Staten v. McNeal

930 So. 2d 360, 2006 WL 1329952
CourtLouisiana Court of Appeal
DecidedMay 17, 2006
DocketNos. 41,117-CA, 41,118-CA
StatusPublished

This text of 930 So. 2d 360 (Staten v. McNeal) 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
Staten v. McNeal, 930 So. 2d 360, 2006 WL 1329952 (La. Ct. App. 2006).

Opinion

PEATROSS, J.

hThis case arises from a suit filed by Eddie Staten against Dorothy McNeal, her homeowner’s insurer, Allstate Insurance Company (“Allstate”), and McCoy’s hardware store for injuries Mr. Staten sustained while performing flooring work in Ms. McNeal’s house.1 After a trial on the merits, the trial judge found that responsibility for the accident lay with Mr. Staten and McCoy’s, 70 percent and 30 percent, respectively. He further found Ms. McNeal and Allstate to be without liability. From this ruling, Mr. Staten appeals. For the reasons set forth herein, we affirm.

FACTS

In December 1999, Ms. McNeal hired Mr. Staten, a handyman, to lay a new vinyl floor in her kitchen. Ms. McNeal agreed to provide the supplies for the job and pay Mr. Staten approximately $80 for his services. She had previously employed Mr. Staten on a number of occasions, for a myriad of tasks around her home, including, most notably, to lay vinyl flooring in her laundry room some twenty years earlier.2 By his own admission, Mr. Staten had been in the flooring business for some 25 or more years.

The pair went to a local McCoy’s hardware store to buy a sheet of vinyl and the accompanying supplies needed for the job. Mr. Staten noticed that the store did not have the brand of glue (a non-flammable brand) he normally used for such a job, so he consulted a McCoy’s employee as to which alternative brand could be used. The employee retrieved a can of Dglue and recommended it be used for the project.3 Unfortunately, the McCoy’s employee was mistaken. The glue he suggested was, in fact, highly flammable and not suitable for this project (without proper precautions being taken).

Ms. McNeal and Mr. Staten admit to purchasing the glue without reading the label on the can, which was clearly marked “flammable.” After returning to Ms. McNeal’s house, Mr. Staten began the work, without having opened a window or taken similar ventilation precautions. While he was applying the glue, the vapors from the can ignited, causing an explosion, which left Mr. Staten seriously injured and caused nearly $30,000 in damages to Ms. McNeal’s home.

Mr. Staten and his wife sued Ms. McNeal and Allstate for his injuries and Allstate and Ms. McNeal, in turn, sued Mr. Staten for the damages to her house. The suits were consolidated. Allstate and Ms. McNeal also sued McCoy’s.4 After the one-year prescriptive period had run, Mr. Staten amended his petition and sued McCoy’s hardware store as well.

For some time during this litigation, it was uncontested that the explosion was caused by a pilot light in the water heater, which was located in the laundry/utility room, adjacent to the kitchen. Mr. Staten’s expert, John Maroney, opined that the water heater was installed contrary to code and in violation of the heater’s warn[363]*363ing label. More to the point, he stated | sthat the heater had not been installed 18 or more inches from the ground, as recommended by code and the warning label. To the contrary, Allstate’s “fire and origin” expert, Gary Brooks, concluded that the water heater’s warning label was ambiguous and that the pilot light from the kitchen stove, not the water heater, caused the explosion. The basis for his “stove theory” was derived from a telephone conversation with Elisha McNeal (“Dee”), Ms. McNeal’s adult daughter, who witnessed the explosion. During this telephone conversation, Dee conveyed to Mr. Brooks that she saw a fire start from the stove area and spread out across the kitchen.

A bench trial was held and Judge Alvin Sharp ruled that Ms. McNeal and Allstate were without fault; however, Mr. Staten and McCoy’s bore 70 percent and 30 percent responsibility, respectively. Mr. Staten’s claim against McCoy’s was ruled to have prescribed. Mr. Staten now appeals, assigning two errors.5

DISCUSSION

Assignment of Error One (verbatim): The statements in Allstate’s pleadings as to origin of the fire are judicial confessions which are binding on Allstate.

