Tillman v. Johnson

652 So. 2d 605, 1995 WL 112044
CourtLouisiana Court of Appeal
DecidedMarch 3, 1995
DocketCA 94 0480
StatusPublished
Cited by6 cases

This text of 652 So. 2d 605 (Tillman v. Johnson) 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
Tillman v. Johnson, 652 So. 2d 605, 1995 WL 112044 (La. Ct. App. 1995).

Opinion

652 So.2d 605 (1995)

Priscilla TILLMAN, Individually and as Duly Qualified Natural Tutrix of Her Minor Child, Cedric Tillman
v.
David JOHNSON.

No. CA 94 0480.

Court of Appeal of Louisiana, First Circuit.

March 3, 1995.

*607 Richard H. Barker, IV, New Orleans, for appellant-plaintiff Priscilla Tillman.

Christopher H. Riviere, Thibodaux, for appellees-defendants Moise David Johnson, Sr., Kathleen Johnson, Robert Durocher, Nolan Durocher and Millers Mut. Fire Ins. Co.

Kerry P. Camarata, Thibodaux, for intervenor Richard A. Thalheim, Jr.

Donna Adorno, Baton Rouge, for intervenor State of LA, Dept. of Health and Hospitals.

Vincent Dagate, Jr., Houma, for defendant-in-intervention Authement & Larke.

Douglas Authement, Houma, pro se.

George J. Larke, Jr., Houma, pro se.

Before FOIL, WHIPPLE and KUHN, JJ.

FOIL, Judge.

This is a suit for damages for personal injury from lead paint poisoning sustained by a child while living in two rental properties owned by defendants. Plaintiff challenges the trial court's judgment rendered in conformity with a jury's finding that the lead paint in the properties in question did not pose an unreasonable risk of harm to the child. We reverse.

FACTS

Priscilla Tillman gave birth to a son, Cedric, on May 29, 1985. In December, Priscilla and Cedric moved into a residence located at 103 Lawrence Street in Thibodaux, Louisiana. They lived there as guests of a friend who was renting the house from the owners, Kathleen and David Johnson. Several months later, Mrs. Tillman noticed a change in Cedric's general health and behavior. The child was examined by the Lafourche Parish Health Unit of the Louisiana Department of Health and Human Resources (DHHR). Diagnostic testing revealed that Cedric was suffering from lead poisoning. A sanitarian with DHHR conducted an environmental lead survey on the Lawrence Street residence. His inspection revealed that old paint peeling from the house contained lead levels exceeding allowable limits. The Johnsons had no knowledge of the presence of lead paint on the residence prior to being notified of the survey results by DHHR. In the fall of 1986, the Tillmans vacated the Lawrence Street residence and the Johnsons then corrected the problem.

In December, 1986, Priscilla and Cedric moved into a house her mother was renting at 919 Harrison Street. That house was owned by Nolan and Robert Durocher. Because test results continued to show high blood lead levels, a sanitarian was sent to do a lead survey at the new address. The survey was conducted on May 8, 1987, and it revealed high levels of lead which exceeded the standard. Again, the Tillmans were required to move from the residence in order to allow the Durochers to clean up the premises.

PROCEDURAL HISTORY

Plaintiff, Priscilla Tillman, individually and as natural tutrix of her minor child, Cedric, filed this suit seeking damages for lead poisoning suffered by the child. She also sought recovery for medical expenses and loss of consortium. Plaintiff's suit was initially brought against the Johnsons and their homeowners insurer, Millers Mutual Fire Insurance Company of Texas. However, she later amended her petition to name as defendants the owners of the second rental premises, the Durochers. Defendants subsequently filed a motion for summary judgment on the issue of liability. After a hearing, the trial court granted the motion, thereby dismissing plaintiff's suit. The court found that there was no issue of material fact, nor was there liability, as a matter of law, under the applicable theories of recovery—namely, La. R.S. 40:1299.26 et seq. (the Lead Paint Poisoning Prevention and Control Act), and Louisiana Civil Code articles 660, 2322, 2695, 2315 and 2316.

*608 Plaintiff appealed the trial court's granting of defendants' motion for summary judgment. Adopting the trial court's written reasons as our own, another panel of this court affirmed its judgment. Tillman v. Johnson, 610 So.2d 866 (La.App. 1st Cir.1992). The Louisiana Supreme Court granted writs in the matter and, in a per curiam opinion, reversed the decision of this court and remanded the case for a trial on the merits. Tillman v. Johnson, 612 So.2d 70 (La.1993). The court stated:

... [T]he filings in this case indicate that there is a genuine dispute as to whether the lead-based paint on the defendants' respective properties presented an unreasonable risk of harm to the petitioner's minor child for purposes of strict liability under La.Civ.Code art. 2317. This is a disputed issue of mixed fact and law or policy that is peculiarly a question for the jury or trier of the facts.

On remand, the matter was presented to a jury in a three-day trial. In response to the first question on the special verdict form, "Did the presence of lead paint on the properties in question present an unreasonable risk of harm to Cedric Tillman?", the jury answered, "no." Accordingly, the trial court rendered judgment in conformity with the jury verdict, dismissing plaintiff's suit. She then filed the instant devolutive appeal. Plaintiff urges six assignments of error; however, because we agree with her first assertion that the jury verdict was clearly erroneous and unsupported by the law and evidence, we pretermit discussion of the remaining assigned errors.

STRICT LIABILITY

The Supreme Court remanded this case for a determination of whether defendants are strictly liable under La.Civ.Code art. 2317, which provides, in pertinent part, that "[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." To recover under this theory, plaintiff must prove: 1) the thing which caused the damage was in the custody of defendant; 2) the thing contained a defect which created an unreasonable risk of harm; and 3) the injuries were caused by the defect. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990).

In the instant case, the first element, custody of the two rental properties, is clearly met. It is undisputed that the Johnsons owned the property at 103 Lawrence Street, and the Durochers owned the property at 919 Harrison Street. Thus, the critical issue involves the second element, whether the premises contained a defect which presented an unreasonable risk of harm under the circumstances of this case.

The unreasonable risk of harm criterion involves numerous considerations and cannot be applied mechanically. Oster v. Department of Transportation and Development, 582 So.2d 1285, 1288 (La.1991). In addition to balancing the likelihood and magnitude of harm against the utility of the thing, the trier of fact should consider a broad range of social, economic, and moral factors including the cost to defendant of avoiding the risk and the social utility of plaintiff's conduct at the time of the accident. Id. at 1289. The obligation placed by article 2317 upon a homeowner to maintain his property free from defects does not encompass every injury that happens to occur on his property. Because the owner cannot be held responsible for all injuries resulting from a risk, the court's duty is to decide which risks are unreasonable.

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Bluebook (online)
652 So. 2d 605, 1995 WL 112044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tillman-v-johnson-lactapp-1995.