Rich v. Tench Elec. Motor Works, Inc.

642 So. 2d 293, 1994 La. App. LEXIS 2305, 1994 WL 460696
CourtLouisiana Court of Appeal
DecidedAugust 19, 1994
Docket26072-CA
StatusPublished
Cited by8 cases

This text of 642 So. 2d 293 (Rich v. Tench Elec. Motor Works, Inc.) 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
Rich v. Tench Elec. Motor Works, Inc., 642 So. 2d 293, 1994 La. App. LEXIS 2305, 1994 WL 460696 (La. Ct. App. 1994).

Opinion

642 So.2d 293 (1994)

Julie RICH, Plaintiff-Appellant
v.
TENCH ELECTRIC MOTOR WORKS, INC., et al., Defendants-Appellees.

No. 26072-CA.

Court of Appeal of Louisiana, Second Circuit.

August 19, 1994.

*294 A. Richard Snell, Bossier City, for appellant.

Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for appellee.

Before MARVIN, LINDSAY and WILLIAMS, JJ.

WILLIAMS, Judge.

Plaintiff instituted suit against the defendant for personal injuries she sustained when she fell from a second-story platform on its premises. The trial court dismissed the plaintiff's suit, and she appealed. For the reasons, assigned below, we reverse the trial court's judgment and render judgment for the plaintiff, allocating fault and assessing damages.

FACTS

During the evening of February 8, 1992, plaintiff, Julie Rich, and her friend, Rebecca English, visited four local bars drinking and celebrating plaintiff's birthday. At approximately 12:30 a.m., they went to a "jam session" at a warehouse owned by the defendant, Tench Electric Motor Works, and leased to the members of a local band. The plaintiff had attended jam sessions at this warehouse on several occasions prior to this night. Approximately sixty people had gathered at the warehouse to dance and listen to the band. Draft beer was being served on the premises, and guests were told they could bring their own alcoholic beverages.

After plaintiff and English arrived, the plaintiff got a cup of beer. Several minutes later, she decided to go to the restroom, which was located in the back of the room where the jam session was being held. As *295 she tried to enter the restroom, she found the door locked. She forced the door open. Plaintiff contends there was another party guest inside the restroom who was sick to her stomach and sitting on the floor.

At some time later, on plaintiff's second trip to the restroom, she noticed an open door down an adjacent hallway. She walked out of this door on to a small ledge, or platform, which contained an air conditioner compressor. She looked down toward the parking lot below, and turned to walk back into the building. She contends that in doing so, the heel of her shoe stuck in between the boards of the platform. As plaintiff attempted to free her heel, she lost her balance and fell to the concrete below. The platform was several feet above the ground and there were no guardrails around its perimeter. Plaintiff suffered a fractured vertebrae and a severely swollen ankle.

The trial court found plaintiff disregarded the warning on the exterior door, moved the obstacles that were placed in front of the door and ventured out on to the platform. The court concluded that although the absence of guardrails around the platform created an unreasonable risk of harm, this omission did not create an unreasonable risk of harm to the plaintiff that was a cause in fact of her injury. Plaintiff appeals.

DISCUSSION

Trial Court's Factual Findings

Plaintiff contends the trial court should not have relied on Foster's testimony concerning the events leading up to the accident because Foster's trial testimony was inconsistent with her earlier deposition testimony. Plaintiff also claims Foster was a biased witness because she was dating the band manager's best friend.

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court set forth the standard which shall be used by an appellate court to evaluate the correctness of a trial court's findings of fact:

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong.... In applying the manifestly erroneous-clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.... Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon credibility determination.... But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.... (citations omitted)

The evidence established that the guests were required to travel behind the bandstand to use the restroom. Plaintiff testified that on her first visit to the restroom, she saw a *296 "sick girl" who apparently had consumed too much alcohol, sitting on the bathroom floor. Plaintiff and her friend, Rebecca English, attempted to assist this individual. She testified that on her second trip to the restroom, she saw the individual lying partially in the hallway and partially in the doorway of the exterior door. According to the plaintiff, after she checked on the sick individual, she walked out the doorway on to the platform because she was curious as to what was outside. Plaintiff testified as she turned to enter the building, the heel of her shoe caught between two of the wooden planks, and as she tried to free her shoe, she stumbled forward and fell off the platform. She further testified that she landed "feet first" and remained on the ground until someone arrived to help her.

English testified she noticed the exterior door was open when she and plaintiff went to the restroom. She testified she did not go to the restroom with plaintiff immediately prior to plaintiff's fall. According to English, when she accompanied plaintiff to the restroom, she saw a sick woman in the hallway leading to the exterior doorway. English was positive the door was open, and there were no barriers in front of the doorway.

Kelly McIntyre, a member of the band, testified he opened the exterior door to ventilate the building. He stated he placed cinder blocks, plywood boards and large cans in front of the opening, but left enough space on both sides for ventilation. He described the door prior to the accident as "completely open with a cinder block against it to keep it from closing."

Kelley Foster testified she was in the restroom with the plaintiff.

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Bluebook (online)
642 So. 2d 293, 1994 La. App. LEXIS 2305, 1994 WL 460696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rich-v-tench-elec-motor-works-inc-lactapp-1994.