Hayes v. Allstate Insurance Co.

947 So. 2d 792, 2006 La.App. 4 Cir. 0264, 2006 La. App. LEXIS 3017, 2006 WL 3849942
CourtLouisiana Court of Appeal
DecidedDecember 13, 2006
DocketNo. 2006-CA-0264
StatusPublished
Cited by1 cases

This text of 947 So. 2d 792 (Hayes v. Allstate Insurance 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.

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Hayes v. Allstate Insurance Co., 947 So. 2d 792, 2006 La.App. 4 Cir. 0264, 2006 La. App. LEXIS 3017, 2006 WL 3849942 (La. Ct. App. 2006).

Opinion

JOAN BERNARD ARMSTRONG, Chief Judge.

pThe defendants-appellants, 200 South Broad Street, Inc. and Allstate Insurance Company, appeal a judgment awarding the plaintiff-appellee, Rilda Hayes, $15,000.00 in general damages and $4,109.34 in special damages, plus interest and costs in a slip and fall personal injury case. We affirm.

No party appeals the amount of the award.

At the outset we note that this is a fairly straight-forward manifest error case.

It is uncontested that on July 18, 2000, the plaintiff, during a dentist appointment, was asked to move her vehicle because it was blocking another vehicle in the parking lot. When she went to move the vehicle she fell, resulting in the injuries for which she was awarded damages in this suit.

On July 11, 2001, plaintiff filed suit alleging that the parking lot had a crack and or/or hole creating the dangerous condition that caused her fall. Dr. Warren McKen-na and Allstate Insurance Company as his insurer, were named as defendants for failure to properly maintain the parking lot. The plaintiff died on February 10, 2003 and her legal successors1 were substituted as party plaintiffs in July of 2003. Prior to her death she testified by deposition which was admitted at | ¡.the trial. On February 27, 2004, the plaintiff filed an amended petition adding as an additional defendant, 200 South Broad Street, Inc., as the owner of the parking lot. As the insurer of 200 South Broad Street, Inc., Allstate was again named as a defendant. Although the amended petition retained Dr. McKen-na as a named defendant, when judgment was rendered, only Allstate and 200 South Broad Street, Inc. were cast in judgment.

Negligence for damages caused by defects in things is governed by La. C.C. arts. 2317 and 2317.1. La. C.C. art. 2317 provides in pertinent part that:

We are responsible, not only for the damage occasioned by our own act, but for that ... which we have in our custody. This, however, is to be understood with the following modifications.

Next La. C.C. art. 2317.1 provides in pertinent part that:

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....

Before a defendant can be held liable under art. 2317, the plaintiff must prove that 1) the thing which caused damage was in the defendant’s custody and control (garde); 2) the thing had a vice or defect which created an unreasonable risk of harm; and 3) the injuries were caused by a defect. Rolf v. Wal-Mart Stores, Inc., 00-1720, p. 3 (La.App. 5 Cir. 2/14/01), 782 So.2d 15, 16, citing Socorro v. City of New Orleans, 579 So.2d 931, 937 (La.1991). Additionally, La. C.C. art. 2317.1 adds the requirement that the injured plaintiff prove that the owner/custodian “knew or, [795]*795in the exercise of reasonable care, should have known” of the unreasonable risk of harm, and “that the damage could have been prevented | ¡¡by the exercise of reasonable care, and that [the owner/custodian] failed to exercise such reasonable care.” Id.

Cases involving defective conditions are fact intensive; consequently manifest error governs the question of unreasonable risk:

[B]ecause a determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than-scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court. Consequently, the findings of the jury or trial court should be afforded deference and we therefore hold that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard. A reviewing court may only disturb the lower court’s holding upon a finding that the trier of fact was clearly wrong or manifestly erroneous. Stobart v. State, 617 So.2d 880 (La.1993). [Emphasis added.]

Rolf, supra, quoting Reed v. Wal-Mart Stores, Inc., 97-1174 (La.03/04/98), 708 So.2d 362, 364-65.

The defendants do not contest ownership of the premises where the fall occurred. The defendant contends that the plaintiff failed to prove where in the parking lot the fall occurred which is essential to show that an unreasonably dangerous condition existed at that spot. The trial court determined, based upon, according to the written reasons for judgment, “the evidence and testimony presented, including the photographs and discovery responses,” that the fall occurred where there was a hole or depression in the parking lot which the defendants alleged was there to facilitate drainage from one area of the lot where a higher area of concrete met a lower level of asphalt. The defendants do not dispute the fact that they had actual or constructive knowledge of long standing of the existence of this drainage hole or depression.

|4The defendants contend that the photographs furnished by them in response to the following interrogatory were not intended .to show the exact location where the fall occurred and, therefore, cannot support the plaintiffs contention that she fell in the drainage hole:

Interrogatory Number 17:
If photographs of the accident scene were obtained by you, or anyone acting on your behalf, please state the total number of photographs obtained, by whom and the scene each depicts.
Answer to Interrogatory Number 17:
See attached copies of photographs.

The defendants argue that the photographs do not represent the exact place where the fall occurred; and that Dr. McKenna, to whom the photographs were attributed as the party to whom the interrogatories were directed, testified that he did not know the exact spot where the plaintiff fell. The defendants argue, in effect, that it is just coincidence that the arrows in the photos pointing to the depression are mere coincidence. After reviewing the photos, we cannot say that an implicit finding by the trial court that the arrows in certain photos pointing to the depression in the parking lot denoted the location of the plaintiffs fall would be manifestly erroneous. Moreover, the plaintiff also introduced photographs of the depression and the reference in the trial court’s written reasons for judgment to photo[796]*796graphs was not limited to the photos furnished by the defendants.

Additionally, we find that the plaintiffs testimony concerning her fall was consistent with a finding that, more likely than not, that her fall occurred at the location of the depression. A reasonable fact finder conceivably could have found the plaintiffs testimony that the concrete gave way beneath her step was consistent 15with a fall at the location of the preexisting depression. However, under the manifest error standard, we cannot conclude that a reasonable fact finder could not have determined that, in the confusion of the fall and in light of the substantial cracks in the parking lot, Mrs. Hayes could not have received the impression that the depression gave way beneath her step.

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947 So. 2d 792, 2006 La.App. 4 Cir. 0264, 2006 La. App. LEXIS 3017, 2006 WL 3849942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayes-v-allstate-insurance-co-lactapp-2006.