NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
07-68 consolidated with 07-70
THE COWBOY CONNECTION, INC.
VERSUS
STATE OF LA., DOTD
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NOS. 62,499B AND 64,142B HONORABLE JOHN C. FORD, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and Elizabeth A. Pickett, Judges.
PETERS, J., CONCURS IN THE RESULT.
AFFIRMED IN PART; REVERSED IN PART.
Michael Wayne Landry Assistant Attorney General 556 Jefferson Street - 4th Floor Lafayette, LA 70501 Telephone: (337) 262-1700 COUNSEL FOR: Defendant/Appellant - State of LA., DOTD E. Grey Burnes Talley Burnes, Burnes, & Talley P. O. Box 650 Alexandria, La 71309-0650 Telephone: (318) 442-5231 COUNSEL FOR: Plaintiff/Appellee - The Cowboy Connection, Inc. THIBODEAUX, Chief Judge.
Plaintiffs-appellees, the Cowboy Connection, Inc. and (its successor
corporation) the Western Connection, Inc. d/b/a the Cowboy Connection, sued the
defendant-appellant, the State of Louisiana, through the Department of Transportation
and Development (DOTD), for damages due to the alleged negligent maintenance of
underground culverts located in the highway right-of-way in front of the business.
Plaintiffs claim that the negligence led to two separate collapses of areas on and near
the business’s parking lot and that the DOTD’s lengthy repair periods impeded
customer access to the business, causing such large losses in sales income that the
business was forced to close permanently.
A jury found that the DOTD negligently maintained and repaired the
right-of-way and awarded the Cowboy Connection, Inc. $25,000.00 in damages;
however, only 10% fault was assessed to the DOTD and the remaining 90% was
assessed to the Cowboy Connection, Inc. The jury found that the Western
Connection, Inc. did not suffer any damages. A post-trial Motion for Judgment
Notwithstanding the Verdict (JNOV) filed by the plaintiffs was granted in part. The
trial court reassessed the damages, placing 100% of the fault on the DOTD for the
Cowboy Connection, Inc.’s damages. The motion for JNOV was denied in all other
respects.
The DOTD has appealed that partial grant of the JNOV and the plaintiffs
have answered the appeal. The plaintiffs, in their appeal, claim that the jury erred in
finding that the Western Connection, Inc. suffered no damages for which the DOTD
should be held liable and seek a reversal of the jury’s findings as to the Western
Connection, Inc. Plaintiffs also claim that the jury erred in its assessment of damages
to the Cowboy Connection, Inc. and seek an increase in the damages awarded. We find that the jury manifestly erred in finding the DOTD liable to the
Cowboy Connection, Inc. for negligent maintenance and repair of the right-of-way.
Therefore, the trial court’s judgment pursuant to the jury verdict assessing fault to the
DOTD for those asserted damages is reversed. The issue of the propriety of the trial
court’s subsequent partial grant of the motion for JNOV and reassessment of fault,
in this regard, is, consequently, moot. The jury’s finding of $0 in damages to the
Western Connection, Inc., as well as the trial court’s subsequent denial of the motion
for JNOV as to that finding, are affirmed.
I.
ISSUES
1. Was the assessment of damages to the Cowboy Connection, Inc. and the apportionment of fault to the DOTD for those damages reasonable?
2. Did the Western Connection, Inc. suffer damages as a result of the DOTD’s negligence in maintaining and in repairing the underground culverts?
3. Did the trial court err in denying the plaintiffs’ motion for judgment notwithstanding the verdict as to Western Connection, Inc.?
II.
FACTUAL BACKGROUND
This consolidated action arises out of two, separately-occurring cave-ins
of concrete pavement located next to and on the parking lot of the western apparel
store, the Cowboy Connection. The cave-ins were precipitated by underground soil
erosion near deteriorated and leaking culverts. The involved culverts were located
within the State’s right-of-way along a portion of Highway 171 in Leesville,
Louisiana, which runs directly in front of the parking lot of the plaintiffs’ store
frontage on Highway 171. The first cave-in occurred near the Cowboy Connection’s
3 front entrance and caused damage to its large steel canopy, which covered the
majority of the storefront. Approximately one year later, the second cave-in occurred
at the edge of the business’s parking lot on the highway’s shoulder, which abutted the
southernmost corner entrance to the parking lot.
