Smith v. AFS, INC.

998 So. 2d 168, 2008 WL 4737027
CourtLouisiana Court of Appeal
DecidedOctober 28, 2008
Docket08-CA-332
StatusPublished
Cited by2 cases

This text of 998 So. 2d 168 (Smith v. AFS, 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
Smith v. AFS, INC., 998 So. 2d 168, 2008 WL 4737027 (La. Ct. App. 2008).

Opinion

998 So.2d 168 (2008)

Chalander SMITH
v.
AFS, INC. d/b/a Mr. Fixit's Joseph Anderson and ABC Insurance Company.

No. 08-CA-332.

Court of Appeal of Louisiana, Fifth Circuit.

October 28, 2008.

*169 Carl A. Butler, Gloria T. Lastra, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.

James M. Benson, Attorney at Law, Metairie, LA, for Defendant/Appellee.

Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.

WALTER J. ROTHSCHILD, Judge.

In this negligence case, plaintiff appeals from a judgment of the trial court granting defendant's motion for directed verdict/involuntary dismissal.[1] For the reasons stated herein, we affirm.

In May of 2006, Chalander Smith brought her 1993 Toyota Corolla to Mr. Fixit's in Laplace, Louisiana for repairs. While in the care of the repair shop, the vehicle was stolen and allegedly vandalized by an unknown third party. The vehicle was subsequently located by the sheriff's department and was eventually returned to Ms. Smith.

Plaintiff subsequently filed the present petition for damages against Mr. Fixit's, its owner, Joseph Anderson, and their insurance company. Defendants answered the petition with a general denial, and the matter proceeded to a bench trial. Following the presentation of plaintiff's case, defendant moved for a directed verdict on the grounds that plaintiff did not prove with sufficient evidence her claims for damages. After a recess in the trial, the trial court granted the motion, dismissed plaintiff's case at her costs and assigned written reasons for judgment.

By this appeal, plaintiff contends that the trial court erred in its ruling as the evidence presented shows plaintiff met her burden of proving defendant's liability and her entitlement to damages. She contends the trial court's judgment should be reversed and judgment should be entered in her favor.

The trial court granted judgment on the basis of La. C.C.P. art. 1672, which provides in pertinent part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

When a motion for dismissal at the close of plaintiffs evidence is made, the trial court should apply the preponderance of the evidence standard in weighing and evaluating the evidence. Mott v. Babin Motors, Inc., 451 So.2d 632, 637 (La. App. 3d Cir.1984). Proof by a preponderance of the evidence means that, taking the evidence as a whole, such proof shows that a fact sought to be proved is more probable than not. Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366, 369 (La.App. 2d Cir.1988).

In the present case, plaintiff's cause of action was based on a theory of negligence which requires a duty/risk analysis. A duty-risk analysis involves five elements which must be proved by the plaintiff: (1) proof that the defendant had *170 a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) proof that the defendant's substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Long v. State ex rel. Dept. of Transp. and Development, 04-485 (La.6/29/05), 916 So.2d 87, 101.

After hearing plaintiff's case, the trial court determined that plaintiff's burden of proof of the elements regarding duty, breach and cause were satisfied at trial. However, the court granted the involuntary dismissal on the basis that plaintiff failed to submit competent proof that she sustained actual damages as a result of the theft of her vehicle from defendant's place of business. As this is an element of a cause of action in negligence, the trial court concluded that failure to prove actual damages in a negligence case is fatal to her cause of action. We agree.

Plaintiff presented the following testimony at trial:

Ronald Nicholas, plaintiff's husband, testified that plaintiff's 1993 Toyota Corolla was taken to Mr. Fixit's on May 1, 2006 to repair the radiator because the car "was running hot." Mr. Nicholas stated he had just put a new engine in the car, but he did not have records to support this. He also stated he put new tires on the vehicle and that the car was in good shape. Mr. Nicholas also stated that his wife was having problems with the air conditioner in the vehicle and that the thermostat needed to be replaced. Mr. Nicholas did not get this information from Mr. Fixit's, but from his cousin who was a licensed mechanic.

Mr. Nicholas stated that after the vehicle was stolen, it was in worse condition than when the vehicle was brought to the repair shop on May 1, 2006. He stated there was a bullet hole in the vehicle that had not been there previously.

Plaintiff, Chalander Smith, testified that she brought her vehicle to Mr. Fixit's on May 1, 2006 for a brake job. She paid for the repairs when the work was completed. She testified she brought the vehicle back to the shop a few days later because the air conditioning was not working properly, and she was told she needed to replace the thermostat for a cost of $36.00. The next thing she heard was that the car had been located by a police officer in Reserve. The vehicle was towed back to Mr. Fixit's, but no further repairs were made. Plaintiff testified that she received an offer from Mr. Fixit's to repair the vehicle for the cost of the parts, but she refused because she believed the damage to the vehicle was caused by defendant's negligence in allowing the vehicle to be stolen. The vehicle was then moved to Firestone, and documentation admitted into evidence indicates the radiator, the fan, the shroud and the thermostat were found in the back seat of the vehicle.

Plaintiff testified that after the vehicle was stolen, she used her brother's truck to travel to work. She stated that she purchased a new vehicle for $5400 in January of 2007. Up until this time, she paid her brother $100 per week including gas for the use of the truck for transportation to and from work, although she had no receipts or other documentation to support this. At the time, she was employed as a home health nurse and earned $17 per patient plus mileage, usually seeing 4-5 patients per day. She stated she missed a "couple of days" of work because she did not have transportation. She stated she *171 had trouble getting to work for about 30 days and had to reschedule some appointments. When she missed an appointment, she was required to complete a form, but she was unable to produce any of those forms at trial because they were turned in to her employer. On cross-examination, she acknowledged her deposition testimony in which she stated she did not miss any visits, but she believed at trial that she missed some. She also stated that the loss of her vehicle and her inability to work as a result caused her to have marital problems. Finally, Ms.

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

Related

Groover v. Lafitte's Boudoir, Inc.
162 So. 3d 1184 (Louisiana Court of Appeal, 2015)
Durapau v. Kallenborn
13 So. 3d 1201 (Louisiana Court of Appeal, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
998 So. 2d 168, 2008 WL 4737027, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-afs-inc-lactapp-2008.