Garrett v. Boh Bros. Const. Co., LLC

894 So. 2d 366, 4 La.App. 5 Cir. 804, 2005 La. App. LEXIS 7, 2005 WL 57298
CourtLouisiana Court of Appeal
DecidedJanuary 11, 2005
Docket04-CA-804
StatusPublished
Cited by3 cases

This text of 894 So. 2d 366 (Garrett v. Boh Bros. Const. Co., LLC) 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
Garrett v. Boh Bros. Const. Co., LLC, 894 So. 2d 366, 4 La.App. 5 Cir. 804, 2005 La. App. LEXIS 7, 2005 WL 57298 (La. Ct. App. 2005).

Opinion

894 So.2d 366 (2005)

Paula M. GARRETT
v.
BOH BROTHERS CONSTRUCTION COMPANY, LLC and John Doe.

No. 04-CA-804.

Court of Appeal of Louisiana, Fifth Circuit.

January 11, 2005.

*368 Charles N. Branton, Slidell, LA, for Plaintiff/Appellee.

Charles C. Foti, Attorney General, John D. Ray, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, LA, for Intervenor/Appellee.

Barbara G. Haynie, Michael R.C. Riess, New Orleans, LA, for Defendant/Appellant.

Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS and WALTER J. ROTHSCHILD.

*367 WALTER J. ROTHSCHILD, Judge.

Boh Brothers Construction Co. ("Boh Bros.") appeals from a judgment rendered in favor of plaintiff, Paula M. Garrett. For the reasons that follow, we affirm.

Paula M. Garrett, an employee of the State of Louisiana, filed a petition for damages against Boh Bros. for injuries sustained when she fell at a construction site. The petition alleged that on May 28, 2000 plaintiff was working as an inspector for the State Department of Transportation and Department, (DOTD) which had contracted with Boh Bros. to provide asphalt and repair services on I-10 in Jefferson Parish. Plaintiff alleged that as she was preparing to inspect a piece of asphalt that had been laid by Boh Bros., a Boh Bros. employee picked up a string line, causing her to trip and fall into the hot asphalt. Plaintiff alleged that as a result of the negligence of Boh Bros., she sustained severe burns to several parts of her body.

Boh Bros. answered the petition and alleged that the accident occurred due to the fault of plaintiff. The State of Louisiana intervened in the matter to recover the medical expenses they paid to plaintiff as a result of this injury.

Plaintiff stipulated that her claim did not exceed an amount of $50,000.00, and the matter proceeded to a bench trial. The trial court rendered judgment in favor of plaintiff and against Boh Bros. in the amount of $40,250.00. The trial court also awarded the State the amount of the medical expenses paid, $9,717.87. Boh Bros. now appeals from this judgment on the basis of two assignments of error.

Comparative Fault

Appellant first contends that the trial court erred in failing to find comparative fault on behalf of plaintiff.

*369 The court of appeal may not set aside the trial court's findings of fact, in the absence of manifest error or unless the findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Furthermore, "where two permissible views of the evidence exists, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong." Stobart v. State, 617 So.2d 880, 882-883 (La.1993). However, a proper review of the record cannot be completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court. There must be a further determination that the factfinder's conclusion is reasonable in light of the entire record. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216, 220. The manifest error standard of review applies as well to the trial court's apportionment of percentages. Walker v. McCartney, 96-706 (La.App. 5th Cir.9/17/97), 700 So.2d 898, 903.

The record in this case contains the following testimony on the issue of comparative fault:

Dwight Mickell testified at trial that he worked for Boh Bros. in the asphalt department, and he was working on the I-10 job on May 28, 2000. At the time of Paula Garrett's fall, Mr. Mickell stated that he was holding the string line under his foot on the asphalt in order to make a straight cut of the road's edge. Mr. Mickell stated that when Ms. Garrett fell, he felt the line move and "it felt like she tripped over the line." Mr. Mickell also stated that the asphalt had not been rolled at the time Ms. Garrett fell.

Joseph Scaffidi testified that he was the general superintendent for the asphalt department at Boh Bros. Mr. Scaffidi stated that he was present at the overlaying of the I-10 asphalt on May 28, 2000 when Ms. Garrett's accident occurred. He stated that he was holding one end of a string line and Dwight Mickell was holding the other end in an effort to get a straight line to make a cut in the asphalt. He stated he picked up the line and moved it to make it straight, and he "felt a tug on the line." He stopped and looked up and saw Ms. Garrett falling. Mr. Scaffidi testified that he did not see Ms. Garrett walk out onto the asphalt. He also stated that two of the lanes had been rolled several times, but the lane they were preparing to cut had not yet been rolled.

Jeff Bentley, Ms. Garrett's supervisor at DOTD, testified that it would be considered a poor construction habit for state crew members to step onto freshly laid asphalt before it has been rolled. He further stated that he was not present at the site at the time of the accident, and he also stated that Ms. Garrett was not reprimanded for her actions at the time of the accident.

Curtis Williams testified that he was also an inspector for DOTD and he was working with Paula Garrett on the date of the accident. He stated that while he waited in the state vehicle at the site, he witnessed Ms. Garrett walk across the asphalt to speak to one of the Boh Bros. employees about the asphalt. He stated that all three of the lanes that she crossed had already been rolled, and he agreed that an inspector should not walk across loose asphalt. He stated that as Ms. Garrett walked back to the car, the string line the Boh Bros. employees were using was raised and it caught Ms. Garrett's leg between her ankle and her knee, causing her to fall in the hot asphalt. He stated he was never told by anyone from Boh Bros. that Ms. Garrett was walking across unrolled asphalt. He stated that there were no indentions from Ms. Garrett's footprints in the asphalt, indicating that it had been *370 previously rolled. Mr. Williams stated the asphalt remained hot for hours after it was laid.

Paula Garrett testified that she worked as an inspector for approximately five years before this accident. She stated that on May 28, 2000, she and her co-worker were seated in their vehicle on the I-10 inspecting the Boh Bros. work of overlaying asphalt on the interstate. Ms.Garrett stated that she noticed that the Boh Bros. employees were preparing to cut asphalt that had already been rolled, and she got out of the vehicle to ask about this procedure. She said she walked across several lanes of the interstate to reach Joseph Scaffidi, the Boh Bros. employee she wanted to speak to, and she stated that all of these lanes had been rolled at this point. She stated that if the lanes had not been rolled, her foot would have left an impression, and Boh Bros. employees would have complained to her about this.

Ms. Garrett stated that she noticed the string line on the ground near the spot were Mr. Scaffidi was standing, and she spoke to Mr. Scaffidi for about ten minutes. She turned to walk back to her vehicle and checked to be sure the string was still on the ground. She stated that she then felt the string on her leg, and she fell into the hot asphalt.

On cross-examination, Ms. Garrett stated that Boh Bros. had finished laying asphalt in three lanes of the interstate and were preparing to lay asphalt in the fourth lane. She stated that all three of these lanes had been rolled one time, and that she would not walk in unrolled asphalt.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cannet v. Franklynn Pest Control Co., Inc.
985 So. 2d 270 (Louisiana Court of Appeal, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
894 So. 2d 366, 4 La.App. 5 Cir. 804, 2005 La. App. LEXIS 7, 2005 WL 57298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-boh-bros-const-co-llc-lactapp-2005.