The First Cave-In
The first collapse occurred on October 11, 1997. One of the two-feet by
two-feet wide brick columns supporting the store-front canopy sank about a foot into
an underground cavern that had developed underneath the parking lot slab. The other
column suffered a severe break in its brick and mortar and began collapsing as well.
The damage was first discovered by Patricia Lott Sweeney1, the co-owner and
manager of the Cowboy Connection, Inc., when she arrived that morning to open the
store for business. The store could not be opened that day, however, because of the
instability of the canopy structure. Rather, a perimeter of plastic, orange fencing was
set up around the entire canopy by general contractor Patrick Williams, who was also
one of the first to witness the damage from his nearby business. The DOTD’s parish
maintenance office located in Leesville was notified of the incident that morning
because of the location of the collapse, which appeared to be in the highway right-of-
way.
The parish’s maintenance superintendent, Oliver Perkins, viewed the
damage that day and opined that a deteriorated or leaking drainage culvert may have
caused soil erosion at the site. However, before the DOTD could perform any
excavation to further investigate and perform any repairs, the canopy had to be
removed. The property owner, Mrs. Bernita Lambert, hired Mr. Williams’s
1 At this time in 1997, Mrs. Lott was undergoing a divorce from the co-owner of the Cowboy Connection, Charles Lott. She had remarried by the time the trial commenced and, by that time, referred to herself as Patricia Sweeney. For purposes of this appeal, she will be referred to as Patricia Lott.
4 contracting company to demolish and remove the unstable canopy. This work was
completed in approximately three days. The Cowboy Connection remained closed
during this time period but reopened immediately thereafter, according to Mrs. Lott,
although a hole still existed in the parking lot at the location of the collapse. The area
encompassing the collapsed concrete remained blocked off with barricades, warning
barrels, and yellow construction warning tape. The enclosed area formed a perimeter
around a large portion of the storefront, which included the only public entrance to
the business. Mrs. Lott stated that customers had to walk under construction tape to
enter the business.
The DOTD began its underground repair work shortly after the canopy
demolition was completed. A total of fifty-one days elapsed from the time the DOTD
began its repairs until its safety barricades were removed from the parking lot. Mr.
Perkins explained that this time included occasional weather delays; the occasional
unavailability of his crew, which was still performing work throughout the parish on
a priority basis; time lapses in the performance of work due to the unavailability of
the sole construction crew that performed work for a seven-parish area; wait-time for
the arrival of equipment from elsewhere in the parish to be used to perform
excavation at the site; and periods in which determinations had to be made by
supervisors at the DOTD regarding its responsibility for certain repairs, particularly
the repair of the caved-in portion of the parking lot, for which there was a dispute as
to whether it was located in the highway right-of-way.
The DOTD’s repair work actually began on or about October 16, 1997,
shortly after the demolition of the canopy had been completed. The area maintenance
specialist, Woodrow Young, whose office was located in Alexandria, Louisiana,
traveled to Leesville to inspect the damage. This inspection of the damage was
performed by the maintenance specialist, Mr. Perkins, and other crew members on
5 October 20, 2007. Equipment for further excavation at the site was then requested
from Alexandria, and it arrived on October 28, 1997. On October 29, 2007, the soil
and debris from the cave-in were dug out by the DOTD crew and multiple holes were
found in a nearby culvert.
The construction foreman, George Weatherford, Mr. Perkins, and other
crew members were first able to perform an underground inspection to further
determine the extent of the damage on November 3, 1997. They walked the entire
length of a large culvert that ran in an easterly and westerly direction and traversed
a portion of the Cowboy Connection, Inc.’s parking lot. It connected to a smaller
culvert, approximately two feet in diameter, which ran in a northerly and southerly
direction along the highway’s right-of-way located in front of the Cowboy
Connection, Inc. A large crack in the junction box/box culvert (the point at which the
two culverts connected) was found, and they saw that its top was decayed and had
fallen in. The junction box was located in the right-of-way near the area where
substantial soil erosion had occurred underneath one of the Cowboy Connection’s
columns. The construction crew built a new form around the cracked box culvert and
poured concrete to create a new box culvert. On November 4, 1997, the DOTD
construction crew removed its forms, back-filled the hole, poured the top with
concrete, and completed the concrete finishing work over the new box culvert.
