Kelly v. Housing Authority of New Orleans

826 So. 2d 571, 2002 La.App. 4 Cir. 0624, 2002 La. App. LEXIS 2635, 2002 WL 1933342
CourtLouisiana Court of Appeal
DecidedAugust 14, 2002
Docket2002-CA-0624
StatusPublished
Cited by14 cases

This text of 826 So. 2d 571 (Kelly v. Housing Authority of New Orleans) 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
Kelly v. Housing Authority of New Orleans, 826 So. 2d 571, 2002 La.App. 4 Cir. 0624, 2002 La. App. LEXIS 2635, 2002 WL 1933342 (La. Ct. App. 2002).

Opinion

826 So.2d 571 (2002)

Rosemary KELLY
v.
The HOUSING AUTHORITY OF NEW ORLEANS.

No. 2002-CA-0624.

Court of Appeal of Louisiana, Fourth Circuit.

August 14, 2002.

*572 Darleen M. Jacobs, Al A. Sarrat, Robert A. Preston, Jr., Jacobs & Sarrat, New Orleans, LA, for Plaintiff/Appellee.

Marie A. Bookman, and Deborah L. Wilson, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).

Judge DAVID S. GORBATY.

The Housing Authority of New Orleans (HANO) appeals a judgment in which it was held liable for damages sustained by Rosemary Kelly in an alleged accident on property managed by HANO in the B.W. Cooper Housing Development. For the following reasons, we reverse the judgment of the trial court.

*573 FACTS:

Rosemary Kelly lived in an apartment managed by HANO at 1104 S. Dorgenois St., within the B.W. Cooper Housing Development. According to a report made to HANO by Ms. Kelly on July 26, 1993, the date of the alleged accident, she slipped on a staircase in the rear of her apartment while she was descending the stairs carrying two trash bags. Ms. Kelly reported that the cause of her fall was a piece of iron coming lose from the step as she descended. Ms. Kelly stated that she injured her back and left arm, and that Jacqueline Henry witnessed the accident.

The same day as the accident, Ms. Kelly visited her attorney's office, and Dr. Robert C. Brown, a family practice physician. She began treatment with Dr. Essam Elmorshidy on the following day. The history taken by Dr. Elmorshidy on July 27, 1993, indicates that Ms. Kelly "fell yesterday on 7/26/93 when she was going down the steps and there was a garbage bag in both hands and she slipped, and landed on her back and neck and head and the left elbow." She treated with Dr. Elmorshidy until August 29, 1996, when he discharged her to be seen again on an asneeded basis.

Ms. Kelly died of cancer in July of 1997. Her cousin, Shirley Mae Clark, was substituted as party plaintiff after her death.

TRIAL PROCEEDINGS:

A judge trial of this matter was conducted on November 15, 2001. Ms. Clark, the substituted party plaintiff, did not appear for trial. Plaintiff counsel sought to admit Ms. Clark's deposition, claiming that Ms. Clark was suffering from several medical conditions that prevented her appearance at trial. No evidence was produced to substantiate plaintiff counsel's claims. Defense counsel objected to the admission of the deposition, arguing that it had been taken for discovery purposes only, not for perpetuation. Defense counsel also moved for a dismissal of the case for failure of plaintiff to appear. The court denied the defense motion, and ultimately allowed admission of the deposition.

Plaintiff called three witnesses: Michael Sullivan, plaintiff counsel's paralegal; Annabell Ambeau, Ms. Kelly's neighbor; and Laura Shabazz, the HANO employee who took the accident report from Ms. Kelly.

After plaintiff rested, defense counsel moved to dismiss the case based on plaintiffs failure to prove causation. The motion was denied.

The defense called Wesley Recasner, director of maintenance for the B.W. Cooper Housing Development. Mr. Recasner testified that, as custodian of the maintenance records for this particular housing development, he had reviewed the records in preparation for trial, and that the records did not reflect any notice of a defect in the subject stairway prior to Ms. Kelly's alleged accident. The witness admitted that he was not employed by HANO at the time of the alleged accident; however, he had worked for HANO from 1981 to 1988, and again from 1996 through the time of trial. Although he was not employed by HANO at the time of the alleged accident, it was his observation that the record-keeping procedure had not changed during his absence. On cross-examination, Mr. Recasner admitted that he had no personal knowledge of what the record-keeping procedure was during the time period of the accident. Mr. Recasner did not work for HANO at the time of the alleged accident, but testified that during his period of employment prior to that time, he probably had visited that particular apartment. He explained that all of the stairways were basically identical. He admitted that the stairs depicted in plaintiff's pictures did *574 not look like the stairs in the various housing developments. The witness identified a work order contained in the maintenance records that indicated a repair was made to either the handrails or stairs at plaintiffs apartment on the date of the alleged accident. The work order was received at approximately 9 a.m., and indicated that it took approximately one hour to repair the stairs. In answer to the court's questions, Mr. Recasner explained that HUD required two inspections per year. One was an inspection of all apartments, and one was an inspection of a percentage of the apartments. The maintenance records indicated that Ms. Kelly's apartment was inspected on July 21, 1992, and again on July 18, 1993, eight days before the alleged accident. Although inspection records of July 18 indicated numerous repairs were made to plaintiffs apartment, there was no indication of any defect or repairs to the stairway in question.

On December 6, 2001, the trial court rendered a Judgment with Reasons. The court stated that the facts ascertained at trial were as follows:

... Rosemary Kelly (now deceased) was injured on July 26, 1993, at approximately 8:30 a.m. when she fell while attempting to descend the stairway to her apartment because the stairway broke due to its dilapidated condition. She immediately reported the accident to defendant, and after showing the bruises and marks on her body to her neighbor, she sought medical treatment from Dr. Robert C. Brown. This same day she advised her attorney of the incident. He went to the scene and had pictures taken of the stairway area which broke while she was descending, as well as the entire stairway. Defendant came to the scene and repaired the broken stairway on the same date, but not before the pictures in evidence were taken by her attorney's paralegal. All of the facts surrounding the date of this accident clearly attest to its having occurred as Rosemary Kelly stated.

Based on these facts, the court found HANO liable for Ms. Kelly's injuries and awarded her $6,798.82 for medical expenses and $35,000 for pain and suffering, plus interest from date of demand, and costs.

DISCUSSION:

HANO makes several assignments of error, several of which are interrelated. The first and main assignment of error is that plaintiff failed to sustain her burden of proving that an accident occurred, or that the alleged defect was a cause-in-fact of her injuries. Directly related to this assignment is HANO's assignment alleging error by the trial court in not granting its motion to dismiss at the close of plaintiffs case, and in admitting hearsay statements by plaintiff used to identify and authenticate photographs taken by plaintiff counsel's paralegal.

Louisiana Code of Civil Procedure art. 1672 B provides:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief.

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Cite This Page — Counsel Stack

Bluebook (online)
826 So. 2d 571, 2002 La.App. 4 Cir. 0624, 2002 La. App. LEXIS 2635, 2002 WL 1933342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-housing-authority-of-new-orleans-lactapp-2002.