Moore v. Kenilworth/Kailas Properties

865 So. 2d 884, 2003 La.App. 4 Cir. 0738, 2004 La. App. LEXIS 24, 2004 WL 76852
CourtLouisiana Court of Appeal
DecidedJanuary 7, 2004
DocketNo. 2003-CA-0738
StatusPublished
Cited by4 cases

This text of 865 So. 2d 884 (Moore v. Kenilworth/Kailas Properties) 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
Moore v. Kenilworth/Kailas Properties, 865 So. 2d 884, 2003 La.App. 4 Cir. 0738, 2004 La. App. LEXIS 24, 2004 WL 76852 (La. Ct. App. 2004).

Opinion

LMAX N. TOBIAS, JR., Judge.

This case involves personal injury claims brought by three plaintiffs who were injured when acoustical ceiling tiles fell on them in a doctor’s office.

On 3 June 1998, Kim Wattigney and Cheryl Moore were working in the medical office of Dr. Dion L. Armstrong d/b/a Armstrong Family Clinic (“Dr.Armstrong”). Henry Martin, a patient of Dr. Armstrong’s, arrived for an appointment that morning and was escorted to an examination room by Ms. Mooi’e. Because the office had been experiencing water intrusion through the ceiling for a couple of months, Ms. Moore and Ms. Wattigney had arrived at work early to mop up any water on the floor and place towels around the baseboards in an attempt to keep the floor as dry as possible. They also placed fans in the area of the leaks to dry the floor. In their efforts to clean up the water, Ms. Moore and Ms. Wattigney had to move some office furniture in the area of the leak, which blocked the usual ingress to the examination area of the office. As a consequence, Ms. Moore escorted Mr. Martin through Dr. Armstrong’s office at the time of his appointment. As they were progressing down a hall toward the examination room, they entered the area of the leaks when the ceiling suddenly gave way, causing acoustical ceiling tiles to fall on Mr. Martin and Ms. Moore, knocking them to the | ground. Ms. Wattigney, who was tending to a hot wax machine used in therapy by the office, was also knocked down when Ms. Moore fell into her and spilled hot wax down her side; she sustained burns to her side and leg.

Dr. Armstrong’s office had been dealing with the water intrusion, which was caused by a leaking air conditioning unit in the ceiling, for about two months. During that time, Dr. Armstrong and his staff complained numerous times to the owner of the building, Kailas Management, L.L.C. (“Kailas”), and had asked that the air conditioning unit be repaired. Ms. Moore complained by telephone to Kailas’ office manager on 15 April 1998 and again just five days before the accident. Ms. Wattigney complained to Kailas at least five times during the month before the accident. Dr. Armstrong himself wrote two letters to Kailas asking that the problem be fixed. In his letter to Kailas dated 1 June 1998, Dr. Armstrong complained that he had been reporting the problem to Kai-las since the beginning of May 1998 and that water was leaking through the ceiling to the point that “ceiling tiles have busted through.” He further stated that “[t]his is a very serious hazard in that: 1. Spilled water can cause patients to slip and fall....”

The testimony at trial established that Kailas had received complaints from Dr. Armstrong’s office regarding the leaking air conditioning unit, although the policy regarding recording maintenance com[887]*887plaints by tenants was never consistently followed. Kailas apparently did dispatch on at least a couple of occasions the building handymen, who attempted to fix the unit, but who were obviously not qualified to either diagnose or remedy the problem. Kailas did not have an established inspection procedure for the units or a service contract with any contractor. A licensed air conditioner repairman was eventually called after the accident occurred and the unit was fixed.

|3The plaintiffs filed suit against Kailas and its liability insurer, Colony Insurance Company (“Colony”), who in turn filed a third party demand against Dr. Armstrong and his insurer on 3 November 1998. Kai-las and Colony asserted that Dr. Armstrong, who was clearly aware of the leak and the dangers it posed, bore some liability for failing to protect his patients from the danger. Kailas and Colony further maintained that the plaintiffs, Ms. Wattig-ney and Ms. Moore, were also aware of the leak and that their knowledge of the leak should make them contributorily at fault and reduce their damages.