Mr. Staten first points to Louisiana Civil Code article 1853, which states:

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.
A judicial confession is indivisible and it may be revoked only on the ground of error of fact.

|4From this, he argues that the record “strongly supports” that Allstate took advantage of Dee McNeal’s “lapse of memory” regarding her description of what happened and substituted its own, inaccurate version of the origin of the fire. Moreover, Mr. Staten contends that Allstate made a judicial confession that the water heater actually caused the explosion.

Mr. Staten cites C.T. Traina Inc. v. Sunshine Plaza, 03-1003 (La.12/3/03), 861 So.2d 156, to buttress this position. In C. T. Traína, supra, the court held that an admission by a party in a pleading is a “judicial confession” and is full proof against the party making it. He states that “it is obvious that Dee McNeal’s account of the fire changed several years into the litigation, under circumstances which give rise to the ... inference that her original account is correct and the modified version is incorrect.”

Ms. McNeal initially responds by citing Rosell v. ESCO, 549 So.2d 840 (La.1989), which states that a court of appeal should not set aside a trier of fact’s finding unless it was manifestly erroneous or clearly wrong. See also, Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The appellate court should not determine whether or not the fact finder’s conclusion was right or wrong, but, rather, whether or not it was a reasonable one, given the entirety of the record. Rosell, supra.

Ms. McNeal contends that Mr. Staten’s argument regarding judicial confession is misplaced. She states that Mr. Staten is simply unable to prove, with any certainty, that the ignition point was the water heater, rather than the stove. She notes that Allstate originally identified the water heater as the ignition point, but subsequently amended its pleadings, based on an 1 Berror of fact, to reflect that it was the stove, without objection or response from Mr. Staten. Accordingly, Ms. McNeal ar[364]*364gues that no prejudice was caused to Mr. Staten in preparation for this trial.

From this, she cites Farmer’s-Merchants Bank & Trust Co. v. St. Katherine Ins., 93-552 (La.App. 3d Cir.3/9/94), 640 So.2d 353, writ denied, 94-0841 (La.5/13/94), 641 So.2d 204, in which a defendant was allowed to amend its answer nearly five years after initial filing and over objection by the plaintiff. In Farmer’s-Merchant, swpra, once amendment was allowed, judicial admission was revoked. Similarly, in Sinha v. Dabezies, 590 So.2d 795 (La.App. 4th Cir.1991), writ denied, 592 So.2d 1315 (La.1992), the court stated that a statement in a pleading may be amended if it does not prejudice the opposing party and was based on an error of fact. See also, J.H. Jenkins Contractors, Inc. v. Farriel, 261 La. 374, 259 So.2d 882 (1972). Accordingly, she states that, when the trial court allowed her and Allstate to amend their pleadings, it revoked any judicial confession made prior to that point.

Ms.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Sinha v. Dabezies
590 So. 2d 795 (Louisiana Court of Appeal, 1991)
CT Traina, Inc. v. Sunshine Plaza, Inc.
861 So. 2d 156 (Supreme Court of Louisiana, 2003)
J. H. Jenkins Contractors, Inc. v. Farriel
259 So. 2d 882 (Supreme Court of Louisiana, 1972)
Hoyt v. Wood/Chuck Chipper Corp.
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580 So. 2d 684 (Louisiana Court of Appeal, 1991)
FARMERS-MERCHANTS BANK v. St. Katherine Ins.
640 So. 2d 353 (Louisiana Court of Appeal, 1994)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Hesse v. CHAMP SERVICE LINE
758 So. 2d 245 (Louisiana Court of Appeal, 2000)
Potmesil v. EI DuPont deNemours Co., Inc.
408 So. 2d 315 (Louisiana Court of Appeal, 1981)
Kendall v. WEINGARTEN REALTY MGMT. CO.
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930 So. 2d 360, 2006 WL 1329952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/staten-v-mcneal-lactapp-2006.