Wheeler v. New Orleans Public Service Inc.

573 So. 2d 1237, 1991 La. App. LEXIS 15, 1991 WL 3636
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1991
DocketNo. 90-CA-0698
StatusPublished
Cited by4 cases

This text of 573 So. 2d 1237 (Wheeler v. New Orleans Public Service Inc.) 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
Wheeler v. New Orleans Public Service Inc., 573 So. 2d 1237, 1991 La. App. LEXIS 15, 1991 WL 3636 (La. Ct. App. 1991).

Opinion

WARD, Judge.

Patrick Wheeler appeals a $10,000 jury award in his personal injury suit against New Orleans Public Service, Inc. (NOPSI). We affirm the judgment of the lower court.

Patrick Wheeler, a New York resident, came to New Orleans in May 1986 to attend a bookseller’s convention. While sightseeing in the French Quarter with his friend, Jane Holland, Wheeler allegedly injured his back when he slipped and fell on a rain-slick NOPSI manhole cover installed in a sloping driveway on Burgundy Street. In addition to NOPSI, Wheeler named the City and Randy Powell and Joseph Parrino, the owners of the Burgundy Street property, as parties-defendant; however, the owners were dismissed upon a motion for summary judgment while the City prevailed upon a motion for directed verdict.

The jury awarded Wheeler $20,000 for his medical bills and pain and suffering but assigned 50% fault to him. The Court entered a judgment of $10,000 in Wheeler’s favor together with legal interest and costs.

Wheeler appeals advancing six assignments of error.

The first assignment argues Trial Court error in admitting into evidence the depositions of Randy Powell and Joseph Parrino, the owners of the property on which the manhole sat. The depositions were taken by Wheeler. Specifically, Wheeler complains the depositions are inadmissible because the requisites of C.C.P. art. 1450 had not been met to prove the unavailability of Powell and Parrino for trial.

[1239]*1239Wheeler contested the admissibility of the depositions on the first day of trial pointing out that NOPSI had not subpoenaed the presence of these witnesses within the time allotted by the lower court’s pre-trial order. Wheeler prevailed on this argument and NOPSI applied to this Court for supervisory writs (89-C-1211). We granted writs stating:

Defense counsel’s technical violation of the Trial Court’s Pre-Trial Order should not result in exclusion of admissible evidence at trial in this instance. If the depositions meet the requirements of La. C. C.P. art. 1450, they are admissible. (emphasis added)

When the issue of the admissibility and relevancy of the depositions came before the Trial Court a second time, the Trial Judge overruled Wheeler’s objection, admitted the depositions and stated:

The irrelevancy, inadmissibility, all of those things were addressed in the Writ ... I think I must follow their [Court of Appeal’s] directive.

The Trial Judge erred both in his interpretation of this Court’s writ directive and in admitting the depositions.

We find no admissible evidence that NOPSI proved the unavailability of Powell and Parrino for trial. The record reflects that in the in-chambers discussion NOPSI’s counsel informed the Judge, over Wheelers’ objection of hearsay, that one of Parri-no’s employees advised him both Parrino and Powell were in Jamaica. Counsel did not produce the employee nor did he offer any documentary evidence to support the employee’s admittedly hearsay statement. There is evidence in the record that NOPSI requested trial subpoenas for both Parrino and Powell; however, there are no returns on the subpoenas nor anything in the record to indicate the Sheriff ever attempted service.

It is clear under Louisiana jurisprudence that hearsay evidence may not be considered in the judicial inquiry as to unavailability. Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4 Cir.1975).

In McKinley v. Dalton, 355 So.2d 1033 (La.App. 4 Cir.1978) this Court quoted from 26 A C.J.S. Depositions § 92(2)(bb) in part:

The absence of a witness may not be shown by one who can speak to that fact only from hearsay. It is sufficient to show that a reasonable effort has been made to serve the deponent with a subpoena, that inquiry has been made at his usual place of business or abode and that letters have been received from him from another state of [sic] county.
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On the other hand, the mere issuance of a subpoena or attachment or its return not served because the witness could not be found, or mere statements on the part of deponent, are not sufficient to allow the introduction of a deposition in evidence, when any uncertainty as to the deponent’s whereabouts exists. 355 So.2d 1033, 1935.

Although the trial court erred we do not agree that the Court’s action amounted to prejudicial error. Wheeler strenuously maintains that the gist of Powell’s and Parrino’s deposition testimony—that they had never seen nor heard of anyone else falling on the manhole cover—led the jury to conclude that Wheeler somehow caused his own fall. We do not agree.

One of the interrogatories posed to the jury read: “Do you find that the manhole cover created an unreasonable risk of harm to others?” Nine of the 12 jurors responded affirmatively, indicating that Wheeler was not the sole cause of the accident. There was other evidence including Wheeler’s testimony to show Wheeler’s own fault, and we think it reasonable to conclude that the jurors were not solely influenced by the contents of the depositions. As a matter of fact the record even without the depositions fully supports a finding of Wheeler’s fault, but this will be discussed below in more detail.

Wheeler’s second assignment of error attacks as erroneous the Court’s jury charge on plaintiff’s comparative negligence. The charge in question reads:

[1240]*1240In determining percentages of fault, you should consider the conduct of all parties. In assessing these percentages you may consider whether a party knew of the danger and the amount of the danger, the reason for the conduct, and the ability of the parties to control their conduct.

Wheeler maintains the charge did not instruct the jury to compare causation but rather to compare culpability by directing the jury to consider the parties’ knowledge of the danger and conduct in light of that knowledge, contrary to the directive of Howard v. Allstate Ins. Co., 520 So.2d 715 (La.1988). The Howard case cites Watson v. State Farm Fire and Cas. Ins., 469 So.2d 967 (La.1985) in which the Louisiana Supreme Court cited with approval the Uniform Comparative Fault Act, Section 2(b), which provides:

In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed, (emphasis added.) Howard, supra at p. 719.

We find the charges of the Trial Court meets the requirements of Howard and Watson.

Wheeler’s next assignment argues that the jury did not cast the requisite number of votes to properly render a verdict on damages. C.C.P. art. 1795.

The interrogatory addressing the damage issue was broken down into six categories: medical bills, past earnings loss, future earnings loss, pain and suffering, mental anguish and permanent disability. The jury voted 9-3 to award medical bills of $10,000 and damages for pain and suffering of $10,000, but left blank the remaining categories. Wheeler maintains there was some question in the proceedings whether the jury intended not to award damages in the remaining categories or whether they believed the Judge would fill in the blanks.

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Bluebook (online)
573 So. 2d 1237, 1991 La. App. LEXIS 15, 1991 WL 3636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-new-orleans-public-service-inc-lactapp-1991.