Greene v. Fox Crossing, Inc.

754 So. 2d 339, 2000 WL 228884
CourtLouisiana Court of Appeal
DecidedMarch 1, 2000
Docket32,774-CA
StatusPublished
Cited by20 cases

This text of 754 So. 2d 339 (Greene v. Fox Crossing, 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
Greene v. Fox Crossing, Inc., 754 So. 2d 339, 2000 WL 228884 (La. Ct. App. 2000).

Opinion

754 So.2d 339 (2000)

Charles E. GREENE, et ux., Plaintiffs-Appellees,
v.
FOX CROSSING, INC., et al., Defendants-Appellants.

No. 32,774-CA.

Court of Appeal of Louisiana, Second Circuit.

March 1, 2000.

*341 Joseph B. Stamey, Natchitoches, Counsel for Defendants-Appellants.

Roland V. McKneely, Jr., Bossier City, Counsel for Plaintiffs-Appellees.

Before WILLIAMS, CARAWAY and DREW, JJ.

DREW, J.

Defendants, Fox Crossing, Inc. and First Financial Insurance Company, appealed the judgment awarding damages to Charles E. Greene and his wife for injuries suffered by Greene when he was struck by a dead limb which fell from a live tree owned by Fox Crossing, Inc. The jury found the defendants liable and awarded plaintiffs special damages for medical expenses, but no general damages. The judgment included an award for past and future lost wages to which the parties had stipulated. The trial judge granted the Greenes' motion for judgment notwithstanding the verdict and awarded general damages. Defendants argued that the jury erred in finding that the limb was an unreasonably dangerous condition and in rejecting the defense that the limb's falling was an Act of God. Defendants further contended that the trial court erred in granting the Greenes' motion for judgment notwithstanding the verdict and in awarding excessive general damages. The Greenes answered the appeal and asserted that both the jury and the trial court erred in refusing to award damages for injury to Greene's ulnar nerve. The judgment of the trial court is affirmed.

FACTS

A homeowner and resident of Fox Crossing and a member of the association, Greene took a late night walk on August 23, 1993, on common property owned by the homeowners' association of Fox Crossing, Inc. Greene sat down on a swing placed on common property by another homeowner. Shortly thereafter, a dead limb fell from an oak tree and injured Greene.

The Greenes sued Fox Crossing, Inc., and its insurer, First Financial Insurance Co., and alleged both strict liability and negligence. In addition to denying liability, the defendants asserted the affirmative defense of Act of God in their amended answer. At the commencement of the civil jury trial held in November 1998, the parties stipulated that Fox Crossing, Inc. owned the property where the accident occurred and the tree was located. The parties further stipulated that at the time the accident occurred the tree was alive, but the limb which fell had been dead for at least a year. Further, the parties stipulated that the limb fell from a height of at least 20 feet. An additional stipulation by the parties was that the amount of Greene's past and future lost wages was $15,000.

At trial, plaintiffs introduced evidence of Greene's facial and neck injuries caused by the falling limb. The Greenes also presented evidence that after the incident Greene suffered from ulnar nerve neuropathy. Other evidence suggested, however, that Greene had suffered from neurological problems before the incident.

The jury found Fox strictly liable for injuries suffered by Greene from the falling branch. The jury awarded special damages of $7,000 in medical expenses, but awarded no general damages. The judgment also awarded plaintiffs the stipulated amount of $15,000 for Greene's past and *342 future lost wages. Granting the Greenes' motion for judgment notwithstanding the verdict, the trial court fixed general damages at $85,000, but specifically excluded damages for Greene's ulnar nerve condition. When defendants' motion for new trial was denied, the defendants appealed.

APPLICABLE LAW

The "clearly wrong" standard is to be applied to appellate review of fact. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Dorthlon v. St. Francis Medical Center, Inc., 28,426 (La.App.2d Cir.6/26/96) 677 So.2d 654. This court may not set aside a trial judge or jury's finding of fact unless that finding is manifestly erroneous or clearly wrong. To reverse a judge or jury in its finding of fact, we must find, after a review of the entire record, that there is no factual basis for its finding, and that the finding is clearly wrong or manifestly erroneous. The issue is not whether the trier of fact was right or wrong, but whether the conclusion was reasonable. Stobart v. State Through DOTD, supra; Dorthlon v. St. Francis Medical Center, Inc., supra.