This repair, however, did not address the hole that remained on the lot
of the Cowboy Connection, Inc. Mrs. Lott complained to Mr. Perkins on November
5, 1997, of the DOTD’s failure to pour concrete at the location of the cave-in on the
parking lot. The dispute was eventually resolved and the DOTD determined that it
would repair the hole on the parking lot due to its proximity to the highway right-of-
way. The DOTD’s construction crew began filling in the hole with dirt on November
7, 1997. Mr. Young was onsite measuring the area to be repaired on November 19,
6 1997, and on November 24, 1997, the construction crew was back onsite, performing
further excavation and laying steel for the re-pouring of the concrete in the parking
lot. The concrete was poured on November 24, 1997, and all barricades were
removed from the site on December 1, 1997.
The Second Cave-In
In June 1998, the Cowboy Connection, Inc. had been dissolved and its
assets transferred to a new corporation, the Western Connection, Inc., which
continued to do business as the Cowboy Connection at the same location. Mrs. Lott
had become the sole owner of the business after her divorce, and the new corporate
entity had been formed to reflect this change in ownership. The second cave-in
occurred after this time on or about September 16, 1998. This collapse of pavement
occurred in the State right-of-way on Highway 171 next to the southern corner of the
business’s parking lot. DOTD barricades and warning lights were placed around the
collapsed area at the corner of the lot. The parking lot’s entrance was not blocked as
a result of the collapse or placement of the barricades.
On September 21st and 22nd, 1998, the DOTD performed necessary repair
work at the site, which included replacement of a section of the two-feet wide culvert
that connected to the larger culvert that traversed a portion of the Western
Connection, Inc.’s lot and had been inspected as a result of the first collapse the prior
year. A crack was found in this smaller culvert as a result of excavation performed
after the second collapse. Soil was compacted over the culvert, and the repair work
was deemed completed by the DOTD on September 22nd. However, because the
concrete was not re-poured at that time, the barricades, warning barrels, and lights
were not removed until March 15, 1999, when the concrete finishing work was finally
completed.
7 Damages Alleged
On October 9, 1998, the Cowboy Connection, Inc. sued the DOTD for
damages arising out of the first cave-in. A second lawsuit was filed by the entity, the
Western Connection, Inc. on September 16, 1999, for damages arising out of the
second cave-in. The two actions were later consolidated. The claims asserted in both
suits are that the DOTD negligently maintained its underground drainage system and
failed to take proper measures to ensure the integrity of its roadways and shoulders,
resulting in the collapses and subsequent damage to the plaintiffs’ businesses. During
the trial, it was asserted by the plaintiffs that both incidents caused major disruptions
in the businesses during their peak October rodeo shopping seasons in 1997 and 1998
and during the November and December Christmas shopping seasons of those years
as well. The plaintiffs claimed that potential customers were deterred from shopping
there despite proactive advertising and promotional activities on local radio,
television and storefront displays because the appearance of the barricades and
ongoing construction caused people to perceive that the entire lot was unstable. In
December 1999, the Western Connection, Inc. closed and entered into bankruptcy
proceedings.
8 III.
LAW AND DISCUSSION
The DOTD’s Liability
A plaintiff asserting either a claim of negligence, based on La.Civ.Code
art. 23152, or strict liability, pursuant to La.Civ.Code art. 23173 or La.R.S. 9:28004,
2 Civil Code Article 2315(A) states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” 3 Civil Code Article 2317 states, in relevant part: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” 4 §2800. Limitation of liability for public bodies
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Where other constructions are placed upon state property by someone other than the state, and the right to keep the improvements on the property has expired, the state shall not be responsible for any damages caused thereby unless the state affirmatively takes control of and utilizes the improvement for the state’s benefit and use.
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.
