Olivier v. Alexander

737 So. 2d 772, 97 La.App. 4 Cir. 1463, 1999 La. App. LEXIS 53, 1999 WL 23202
CourtLouisiana Court of Appeal
DecidedJanuary 6, 1999
DocketNo. 97-CA-1463
StatusPublished

This text of 737 So. 2d 772 (Olivier v. Alexander) 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
Olivier v. Alexander, 737 So. 2d 772, 97 La.App. 4 Cir. 1463, 1999 La. App. LEXIS 53, 1999 WL 23202 (La. Ct. App. 1999).

Opinions

hKLEES, Judge.

In this suit for personal injuries, defendant, Avery Alexander, appeals from a judgment of the trial court rendered in favor of plaintiff Donald Olivier. The trial court ruled that Alexander had custody of a construction scaffold on his property, and that he was strictly liable to plaintiff for the serious injuries he suffered after the scaffold collapsed. Donald Olivier answered the appeal contending that the trial court erred in finding no negligence on the part of Alexander. Plaintiff also contends that the damage award of $90,000.00 was inadequate. Mrs. Olivier appeals the failure to award her consortium damages.

FACTS AND PROCEDURAL. HISTORY

Avery Alexander owned the property at 2714 Second Street and began renovation of the apartment building located on the premises in 1984. Over a period of several years Alexander employed three general and independent contractors, including Ronnie’s Heating and Plumbing which employed Olivier. Alexander routinely visited the construction site to check on progress of the work.

On December 11,1986 Olivier was working at the construction site under the direction of Ronnie Gabriel, owner of Ronnie’s Heating and Plumbing.

| ^.Olivier was standing on a ladder outside the building installing furnaces and attempted to step on a scaffold that surrounded and was attached to the building. The scaffold collapsed, and Olivier fell ap[774]*774proximately 20 feet and suffered serious injury to his back. Olivier testified that he believed the scaffold was not constructed properly. He stated that the scaffold on Alexander’s property consisted of wooden boards and nails, while other scaffolding he had used was made of iron and pieced together with screws and braces.

Alexander admitted seeing the scaffold on his building, but he did not remember when. Work on Alexander’s building lasted from 1984 until 1987. Alexander said the scaffold was erected by the first contractor shortly after construction began. He denied any involvement in construction of the scaffold or its design.

Donald and Susan Olivier filed a petition for damages against Alexander. On January 11, 1988 Aetna Casualty & Surety Company, insurer of Ronnie’s Heating and Plumbing, intervened to recover compensation benefits paid to or on behalf of Olivier.

The trial court awarded Olivier $90,-000.00 against Alexander and awarded Aetna $6,613.05 to be recovered “out of the Judgment of this Court.” In reasons for judgment the trial court stated as follows:

This Court finds that plaintiff [sic] indeed had the custody and garde of the scaffold. Testimony was presented at trial that revealed that the defendant was visible and intimately involved in the construction project. The defendant visited the job on a weekly basis, provided plumbers and electricians for the job, signed off on acceptances of the work and approved the hiring and firing of contractors. Thus, this Court finds that defendant is liable for plaintiffs injuries due to strict liability but not negligence.

[.¡Plaintiffs argue that the trial court erred by finding that defendant was not negligent, by refusing to award Mrs. Olivier loss of consortium, and by awarding Mr. Olivier only $90,000.00 in total damages. Alexander denies liability under theories of negligence or strict liability.

STANDARD OF REVIEW

In reviewing factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La. 1/16/96); 666 So.2d 612. Before an appellate court reverses a trial court’s factual conclusions, we must find, after reviewing the entire record, that no reasonable factual basis exists for the verdict. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). We are also mindful of our constitutional duty to review the record for clearly erroneous factual determinations. Ambrose v. New Orleans Police Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94); 639 So.2d 216, 221.

LIABILITY

La. Civ.Code art. 2317 imposes strict liability for damage caused by a defective thing in a defendant’s custody. To hold defendant liable under article 2317, the plaintiff must prove: (1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by this defect. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Article 2317 imposes liability based on custody, not ownership. Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4th Cir.1993), unit denied, Montalbano v. Lombard, 617 So.2d 1182 (La.1993). Custody, distinct from ownership, refers to a person’s supervision and control (garde) over a thing posing an unreasonable risk |4of harm. Id. (citing Loescher v. Parr, 324 So.2d 441, 446 (La.1975).) The Supreme Court has utilized a two-part test in determining whether the defendant has custody. First, the defendant must have right of direction and control over the thing. Second, the court must examine what, if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991).

[775]*775In summary, Alexander owned an apartment building which was under renovation from 1984 to 1987. The scaffolding was attached to. his building for over four years with his knowledge and he- had control and visited the job site regularly. Alexander directly benefited from the scaffolding because it had been used to renovate his building.

The trial court determined that Alexander was at the construction site weekly, that he provided plumbers and electricians, signed acceptances of work, hired and fired contractors, and -was “intimately involved in the construction project.” Considering the record, the trial court’s conclusion that Alexander had custody and control of the scaffolding is not manifestly erroneous and should not be disturbed.

We also find that the scaffold was clearly defective and created an unreasonable risk of harm which directly caused Olivier’s injuries. Therefore, we affirm the finding of strict liability.

COMPARATIVE FAULT

The trial court did not address the issue of Olivier’s fault, although Alexander alleged in his answer to the petition that Olivier’s injuries were caused by plaintiffs negligence. Considering the photographs in evidence which depict obvious defects in the scaffolding, an examination of Olivier’s fault is warranted.

|sThe trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96); 666 So.2d 607, 610. A reviewing court may reallocate fault only after it has found an abuse of discretion and then, only to the extent of lowering or raising the percentage of fault to the highest or lowest point. Warren v. Compagna, 96-0834 (La.App. 4 Cir. 12/27/96); 686 So.2d 969, 980.

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Related

Hill v. Morehouse Parish Police Jury
666 So. 2d 612 (Supreme Court of Louisiana, 1996)
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Doughty v. Insured Lloyds Ins. Co.
576 So. 2d 461 (Supreme Court of Louisiana, 1991)
Loescher v. Parr
324 So. 2d 441 (Supreme Court of Louisiana, 1975)
Warren v. Campagna
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Watson v. State Farm Fire and Cas. Ins. Co.
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Ambrose v. New Orleans Police Amb. Serv.
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Bluebook (online)
737 So. 2d 772, 97 La.App. 4 Cir. 1463, 1999 La. App. LEXIS 53, 1999 WL 23202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivier-v-alexander-lactapp-1999.