Rosenthal v. Betsy's Pancake House, Inc.

789 So. 2d 35, 2000 La.App. 4 Cir. 1546, 2001 La. App. LEXIS 1590, 2001 WL 669717
CourtLouisiana Court of Appeal
DecidedMay 16, 2001
DocketNo. 2000-CA-1546
StatusPublished
Cited by1 cases

This text of 789 So. 2d 35 (Rosenthal v. Betsy's Pancake House, 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
Rosenthal v. Betsy's Pancake House, Inc., 789 So. 2d 35, 2000 La.App. 4 Cir. 1546, 2001 La. App. LEXIS 1590, 2001 WL 669717 (La. Ct. App. 2001).

Opinion

1BYRNES, Chief Judge.

Plaintiff-appellant, Arnold Jack Rosen-thal, sued the City of New Orleans and Betsy’s Pancake house, Inc. for injuries he sustained in a fall in front of Betsy’s Pancake House on Canal Street on October 24, 1989.

Plaintiffs First Amending Petition added Employers National Insurance Corporation, insurer of Betsy’s Pancake House, Inc., as a defendant.

Plaintiffs Second supplemental and Amending Petition added Elizabeth McDaniel, owner of the premises, as a defendant.

Plaintiffs Third Supplemental and Amending Petition added “K” Construction, Inc. as a defendant.

Before trial, plaintiff voluntarily dismissed the City of New Orleans with prejudice. At trial, plaintiff put on no evidence against defendant “K” Construction, [37]*37Inc. or Employers National Insurance Corporation.

After a trial on the merits, the trial judge found that the plaintiff had sustained injuries valued at $15,000. The trial judge allocated 80% of the fault to the City, 5% to Betsy’s Pancake House, Inc. and Elizabeth McDaniel “jointly”, and the remaining 15% to the plaintiff. Accordingly, the trial judge condemned Betsy’s Pancake House and Elizabeth McDaniel “jointly, severally and in solido” |?to pay plaintiff the sum of $750 (5% of $15,000), along with costs, including a $200 expert witness fee for Jeffrey Chariot. Plaintiff appealed asking this Court to find Betsy’s Pancake House and Elizabeth McDaniel 85% at fault, and to find the City free from fault. The plaintiff does not assign as error the amount of the damages assessed by the trial court or the allocation of 15% of the fault to the plaintiff.

Betsy’s Pancake House and Elizabeth McDaniel answered plaintiffs appeal, contending that the judgment rendered against them is contrary to the law and the evidence and that the damages awarded by the trial court are excessive.

Plaintiff alleges in paragraph “HI” of his original petition that:

On or about October 24, 1989, at approximately 9:00 a.m., your petitioner, ARNOLD J. ROSENTHAL, was walking on the sidewalk in front of 2536 Canal Street, when suddenly and without warning, he tripped and fell on a hole in the sidewalk. [Emphasis added.]

“Plaintiffs First Amending Petition” re-averred this allegation.

Paragraph “3” of plaintiffs “Second Supplemental and Amending Petition” states that:

3.
By amending paragraph III of the original petition to read as follows:
III.
On or about October 24, 1989, at approximately 8:15 a.m., your petitioner, ARNOLD J. ROSENTHAL, was walking on the sidewalk in front of 2542 Canal Street. Suddenly and without warning, your petitioner tripped in a hole and fell on the sidewalk. [Emphasis added.]

The plaintiff amended his petition a third time, but did not change this allegation.

|3The plaintiff reported the incident to his chiropractor, Wayne Crutchfield, in writing:

I was walking on the sidewalk at Canal Street and Broad on the side of Betsy’s Restaurant, lost my footing, tripped on a large crack in the sidewalk and fell forward right on my face and directly on my nose, breaking my nose and shedding quite a bit of blood.

In his deposition Mr. Rosenthal referred to tripping on a crack and hole in the pavement. Plaintiff made no mention of tripping or losing his balance on the ramp leading up to Betsy’s door. Plaintiffs brief does not contend that the appellees caused the crack or hole in the sidewalk. Nor does plaintiffs brief suggest that the appellees have any liability or legal responsibility for the crack or hole in the sidewalk. The trial judge implicitly agreed. Otherwise he would have assigned more than 5% fault to the ap-pellees.

Mr. Jeffrey D. Charlet, the first witness to testify, was qualified as an expert on the Jefferson Parish building code. When Mr. Charlet started to offer testimony concerning the condition of the ramp, defense counsel entered a timely objection because no proper predicate had been laid [38]*38and the testimony went beyond the scope of the pleadings. The trial court allowed the testimony in spite of the timely objection. The appellee assigns this as error. A timely objection, coupled with failure to move for an amendment of the pleadings, is fatal to an issue not raised in the pleadings. Schnell v. McKenzie’s Tree Service, Inc., 98-1269, p. 6 (La.App. 5 Cir. 3/30/99), 731 So.2d 922, 925. Our system of fact pleading under La. C.C.P. art. 891 generally requires some reference to the ramp if plaintiff wishes to recover from Betsy’s Pancake House and Elizabeth McDaniel because of its defective condition. Id. None of plaintiffs many pleadings contain any reference, express or implied, to the ramp.

| ¿However, our inquiry does not end here. At the time the trial judge allowed Mr. Charlet’s evidence in, he explained that he would look to subsequent witnesses to establish the proper foundation. The trial judge has broad discretion in the conduct of the trial, including deciding what evidence to admit or exclude. As this was a judge trial, we are not dealing with a potential to prejudice a jury. The plaintiff later testified about the ramp without any contemporaneous objection as to admissibility.

In Wexler v. Martin, 367 So.2d 111, 113 (La.App. 4 Cir.1979), this Court stated that:

Under C.C.P. art. 1154 an issue which has not been raised by the pleadings, but has been tried by the express or implied consent of the parties, must be treated in all respects as if the issue had been raised by the pleadings. Accordingly, the pleadings may subsequently be amended, even after judgment, to reflect the enlargement by evidence introduced without objection, but “failure to so amend does not affect the result of the trial of the issue”.
The purpose of C.C.P. art. 1154 is to recognize the principle that pleadings may be enlarged by evidence introduced without objection. Once such evidence has been introduced, then the pleadings may be formally amended as a housekeeping measure, but formal amendment is not necessary to allow a judgment based on the evidence which enlarged the pleadings. [Emphasis added.]

Additionally, on October 23, 1998, over one year prior to the trial the plaintiff had filed a motion for summary judgment based on the theory that the ramp “violates all relevant building and safety codes.”1 Therefore, the appellees were on notice that the design of the ramp was an issue in the case. The appellees failed to object to the plaintiffs testimony, arguing only that it was inconsistent |Bwith prior declarations and unreliable. The appellees did not argue prejudice in the lower court or on this appeal. The appellees do not claim surprise and did not move for a continuance in the trial court.

Considering the record as a whole on the issue of the ramp, we find that the failure to formally amend the pleadings to raise the issue of the ramp does not affect the outcome of the trial. La. C.C.P. art. 1154; Wexler, supra.

No one actually saw the plaintiff fall.

On direct examination the plaintiff admitted to his attorney that he had had a stroke that affected his memory.

[39]

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789 So. 2d 35, 2000 La.App. 4 Cir. 1546, 2001 La. App. LEXIS 1590, 2001 WL 669717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenthal-v-betsys-pancake-house-inc-lactapp-2001.