E. A public entity that responds to or makes an examination or inspection of any public site or area in response to reports or complaints of a defective condition on property of which the entity has no ownership or control and that takes steps to forewarn or alert the public of such defective condition, such as erecting barricades or warning devices in or adjacent to an area, does not thereby gain custody, control, or garde of the area or assume a duty to prevent personal injury, wrongful death, property damage, or other loss as to render the public entity liable unless it is shown that the entity failed to notify the public entity which does have care and custody of the property of the defect within a reasonable length of time.
F. A violation of the rules and regulations promulgated by a public entity is not negligence per se.
G. (1) “Public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions. Public entity also includes housing authorities, as
9 against a public entity, such as the DOTD, for damages allegedly caused by a thing
in its care and custody, bears the burden of showing the following:
(1) DOTD had custody of the thing that caused the plaintiff’s injuries or damages;
(2) the thing was defective because it had a condition that created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect in the thing was a cause-in-fact of the plaintiff’s injuries.
Netecke v. State ex rel. DOTD, 98-1182, 98-1197, p. 7 (La. 10/19/99), 747 So.2d 489,
494. In Netecke, the supreme court explained the DOTD’s duty regarding public
roadways and areas within its right-of-way:
DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. DOTD must maintain the shoulders and the area off the shoulders, within its right-of-way, in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway and to others, such as pedestrians, who are using the area in a reasonably prudent manner. DOTD’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive.
This duty, however, does not render DOTD the guarantor for the safety of all the motoring public. Further, DOTD is not the insurer for all injuries or
defined in R.S. 40:384(15), and their commissioners and other officers and employees and sewerage and water boards and their employees, servants, agents, or subcontractors.
(2) “Public site or area” means any publicly owned or common thing, or any privately owned property over which the public’s access is not prohibited, limited, or restricted in some manner including those areas of unrestricted access such as streets, sidewalks, parks, or public squares.
10 damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Moreover, not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Whether DOTD breached its duty to the public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on all the facts and circumstances determined on a case by case basis.
Netecke, 747 So.2d at 494-5 (citations omitted) (emphasis added). We recognize this
dispute does not involve a highway injury. The same principles, however, apply.
Applying these principles, we find that the plaintiffs failed to establish that the
DOTD could be held liable in negligence for the asserted damages as a result of the
first collapse that occurred in October 1997. Specifically, the plaintiffs failed to
establish that the underground culverts created an unreasonable risk of harm, nor did
they establish that the DOTD had actual or constructive knowledge of the alleged
unreasonable risks posed, yet failed to remedy the conditions before the complained-
of event occurred.
Unreasonable Risk of Harm
The determination of an unreasonable risk of harm must be made by the
fact-finder by weighing the social utility of the structure or thing at issue versus the
likelihood and severity of harm. Gauthier v. City of New Iberia, 06-341 (La.App. 3
Cir. 9/27/06), 940 So.2d 915 (citing Oster v. Dep’t of Transp. & Dev., State of La.,
582 So.2d 1285 (La.1991) and Clark v. Hartford Acc. & Indem. Co., 562 So.2d 50
(La.App. 3 Cir. 1990)). This determination must be based on the particular facts and
circumstances of each case. Id.
At issue in this case are one or more concrete, underground culverts
located in the State’s right-of-way on Highway 171 in front of the Cowboy
11 Connection apparel store. The social utility of such underground drainage systems
is evident via the legislation that has been created, authorizing the State’s
construction of these systems, as deemed necessary, to properly drain state highways.
See La.R.S. 48:223.5 In addition, the State has been granted authority by the
legislature to place these constructions in state highway right-of-ways. Id.
On the other hand, the evidence and testimony presented at trial did not
establish that the culverts implicated, nor the box culvert, created an unreasonable
risk of injury to persons exercising ordinary care and prudence. See Entrevia v.