When the fact finder's conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989); Rich v. Tench Elec. Motor Works, Inc., 26,072 (La.App.2d Cir.8/19/94), 642 So.2d 293.

DISCUSSION

Liability

Strict liability is based on La. C.C. art. 2317, which provides, in pertinent part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by ... the things which we have in our custody.

In order to recover in strict liability under La. C.C. art. 2317 against Fox Crossing, Inc., the Greenes had to prove by a preponderance of the evidence that: (1) the thing complained of had a vice or defect; (2) the defect presented an unreasonable risk of harm to others; (3) the thing was in the defendant's custody, and (4) damage was caused by the defect. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992); Dorthlon v. St. Francis Medical Center, Inc., supra. Once a plaintiff has proven the elements of La. C.C. art. 2317, the owner or guardian responsible for the thing can escape liability if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an Act of God. Bison v. Primrose, 30,011 (La.App.2d Cir.12/10/97), 705 So.2d 249, writ denied, 98-0090 (La.3/13/98), 713 So.2d 471.

In determining whether a thing poses an unreasonable risk of harm under La. C.C. art. 2317, many factors are considered, including: (1) the probability of risk occurring, (2) the gravity of the consequences if it does, and (3) the burden of adequate precautions. Additional considerations include the social priorities attached to the particular conduct, the degree of culpability assignable to each party's conduct, the economic ability of the parties, the relationship of the parties to the instrumentality of injury, the foreseeability of the particular injury had the defect been known, the location of the incident, and the voluntariness or deliberateness with which the victim encounters the risk-creating thing. Bison v. Primrose, supra.

Defendants stipulated custody of the tree and did not dispute that the limb was defective. Greene suffered significant injuries when the limb fell on him. Defendants argued that the jury erred in finding that the limb was an unreasonably dangerous condition. Defendants pointed out that trees have obvious social and economic utility, including producing oxygen, providing *343 cooling shade, and offering esthetic pleasure. They contend that the product of the likelihood of injury from being struck by a limb multiplied by the gravity of harm sustained by one standing under the branch is quite low when compared to the social and economic utility of trees. Since everything in life comes with some degree of risk, defendants maintained that any risk posed by the dead branch was reasonable.

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

Related

Guy v. Howard Hughes Corp.
262 So. 3d 327 (Louisiana Court of Appeal, 2018)
Wells v. Town of Delhi
216 So. 3d 1095 (Louisiana Court of Appeal, 2017)
Duboue v. CBS Outdoor, Inc.
996 So. 2d 561 (Louisiana Court of Appeal, 2008)
Hoerner v. Beulah Title
968 So. 2d 217 (Louisiana Court of Appeal, 2007)
Cook v. Kendrick
931 So. 2d 420 (Louisiana Court of Appeal, 2006)
Tolbird v. Wyble
892 So. 2d 103 (Louisiana Court of Appeal, 2004)
Koehn v. Rhodes
882 So. 2d 757 (Louisiana Court of Appeal, 2004)
Williams v. STATE EX REL. DSS
865 So. 2d 908 (Louisiana Court of Appeal, 2004)
Williams v. State ex rel. Department of Social Services
865 So. 2d 908 (Louisiana Court of Appeal, 2004)
Sullivan v. Murphy
852 So. 2d 1277 (Louisiana Court of Appeal, 2003)
Brown v. Williams
850 So. 2d 1116 (Louisiana Court of Appeal, 2003)
Chisholm v. Clarendon Nat. Ins. Co.
850 So. 2d 1070 (Louisiana Court of Appeal, 2003)
Simmons v. King
833 So. 2d 1148 (Louisiana Court of Appeal, 2002)
McCullin v. US Agencies Cas. Ins. Co.
786 So. 2d 269 (Louisiana Court of Appeal, 2001)
Kennedy v. Thomas
784 So. 2d 692 (Louisiana Court of Appeal, 2001)
Kaffenberger v. Jones
781 So. 2d 692 (Louisiana Court of Appeal, 2001)
Wimberly v. McCoy Tree Surgery Co.
766 So. 2d 729 (Louisiana Court of Appeal, 2000)
Craighead v. Preferred Risk Mut. Ins. Co.
769 So. 2d 112 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
754 So. 2d 339, 2000 WL 228884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-fox-crossing-inc-lactapp-2000.