Murray v. Griffin

640 So. 2d 641, 94 La.App. 3 Cir. 0036, 1994 La. App. LEXIS 1587, 1994 WL 233939
Louisiana Court of Appeal·Decided June 1, 1994·No. No. 94-0036·Published·Cited by 2 cases

Opinion

jjCOOKS, Judge.

In this action, Joseph Murray filed suit and secured a default judgment against Bir-dell Griffin for personal injuries he allegedly sustained when he fell off a ladder on March 3, 1992. Murray contracted to complete certain repairs on Griffin’s residence. While performing the agreed construction work, Murray requested use of Mrs. Griffin’s ladder. Apparently, the only ladder Mrs. Griffin owned was wooden with eight steps measuring approximately eight feet in height. Griffin loaned the ladder to Murray. In his petition for damages Murray alleged the ladder was defective; and, it broke while he was performing his duties at Griffin’s home. He further alleged Griffin knew or should have [643] known of the ladder’s condition; and, her negligence in loaning him a defective ladder was the sole cause of the accident.

Murray’s petition was filed one day before the anniversary of the alleged accident. The record does not contain a sheriffs return or clerk certificate indicating when suit was served on Mrs. Griffin and whether the mandated service was executed personally or domiciliary. The petition is followed in the record by a form apparently signed by Murray’s attorney requesting that the clerk tender the matter for entry of a preliminary default. The minutes of the court reflect a preliminary default was entered on April 23, 1993. At the confirmation hearing conducted on June 4, 1993, Murray testified “while [he] was pulling some bolts aloose ... the ladder toned, and [he] fell backwards with the ladder.” We have gathered from the skimpy testimony contained in the record that Murray blames his fall entirely on what Rhe described as the “rickety” condition of the ladder. As depicted in the photographs introduced at the confirmation hearing, the ladder appears sturdy though showing signs of use and exposure to the environment. Murray presented the testimony of two coworkers who were at the scene when the accident occurred. Melvin Prevot stated he heard a crash, turned around, and noticed Murray laying on his back. When Prevot was questioned whether the ladder was “rickety,” he responded, yes; and, he stated it [shook] a lot. He did not see Murray actually fall. James Barker stated he was about “12 to 17” feet from Murray, nailing on a board, when he heard a noise and saw Murray falling. In his words, the ladder was “in bad shape.” None of the witnesses, including Murray, testified the ladder “broke” at the time of the accident or Mrs. Griffin knew or should have known the ladder was “defective” and would not support Murray’s weight. Instead, all the witnesses acknowledged (including Murray) when they inspected and lifted the ladder it was either “real rickety” or “in bad shape.”

The documentary evidence offered by Murray to establish his damage claim consisted solely of medical bills from Dr. Kaplan, St. Francis Cabrini, and Wal-mart Pharmacy. None of these bills mentioned the nature of Murray’s condition or otherwise described the treatment rendered. No narrative medical reports or physicians’ statements of any kind were presented by Murray to verify the nature of his claimed injuries or to connect his extended thirty day hospital stay with the alleged fall. Even Murray’s testimony does not enlighten us on the exact injuries he sustained; nor does Murray explain why he allegedly underwent “four operations.” His testimony is extremely disjointed; and, vacillated between describing “problems with his back” to “swelling” and strangely mentioning “it was going into gangrene.” The “it” is not identified and the record closed -without any greater clarification. Murray’s piecemeal account of his injuries appears deliberately elusive. His failure to introduce itemized medical bills or a certified copy of the hospital record substantially weakens the weight of the evidence he offered to support his damage claim.

Louisiana Civil Procedure Article 1702 provides “A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” Plaintiff has the burden of establishing a prima facie case by proving with competent evidence the essential elements of his claim as fully as if each of the allegations of the petition had been specifically denied. Halliday v. Water Works of Louisiana, Inc., 425 So.2d 949 (La.App. 5th Cir.1983); Jones v. Ledet, 383 So.2d 1308 (La.App. 3rd Cir.1980); Dozier v. Burleigh, 380 So.2d 197 (La.App. 3d Cir.1980). The evidence must be such that plaintiff probably would prevail after full trial on lathe merits. Meshell v. Russell, 589 So.2d 86 (La.App. 2d Cir.1991). To obtain reversal of a default judgment, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is legally correct. However, this presumption does not apply where the record contains a note of evidence introduced or a transcript of the proceedings in the trial court. Perkins v. Fontenot, 548 So.2d 369 (La.App. 3d Cir.1989); Philip White, Etc. v. Baricev/Waguespack, 410 So.2d 1247 (La.App. 3d Cir.1982).

[644] Thus, we must examine the transcript and other documents in the record to determine whether Murray presented prima facie evidence to establish both his liability and damage claims unaided by any presumption. Under either a negligence (LSA-C.C. Article 2315) or a strict liability (LSA-C.C. Article 2317) theory of recovery against the owner or custodian of a thing plaintiff must prove (1) the thing was in defendant’s custody; (2) the thing had a vice or defect; (3) the vice or defect presented an unreasonable risk of harm to others; and (4) the injury or damage sustained by plaintiff was caused by the vice or defect. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990); Loescher v. Parr, 324 So.2d 441 (La.1975). The difference between the two theories of liability is proof as to the defendant’s knowledge. To prove negligence, plaintiff must show defendant knew or should have known of the unreasonable risk of harm posed by the thing. Defendant’s knowledge is not required to prove strict liability.

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Murray v. Griffin, 640 So. 2d 641, 94 La.App. 3 Cir. 0036, 1994 La. App. LEXIS 1587, 1994 WL 233939 (La. Ct. App. 1994).

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