Thompson v. Louisiana Dept. of Transp.

639 So. 2d 864, 93 La.App. 3 Cir. 1294, 1994 La. App. LEXIS 2070, 1994 WL 289311
CourtLouisiana Court of Appeal
DecidedJune 29, 1994
Docket93-1294
StatusPublished
Cited by9 cases

This text of 639 So. 2d 864 (Thompson v. Louisiana Dept. of Transp.) 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
Thompson v. Louisiana Dept. of Transp., 639 So. 2d 864, 93 La.App. 3 Cir. 1294, 1994 La. App. LEXIS 2070, 1994 WL 289311 (La. Ct. App. 1994).

Opinion

639 So.2d 864 (1994)

Wanda THOMPSON, Plaintiff-Appellant,
v.
LOUISIANA DEPARTMENT OF TRANSPORTATION, et al., Defendants-Appellees.

No. 93-1294.

Court of Appeal of Louisiana, Third Circuit.

June 29, 1994.

*866 Chris Smith III, Jack L. Simms Jr., Leesville, for Wanda Thompson.

James Lynn Davis, Many, for the State, DOTD.

Before SAUNDERS and DECUIR, JJ., and BERTRAND[1], J. Pro Tem.

SAUNDERS, Judge.

Plaintiff-appellant, Wanda Thompson, appeals from the trial court's judgment finding defendants-appellees, Louisiana Department of Transportation and Development, et al (hereinafter DOTD), not liable for plaintiff's injuries sustained in a fall at Toledo Bend Lake.

For the reasons which follow, we reverse the trial court's judgment.

FACTS

Wanda Thompson (hereinafter THOMPSON) and her husband, Robert Thompson, leased a trailer site at Park Site 15 at Toledo Bend Lake. The lake and camp sites are operated by the State of Louisiana through the Department of Transportation and the Sabine River Authority. The Thompsons moved their trailer to that location in January or February of 1990. Because THOMPSON had poor eye sight and was considered legally blind, the Thompson family cleaned up the area around the camp site and marked rocks and stumps with illuminative paint to assist her in walking around the area safely.

On the evening of April 14, 1990, THOMPSON walked her daughter, Nicole, to a neighbor's trailer where she would stay while THOMPSON and her husband went fishing. En route back to her trailer, THOMPSON fell into an underground trash receptacle. As a result of the fall, she received minor scrapes and bruises, but seriously injured her right shoulder. She underwent two surgeries to correct the damage to her right shoulder. The pain from the damaged shoulder continued after the surgeries and doctors believed that the only way to relieve the pain was to have a bilateral breast reduction performed. That surgery was performed and nominally succeeded in reducing THOMPSON'S recurring pain. One more shoulder operation was recommended, but had not been performed at the time of the trial.

While the trial court did not doubt that THOMPSON had sustained a shoulder injury, after reviewing the evidence presented at trial, it reached the conclusion that it was impossible for THOMPSON to have been injured in the manner she described. Consequently, the trial court found that THOMPSON failed to show by a preponderance of the evidence that DOTD's negligence caused or contributed to the injury or that the garbage receptacle in which THOMPSON alleges she fell was defective or created an unreasonable risk of harm.

I. Issues Presented

Whether the trial court committed manifest error or was clearly wrong in finding that plaintiff-appellant's accident did not occur as alleged, and therefore, defendant was not liable for her injuries.

The manifest error and clearly wrong rule applies when this court reviews the factual findings of the trial court based on live testimony and/or depositions. See, Castille v. Great Atlantic & Pacific Tea, 591 So.2d 1299 (La.App.3d Cir.1991). "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.'" Rosell v. Esco, 549 So.2d 840, 844 (La.1989). Consequently, this court 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 we may feel *867 that our own evaluations and inferences are as reasonable. See, Id.

"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.
"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 factfinder 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 a 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."

Id. at p. 844-45 (citations omitted).

After a careful review of the record, we find that the trial court's conclusions were "clearly wrong" and that it committed "manifest error" when it found that the evidence failed to support THOMPSON'S claim. Consequently, we are required to redetermine the facts de novo from the entire record and render a judgment on the merits. Id. at p. 844.

The Louisiana Civil Code provides that "[e]very person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." La.C.C. art. 2316. In addition, "[w]e 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." La.C.C. art. 2317. LSA R.S. 9:2800 provides:

"A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of building within its care and custody.
"B. Except as provided for in Subsection A 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."

"The owner or person having custody of immovable property has a duty to keep property in reasonably safe condition and must discover any unreasonably dangerous condition on the premises and either correct that condition or warn potential victims of its existence." Bradford v. Louisiana Downs, Inc. 606 So.2d 1370, 1374 (La.App.2d Cir. 1992); see also, Albritton v. J.C. Penney Co., Inc., 385 So.2d 549 (La.App.3d Cir.), writ denied, 393 So.2d 727 (La.1980). "Also, property owners must keep their premises free of defects or conditions in the nature of hidden traps, dangers or pitfalls, which are not known to the visitor and which would not be observed by him in the exercise of reasonable care." Silliker v. St. Landry Police Jury,

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Bluebook (online)
639 So. 2d 864, 93 La.App. 3 Cir. 1294, 1994 La. App. LEXIS 2070, 1994 WL 289311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-louisiana-dept-of-transp-lactapp-1994.