Griffin v. Weingarden

752 So. 2d 308, 99 La.App. 4 Cir. 1394, 2000 La. App. LEXIS 260, 2000 WL 202293
CourtLouisiana Court of Appeal
DecidedJanuary 26, 2000
DocketNo. 99-CA-1394
StatusPublished
Cited by1 cases

This text of 752 So. 2d 308 (Griffin v. Weingarden) 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
Griffin v. Weingarden, 752 So. 2d 308, 99 La.App. 4 Cir. 1394, 2000 La. App. LEXIS 260, 2000 WL 202293 (La. Ct. App. 2000).

Opinion

1McKAY, Judge..

At issue in this personal injury action is whether the trial court erred in finding that the defendant was liable for the plaintiffs accident and also whether the trial court’s award of damages was excessive. We affirm.

FACTS AND PROCEDURAL HISTORY

In June of 1995, the defendant, Paul Weingarden, purchased a double home located at 520 South Jefferson Davis Parkway at a sheriffs sale. The plaintiff, Ted-die Griffin, and his family resided in one-half of the double at the time Mr. Wein-garden purchased the property. Mr. Griffin and his family continued to reside in the double until sometime after November 19, 1996. The property was not in the best condition at the time that Mr. Wein-garden purchased it and no major repairs were undertaken while the Griffins resided there.1

On November 19, 1996, Mr. Griffin alleges that he partially fell through the floor in his bedroom when a portion of the floor gave way. Later that day, Mr. Griffin went to Charity Hospital for treatment for back and leg pain. Two days later, Mr. Griffin went to the office of Dr. Norman Ott, a specialist in internal | ^medicine, for additional treatment. Mr. Griffin also reported to Dr. Ott that he had a history of previous back problems which had been treated at Charity. Dr. Ott prescribed a course of conservative treatment for Mr. Griffin. When Mr. Griffin’s symptoms failed to resolve with conservative treatment, Dr. Ott sent him for an MRI whfch revealed a ruptured disc at the L-4/5 level. Dr. Charles Aprill, the radiologist who oversaw the MRI, interpreted the MRI as showing both degenerative disc disease as well as a ruptured disc of more recent origin. Mr. Griffin’s medical records were also examined by Dr. Kenneth Vogel an orthopedic surgeon. Dr. Vogel concurred with the opinion that the ruptured disc was of relatively recent origin and recommended an interbody caged fusion.

Shortly after the accident, the Griffins reported Mr. Griffin’s injury to Mr. Wein-garden and informed him that they wanted to make a claim with his homeowner’s insurance company. Mr. Weingarden responded by initiating eviction procedures against the Griffins. It is unclear whether the Griffins were evicted or merely left the residence. In any event, several months after the accident the Griffins were no longer residing in the residence. In the meantime, Mr. Griffin made a claim against Mr. Weingarden’s insurance policy and ultimately filed suit against Mr. Wein-garden and his insurance company.

[310]*310At trial, the plaintiff testified that the floor gave way and he fell through a hole “up to (his) groin.” The plaintiff also offered the testimony of his wife, his medical records, photographs which showed a hole in the floor, as well as expert testimony. The plaintiffs expert, Mr. Ascani, testified that there were several ^attempts to schedule an inspection of the property and that, after the third attempt, the plaintiff was informed that an inspection would be useless because the floor had been repaired. However, based on the photographs, Mr. Ascani testified that the floor was “in deplorable condition” and “dangerous to walk on” because of the holes and obvious water damage. Mr. Ascani also noted that the floor was of tongue and groove construction and explained that when water leaks onto a wood floor of this type, it will run along the grooves wetting th% floor for some distance around the point of the leak and the water will generally collect at certain points in the floor which will remain wet and eventually rot.

The defendant contends that the plaintiff was lying and that no accident even occurred. The defendant’s contention is based on the fact that it does not appear possible that the plaintiffs knee would have fit through the hole shown in the photographs.

The trial court agreed with the defendant that the plaintiffs knee could not have passed through the hole. However, the trial court did not believe that the plaintiffs accident was a complete fabrication. Based on the testimony, the plaintiffs medical evidence, and the absence of the floor board, the trial court found that a defect in the property caused the plaintiffs injuries and awarded him $100,000.00 for past and future pain and suffering, $5,000.00 for past lost wages, $8,851.30 for past medical expenses, in addition to court costs and interest from the date of judicial demand.

STANDARD OF REVIEW

In reviewing the factual findings of a trial court, an appellate court is limited to a determination of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart at 883. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. at 882. The reviewing court may not disturb reasonable evaluations of credibility and reasonable inferences of fact when viewed in light of the record in its entirety even though it feels its evaluations are more reasonable. Id.

In the instant case, the trial court found that a portion of the floor gave way, causing Mr. Griffin to fall and injure himself.2 In reaching this conclusion, the court carefully weighed the evidence before it. The court heard testimony from the plaintiff, the defendant, as well as their respective experts. The court viewed photographs of the hole in the floor. However, the court was unable to examine the floorboard because it had been discarded by the defendant.3 Accordingly, the trial court pursuant to Louisiana law presumed that such evidence would be unfavorable to the defendant. Williams v. Golden, 95-2712 (La.App. 4 Cir. 7/23/97) 699 So.2d 102, 108; Boh Brothers Construction, Inc. v. Luber-Finer, Inc., 612 So.2d 270 (La. App. 4 Cir.1992), writ denied, 614 So.2d 1256 (La.1993); Wilson v. U.S. Fire and Casualty Company, 593 So.2d 695 (La.App. 4 Cir.1991), writ denied, 597 So.2d 1037 (La.1992). Based on this evidence, [311]*311the trial court’s findings of fact were neither clearly wrong nor manifestly erroneous.

LIABILITY

The next question before this Court is whether the trial court erred in finding that Mr. Weingarden is liable for Mr. Griffin’s injuries. Louisiana Civil Code Article 2317.1 in pertinent part provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Further, Louisiana Civil Code Article 2322 provides:

The owner of a building is answerable for the damage caused by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

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870 So. 2d 490 (Louisiana Court of Appeal, 2004)

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Bluebook (online)
752 So. 2d 308, 99 La.App. 4 Cir. 1394, 2000 La. App. LEXIS 260, 2000 WL 202293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-weingarden-lactapp-2000.