Chatman v. S. Univ. at New Orleans

Full title: GLORIA CHATMAN v. SOUTHERN UNIVERSITY AT NEW ORLEANS, THE BOARD OF…

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Date published: Jul 6, 2016

197 So. 3d 366 (La. Ct. App. 2016)

Opinion

No. 2015–CA–1179.

07-06-2016

Gloria CHATMAN v. SOUTHERN UNIVERSITY AT NEW ORLEANS, The Board of Supervisors at Southern University and Agricultural and Mechanical College, On behalf of Southern University of New Orleans, The Southern University System, Southern University and Agricultural and Mechanical College and Victor Ukpolo.

Lloyd N. Frischhertz, Jr., Dominick F. Impastato, III, Frischhertz Poulliard Frischhertz & Impastato, L.L.C., New Orleans, LA, and Gaynell, Williams, Gretna, LA, for Plaintiff/Appellee. Thomas M. Flanagan, Jamie D. Cangelosi, Sean P. Brady, Flanagan Partners, LLP, New Orleans, LA, for Defendant/Appellant.

SANDRA CABRINA JENKINS, Judge.

Lloyd N. Frischhertz, Jr., Dominick F. Impastato, III, Frischhertz Poulliard Frischhertz & Impastato, L.L.C., New Orleans, LA, and Gaynell, Williams, Gretna, LA, for Plaintiff/Appellee.

Thomas M. Flanagan, Jamie D. Cangelosi, Sean P. Brady, Flanagan Partners, LLP, New Orleans, LA, for Defendant/Appellant.

(Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS ).

Opinion

SANDRA CABRINA JENKINS, Judge.

This is an appeal of a June 2015 judgment by the trial court rendered after a jury verdict in favor of appellee Gloria Chatman and against appellant Southern University at New Orleans (“SUNO”), finding that SUNO was 15 percent at fault for the personal injuries sustained by Ms. Chatman when she was attacked by her roommate and a non-resident minor in an on-campus housing facility in January 2010.

For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The physical attack that prompted this civil suit—as well as a criminal prosecution of Ms. Chatman's roommate, Terneisha Sparks–Sanders—occurred on the night of January 18, 2010. The scene of the attack was the two-bedroom, on-campus apartment that Ms. Chatman and Ms. Sanders were leasing from SUNO. Ms. Chatman and Ms. Sanders had been roommates for about one week; they, however, had been best friends for several years. They met in high school, and decided to be roommates.

At the time of the attack, four people were present in the apartment—Ms. Chatman; Ms. Sanders; Ms. Sanders's 16–year–old cousin, Jamisha Sanders; and Jamisha's boyfriend, Dale. Jamisha and her boyfriend were visiting Ms. Sanders.

The attack occurred during a heated dispute over missing food that had been purchased earlier in the week. Ms. Chatman and Ms. Sanders disagree over the details of the fight, which are discussed elsewhere in this opinion. As a result of the attack, Ms. Chatman was seriously injured; she completely lost the use of one of her eyes. For her conduct in the attack, Ms. Sanders was convicted of second degree battery and imprisoned.

In November 2010, Ms. Chatman filed suit against SUNO as the “owner, operator, and manager of the premises at issue in this litigation.” The gist of Ms. Chatman's allegations is that SUNO was liable for failing to protect her from being severely injured in a physical attack by not only her own roommate, but also a “non-student/non-resident” of SUNO. Ms. Chatman's allegations included the following:

• SUNO warranted to her that “there would be on-site security and professional staff members available at the on-campus housing on a daily basis”;

• SUNO permitted a non-student/non-resident to reside in the on-campus apartment in which she was injured;

• SUNO failed to have proper administrative staff, such as residence assistants, on site to prevent non-students from residing in the on-campus apartment; and

• SUNO failed to provide her with the identity of the administrative staff that was available to receive complaints of conduct in violation of on-campus housing policy.

Ms. Chatman alleged that SUNO's substandard conduct was the cause-in-fact and the legal cause of her damages.

