Viviano v. Arceneaux

572 So. 2d 813, 1990 La. App. LEXIS 3014, 1990 WL 210521
CourtLouisiana Court of Appeal
DecidedDecember 20, 1990
DocketNo. 90-CA-0213
StatusPublished
Cited by1 cases

This text of 572 So. 2d 813 (Viviano v. Arceneaux) 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
Viviano v. Arceneaux, 572 So. 2d 813, 1990 La. App. LEXIS 3014, 1990 WL 210521 (La. Ct. App. 1990).

Opinion

LOBRANO, Judge.

Plaintiff-appellee, Mary Catherine Vivi-ano, sustained severe burns in a natural gas fire which occurred in her Arabi, La. apartment on February 14, 1982.

On January 7, 1983, Viviano brought an action for damages against her landlords and their insurer, United States Fidelity and Guaranty Insurance Company (USF & G), and Louisiana Gas Service Company (LGS).

On April 24, 1985, Viviano, via amended petition, added New Orleans Public Service, Inc. (NOPSI) and Homer Crochet, her landlord’s father, as defendants.

On February 3, 1986, Viviano, via seconded amended petition, added United Gas Pipeline Company (United) as defendant.

Prior to trial, Viviano settled and dismissed her claims against her landlords and their insurer, and LGS, reserving her rights against NOPSI and United.

On February 27, 1989, NOPSI and United filed a joint exception of prescription asserting Viviano failed to timely sue within the one year prescriptive period and failed to allege solidary liability on the part of all defendants. The trial court denied the exception.

Viviano’s claims against NOPSI and United are predicated on their alleged failure to properly monitor and odorize the natural gas supplied to her apartment. She asserts their negligence as well as strict liability for the “defective” gas under their control.

Trial on the merits was held February 21st through March 2, 1989. The jury returned a verdict in favor of all defendants [815]*815finding Viviano’s conduct sub-standard and the proximate cause of her injuries.1

FACTS:

On the morning of February 14, 1982, Viviano left DeLaRonde Hospital where she was employed during the night shift as a nursing assistant. After visiting her mother, she drove to her apartment in Ara-bi. She went to sleep around 11:00 a.m. Later that evening, at approximately 9:30 p.m., Viviano was awakened by a phone call from a friend. She answered the telephone and asked her friend to hold while she lit a cigarette. Sitting on the side of her bed, Viviano lit a match whereupon a pancake-like blue flame formed which, with a “whooshing” flash, filled the room with fire. Viviano was immediately engulfed in flames. In an attempt to extinguish the flames, Viviano pulled down a curtain and wrapped herself in it. In doing so, the rod fell and struck her in the face. She then ran to her neighbor’s apartment to alert her of the fire and to ask for help. Viviano was taken to DeLaRonde Hospital for emergency treatment. Her burns were extensive. She was eventually referred to West Jefferson Hospital’s burn unit.

Viviano appeals the jury verdict asserting the following assignments of error:

1) The trial court erred when it refused to instruct the jury on the doctrine of res ipsa loquitur.
2) The trial judge erred when he denied plaintiff’s motion for judgment notwithstanding the verdict or, alternatively, new trial. The jury clearly misunderstood and misapplied the law when it determined defendants proved by a preponderance of the evidence Cathy Vivi-ano’s conduct was substandard and she was entirely responsible for her own injuries.
3) The trial court erred when it refused to instruct the jury defendants were strictly or absolutely liable.
4) The trial judge erred when he refused to admit as evidence professional publications upon which plaintiff’s expert based his opinion defendants did not meet the standard of care required by statute or by industry standards for odorization and monitoring of odorant levels.
5) The jury erred when it concluded defendants had met the standard applicable to odorization and monitoring of odorant levels in gas.

Defendants NOPSI and United answered Viviano’s appeal asserting:

1) That Viviano’s claims against them prescribed, and, in the alternative,
2) That Viviano failed to prove that either NOPSI or United were in anyway negligent or responsible for her injuries. They also seek damages for frivolous appeal.

The issues for our determination are whether the jury was properly instructed and whether the incorrect or incomplete instructions led to a clearly wrong finding by the jury.

The testimony adduced at trial relative to liability is as follows:

MARY CATHERINE VIVIANO:

Viviano testified that prior to going to bed around 11:00 A.M. on the date of the fire, and upon awakening that evening to answer the telephone, she did not smell the odor of natural gas. She stated that prior to an operation in 1970 to correct a deviated septum in her nose, she had trouble breathing. She also stated she had trouble smelling but only when she had a cold. She testified that gas leaks were never found in her apartment. She stated that two weeks prior to the fire, her mother, while visiting her, complained that her eyes burned. She stated she did not remember her mother complaining of the smell of gas but she did remember complaining to her mother that her gas bill was high. When asked if she could detect the odor of natural gas, she responded “I have no idea”. [816]*816Upon further questioning she stated that she didn’t know what natural gas smelled like because she had never smelled it and was not familiar with the odor. She also stated that someone else may be able to smell gas whereas she may not be able to smell it.

JUNE VIVIANO:

June Viviano, plaintiffs mother, testified that two weeks before the fire, while visiting plaintiff, she detected the odor of natural gas in the apartment. She stated she brought this to plaintiffs attention but that plaintiff did not smell the gas. She stated that she found it unusual that she could smell the gas but plaintiff could not. Upon cross-examination, Mrs. Viviano’s deposition was read back to her in which she testified that plaintiff had problems smelling odors that most people can smell and that she didn’t find it unusual that plaintiff could not smell the gas in the apartment two weeks before the fire because plaintiff had difficulty smelling odors. When asked to respond to the conflict in her testimony, Mrs. Viviano stated she must have been confused the day of the deposition.

VIVIAN HUDSON:

Vivian Hudson, Viviano’s neighbor who resided in the front apartment, testified that around midday on the day of the fire she smelled the odor of gas in a hallway leading from her kitchen. This hallway is located near the center of the house. She said she checked outside and inside but could not find where the odor was coming from. The odor lasted about one hour. Hudson testified that she reported gas leaks in her apartment approximately two weeks before the fire.

CYNTHIA ARCENEAUX:

Cynthia Arceneaux, Viviano’s neighbor, testified that neither Viviano nor any previous tenants had complained of gas leaks in the apartment. She stated that two plumbers tested and inspected for gas leaks eight days after the fire and found none.

RENE C. DAUTERIVE:

Rene C. Dauterive, a licensed master plumber, employed by Viviano’s landlords testified that from 1977 to shortly before the fire he repaired various gas leaks at 1720 Ay cock Street. His records showed that they were located in the front apartment.

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Bluebook (online)
572 So. 2d 813, 1990 La. App. LEXIS 3014, 1990 WL 210521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viviano-v-arceneaux-lactapp-1990.