Warner v. City of New Orleans

694 So. 2d 1231, 1997 WL 283731
CourtLouisiana Court of Appeal
DecidedMay 30, 1997
Docket96-CA-1296
StatusPublished
Cited by4 cases

This text of 694 So. 2d 1231 (Warner v. City of New Orleans) 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
Warner v. City of New Orleans, 694 So. 2d 1231, 1997 WL 283731 (La. Ct. App. 1997).

Opinion

694 So.2d 1231 (1997)

Daisy Lee WARNER
v.
The CITY OF NEW ORLEANS.

No. 96-CA-1296.

Court of Appeal of Louisiana, Fourth Circuit.

May 30, 1997.
Rehearing Denied June 30, 1997.

Frank M. Buck, Jr., Robert L. Manard, Manard & Buck, New Orleans, for Appellant.

Kimlin S. Lee, Assistant City Attorney, New Orleans, for Appellee.

Before BYRNES, CIACCIO and JONES, JJ.

BYRNES, Judge.

Plaintiff-appellant, Daisy Lee Warner, appeals the judgment of the trial court awarding her $6,000.00 for damages sustained as a result of a trip and fall injury she sustained on broken concrete at the curb of a City of New Orleans sidewalk on June 24, 1992.[1] The trial court apportioned fault 60% to the City and 40% to the plaintiff. On appeal, plaintiff asks this Court on appeal to assign all of the fault to the City. Plaintiff also asks this Court to increase the award to $25,000.00 plus medical expenses of $4,481.52. The City did not answer the appeal.

*1232 I. COMPARATIVE FAULT

The determination of whether comparative fault applies in a particular case is essentially a factual one and subject to the manifest error standard of review. Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610-11. Only if the apportionment of fault is found to be clearly wrong can an appeals court adjust percentages, and then only to the lowest/highest point within the factfinder's reasonable discretion. Id. at p. 7-8, 666 So.2d at 611.

The trial court found negligence on the part of the plaintiff in failing to observe the curb's condition and failing to exercise due care. The plaintiff counters that she is not required to constantly observe the surface of the walk nor is she required to exercise the care that would be necessary in traversing a jungle. Bessard v. State Dept. of Transp. and Development, 94-0589 (La.11/30/94); 645 So.2d 1134; Johnson v. New Orleans Department of Streets, 94-1542 (La.App. 4 Cir. 2/23/95); 650 So.2d 1216; Smith v. Jack Dyer & Associates, Inc., 633 So.2d 694, 699 (La. App. 1 Cir.1993).

In Bessard the pedestrian was injured on a defective sidewalk curb as she was about to enter the street. Under those circumstances the trial court found that she "acted as an ordinary, prudent pedestrian by looking up to observe the traffic as she approached the curb." Id., 645 So.2d at 1137. In the instant case the trial court could have reasonably found that an ordinary prudent person stepping up onto a curb after successfully crossing the street is no longer concerned with watching traffic, but is approaching an area of a known change of elevation requiring for that instant somewhat greater attention to the terrain. This is different from following a continuous path at the same elevation where it can be argued that one might have a reasonable expectation that the path will continue to remain uniform and level. We also note that Bessard was a manifest error review. It was not a holding that had the trial court found contributory negligence on the part of the pedestrian that an appellate court must reverse as a matter of law. In Bessard both the plaintiff and a supporting witness testified that the hole in the curb was not reasonably visible leading the trial court to find that the defect in the curbing presented an unreasonable risk of harm. The court in Bessard did not reverse the findings of the trial court as to fault as the plaintiff is asking this Court to do in the instant case. Although Bessard says that a pedestrian may not be required to constantly look down, it does not say that pedestrians have no duty of care. Pedestrians have a duty to exercise whatever care is reasonable under the circumstances, and the circumstances vary with the facts of each case. We cannot say that under the circumstances of this case that the trial court was manifestly erroneous in finding that the plaintiff failed to exercise reasonable care.

In Johnson the trial court found that the defect in the sidewalk constituted a trap because grass had grown over it so "that the hole was not apparent even when one was looking directly down on it." Id., 650 So.2d at 1218. Having made that finding it was then inconsistent for the trial court to assess 25% fault to the plaintiff in Johnson. Therefore, this Court reversed the assignment of a portion of fault to the plaintiff. The trial court in the instant case did not make a finding that the defect causing Ms. Warner's accident was a trap. After reviewing the record as a whole in light of Johnson, we cannot say that the trial court was manifestly erroneous in viewing the facts in this manner.

Smith was a manifest error review in which the appellate court refused to alter the allocation of fault made by the lower court, which would indicate that we should do the same in the instant case. Smith also states that "the pedestrian is held to have seen those obstructions in his pathway that would be discovered by a reasonably prudent person exercising ordinary care under the circumstances." Smith, 633 So.2d at 699. In Smith the appellate court sustained the trial court's failure to assign any comparative negligence to the plaintiff, but implies strongly that had the trial court assigned some degree of negligence to the plaintiff, that finding would have also been sustained under a manifest error standard of review.

*1233 We find no manifest error in the trial court's allocation of fault. That is not to say that another reasonable fact finder could not make a different allocation, nor does it mean that this Court would have necessarily made the same allocation had the matter been before us de novo. There is no mathematically precise standard for allocating comparative fault.

II. DAMAGES

The trial court awarded plaintiff $6,000.00 for all of plaintiff's damages without a breakdown. The plaintiff asked for $4,481.52 in past medical expenses. $1,000.00 of this sum was for medical expenses in connection with Dr. Lang. However, plaintiff introduced no evidence in connection with those expenses. The burden is on plaintiff to do so. We find that plaintiff failed to prove entitlement to this expense.

Plaintiff submitted a list of expenses in connection with Dr. Durham totalling $825.00. However, Dr. Durham never submitted a bill or invoice listing his charges and expenses. It is reasonable to infer that the trial court found that the plaintiff failed to prove entitlement to these expenses. We can find no manifest error in this implicit finding by the trial court.

Plaintiff submitted a bill from the United Medical Center for $199.95 for bunion surgery. It is reasonable to infer that the trial court found no causal relationship between bunion surgery and plaintiff's accident. We can find no manifest error in this finding implicit in the trial court judgment.

The City does not contest the $2456.57 balance of plaintiff's medical expenses. We, therefore, infer that this amount is included in the trial court's award of $6,000.00, leaving $3543.43 for general damages.

The standard of review for general damages is as expressed in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993) cert denied, Maritime Overseas Corp. v. Youn, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994):

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Bluebook (online)
694 So. 2d 1231, 1997 WL 283731, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-city-of-new-orleans-lactapp-1997.