Guillory v. Audubon Ins. Co.

417 So. 2d 892, 1982 La. App. LEXIS 7811
CourtLouisiana Court of Appeal
DecidedJuly 21, 1982
Docket82-86
StatusPublished
Cited by9 cases

This text of 417 So. 2d 892 (Guillory v. Audubon Ins. Co.) 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
Guillory v. Audubon Ins. Co., 417 So. 2d 892, 1982 La. App. LEXIS 7811 (La. Ct. App. 1982).

Opinion

417 So.2d 892 (1982)

John S. GUILLORY, Plaintiff-Appellee,
v.
AUDUBON INSURANCE CO., et al., Defendants-Appellants.

No. 82-86.

Court of Appeal of Louisiana, Third Circuit.

July 21, 1982.

*893 Brinkhaus, Dauzat & Falgoust, Jerry J. Falgoust, Opelousas, for defendants-appellants.

Pucheu, Soileau & Coreil, C. Brent Coreil, Ville Platte, for plaintiff-appellee.

Guglielmo, & Lopez, James Lopez, Opelousas, for defendant-appellee.

Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

GUIDRY, Judge.

This is a suit for damages for personal injuries. Plaintiff, John Shirley Guillory, instituted this action against defendants, Audubon Insurance Company (hereafter Audubon) and Standard Fire Insurance Company (hereafter Standard) seeking damages for personal injuries received when a tree, cut by plaintiff's brother, Larry Guillory, landed on plaintiff's leg resulting *894 in serious and permanently disabling injuries. Audubon is the liability insurer of the premises where the accident occurred and Standard is the liability insurer of Larry Guillory. Basil Guillory, plaintiff's father, is the owner of the insured premises. The trial court, after a hearing on the merits, concluded that Larry Guillory was not negligent and dismissed plaintiff's suit as to his insurer, Standard. The trial court concluded that Basil Guillory, the owner of the premises, was negligent in that he knew or should have known of the existence of certain dangerous conditions on his property, yet failed to warn the plaintiff of their existence. The trial court awarded plaintiff the sum of $25,000.00. Audubon appeals from that judgment. Plaintiff has neither answered defendant's appeal nor appealed from the aforesaid judgment. Therefore, the aforesaid judgment, insofar as it dismissed plaintiff's suit as against Standard, is final.

Prior to trial, the parties stipulated to the fact of the accident; coverage by defendant, if liability on the part of Basil Guillory is determined; and, the amount of medical expenses incurred by plaintiff.

The facts of the accident are relatively undisputed. On October 22, 1977, Larry Guillory, accompanied by his son, Joey, age 13, was engaged in cutting down a large tree which had been struck by lightning on some earlier date. The tree trunk had been fractured approximately 12 feet from the ground with the remaining portion of the trunk, about 25 to 30 feet in length, lying at an angle toward the ground. The tree was located on Basil Guillory's property which was leased at that time to a soybean farmer. The area where the tree had fallen was overgrown with weeds and some scattered soybean plants. Larry was in the process of trimming a few remaining branches from the trunk of the tree when plaintiff arrived to observe the activity. Prior to cutting the two remaining branches which supported the trunk portion of the tree, Larry and the plaintiff discussed the direction in which the tree would fall. Plaintiff surmised that the tree would fall relatively straight down in the direction in which plaintiff was then standing. Immediately prior to the accident, plaintiff was standing near that portion of the fallen tree furtherest from the base of the tree. Larry was positioned on the side of the tree opposite to plaintiff and somewhat closer to the base of the tree. Originally Joey was standing in a position 15-20 feet away from the tree on the same side as plaintiff and approximately where plaintiff was ultimately injured. Prior to the cutting of the remaining supporting branches, plaintiff instructed Joey to move away from the area where Joey was standing to a place of safety. Joey did so. Although plaintiff denies that Larry warned him to move out of the way, both Larry and Joey testified that plaintiff was warned twice to move to a position of safety.[1] Thereafter, Larry proceeded to cut the last supporting branch which resulted in a cracking noise as the tree began to fall. Upon hearing the cracking of the supporting branch, plaintiff instantly froze, then suddenly began moving forward at an angle away from the falling tree to a position approximately where Joey had been standing prior to plaintiff's warning. In his attempt to move out of danger, plaintiff tripped on a branch concealed by the tall grass growing in the area. Although there is some dispute in the testimony, it appears that the tree trunk rolled, and subsequently, landed on plaintiff's leg resulting in a compound fracture of plaintiff's tibula and fibula. Plaintiff's injuries required two surgical procedures and ultimately resulted in plaintiff being permanently disabled.

In awarding judgment to plaintiff, the trial court found that Audubon's insured, Basil Guillory, was negligent in allowing a dangerous condition to exist on premises owned by him and failing to correct and/or warn of such condition.

The issues on appeal are: (1) Does a causal relationship exist between the harm to plaintiff and Basil Guillory's alleged negligent *895 conduct? (2) What, if any, duty was owed by Basil Guillory to the plaintiff? (3) Was there a breach of this duty? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? and, (5) Was plaintiff contributorily negligent or did he assume the risk of harm, thus, barring his recovery? We will consider these issues in the order set forth.

Audubon first contends that the alleged negligence of Basil Guillory, specifically, his failure to correct the condition of the tree branches lying on the ground or, in lieu thereof, of warning the plaintiff of their existence, was not the cause in fact of plaintiff's injuries. In Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976), our Supreme Court noted:

"It is well settled that for alleged wrongful conduct to be actionable negligence it must be found to be a cause in fact of the resulting harm. Jones v. Robbins, 289 So.2d 104 (La.1973); Dixie Drive It Yourself System v. American Beverage Company [242 La. 471, 137 So.2d 298] supra., Mixon v. Allstate Insurance Co., 300 So.2d 232 (La.App.2d Cir.), writ refused, 303 So.2d 179 (La.1974). This determination of whether the conduct complained of bears a causal connection in fact to the occurrence of the accident is properly made without reference to those policy considerations required when ascertaining liability by the duty-risk approach. Thus if the plaintiff can show that he probably would not have suffered the injury complained of but for the defendant's conduct, he has carried his burden of proof relative to cause in fact. See Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3rd Cir. 1974); Malone, Ruminations on Dixie Drive It Yourself versus American Beverage Company, 30 La.L.Rev. 363 (1970)."

Thus, in the present case, we must determine if but for Basil Guillory's failure to correct the allegedly unreasonably dangerous condition existing on his property or at least warning plaintiff of its existence, plaintiff would not have been injured.

The record reflects that a few days prior to plaintiff's accident, Larry and Basil Guillory examined the fallen tree and discussed the best manner in which to cut the same. While at the tree site, Larry under Basil's direction, trimmed a few of the tree's branches and left them lying on the ground in the area. The record reflects that Basil made no effort to remove the discarded branches from the premises, nor did he warn plaintiff of their existence.

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Bluebook (online)
417 So. 2d 892, 1982 La. App. LEXIS 7811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-audubon-ins-co-lactapp-1982.