McGowan v. Victory & Power Ministries

757 So. 2d 912, 99 La.App. 1 Cir. 0235, 2000 La. App. LEXIS 1038, 2000 WL 340885
CourtLouisiana Court of Appeal
DecidedMarch 31, 2000
DocketNo. 99 CA 0235
StatusPublished
Cited by4 cases

This text of 757 So. 2d 912 (McGowan v. Victory & Power Ministries) 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
McGowan v. Victory & Power Ministries, 757 So. 2d 912, 99 La.App. 1 Cir. 0235, 2000 La. App. LEXIS 1038, 2000 WL 340885 (La. Ct. App. 2000).

Opinions

h.WEIMER, J.

A suit seeking damages for personal injury and loss of consortium was filed by Celia A. Williams McGowan and her husband, Ronnie M. McGowan, naming Victory and Power Ministries (Church) and its insurer, Church Mutual Insurance Company, as defendants. The petition claims Mrs. McGowan severely injured her arm in a fall during church services in 1992. After the McGowans completed their case in chief at a trial on the merits, the trial court granted the Church’s motion for involuntary dismissal. The McGowans appealed; we affirm.

FACTS

On May 17, 1992, Celia A Williams McGowan was attending services at the Church in Baton Rouge, Louisiana. Because Mrs. McGowan was serving as a part of the ushering staff, as a “greeter,” she remained near the entrance while her husband took his seat in a pew with Mrs. McGowan’s parents.

It was Mrs. McGowan’s duty as a greeter to welcome people to the Church. At the beginning of the church services, there was a portion of the services referred to in testimony as “praise and. worship.” Generally, 50 to 60 persons would be in the church during praise and worship, but as other members of the congregation continued to arrive, the usual attendance at Sunday services equaled 100 to 200 persons.

It was during praise and worship when, according to the plaintiffs’ brief, “the Spirit of the Holy Ghost began to cause [Mrs. McGowan] to dance and shout in the Spirit of Praise.” Before any of the ushers could reach her, Mrs. McGowan, who was wearing high-heeled shoes, fell to the carpeted floor, injuring her arm.

After her fall, the ushers who had come to her aid helped her to the pew where her husband and parents were seated. Mr. McGowan knew nothing of the incident until he observed his wife’s swollen arm and wrist.

At the close of the McGowans’ case, the trial court granted the Church’s motion for involuntary dismissal. At that time the McGowans’ counsel reminded the court that [ «there was a deposition that had been entered into evidence which the court had not read. Instead of waiting to make a ruling until after there was time to read and consider the deposition, the trial court questioned counsel about its contents and immediately proceeded to rule in favor of the defendants.

DISCUSSION

Ordinarily, this court would review a trial court’s grant of a motion for involuntary dismissal under the manifest error standard of review. See Thornton ex rel. Laneco Const. Systems, Inc. v. Lanehart, 97-1995 (La.App. 1 Cir. 12/28/98), 723 So.2d 1118, 1122. However, in this case, we agree with the McGowans that it was error for the trial court to rule without considering the deposition testimony which was part of their case. Therefore, the effect of this error is that we review the entire record on appeal de novo, and determine, without reference to the manifest error standard of review, whether the plaintiffs have proved their case. See Bullard v. State, Department of Transportation and Development, 98-1942 (La.App. 1 Cir. 11/5/99), 744 So.2d 212, [914]*914cert. denied, 1999-3468 (La. 2/11/00), 754 So.2d 989.

Under certain circumstances, a church may be liable for the negligence of its volunteer servants.1 See, e.g., Whetstone v. Dixon, 616 So.2d 764 (La.App. 1st Cir.), writs denied, 623 So.2d 1333 (1993). To determine .whether the plaintiffs proved the negligence of the- Church’s ushers, we use the duty/risk analysis. A plaintiff in a negligence action must prove five, elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard - conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) the actual ^damages (the damages element). Cavalier v. Ward, 97-1927, pp. 4-5 (La.App. 1 Cir. 9/25/98), 723 So.2d 480, 482, writ denied, 98-2615 (La.12/11/98), 729 So.2d 1047. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. See Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326. See also, Daye v. General Motors Corporation, 97-1653, p. 9 (La.9/9/98), 720 So.2d 654, 660.

The McGowans aver in their brief that the Church “had a duty to guard and guide [Mrs.] McGowan to make sure that .she did not get hurt while she was enjoying Wor[s]hip Service in the manner that most worshippers do when the annointing of the Holy Ghost began to cause them to dance and shout in the Spirit of praise[.]” They argue this duty was assumed when the Church appointed certain members to serve as ushers who- routinely gathered around a member who was “in the Spirit of Praise” to prevent a fall.

Thus, the McGowans are invoking the legal principle that a negligent breach of a duty which has been voluntarily or gratuitously assumed may create civil liability, citing Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). Specifically, if a person undertakes a task which he otherwise has no duty to perform, he must nevertheless perform that task in a reasonable and prudent manner. Moore v. Safeway, Inc., 95-1552 (La.App. 1 Cir. 11/22/96), 700 So.2d 831, 846, writs denied, 97-2921 (La.2/6/98), 709 So.2d 735, and 97-3000 (La.2/6/98), 709 So.2d 744.

While not imposing a duty on the Church or its ushers, but rather assuming only for the sake of discussion that the ushers in the instant case owed such a duty to Mrs. McGowan, we note the record does not support a finding that the ushers failed to act in a reasonable and prudent manner. Numerous witnesses were called to testify in this case, but not one of them stated that the ushers were able to reach Mrs. McGowan’s side in time to prevent her from falling or that they could have reasonably anticipated her fall.

| sMrs. McGowan herself could not describe what happened to her after she raised her hands and began “praying in the spirit.” When asked if she went “into a dance and a shout,” she replied, “Apparently so.” Although she stated she Was near the ushers, and that she depended upon them to guard her as they had done in the past, there was no testimony that the ushers took an unreasonable length of time to reach Mrs. McGowan before she fell. She also admitted that she had never “gone off in the spirit” in the particular area of the church where she was located when the accident occurred.

Mr. McGowan testified that he usually was near his wife to guard her when she would, as he stated, “go into the spirit and [915]*915to dance in the Holy Spirit.” • Although Mr. McGowan testified he thought it was during the praise and worship portion of the service that his wife would ordinarily “go into the spirit,” he nevertheless was seated in the church during this portion of the service and had left his wife at the entrance to perform her duties as a greeter. His action of remaining in his pew during praise and worship, while his wife continued to perform her duties as greeter, illustrates that his wife’s being overcome with the spirit at that time in the services and in that area of the church was not anticipated by him, just as it was not anticipated by the ushers.

The head usher, Pamela Dillon, testified that “at the minute ...

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757 So. 2d 912, 99 La.App. 1 Cir. 0235, 2000 La. App. LEXIS 1038, 2000 WL 340885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgowan-v-victory-power-ministries-lactapp-2000.