Girvan v. New Orleans Pub. Serv. Inc.

646 So. 2d 481, 1994 WL 668080
CourtLouisiana Court of Appeal
DecidedNovember 30, 1994
Docket94-CA-0681
StatusPublished
Cited by8 cases

This text of 646 So. 2d 481 (Girvan v. New Orleans Pub. Serv. Inc.) 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
Girvan v. New Orleans Pub. Serv. Inc., 646 So. 2d 481, 1994 WL 668080 (La. Ct. App. 1994).

Opinion

646 So.2d 481 (1994)

Samuel Paul GIRVAN
v.
NEW ORLEANS PUBLIC SERVICE INC.

No. 94-CA-0681.

Court of Appeal of Louisiana, Fourth Circuit.

November 30, 1994.
Writ Denied March 10, 1995.

*482 Caleb H. Didriksen, Denise A. Bostick, Didriksen & Carbo, New Orleans, for defendant/appellant.

David W. Bernberg, Jacobs, Manuel & Kain, New Orleans, for plaintiff/appellee.

Before WARD, JONES and WALTZER, JJ.

WALTZER, Judge.

STATEMENT OF THE CASE

Samuel Paul Girvan brought suit against New Orleans Public Service, Inc. (NOPSI) for damages allegedly sustained when he fell into an uncovered manhole, breaking his leg. Following trial in the Civil District Court for the Parish of Orleans, a jury found NOPSI's uncovered manhole was an unreasonably dangerous condition, found NOPSI to have been negligent and strictly liable for Girvan's injury to the extent of 70%, and found Girvan *483 to have been free of fault. The jury found the injury was caused by an unknown third party to the extent of 30%. The jury awarded Girvan medical expenses of $2200, lost wages of $1200 and general damages of $35,000. The verdict was made the judgment of the court. From that judgment, NOPSI appeals. Finding no reversible error, we affirm the judgment based on the jury's verdict.

STATEMENT OF FACTS

The accident occurred just before 2:00 a.m. on Sunday, 6 October 1991, when Girvan was walking down Chartres Street returning to his French Quarter home from the Contemporary Arts Center's Art for Art's Sake festival. He had consumed two or three glasses of wine, and no drugs. As he was walking down Chartres Street, he noticed a group of people standing on the sidewalk, walked through the group, and while distracted by the people and not looking at the sidewalk, fell into an uncovered NOPSI manhole.

Girvan was taken to Charity Hospital, where Dr. Richard Meyer diagnosed a broken tibia and fibula, and placed his leg in a splint. Girvan was transferred and admitted to Tulane Medical Center. The Charity and Tulane records are devoid of any mention of alcohol consumption. Dr. Meyer testified that had Girvan shown signs of intoxication, the emergency medical personnel would have drawn a blood sample. Girvan wore a plaster cast for two weeks, whereupon the cast was replaced with a fiberglass cast. Dr. Meyer last saw Girvan on 29 January 1992, and found Girvan's pain was reduced, his leg was able to bear his full weight, and the cast was removed. Because of some residual angulation of the bone caused by imperfect alignment of the fractures, Girvan has a bump on his leg, and is unable to engage in activities he had enjoyed prior to the accident, such as running and playing "friendly" games of soccer.

Employees of the Soniat House, a hotel adjacent to the site of the accident, testified that the manhole cover was in place as late as 10:50 p.m. on Saturday. NOPSI employees testified that manhole covers such as the one that would normally have covered this manhole weigh between 275 and 300 pounds, and cannot be removed without use of a crowbar; specifically, a screwdriver is insufficient to lift such a cover. NOPSI's witnesses testified that their personnel work in the ten to fifteen thousand manholes in New Orleans on a daily basis, and are instructed to replace the cover as soon as their work in the hole is completed. There was no evidence introduced of NOPSI work at the accident location on the evening of Girvan's injury. NOPSI's employees admitted that the covers in part of the Central Business District of New Orleans had been welded in place in preparation for an automobile race, and that the welds were broken in order to gain access to the manholes.

INSTRUCTIONS TO THE JURY

NOPSI contends that the trial court's instructions to the jury were erroneous and require reversal of the judgment in the following respects:

1. The trial court instructed the jury that absolute liability was imposed on NOPSI.
2. The trial court failed to instruct the jury that the fault of a third person is a defense to strict liability.
3. The trial court failed to instruct the jury that the reasonableness of the risk is determined by balancing the utility of the thing with the probability and magnitude of the risk.

The scope and standard of appellate review of instructions to juries are clearly established in Louisiana's jurisprudence.

"In making his charges to a jury, a trial judge is not required to give the precise instructions submitted by either party, but rather, has a duty to charge the jury as to the law applicable to a case and, to accomplish this, has the responsibility to reduce the possibility of confusing the jury. Arnouville v. Joiner Enterprises, 423 So.2d 1246 (La.App., 5th Cir.1982). Further, as was stated by the Fourth Circuit in Brown v. White, 405 So.2d 555 (La.App. 4th Cir. 1981), appellate courts must exercise great restraint before overturning a jury verdict on the suggestion the instructions were so erroneous as to be prejudicial. The pertinent question involved in making the decision as to error is whether the jury was *484 misled to such an extent as to prevent it from doing justice." Cuccia v. Cabrejo, 429 So.2d 232, 235 (La.App. 5th Cir.1983), writ denied, 434 So.2d 1097 (La.1983).

The trial judge is required to give instructions that are correct statements of applicable law "in light of the pleadings and facts in each case." Daigle v. Legendre, 619 So.2d 836, 839 (La.App. 1st Cir.1993), writ denied, 625 So.2d 1040 (La.1993); see also, Kennedy v. St. Charles General Hospital Auxiliary, 630 So.2d 888 (La.App. 4th Cir.1993), writ denied, 634 So.2d 863 (La.1994).

"The mere discovery of an error in the trial judge's instructions does not, of itself, justify an appellate court conducting the equivalent of a trial de novo, without first measuring the gravity and degree of the error, and considering the instructions as a whole and the circumstances of the case.... In reviewing the record, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or inadequate as to preclude the jury from reaching a verdict based on the law and facts." Barnett v. New Orleans Public Service Inc., 489 So.2d 452, 455 (La.App. 4th Cir.1986).

As a reviewing court, we are further guided by the principle that the trial judge is not in error when he refuses to give a requested charge where such charge is included in his general charge. Id. Applying this standard to the instant case, we find no reversible error in the trial court's instructions.

—Appellant's Claim that the Instructions Required a Finding of NOPSI's "Absolute Liability"

The trial court gave a full and correct charge on negligence under LSA-C.C.art. 2315, and on strict liability under LSA-C.C.art. 2317. The trial court made no reference to "absolute liability" as suggested by NOPSI's first specification of error. In its negligence charge, the trial court directed the jury to apply the "ordinary care and prudence under the circumstances" standard of reasonable conduct, considering "at least three factors: likelihood of the harm; gravity of the harm; and ease of prevention." The instructions defined each of these factors, and went on to define strict liability arising out of ownership of a defective thing. The instructions do not imply or suggest that absolute liability should be imposed on NOPSI.

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Cite This Page — Counsel Stack

Bluebook (online)
646 So. 2d 481, 1994 WL 668080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/girvan-v-new-orleans-pub-serv-inc-lactapp-1994.