McCarthy v. First Financial Ins.

705 So. 2d 1137, 1997 La. App. LEXIS 2858, 1997 WL 772475
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket30015-CA
StatusPublished
Cited by3 cases

This text of 705 So. 2d 1137 (McCarthy v. First Financial Ins.) 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
McCarthy v. First Financial Ins., 705 So. 2d 1137, 1997 La. App. LEXIS 2858, 1997 WL 772475 (La. Ct. App. 1997).

Opinion

705 So.2d 1137 (1997)

Kimberly McCARTHY, et al., Plaintiff-Appellant,
v.
FIRST FINANCIAL INSURANCE, et al., Defendant-Appellee.

No. 30015-CA.

Court of Appeal of Louisiana, Second Circuit.

December 10, 1997.

*1138 Neblett, Beard & Arsenault by Galen W. "Allen" McBride, Michael S. Koch, Alexandria, for Plaintiff-Appellant.

Stamey, Long & Keiser by Joe Stamey, for Defendant-Appellee.

Before MARVIN, C.J., and STEWART and CARAWAY, JJ.

CARAWAY, Judge.

Plaintiff, Kimberly McCarthy, appeals a judgment from district court dismissing her claim for damages arising out of an accident in which she fell from the steps outside the door of her mobile home and sustained injuries to her right leg and foot. Finding no manifest error in the ruling of the trial court, we affirm.

*1139 Facts and Procedural Background

On the evening of April 17, 1994, the plaintiff stepped outside the mobile home where she resided to check on her children. The trailer was located at a trailer park called the Downs Trailer Park, which was owned by the Lucky Family Trust and managed by Robert Sessions. When the plaintiff stepped from the doorway of her trailer, which was approximately 2½ to 3 feet above the ground, onto the top of the wooden steps, which were also owned by the trailer park, she alleges that the steps moved forward and caused her to fall down the steps. Although the steps rested on concrete next to the trailer and had a brace device which allowed them to be locked into an open position, they were not fastened to the trailer. There was testimony at trial giving varying estimates for the weight of the steps from twenty-five to sixty pounds.

The steps in question were placed at the site several months earlier by the plaintiff's boyfriend, Ralph Lucas, who had taken the steps from a vacant nearby trailer as a "self-help" measure to replace a set of steps in an allegedly worse condition. Because the steps had been in place for some time, the plaintiff had used the steps many times in the months preceding the accident.

The fall broke the plaintiff's her right ankle. The injury required an open reduction and the insertion of numerous screws which had to be surgically removed one year later. Plaintiff also alleges a five percent permanent disability to her lower extremity, unsightly surgical scars and recurring pain. The plaintiff sued the trailer park, Sessions, the Lucky Family Trust and its insurer, First Financial Insurance Company (hereinafter, collectively "defendants") to recover damages for the injuries she sustained alleging liability based upon negligence and strict liability under La.Civil Code Articles 2317 or 2322.

Following trial of the matter, the trial court rendered a brief opinion stating that the plaintiffs did not prove their case. Elaborating on its findings, the court stated that the familiarity of the steps to the plaintiff and the tenor and credibility of the witnesses had led the court to believe that the plaintiff was simply inattentive at the time of the fall, which could have been caused by any number of factors.

On appeal, plaintiff raises the following assignments of error:

1. The trial court erred in finding victim fault despite a complete lack of evidence thereof and a lack of grounds from which to draw an inference of victim fault.
2. The trial court erred in imposing upon the plaintiff an affirmative obligation to purchase "world class steps," thereby erroneously subsuming the defendants' negligent conduct into the plaintiff's duty to look out for her own safety.
3. The trial court committed legal error in focusing improperly upon the relationship between McCarthy and the Downs Trailer Park vis-à-vis the trailer park's agreement to allow the McCarthy's to reside in the trailer rent free until the trailer was repaired.
4. The trial court committed manifest error in failing to find that Robert Sessions, acting in the course and scope of his employment with the Downs Trailer Park, failed to act on his knowledge that the lightweight, unattached stepladder from which plaintiff fell was an unreasonably dangerous means of accessing her trailer.
5. The trial court committed manifest error in not finding that the steps themselves constituted an unreasonably dangerous instrumentality in the use to which they were put and/or constituted a "ruin" to the trailer pursuant to C.C. art. 2322.

Discussion

It is well-settled that a court of appeal will not overturn a factual finding of the trial court absent manifest error. This is because the trial court is in the singular position of weighing testimonial evidence based upon its first-hand observations of the tone and demeanor of the witnesses. Rosell v. ESCO, 549 So.2d 840 (La.1989).

To recover under La.C.C. art. 2317, a plaintiff must prove that he was injured by a thing which was in the care or custody of the defendant and that such thing was defective. Loescher v. Parr, 324 So.2d 441 (La. *1140 1975); Celestine v. Union Oil Co. of California, 94-C-1868 (La. 4/10/95), 652 So.2d 1299. In order to recover in strict liability under Civil Code article 2322 against the owner of a building, an injured person must prove that the building or its appurtenances posed an unreasonable risk of injury to others and that his damage occurred as a result of this risk. Entrevia v. Hood, 427 So.2d 1146 (1983); Dorthlon v. St. Francis Medical Center, Inc., 28,426 (La.App.2d Cir. 6/26/96), 677 So.2d 654; Inseco v. Cambridge Mut. Fire Ins. Co., 447 So.2d 606 (La.App. 3d Cir.), writ denied, 449 So.2d 1349 (La.1984).

The burden of proof which the plaintiff must meet in an action under Article 2322 is to show by a preponderance of the evidence that the defect in the building caused the complained of injury. Dorthlon v. St. Francis Medical Center, Inc., supra; Freeman v. Thomas, 472 So.2d 326 (La.App. 3d Cir.1985). In this instance, the trial judge found that the plaintiffs failed to meet this burden of proof; namely, the plaintiffs did not prove that it was more probable than not that the steps caused the plaintiff's injuries. Causation is a question of fact to which the trial court's determinations are entitled to great weight and will not be disturbed absent manifest error. Smith v. State, Through Dept. of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir.1982), writ denied, 413 So.2d 907 (La.1982).

In Ardoin v. Abdalla, 525 So.2d 642 (La. App. 3d Cir.1988), the court found no manifest error in the trial judge's determination that the plaintiffs failed to meet their burden of proof of showing causation in a case where the plaintiff sustained injuries as a result of falling from wooden stairs. The plaintiff alleged that a wobbly hand railing and crack in the wooden landing of the stairs had caused him to fall as he attempted to bring a box down the stairs. The court of appeal noted that it must give deference to the trial judge who personally viewed the scene of the accident and who was in the best position to determine the credibility of all the witnesses and to evaluate the evidence. Sufficient evidence was presented which would indicate that neither alleged defect, the handrail or the crack in the landing, contributed to the plaintiff's fall. Additionally, the court noted that there was strong evidence impeaching the veracity of the plaintiff.

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Bluebook (online)
705 So. 2d 1137, 1997 La. App. LEXIS 2858, 1997 WL 772475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarthy-v-first-financial-ins-lactapp-1997.