Miller v. Broussard

430 So. 2d 330
CourtLouisiana Court of Appeal
DecidedApril 13, 1983
Docket82-741
StatusPublished
Cited by6 cases

This text of 430 So. 2d 330 (Miller v. Broussard) 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
Miller v. Broussard, 430 So. 2d 330 (La. Ct. App. 1983).

Opinion

430 So.2d 330 (1983)

Mr. & Mrs. Jay D. MILLER, Plaintiffs-Appellants,
v.
Curley BROUSSARD, d/b/a Broussard's Seafood Restaurant, et al., Defendants-Appellees.

No. 82-741.

Court of Appeal of Louisiana, Third Circuit.

April 13, 1983.
Writ Denied June 17, 1983.

*331 Miller, Miller & Craton, Jack Derrick Miller, Crowley, for plaintiffs-appellants.

Allen, Gooch & Burgeois, Sera H. Russell, III, Lucius A. Hornsby, Jr., Lafayette, Caffery, Oubre & Dugas, Jerry A. Oubre, New Iberia, for defendants-appellees.

Before GUIDRY, STOKER and KNOLL, JJ.

GUIDRY, Judge.

Mr. and Mrs. Jay D. Miller brought this suit for damages allegedly sustained when Mrs. Miller fell on January 17, 1977, at Broussard's Seafood Restaurant, an establishment owned and operated by Curley Broussard, on premises leased from Earl Toups. To this claim, Mr. Miller joined a claim for damages that he sustained as a result of an alleged battery committed upon his person by Curley Broussard on December 11, 1979. Named as defendants were Curley Broussard, d/b/a Broussard's Seafood Restaurant; Louisiana Farm Bureau Mutual Insurance Company (hereafter Farm Bureau), the homeowner's insurer of Curley Broussard; Earl Toups; and Audubon Insurance Company, the fire insurer of Earl Toups. Summary judgment was rendered on October 21, 1980 dismissing the action against Audubon. No appeal was taken from this latter judgment.

After trial on the merits, the trial judge rendered judgment on the claim regarding the fall, against plaintiffs and in favor of all defendants. Several third party demands filed in connection with this claim were likewise dismissed. On the battery claim, the trial judge rendered judgment in favor of Mr. Miller and against Curley Broussard. The Millers appealed devolutively, addressing in brief only the ruling of the trial judge with respect to the Millers' claim for damages resulting from Mrs. Miller's fall on January 17, 1977. None of the defendants appealed or answered the Millers' appeal.

FACTS

Before opening Broussard's, Curley Broussard remodeled the leased building for use as a restaurant. This remodeling was done primarily by Mr. Broussard himself and included the installation of restrooms. The two entrances to the two restrooms were off a common hallway. In order to accommodate the plumbing for the restrooms, rather than tearing into the pre-existing concrete slab, Mr. Broussard elevated the floor of each of the restrooms seven inches above the floor of the hallway and the rest of the restaurant. Therefore, in order to enter the restrooms, a guest had to step up seven inches immediately at the door of the restroom. However, the hall is well lit and the outside door of the restroom is posted with a sign reading "step up". From the outside the rise in elevation is also made apparent by the fact that the door is above floor level. In exiting from the restroom, a guest is faced with a seven inch step down. The inside door of the restroom is flush against the floor but is posted with a "step down" sign. Both signs are approximately a foot long and two and one-half inches high. They are black with safetycolor lettering and are approximately eye level.

On January 17, 1977, Mr. and Mrs. Miller, accompanied by two other couples, visited Broussard's. While there, Mrs. Miller and Mrs. Morgan, one of the ladies in her party went into the ladies restroom together. Upon exiting, Mrs. Miller lost her balance and fell into a sitting position. The parties stipulated that there was no foreign substance on the floor. As a result of the fall, Mrs. Miller allegedly sustained an acute lumbrosacral strain and pain in the lower back and in the coccyx.

The Millers sued Curley Broussard alleging his liability under Civil Code Articles 2315 and 2317. Toups' liability is predicated upon Civil Code Articles 2315 and 2322.

The trial judge found that the method required in exiting the restroom, i.e., opening the door outwardly while simultaneously stepping down seven inches, created an unreasonable risk of injury to others and that Mrs. Miller's injury was caused by this defect. However, he concluded that Mrs. *332 Miller's recovery was barred by her contributory negligence.

In concluding that Mrs. Miller was contributorily negligent, the trial court stated:

"In this case, the Court finds that the plaintiff, Mrs. Miller, was contributorily negligent and that, based on the circumstances, her contributory negligence bars her recovery in this strict liability case. In this case, the Court finds that there were signs posted on the outside and inside of the restroom door stating `step-up' and `step-Down' (sic) respectively. The signs were black with gold or silver letters and measured 12 inches by 2½-3 inches. The hallway and restrooms were adequately lighted and the signs could be read. When Mrs. Miller went to the restroom, she had to step up to enter the restroom. The fact that she stepped up should have put her on notice that she would have to step down upon existing. Mrs. Miller used the facility and then proceeded to exit. She did not see the `step-down' sign, but the Court finds that the sign was there and she should have seen such. Upon seeing the sign, as a reasonable person, she should have exercised caution in stepping down as she opened the door. Upon seeing the sign, it should have reminded her of the step up she made earlier to enter the restroom.
Mrs. Miller testified that she simply had forgotten about the step up she made earlier. The Court finds that a reasonable person would not have forgotten under these circumstances. Between the time Mrs. Miller stepped up into the restrooms, used the facility and exited the restroom, the testimony established that a short period of time had elapsed. The Court finds a reasonable person would not have forgotten about the step up during this period of time, and especially where the door was signed `step-down'." (citations omitted) "In this case, the Court finds that Mrs. Miller was not exercising ordinary care for her own safety and that it was not reasonable for her to forget the presence of the step down."

The plaintiffs allege that contributory negligence is not available in a strict liability case and cite Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (La.1971), as modified by Dorry v. Lafleur, 399 So.2d 559 (La.1981). The trial court, relying on Wilkinson v. Hartford Accident & Indemnity Co., 400 So.2d 705 (La.App. 3rd Cir.1981) and Dorry v. Lafleur, supra, found that based on the circumstances of this case contributory negligence (victim fault) would bar recovery.[1]

Because we conclude that the trial judge erred in concluding that the step down was defective or created an unreasonable risk of harm, or that the defendants were negligent, we do not reach the issue of contributory negligence.

La.Civ.Code Art. 2317 provides in pertinent part as follows:

"We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications."

In Shipp v. City of Alexandria, 395 So.2d 727, 728 (La.1981), the Supreme Court explained the legal requirements for imposing liability under 2317 as follows:

"...

We have described the legal foundation for imposing liability under art. 2317 in the following terms:

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Bluebook (online)
430 So. 2d 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-broussard-lactapp-1983.