Migues v. City of Lake Charles

682 So. 2d 946, 1996 WL 638203, 96 La.App. 3 Cir. 626
CourtLouisiana Court of Appeal
DecidedNovember 6, 1996
Docket96-626
StatusPublished
Cited by7 cases

This text of 682 So. 2d 946 (Migues v. City of Lake Charles) 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
Migues v. City of Lake Charles, 682 So. 2d 946, 1996 WL 638203, 96 La.App. 3 Cir. 626 (La. Ct. App. 1996).

Opinion

682 So.2d 946 (1996)

Ernestine S. MIGUES, Plaintiff—Appellant,
v.
CITY OF LAKE CHARLES, Defendant—Appellee.

No. 96-626.

Court of Appeal of Louisiana, Third Circuit.

November 6, 1996.

*947 David B. McCain, Lake Charles, for Plaintiff-Appellant.

Charles V. Musso, Jr., Lake Charles, for City of Lake Charles.

Before THIBODEAUX, COOKS and GREMILLION, JJ.

THIBODEAUX, Judge.

Ernestine S. Migues filed a personal injury suit against the City of Lake Charles to recover damages resulting from injuries she sustained when she fell while walking down the steps at the Lake Charles Civic Center following a performance of the musical, "Cats." The trial court imposed eighty percent (80%) liability on the City of Lake Charles and twenty percent (20%) liability on Ms. Migues. The trial judge awarded Ms. Migues $5,000.00 in general damages. It is from this judgment that Ms. Migues appeals asserting that the $5,000.00 award is inadequate and that the trial court's apportionment of fault is too great. The City of Lake Charles answers the appeal and questions the trial court's finding of liability, its apportionment of fault, and Ms. Migues' damage award.

We affirm for the following reasons.

I.

ISSUES

The issues on appeal are whether the trial court erred in: (1) its finding of an unreasonable risk of harm which caused Ms. Migues' fall; (2) its apportionment of fault; and, (3) its award of damages to Ms. Migues in consideration of the aggravation of her preexisting arthritic condition.

II.

FACTS

On the night of March 29, 1994, Ms. Migues and her stepdaughter, Patsy Savoie, attended the musical, "Cats" at the Lake Charles Civic Center. Ms. Migues drove *948 herself and Ms. Savoie to the performance. They had seats in the balcony of the theater and Ms. Migues maneuvered the balcony steps without any problems or assistance. Ms. Migues, who was eighty-one years old at the time, has taken a number of medications for her various ailments since the early 1980's. She originally experienced dizziness as a side effect with some of her medications; however, the problem was later corrected.

After the production, Ms. Migues lost her balance and fell while traversing the steps located outside the Lake Charles Civic Center. At the time of the accident, there were no handrails installed along the stairs at the Civic Center. As she approached the steps, she mentioned that the lack of handrails was a dangerous condition, especially for older people such as herself. She then began to step down on each stair, one foot at a time, putting both feet on each stair as she went down. She did not request Ms. Savoie's assistance in maneuvering the steps. She also did not choose to use a ramp which is normally used for deliveries located 45 to 60 feet away from her path.

What caused her to fall is an issue which is disputed. However, a pipe stub filled with concrete which is three quarters of an inch high is located in the area in which Ms. Migues traversed the steps. Previously, employees of the City of Lake Charles cut off some old fencing which created the pipe stub. The trial court found that Ms. Migues stepped on the pipe stub, lost her balance and then fell.

Ms. Migues fell face forward, breaking her nose and cracking a tooth in the fall. She also received lacerations on one hand and above an eye. She is no longer able to keep her once active and independent lifestyle because her pre-existing arthritic condition has worsened since the fall.

III.

LAW AND DISCUSSION

The City of Lake Charles argues that the trial court erred in finding that the pipe stub created an unreasonable risk of harm. Under either a negligence or a strict liability theory, a plaintiff must prove that: 1) the object which caused the harm was in the defendant's custody; 2) the object embodied a condition which created an unreasonable risk of harm to the plaintiff; and, 3) the condition of the object caused the plaintiff's injuries. Oster v. Dep't of Transp. and Dev., 582 So.2d 1285 (La.1991). The defendant does not contest its custody of the Lake Charles Civic Center. However, the defendant does challenge whether the pipe stub created an unreasonable risk of harm to the plaintiff which, in turn, caused the plaintiff's injury.

A condition creates an unreasonable risk of harm when the harm is unreasonable to a reasonable and ordinary plaintiff exercising ordinary care under the circumstances. Scroggins v. Sewerage and Water Board, 533 So.2d 132 (La.App. 4 Cir.1988). Determining reasonableness involves balancing the likelihood of the risk against the utility of the object involved. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). Moral, social, and economic values also should be considered. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 (La.1990). This analysis allows the court to determine which risks are to be encompassed by codal obligations without a mechanical application of a particular criterion. Entrevia v. Hood, 427 So.2d 1146 (La.1983).

The City of Lake Charles argues that Ms. Migues was not an ordinary plaintiff exercising ordinary care under the circumstances because she is an elderly person who is taking medication and did not walk 45 to 60 feet out of her path to use a ramp meant for delivery vehicles. Since the trial court found that many elderly people attend events at the Civic Center, Ms. Migues is certainly someone who would be considered to be an ordinary plaintiff in a suit involving the Civic Center. The trial court also found it unlikely that the medication would have had any affect on Ms. Migues at the point in time in which she fell. A reasonable person exercising ordinary care would take the most efficient route to his car when leaving a building such as the Civic Center. The most efficient route available to Ms. Migues was to walk down the stairs which she used.

*949 The likelihood of an accident such as Ms. Migues' is relatively high. Before the current handrails were installed at the Civic Center, the trial court determined that women wearing high heels and the elderly may have stumbled on this pipe stub and fallen. Statistics of the number of people who may have fallen in the past does not negate the fact that reasonable and ordinary people do stumble and fall down stairs when there is some defect in the stair.

Certainly, the steps to the Civic Center have great utility. However, a pipe stub which is three quarters of an inch higher than the remainder of the step is not necessary to the use and functioning of the Civic Center. As the trial court noted, the pipe stub may be easily removed, creating only a small burden on the City.

The manifest error rule is used to resolve any factual disputes or irregularities found in the record and in the rulings of the trial court. An appellate court cannot reverse a trial court's or a jury's findings of fact in absence of manifest error or unless the findings are clearly wrong. Stobart v. State Through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993). A proper review requires both a determination that the record establishes that the finding is clearly wrong and that there is no reasonable factual basis for the findings of the trial court. Stobart, 617 So.2d 880. Use of this manifest error standard shields the factual findings of the trial court on appellate review. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

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Cite This Page — Counsel Stack

Bluebook (online)
682 So. 2d 946, 1996 WL 638203, 96 La.App. 3 Cir. 626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/migues-v-city-of-lake-charles-lactapp-1996.