Melancon v. J.B. Thibodeaux, Inc.

557 So. 2d 256, 1989 La. App. LEXIS 2626, 1989 WL 155296
CourtLouisiana Court of Appeal
DecidedDecember 20, 1989
DocketNo. 88-928
StatusPublished
Cited by2 cases

This text of 557 So. 2d 256 (Melancon v. J.B. Thibodeaux, Inc.) 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
Melancon v. J.B. Thibodeaux, Inc., 557 So. 2d 256, 1989 La. App. LEXIS 2626, 1989 WL 155296 (La. Ct. App. 1989).

Opinion

CHARLES WM. ROBERTS, Judge Pro Tern.

This suit for damages for personal injuries arose out of an accident which occurred on May 14, 1984, when Effie Melan-con (hereinafter Plaintiff) missed a step and fell when she was leaving the customer lounge of J.P. Thibodeaux, Inc., (hereinafter Thibodeaux), an automobile dealership in New Iberia, where she had taken her car for servicing. The suit was against Thibodeaux and its alleged insurer, Intercontinental Insurance, Inc. (hereinafter Intercontinental). Thibodeaux and Intercontinental filed third party demands for indemnification against DeCourt Industries, Inc. (hereinafter DeCourt), the alleged de[257]*257signer, and Giroir Home Builders, Inc. (hereinafter Giroir), the builder, and Gir-oir’s insurer, Commercial Union Insurance Co. (hereinafter Commercial). DeCourt was subsequently dismissed from the suit by Thibodeaux. Intercontinental was also dismissed on its motion for summary judgment since it established that it did not insure Thibodeaux at the time of the accident. Plaintiff amended to add Giroir and Commercial as defendants.

The case was tried before a jury on both theories of strict liability and negligence. After very thorough instructions by the trial judge, the jury returned a special verdict finding that the step-down from the customer lounge did not pose an unreasonable risk of injury to others; that Thibo-deaux was not at fault which was a cause in fact of the injuries complained of by plaintiff; that Giroir was not at fault which was a cause in fact of the injuries complained of by plaintiff; but that Effie Me-lancon was at fault and that this was a cause in fact of the injuries complained of by plaintiff. The jury further fixed the percentage of fault of each of the parties as follows:

(a) J.P. Thibodeaux, Inc.0%
(b) Giroir Home Builders, Inc.0%
(c) Effie Melancon.100%

Plaintiff has appealed. We affirm. As was stated in Campbell v. Tidwell, 407 So.2d 1359, 1362 (La.App. 3rd Cir.1981):

“Our law is well settled that where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s determination, on review the appellate court should not disturb this finding unless it is clearly wrong or manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).”

After carefully reviewing the record, we do not find that the jury’s decision was clearly wrong or manifestly erroneous.

On the morning of May 14,1984, plaintiff took her car to Thibodeaux’s to be serviced. She went into the customer lounge to wait for the work to be done. The only entrance-exit door to the lounge, which is an exterior door, has a 3y2-inch step on the outside of the door. On being called to pick up her car, plaintiff left through the door which was being held open for her by an employee of Thibodeaux. Plaintiff missed the 3y2-inch step down, lost her balance, attempted to grab the door and fell to her knees. Two employees (Beverly Diane Hargrave and Donat J. Landry, Jr.) helped plaintiff arise and lifted her pants legs to check her knees. Plaintiff testified that her knees were bleeding but that she was so embarrassed she just told the employees that she was alright. The two employees each testified that there were red marks on her knees but the skin was not broken and that plaintiff assured them she was alright. The employees (neither of whom still worked for Thibodeaux at the time of trial) also each testified that when plaintiff was going through the door she was looking back over her shoulder and talking to someone in the lounge instead of watching where she was going. There was testimony that plaintiff commented to the effect: “That was silly of me. I just wasn’t watching where I was going.” Plaintiff testified that she was looking straight ahead at one of the employees who was holding some papers out to her. Plaintiff contends the fall aggravated her prior asymptomatic neck and low back problems.

Plaintiff attempted to show that the 3y2-inch step constituted an unreasonably hazardous condition for which defendants should be held strictly liable and that defendants were negligent in failing to warn her of the step. The jury held in favor of defendants, finding that the step was not unreasonably dangerous and that plaintiff was 100 percent at fault for her injuries. Plaintiff appeals the judgment contending the trial court erred in permitting defendants to use an expert witness from the State Fire Marshal’s Office, in finding plaintiff did not carry her burden of proof under theories of strict liability and negligence, and in refusing plaintiff’s proffer of medical records to show causation.

DEFENDANTS’ EXPERT WITNESS

Plaintiff contends the trial court erred in allowing defendants to use Clinton Dobson, [258]*258an architectural planner from the State Fire Marshal’s Office, as an architectural expert. Plaintiff alleges that Dobson was a surprise witness because defendants did not give notice of their intent to call him as a witness until after trial began, thus violating the deadline set in the pretrial order and the duty to continually supplement answers to interrogatories.

Initially, we note that defendants did file a supplemental answer to their interrogatories declaring their intent to call Mr. Dobson as an expert witness, although it was filed after the court’s deadline. The pretrial order controls the subsequent course of the trial unless modified at the trial to prevent manifest injustice. LSA-C. C.P. art. 1551. Much discretion is left to the trial judge in this matter. Bourg Dry Dock & Serv. Co., Inc. v. Lombas Industries, Inc., 393 So.2d 203 (La.App. 1st Cir.1980). We note that defendants objected to some of plaintiff’s expert witnesses on the same grounds as those urged by plaintiff. The trial judge permitted plaintiff to use her experts. We do not find that the trial judge abused his discretion in allowing defendants to introduce their expert’s testimony.

Plaintiff also contends that she was prejudiced by defendant’s use of an expert from the State Fire Marshal’s Office since he gave defendants’ case the weight of official state approval even though the approval was “ex post facto.” Essentially, plaintiff argues (although she failed to show) that the architectural plans for the customer lounge were never approved by the State Fire Marshal’s Office prior to construction. However, Dobson did not testify as to whether the plans were approved or not since he did not approve them himself. Dobson only testified that in his expert opinion the step conformed to the construction standards prevailing at the time the customer lounge was built. He did not give “official” approval to the customer lounge.

Plaintiff also argues that Dobson’s “ex post facto” approval of the step is in violation of the construction standards. However, Dobson only gave his expert opinion as to the correct interpretation of the building codes. The fact that his interpretation conflicts with plaintiff’s expert’s interpretation does not mean that Dobson is wrong. Therefore, we do not find that defendants have “circumvented” the building codes through “ex post facto” approval of the step by Dobson.

STRICT LIABILITY

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Related

Winkle v. Advance Products & Systems, Inc.
721 So. 2d 983 (Louisiana Court of Appeal, 1998)
Melancon v. J.P. Thibodeaux, Inc.
558 So. 2d 586 (Supreme Court of Louisiana, 1990)

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Bluebook (online)
557 So. 2d 256, 1989 La. App. LEXIS 2626, 1989 WL 155296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melancon-v-jb-thibodeaux-inc-lactapp-1989.