Kessler v. Southmark Corp.

643 So. 2d 345, 1994 La. App. LEXIS 2442, 1994 WL 539293
CourtLouisiana Court of Appeal
DecidedSeptember 21, 1994
Docket25,941-CA
StatusPublished
Cited by34 cases

This text of 643 So. 2d 345 (Kessler v. Southmark Corp.) 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
Kessler v. Southmark Corp., 643 So. 2d 345, 1994 La. App. LEXIS 2442, 1994 WL 539293 (La. Ct. App. 1994).

Opinion

643 So.2d 345 (1994)

Marjorie KESSLER, Plaintiff-Appellee,
v.
SOUTHMARK CORPORATION, et al., Defendants-Appellants.

No. 25,941-CA.

Court of Appeal of Louisiana, Second Circuit.

September 21, 1994.

*347 Mayer, Smith & Roberts by Walter O. Hunter, Jr., Shreveport, for appellants.

Carl Rice and Associates by William F. Kendig, Shreveport, for appellee.

Before SEXTON, NORRIS and VICTORY, JJ.

SEXTON, Judge.

In this tort case, defendants, Southmark Corporation and its insurer, Birmingham Fire Insurance Company, appeal a jury verdict in favor of the plaintiff, Marjorie Kessler, finding defendant 60 percent at fault in creating an unreasonably dangerous condition on the premises it owned and leased to plaintiff, and awarding plaintiff general and special damages. Plaintiff answered the appeal, urging that the general damage award for past and future pain, suffering, mental anguish, and distress is abusively low. We affirm.

The accident occurred on the evening of November 9, 1989, when the plaintiff and some of her business associates went to a kitchen located down the hall from the offices leased by plaintiff. The kitchen was not under lease, but had been used off and on by the plaintiff or her fellow employees for various purposes. On the night in question, the group went to the kitchen to discuss using that place for a Thanksgiving party.

The kitchen had two entrances. One door opened to the kitchen from the hallway, while the other entrance was a double door connected to the dining room opposite the hallway door. Ms. Kessler and her group went to the kitchen via the hallway.

There was no light switch adjacent to the hallway door. The only light switch was located on the left side of the double door opposite the hallway door. Ms. Kessler knew the location of the light switch and volunteered to turn the lights on. Testimony indicated that the room was pitch black with little light available from the poorly-illuminated hallway. In the center of the room was an island, also familiar to Ms. Kessler.

As Ms. Kessler proceeded across the room in a direction that would take her around the right side of the island, she tripped over two bookshelves laying face up on the floor. Unbeknownst to Ms. Kessler and the others, the shelves had been stored in the kitchen by workers who were remodeling some office space on the same floor of the building. One witness described the sound of the accident as going on and on as if it would never stop. Ms. Kessler testified that she repeatedly attempted *348 to catch herself only to fall again and again and again.

Ms. Kessler alleged that as a result of the fall, in addition to numerous minor injuries (cuts and bruises, etc.), she contracted fibrositis or fibromyalgia. The jury found in her favor, but assessed her with 40 percent fault. Damages were awarded as follows:

a.  Past medical damages                  $ 14,861.99
b.  Future medical damages                $ 35,000.00
c.  Past lost wages                       $ 96,000.00
d.  Future lost wages and earning ability $263,000.00
e.  Past pain and suffering               $ 50,000.00
f.  Future pain and suffering             $ 25,000.00
                                          ___________
        TOTAL DAMAGES                     $483,861.99

Defendants appeal, asserting several assignments of error. First, defendants contend that the percentage of fault assessment (40 percent to plaintiff, 60 percent to defendants) by the jury was clearly wrong because the plaintiff should not have been in the kitchen area. They further argue that pursuant to a proper jury instruction, the plaintiff would have been found 100 percent at fault in this case based upon the "step-in-the-dark" rule, a rule of contributory negligence barring recovery of a plaintiff who sustains an injury by imprudently entering a dark and unfamiliar place. Next, defendants claim that the jury erred in awarding $35,000 to plaintiff for future medical expenses and $96,000 for past lost wages. Finally, defendants assert that the court erred in an evidentiary ruling allegedly allowing plaintiff's expert to rely on income tax returns not introduced into evidence in connection with his testimony which, defendants argue, resulted in an unreasonable award for loss of future earnings and earning capacity.

The plaintiff answered the appeal urging that the general damage award for past and future pain, suffering, mental anguish, and distress is so low that it constitutes an abuse of discretion.

Because defendants' argument that the jury erred in its fault assessment is based primarily on the assertion that the court erred in failing to give a jury instruction reflecting the so-called "step-in-the-dark" rule, we will discuss the jury instruction issue in the context of the larger question of whether the jury erred in its fault assessment.

Prior to jury deliberations, both parties submitted proposed jury instructions to the court. Included among those proposed by the defendant was the following instruction:

A person who comes into an unfamiliar situation, where a condition of darkness renders the use of his eyesight ineffective to define his surroundings, is not justified, in the absence of any special stress of circumstances, in proceeding further, without first finding out where he is going and what may be the obstructions to his safe progress. Violation of that rule is contributory negligence as a matter of law. Curet v. Hiern, 95 So.2d 699 (Orl.App.1957).

The court refused to read this instruction to the jury, stating that to do so "would be tantamount to a comment on the evidence by this Court, which is strictly prohibited by the code of evidence and all of the law that applies to jury trials." The court did give counsel for defendant permission, however, to argue the point of the proposed instruction in closing argument. Defendant now claims that the jury erred in assessing the plaintiff with only 40 percent fault and attributes that error, in large part, to the court's failure to read the proposed jury instruction. We disagree.

The proposed instruction is a passage taken from the case of Curet v. Hiern, 95 So.2d 699 (Orl.App.1957). In that case, an occupant of a rented apartment sustained injuries when she fell down a dark, unfamiliar stairway after being awakened in the night by a storm. She sued the owner of the building alleging that the stairway was defective and the defect caused her fall. Plaintiff had moved into the apartment with her daughter and son-in-law only a few days before and was not familiar with the design of the stairway, which had no landing prior to its descent directly from the doorway opened by the plaintiff on the night of the fall. She simply stepped into the darkness and tumbled down the stairway. Plaintiff claimed the accident would not have occurred but for the faulty design of the stairway which did not have a landing at the top of the stairs. The court rejected the plaintiff's demands, applying the step-in-the-dark rule quoted above. Subsequent to Curet v. Hiern, our *349 courts applied the step-in-the-dark rule on occasion under suitable facts. See, e.g., Foggin v. General Guaranty Insurance Company, 186 So.2d 665 (La.App. 2d Cir.1966); Mahfouz v. United Brotherhood of Carpenters, Etc., 117 So.2d 295 (La.App. 2d Cir. 1959); Cooper v. Phoenix Insurance Company, 252 So.2d 565 (La.App. 4th Cir.1971).

In cases far more numerous than Hiern

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643 So. 2d 345, 1994 La. App. LEXIS 2442, 1994 WL 539293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-southmark-corp-lactapp-1994.