Liz Marie Noel Smith v. Allstate Insurance Company

• Court: Louisiana Court of Appeal
• Decided: November 4, 2009
• Docket: CA-0009-0406
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-406

LIZ MARIE NOEL SMITH

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, NO. 70,463 HONORABLE KEITH J. COMEAUX, DISTRICT JUDGE

J. DAVID PAINTER JUDGE

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.

AFFIRMED.

Luke Edwards, Attorney at Law 1313 Lafayette Street P.O. Box 3483 Lafayette, LA 70502 Counsel for Plaintiff-Appellee: Liz Marie Noel Smith C. Shannon Hardy, Attorney at Law Penny & Hardy, APLC P.O. Box 2187 Lafayette, LA 70502 Counsel for Defendants-Appellants: Daryl Hardy, Kalen Hardy, and Allstate Insurance Company PAINTER, Judge.

Defendants appeal the trial court’s finding of liability on their part to Plaintiff, Liz

Marie Noel Smith, for injuries allegedly sustained when she fell through some concrete

steps at a house owned by Daryl and Kalen Hardy and insured by Allstate Insurance

Company. For the following reasons, we affirm the trial court’s finding of liability.

FACTUAL AND PROCEDURAL BACKGROUND

Beginning sometime in the year 2000, Daryl and Kalen Hardy leased a house in St.

Martin Parish to Rodney Smith, the husband of Plaintiff, Liz Marie Noel Smith. Mrs.

Smith, however, did not reside at this house with Mr. Smith as they were separated. The

house is an elevated home with a set of pre-cast concrete steps. The steps were original

to the house and had never been replaced. Mrs. Smith testified that she visited the house

on a daily basis since she and Mr. Smith shared custody of their adopted daughter.

On June 23, 2005, Mrs. Smith allegedly injured herself when her left leg went

through the steps as the steps caved in when she placed her weight (which was

approximately 280 pounds) on the top step. As a result of this incident, Mrs. Smith filed

suit against the Hardys and their insurer, Allstate Insurance Company. The parties agreed

to bifurcate the trial on liability and waive a jury for that purpose only. Following a

bench trial, the trial court found liability on the part of Defendants. Specifically, the trial

court found that Mr. Hardy knew or should have known that there was a defect in the

steps and that had he exercised reasonable care, he would have found the defect in the

steps.

DISCUSSION

Louisiana Civil Code Article 2317. 1 provides:

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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Louisiana Civil Code Article 2322 provides:

1 The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the 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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Therefore, a plaintiff who alleges a cause of action under this statute must prove

the following:

(1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care.

Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, p. 4 (La.App. 3 Cir. 11/05/08), 997

So.2d 814, 817.

The findings regarding the existence of a vice or defect and constructive or actual

knowledge are findings of fact that we review under the manifest error standard of review.

Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d

840 (La.1989). Furthermore:

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux [v. Domingue, 365 So.2d 1330 (La.1979)]. Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is “convinced that had it been sitting as the trier of fact, it would have weighed that evidence differently.” Housely v. Cerise, 579 So.2d 973, 976 (La.1991) (quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Cole v. Brookshire Grocery Co., 08-1093, pp. 2-3 (La.App. 3 Cir. 3/4/09), 5 So.3d 1010,

1012, writ denied, 09-728 (La. 5/15/09), 8 So.3d 589.”

Mrs. Smith testified that she had not noticed anything to make her concerned about

the steps prior to her fall. Mr. Smith, who had lived in the house for about five years at

the time of the incident, testified that he noticed a “hairline crack” on the right hand side

2 of the steps while pressure washing them. He also noticed that on the top step, “little

pieces” were “flying” as if the steps had been patched sometime earlier. Mr. Smith also

testified that he mentioned the “hairline crack” but not the issue with the top step to Mr.

Hardy. Mr. Smith further testified that upon mentioning this to Mr. Hardy, Mr. Hardy got

on the steps and “he kind of shook around,” and, after that, Mr. Hardy said that there was

nothing wrong with the steps. Mr. Smith testified that after the pressure washing incident,

he did have doubts about the safety of the steps but did not mention anything further to

Mr. Hardy. The pressure washing incident occurred some months before the subject

incident. Mr. Smith could not remember whether the conversation with Mr. Hardy was

four to five months or as much as a year before the incident. Mr. Smith moved out of the

house shortly after this incident.

Mr. Hardy, who is a maintenance supervisor for South Landry Housing, testified

that he could not recall a conversation with Mr. Smith about the steps. He did not testify

that such a conversation did not occur, just that he could not remember one way or

another. Mr. Hardy further testified that after the accident, he demolished the steps and

replaced them. Mr. Hardy also stated that during the time that Mr. Smith lived in the

house, he would visit Mr. Smith once or twice per month either to collect the rent or just

to visit with Mr. Smith. Mr. Hardy testified that Mr. Smith never requested that he do any

repairs to the house and that he did not do any repairs to the house while Mr. Smith

resided there. Mr. Hardy also stated that he never had any concerns abut the safety of the

steps prior to Mrs. Smith’s fall.

There was dispute over whether the Hardys owned the property in question or as

to whether Mrs. Smith fell through the steps. The trial court found, from pictures that

were jointly introduced into evidence, that the “hairline crack” noted by Mr. Smith started

closer to the ground and went all the way from the side of the steps and across the top of

the steps and that this was a vice or defect. The trial court also found that because Mr.

Smith mentioned this crack to Mr. Hardy, Mr. Hardy should have know that there was a

defect in the steps and that had he exercised reasonable care, Mr. Hardy would have found

that there was a vice and defect in the steps. Accordingly, the trial court found that

3 Defendants were liable to Mrs. Smith. After our review of the record, we find no manifest

error in this finding.

DECREE

For all of the foregoing reasons, we affirm the trial court’s finding of liability on

the part of Defendants-Appellants, Daryl and Kalen Hardy and their insurer, Allstate

Insurance Company. All costs of this appeal are assessed to Defendants-Appellants.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal. Rule 2-16.3.