Hurt v. Viator

537 So. 2d 289, 1988 La. App. LEXIS 2690, 1988 WL 133795
CourtLouisiana Court of Appeal
DecidedDecember 14, 1988
DocketNo. 87-1039
StatusPublished
Cited by2 cases

This text of 537 So. 2d 289 (Hurt v. Viator) 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
Hurt v. Viator, 537 So. 2d 289, 1988 La. App. LEXIS 2690, 1988 WL 133795 (La. Ct. App. 1988).

Opinion

FORET, Judge.

This is a personal injury action filed by Arthur Lee Hurt arising out of injuries he sustained in an accident occurring at the home of Purlis and Elda Viator on June 7, 1982. After hearing the evidence, the jury found that plaintiff was 46% at fault and defendants, Purlis and Elda Viator, were found to be 54% at fault. The jury further found that the plaintiff had incurred damages totaling the sum of $136,833.33 and accordingly, judgment was rendered [290]*290against defendants, Purlis J. Viator, Elda R. Viator, and their insurer, the Northern Assurance Company of America, in the sum of $73,889.99. Both plaintiff and defendants have appealed this judgment.

FACTS

On the evening of June 6, 1982, plaintiff attended a barbeque at the home of Wilbur Barrilleaux located in New Iberia, and thereafter, at approximately 8:00 P.M., he left the barbeque in order to meet with friends he had seen earlier in the day. Plaintiff and his friends met in a parking lot in New Iberia across from a lounge known as “Red’s Saloon” and, according to plaintiff, they remained there until approximately 4:00 A.M. the following morning. While plaintiff admits that some of his friends were drinking that evening, he states that he consumed no alcoholic beverages nor did he enter the lounge at any time that night. It should be observed at this point that none of these “friends” testified at trial and, when questioned as to who they were, plaintiff replied that he could not remember their last names. Upon his leaving the parking lot, plaintiff and a friend went to a nearby Pitt Grill restaurant and had breakfast. Thereafter, plaintiff drove his motorcycle to the home of Purlis Viator, also located in New Iberia, in order to pick up a W-2 form and a letter of sea time which he had previously requested from Viator. Plaintiff states that he arrived at the Viator home at approximately 6:00 A.M., just after daylight, hoping to catch Viator while a crew change was taking place on one or more of the crew boats operated offshore by Viator. Plaintiff states that he walked up a set of steps located on the side of a building to where Purlis Viator formerly operated an office. Upon arriving at the top of the steps and entering upon a small platform, plaintiff noticed that the office was closed and he turned to walk back down the steps. As he began his descent, plaintiff placed his right hand on the hand rail which ran along the outside of the steps and he placed his left hand on a towel rack1 attached to the outside of the building at the top of the stairs (see exhibit attached noting the location of the towel rack before its removal). As plaintiff reached the second step on his way down, one end of the handrail suddenly became disengaged. Plaintiff states that the handrail pulled out and up against him, causing him to lose his balance and fall to the bottom of the steps. Plaintiff was knocked unconscious by the fall and sustained numerous injuries which shall hereinafter be discussed in particularity.

Plaintiff assigns the following errors on appeal:

1. The trial court erred in refusing to allow plaintiffs human factors expert to testify at trial.
2. The trial court erred in refusing to allow the jury to review the policy of liability insurance on the building in question.
3. The trial court erred in finding that plaintiff was 46% at fault in causing the accident.
4. The damage award made by the trial court is inadequate, considering the injuries sustained by plaintiff as a result of this accident.

In their appeal, defendants contend that the trial court’s award is excessive and should therefore be reduced.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, plaintiff contends that the trial court should have allowed his human factor expert, Dr. Kenneth Laughery, to testify at trial. Specifically, plaintiff maintains that Dr. Laughery should have been allowed to testify as to the forseeability that the towel rack in question would be used as a handrail. Human factors is defined by Dr. Laughery as an applied field, applying “people knowledge” to design problems or design settings where people will be involved. The trial court determined that the [291]*291testimony of Dr. Laughery would invade the province of the jury. The trial court’s finding in this regard should not be disturbed unless an abuse of discretion is shown. State v. Stucke, 419 So.2d 939 (La.1982). Considering the nature of this action, as well as the record in these proceedings, we find that the trial court’s decision to exclude the testimony of Dr. Laugh-ery does not constitute an abuse of discretion. The trial court’s decision in this regard was clearly based upon a well founded concern that the jury might place undue emphasis on the testimony of Dr. Laugh-ery, thus preventing them from making their own independent determination as to whether or not it was foreseeable for the plaintiff to use the towel rack in question as a handrail. It is well established that expert testimony is not to be used in those instances where such testimony will invade the province of the jury and thereby usurp its function. See State v. Stucke, supra. Accordingly, we find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, plaintiff claims that the trial court erred in refusing to allow the jury to review the liability insurance policy on the building in question. We find this assignment of error to be without merit. C.C.P. art. 1635 states as follows:

“Formal exceptions to rulings or orders of the court are unnecessary. For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”

A review of the record reveals that the plaintiff never requested that the liability insurance policy in question be shown to the jury nor did he enter an objection to the trial court’s decision to do otherwise. Accordingly, by failing to object to the trial court’s ruling in this regard, plaintiff has waived any right to present this issue on appeal. Calderon v. Johnson, 453 So.2d 615 (La.App. 1 Cir.1984).

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error, plaintiff maintains that the trial court erred in finding that he was 46% at fault in causing the accident in question. We disagree. Our review of the record reveals a reasonable factual basis for the trial court’s finding in this regard. Defendants’ safety expert, Dennis R. Howard, testified that the location and appearance of the towel rack was such that it should not give one the appearance of being a handrail, in view of the fact that it was not in keeping with the decline of the steps, nor did it run the length of the steps as did the handrail located on the opposite side.

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Related

Taylor v. Tulane Medical Center
751 So. 2d 949 (Louisiana Court of Appeal, 2000)
Hurt v. Viator
541 So. 2d 857 (Supreme Court of Louisiana, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
537 So. 2d 289, 1988 La. App. LEXIS 2690, 1988 WL 133795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurt-v-viator-lactapp-1988.