The matter was tried before a jury in September 2002. The jury returned a verdict in favor of the plaintiffs, found Kailas to be 90% at fault for the plaintiffs’ damages, and found Dr. Armstrong at fault for the remaining 10% of the damages. Mr. Martin was awarded $600,000.00 for pain and suffering; $200,000.00 for mental anguish; $60,000.00 in past medical damages; $70,000.00 in future medical damages; $12,000.00 in past lost earnings; and $30,000.00 in future lost earnings. Ms. Moore was awarded $75,000.00 for pain and suffering and $6,142.00 in past medical damages. Ms. Wattigney was awarded $20,000.00 for pain and suffering; $3,223.00 in past medical damages; and $125.00 in past lost earnings.

On appeal, the appellants, Kailas and Colony, assign six errors to the trial court. First, they argue that the jury erred in assigning only 10% of the fault to Dr. Armstrong. Next, they assert that the general damage award to Mr. Martin of $800,000.00 was an abuse of discretion and that the past and future lost wage awards are not supported by the evidence at trial. They also take issue with the award of future medical damages to Mr. Martin on the grounds that they are not supported by any objective evidence at trial. Finally, they assert that the general damage award to Ms. Moore is excessive in light of her injuries and that both she Land Ms. Wat-tigney should have their awards reduced by a percentage of fault as they also knew of the dangerous condition prior to the accident and are comparatively at fault.

The plaintiffs, collectively and individually, assign three errors to the trial court. First, they contend that the trial court erred in assigning any degree of fault to Dr. Armstrong. Second, Ms. Moore asserts that the trial court erred in awarding her only $75,000.00 in general damages, with no award for future medical expenses. Finally, Ms. Wattigney asserts that the trial court erred in awarding her only $20,000.00 in general damages.

1. Fault of Dr. Armstrong:

Kailas and Colony argue that the court erred in only finding Dr. Armstrong 10% at fault for the accident, while the plaintiffs argue that Dr. Armstrong should not have been held liable for any fault, as the injuries sustained by the plaintiffs were caused solely by the negligence of Kailas.

A trier of fact’s apportionment of fault may not be overturned by an appellate court, even if an appellate court would have apportioned fault differently, unless it is found to be manifestly erroneous or [888]*888clearly wrong. Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002.

Kailas and Colony argue that Dr. Armstrong had actual knowledge of the leaking air conditioner unit and the dangerous condition it presented to both his staff and his patients and that he breached his duty to protect them from the known hazard. In fact, Kailas views the letter written by Dr. Armstrong on 1 June 1998 as an admission of fault.

The plaintiffs argue that the maintenance of the air conditioning unit was not the responsibility of Dr. Armstrong and that both the status as a tenant under J^Louisiana law and the terms of the lease agreement hold Kailas, as lessor, fully responsible for the damages caused by the faulty air conditioner. The lease agreement in effect on 5 June 1998, signed both by Dr. Armstrong and Gowri S. Kailas on behalf of Kailas Management, L.L.C., provides, in pertinent part, the following:

MAINTENANCE:
[[Image here]]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Drouilhet v. Berkowitz
E.D. Louisiana, 2024
Fie, LLC v. New Jax Condo Ass'n, Inc.
241 So. 3d 372 (Louisiana Court of Appeal, 2018)
Louisiana Farm Bureau Casualty Insurance Company v. Perricone
34 So. 3d 1166 (Louisiana Court of Appeal, 2010)
Tremblay v. Allstate Insurance Company
955 So. 2d 700 (Louisiana Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
865 So. 2d 884, 2003 La.App. 4 Cir. 0738, 2004 La. App. LEXIS 24, 2004 WL 76852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-kenilworthkailas-properties-lactapp-2004.