Girard v. Price

606 So. 2d 990, 1992 WL 276163
CourtLouisiana Court of Appeal
DecidedOctober 6, 1992
Docket91-614
StatusPublished
Cited by7 cases

This text of 606 So. 2d 990 (Girard v. Price) 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
Girard v. Price, 606 So. 2d 990, 1992 WL 276163 (La. Ct. App. 1992).

Opinion

606 So.2d 990 (1992)

Gilbert GIRARD and Norma Girard, Plaintiffs-Appellants,
v.
Bobby PRICE d/b/a Bobby's Lounge, City of Broussard, La., a Municipal Corporation with the Honorable Leroy Miguez, Mayor, as its Agent for Service of Process, Defendants-Appellees.

No. 91-614.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1992.

*991 Marshall J. Stockstill, Lafayette, for plaintiffs/appellants.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, John F. Wilkes, III, Lafayette, for defendant/appellee— City of Broussard.

John V. Ghio, Lafayette, for defendant/appellee—Price.

Before DOUCET and YELVERTON, JJ., and CULPEPPER[*], J. Pro Tem.

DOUCET, Judge.

The plaintiffs, Norma Girard and Gilbert Girard, appeal a trial court judgment on a personal injury matter.

On November 21, 1987, at about 7 p.m., the plaintiff, Norma Girard, and a friend, Debbie, went to Bobby's Lounge in Broussard, La. They had already had about two beers during the day. They parked in the lot at the side of the building. They walked around the building onto the sidewalk which ran in front of Bobby's Lounge. As she approached the entrance of the bar, Mrs. Girard tripped on a landscape timber which had been placed across the sidewalk by Bobby Price, the owner of Bobby's Lounge. Mrs. Girard fell hard onto the concrete. When she got up she was bleeding from the nose and mouth. She refused to seek medical assistance at that point. She went into the bar where the barmaid gave her a wet cloth to clean her face. She *992 stayed at the bar for about two and a half hours, drinking six or seven beers by her own account. At that point, she either attempted to get to her feet and her legs gave way, or fell off of her bar stool. An ambulance and the police were called. Mrs. Girard refused to accept medical assistance from the paramedics.

The barmaid asked Mrs. Girard and her friend to leave the bar. A passerby called Mrs. Girard's niece because neither Mrs. Girard nor her friend felt capable of driving. On November 24, 1987, three days later, Mrs. Girard went to her doctor, John C. Dugal, complaining of pain in her lips, chest, left wrist, shoulders, knees, back, and neck. X-rays revealed a nasal fracture.

On February 4, 1988, Dr. Robert Tarpy performed an open reduction of the nasal fracture with septoplasty, corrected a deviated septum, and rebroke and straightened Mrs. Girard's nose. On April 13, 1988, he was satisfied that her nose had healed and discharged her.

Throughout this period, Mrs. Girard continued to see Dr. Dugal. He treated her with cortisone shots, pain killers, muscle relaxants, and anti-inflammatory medications. He also advised weight loss and prescribed diet pills. She was still seeing him at the time of trial with essentially unchanging complaints of pain.

Mrs. Girard was also treated by her dentist, Dr. James Bush. Dr. Bush diagnosed temporomandibular joint syndrome and prescribed pain killers and a TENS unit. He, too, continued to treat Mrs. Girard at the time of trial.

As a result of the accident, Mrs. Girard and her husband filed suit against Bobby Price d/b/a Bobby's Lounge, and the City of Broussard (the City), alleging both negligence and strict liability. Price filed a third party demand against the City.

After a trial on the merits the trial judge dismissed both the Girards' and Price's demands against the City. Judgment was rendered in favor of Norma Girard against Price in the amount of $35,000 reduced by a finding of 70% comparative fault allocated to Mrs. Girard. Gilbert Girard's claims for loss of consortium were denied. One-half of the costs were apportioned to Mrs. Girard. Plaintiffs appeal the trial court's failure to find the City liable, the finding of comparative negligence and apportionment of fault, the quantum of damages awarded, the denial of Gilbert Girard's loss of consortium claim, and the apportionment of costs to Mrs. Girard.

LIABILITY OF CITY

La.R.S. 9:2800 limits the liability of public bodies as follows:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts which infer actual knowledge.
D. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
E. "Public entity" means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.

In Fontenot v. Soileau, 567 So.2d 815, 817 (La.App. 3rd Cir.), writ denied, 571 So.2d 656 (La.1990), this court stated that:

[O]ne is presumed to have constructive knowledge of a defect or dangerous condition when it is shown it existed for *993 such a long time that knowledge thereof can be presumed, or that it can be said one should have had knowledge of the condition. In the instant case four years passed without trimming the trees. The city had constructive knowledge and we affirm the trial court's findings of liability of Ville Platte.
(citation omitted.)

There is conflicting testimony as to the length of time the timber had been in place at the time of the accident.

Bobby Price testified that it had been there for over a year before the accident. However, Harold Romero, Chief of Police for the City, stated that he was called to Bobby's Lounge two or three times during 1987, once only 30 or 40 days before the accident, and did not remember seeing the timber. Neither did the policeman who was called to the scene after the second fall recall seeing the timber. Additionally, Leon Miguez, Mayor of Broussard at the time of the accident, testified that he passed Bobby's Lounge once or twice a month in the course of his duties as Mayor, and daily as a school bus driver, and had never seen the timber.

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.
* * * * * *
Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.
* * * * * *

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Bluebook (online)
606 So. 2d 990, 1992 WL 276163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/girard-v-price-lactapp-1992.