Hood, 427 So.2d 1146 (La.1983). To determine whether the culverts caused an
unreasonable risk of harm, the magnitude and probability of injury is to be weighed
against the burden of preventing injury. Entrevia, 427 So.2d 1146. In this case, the
testimony and evidence revealed that the culverts at issue pre-dated 1972 in age, but
there was no evidence presented of any prior failures or collapses in or around the
areas of these culverts prior to the incidents in question. Rather, it was established
that an undetected leak due to deterioration in the box culvert connecting the culverts
near the area of the collapse may have caused slow occurring soil erosion. Moreover,
it was established that this deterioration and erosion was undetectable absent
evidence of sagging or cracking on the surface. No evidence of the existence of any
sagging or cracking at that location prior to the collapse was presented during the
trial.
5 La.R.S. 48:223(A) states:
A. The department may construct canals, ditches, or drains sufficient in its judgment to properly drain any highway embraced in the system of state highways constructed or to be constructed through any lands of private persons. The rights of way for these canals may be acquired in the same manner and on the same basis of compensation as provided for acquiring rights of way for highways.
12 Rather, the DOTD established that the actual damage to the parking lot
and the plaintiffs’ canopy occurred, not solely because of the soil erosion caused by
leaks, but also due to imprudent and unsound construction of the canopy that
encroached upon the highway right-of-way at that location. Specifically, the heavy,
steel canopy structure encroaching upon the state’s right-of-way was not properly
built on support piers. Expert testimony by civil engineer John Brusen, asserted that
the structure was not constructed in a standard manner because the weight of the
canopy was improperly resting on the parking lot slab. Consequently, this lack of
support led to the subsequent collapse of the northern column when significant soil
erosion underneath the slab occurred. He asserted that the collapse of the storefront
canopy may have been prevented if proper construction methods had been employed.
There was no evidence presented by the plaintiffs to contradict this.
We find, accordingly, that the testimony and evidence does not support
a finding that the drainage culverts that were implicated were defective or created
unreasonably dangerous conditions. Additionally, the evidence and testimony
showed that the area on and/or near the culverts was not being used by the property
owner in a reasonably prudent manner. As such, the facts do not establish that the
DOTD was in control of a defective thing that posed an unreasonable risk of harm to
a plaintiff who was using the premises in a reasonable manner.
Actual or Constructive Notice
We also find that the plaintiffs failed to establish that the DOTD had
actual or constructive knowledge of the alleged defects before the October 1997
collapse or that the DOTD failed to take corrective measures within a reasonable
time, given such notice. “Actual notice is knowledge of dangerous defects or
conditions by a corporate office or employee of the public entity having a duty either
13 to keep the property involved in good repair or to report defects and dangerous
conditions to the proper authorities.” Boddie v. State, 27,313, p. 6 (La.App. 2 Cir.
9/27/95), 661 So.2d 617, 622. Constructive notice, according to La.R.S. 9:2800(D),
means “the existence of facts which infer actual knowledge.”
Evidence and testimony was presented by the DOTD that the October
1997 collapse was the consequence of soil erosion that occurred over an extended
period of time underneath the parking lot’s pavement and was contributed to by the
faulty construction of the columns supporting the store-front canopy. Uncontradicted
testimony was presented that regular visual, above-ground inspections of the area
were performed by the parish maintenance superintendent as required by the DOTD.
It was also established that his inspections could not have led to the detection of the
underground problems that were occurring due to the lack of any above-ground
evidence of the underground conditions.
The record further reflects that Mrs. Lott; her daughter, Elizabeth Wilson
(a long-time store employee); Mrs. Lambert (the property owner); and contractor,
Patrick Williams, all testified that the first collapse was unexpected and sudden.
There was no testimony provided from any source of the presence of a pre-existing
condition that would have indicated the instability of the concrete near or at the site
of the cave-in. Accordingly, the element of notice on the part of the DOTD was not
established by the plaintiffs.
The DOTD cannot be held liable for damages absent the establishment
of the four elements necessary to the establishment of a claim against a public entity,
as was explained in Netecke, 747 So.2d 489. Therefore, the jury’s verdict, assessing
fault to the DOTD for the Cowboy Connection’s damages, is manifestly erroneous
and is reversed.
