Order for Suspensive Appeal.

DISCUSSION

It is well settled that a trial court’s findings of fact will not be disturbed unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173, 1176. Thus, in order to reverse a trial court’s finding of facts, an appellate court must first determine, after reviewing the record in its entirety, that a reasonable factual basis does not exist for the finding and that the record establishes that it is clearly wrong. Housley v.Cerise, 579 So.2d 973 (La.1991).

In the appellant’s first assignment of error, the Trolley Stop argues that the plaintiff failed to prove by a preponderance of the evidence each of the elements necessary to establish Trolley Stop’s negligence. Trolley Stop contends the three elements were as follows:

|gl. Trolley Stop, Inc. owned the business where plaintiff was injured;
2. Trolley Stop, Inc. employed the waitress who spilled the coffee;
3. Trolley Stop, Inc. owned the coffee pot that shattered.

A review of the record reveals the plaintiffs petition for damages is styled “Gregory Flint v. Trolley Stop & Essex Insurance Company.” However, in the body of the text, the defendant is properly recognized as “Trolley Stop, Inc.”. The trial court’s judgment failed to reflect the corporate nature of the defendant.

In accordance with La. C.C. art. 24, the Trolley Stop, Inc., a Louisiana corporation, was served under its corporate name. The defendant filed its answer without any exceptions to sufficiency of service or right of action. This court deems the omission of “Inc.” in the defendant’s name as harmless error.

This court held in Washington v. Avondale Industries, Inc., 1998-0362, p. 3 (La.App. 4 Cir. 3/18/98), 708 So.2d 1254, 1256-1257: “An employer is answerable for the damage occasioned by his servant in the exercise of the functions in which the servant is employed. La. Civ. Code art. 2320. In the application of Article 2320, an employer’s vicarious liability for conduct not his own extends only to the employee’s tortious conduct, which is within the course and scope of employment.” Reed v. House of Decor, Inc., 468 So.2d 1159, 1161 (La.1985).

Whether a party is hable for the act of a tortfeasor on the basis that the tortfeasor was the party’s employee in the course and scope of employment depends upon the proof and assessment of several factors, including payment of |4wages by the employer, the employer’s power of con[639]*639trol, the employee’s duty to perform the particular act, the time, place and purpose of the act in relation to service of the employer, the relationship between the employee’s act and the employer’s business, the benefits received by the employer from the act, the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act. Id. at 1161.

Officer Ferrier testified that he and Officer Gina Cousins and Flint visited the Trolley Stop frequently and Dana Maurice had waited on their table during many of their visits to the Trolley Stop. When asked to describe the sequence of events leading to the incident, Officer Cousins testified as follows:

Q. Could you describe, to your best recollection, of what happened?
A. “Um, Greg asked Dana for some more coffee. He motioned her to come over because he needed more coffee. He picked his cup up because she had a habit of overflowing the coffee and it would waste all over the table, and he— so he picked the cup up to hand it to her and she was walking. And as she was walking she was rushing along, and she went to pour the coffee and she hit the cup. And I don’t know if the glass exploded or the cup, I’m not sure, but I know coffee went everywhere.”

It is evident Flint and the other officers present at the time of the incident were familiar with Dana Maurice in her capacity as a waitress employed by the Trolley Stop restaurant. The trial court was presented sufficient evidence to conclude Dana Maurice’s tortious conduct occurred during the course and scope of her employment with the Trolley Stop.

| ¡¿Further, Trolley Stop alleges the plaintiff failed to prove the last element, ownership of the coffeepot used on the morning of the incident.

Officer Cousins testified that the coffeepot used on the morning of the incident was the same type of coffeepot used during previous visits to the restaurant and it appeared to be in good condition prior to the accident.

The record reflects Flint was injured in the Trolley Stop restaurant. The witnesses testified Dana Maurice had served them as waitress on several occasions, including the morning of the incident. There was also testimony that the coffeepot, which was in good condition prior to the accident, was a commonly used type of carafe in the restaurant. The Trolley Stop failed to call any witnesses or experts to refute the testimony rendered at trial.

This court finds the trial court did not abuse its discretion in finding the Trolley Stop was the correct corporate entity to file suit against and it was sued in its capacity as a Louisiana corporation. Moreover, Dana Maurice was clearly in the scope of her employment as a waitress for the Trolley Stop.

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843 So. 2d 635, 2002 La.App. 4 Cir. 1423, 2003 La. App. LEXIS 1111, 2003 WL 1879138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flint-v-trolley-stop-lactapp-2003.