14 For the sake of clarity, we expressly state that the jury did not manifestly
err by finding that the DOTD was negligent in its repair and maintenance of the
portion of the right-of-way that was the subject of the Western Connection, Inc.’s
claims. Contradictory testimony was presented regarding the existence of a “sink
hole” and/or cracks in the pavement near the location of the second collapse, before
its occurrence. In addition, testimony was presented that raised the issues of whether
the excavation and repair work that was conducted after the first collapse put the
DOTD’s employees on notice of a problem or potential problem at the second
collapse site and whether they should have taken action to undertake further
excavation and repair work at that time. Consequently, we shall address the
plaintiffs’ appeal of the jury’s award of $0 in damages to the Western Connection,
Inc. and the trial court’s denial of the motion for JNOV as to that portion of the
verdict.
Judgment Notwithstanding the Verdict
Regarding the jury’s verdict rendered as to the Western Connection, Inc.
and the trial court’s subsequent denial of the plaintiffs’ motion for JNOV in that
regard, we are required to employ a two-part inquiry upon review of the trial court’s
ruling. Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84. First,
the reviewing court has to determine whether the trial court erred in denying the
motion by applying the same criteria to the jury verdict as that which the trial court
applied when it considered the motion. Id. Those criteria are as follows:
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the
15 motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Smith v. Davill Petroleum Company, Inc. d/b/a/ Piggly Wiggly, 97-1596 (La.App. 1 Cir. 12/9/98), 744 So.2d 23. See also, Powell v. RTA, 96-0715 (La. 6/18/97), 695 So.2d 1326; Anderson v. New Orleans Public Service, 583 So.2d 829 (La.1991); State of Louisiana, DOTD v. Scramuzza, 95-786 (La.App. 5 Cir. 4/3/96), 673 So.2d 1249; Seagers v. Pailet, 95-52 (La.App. 5 Cir. 5/10/95), 656 So.2d 700; Engolia v. Allain, 625 So.2d 723, 728 (La.App. 1 Cir.1993); Adams v. Security Ins. Co. Of Hartford, 543 So.2d 480, 486 (La.1989).
Davis, 774 So.2d at 89. If the appellate court determines that the trial court properly
applied the aforementioned standard to the jury’s verdict, the appellate court must
then review the JNOV using the manifest error standard of review. Id. (citing
Anderson, 583 So.2d 829).
In this case, the trial court denied the motion for JNOV, explaining its
reasoning as follows:
Reasonable minds could perhaps differ on damage sustained by Western Connection. That cave-in occurred approximately on the southern one-half of the parking lot and did not significantly restrict access to the business.
We find no error in the trial court’s application of the criteria for consideration of the
motion for JNOV. We, too, find that the evidence presented does not point so
overwhelmingly in favor of the plaintiffs that reasonable persons could not have
reached the jury’s decision. In reviewing the evidence and testimony presented on
the issue of whether the Western Connection, Inc. suffered damages as a result of the
second collapse that occurred in September 1998, the record revealed these relevant
facts: the collapse did not occur on the premises of the Western Connection, Inc.; the
business never closed during the period after the collapse as a result of ongoing work
or barricades; the parking lot entrance was not obstructed by construction or
16 barricades; and all major excavation was completed and equipment removed within
a two-day repair period. Although it was argued that the nearby location of the
construction and the six-month period in which the barricades were located next to
the parking lot entrance served as catalysts for the business’s declining sales, we find
that the jury’s award of $0 in damages is, nevertheless, reasonably supported by the
record and, as such, is not manifestly erroneous.
Accordingly, the jury’s assessment of $0 in damages to the Western
Connection, Inc. and the trial court’s denial of the plaintiffs’ motion for JNOV, in that
regard, are affirmed.
IV.
CONCLUSION
The jury verdict finding that the State, through the Department of
Transportation and Development, was negligent in maintaining and repairing the
right-of-way such that damages were suffered by the Cowboy Connection, Inc., is
manifestly erroneous and is reversed. The trial court’s denial of the motion for
judgment notwithstanding the verdict of $0 in damages to the Western Connection,
Inc. is affirmed. All costs of this appeal are assessed to the plaintiffs, Cowboy
Connection, Inc. and Western Connection, Inc.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules—Courts of Appeal.