In January 2010, SUNO opened Phase I of its new Residential Life facility, which had 10 buildings and about 150 students. The facility had a residential life office located a few minutes' walk from the apartment buildings. Ms. Chatman and Ms. Sanders were among those first 150 housing students. SUNO selected an apartment-style, as opposed to a dormitory-style, design for its on-campus housing facility.

Each of SUNO's apartment buildings had a community assistant (“CA”), who was a SUNO student and employee, assigned to each building. In SUNO's housing literature, a CA was described as a “leader and advisor” who “enforce[s] policies to help ensure the safety and well-being of the students.”

When Phase I opened in January 2010, there were 10 CAs living in the apartment complex. At least one CA was on duty each night when the residential life office was closed. The CA on duty had a master key to all the apartments for inspection purposes. The CAs were required to perform security checks of the buildings and the floors twice per week. Although SUNO planned to provide its students with the cell-phone numbers and e-mail addresses of its CAs, this plan was not implemented until after the attack on Ms. Chatman. According to SUNO's housing consultant, the CAs' cell phone numbers were not given to the students because the CAs had a limited number of minutes on their personal cell phones.

Visitors were allowed in the apartments subject to the following Residential Housing Rules:

Number of Occupants

The maximum number of people living in an apartment shall be no more than ... two people in a two bedroom apartment.... Guests staying more than 48 hours without our permission will be considered unauthorized occupants and you will be in violation of the lease.

Visitors

You are responsible for your guests' compliance with all these Community Policies and parking regulations. Overnight guests are allowed only with the approval of management. Guests who stay after 2:00 a.m. will be considered overnight guests. Guests may stay no more than 48 hours in a row, not to exceed twelve (12) nights in any given semester with prior approval from Management.

Minor Children

Children are prohibited from overnight stay in the apartment. Children who are visiting must be supervised at all times, including balconies, parking lot and common areas. Baby sitting is not allowed in the apartment. [Internal emphasis omitted.]

The Residential Housing Rules also authorized SUNO staff to enter the apartments for the purpose of inspection and when SUNO community policies were violated.

SUNO provided its resident students with the following methods for reporting problems: (1) locating any of the 10 CAs; (2) visiting or calling the residential housing office; (3) flagging down, calling, or notifying campus police on-line; and (4) calling 911.

On January 10, 2010, Ms. Chatman and Ms. Sanders moved into their two-bedroom, on-campus apartment. Ms. Chatman and Ms. Sanders, who were best friends since high school, decided to be roommates. Ms. Chatman testified that when she signed the lease, she was not given any information about the CAs. She testified that no group meetings were held to introduce the students to the CAs. According to Ms. Chatman, she only coincidentally met the CA assigned to her apartment building, Robert Fezekas, on the day that she was moving into the apartment. Mr. Fezekas helped her carry her television into her apartment, introduced himself to her as a CA, and told her that his apartment was directly above her apartment.

During her first week in the apartment, Ms. Chatman did not spend the night at the apartment; she spent the night elsewhere with her boyfriend. During that week, Ms. Sanders had multiple visitors at the apartment. According to Ms. Chatman, Ms. Sanders's visitors included Ms. Sanders's boyfriend; her boyfriend's aunt; the aunt's two minor children; Ms. Sanders's three-year-old child; Jamisha (Ms. Sanders's 16–year–old cousin); and Jamisha's boyfriend. Ms. Sanders acknowledged that she understood that guests were to register if they spent the night. She also acknowledged that Jamisha and her boyfriend spent the night at the apartment and that she never registered them.

On the afternoon of Thursday, January 14, 2010, Ms. Chatman, Ms. Sanders, and Jamisha went to a Wal–Mart together to buy food and supplies for the apartment. When they returned to the apartment, Jamisha carried her suitcase into the apartment. Because Jamisha was a minor, and not a university student, Ms. Chatman was concerned that Jamisha spending the night was in violation of the university's rules against overnight visitors. She also was concerned that this violation might cause them to be thrown out of the apartment. To avoid conflict, Ms. Chatman did not raise this issue with either Ms. Sanders or Jamisha. Instead, Ms. Chatman went to Mr. Fezekas's apartment to discuss the problem. Mr. Fezekas, however, did not answer the door.

On the following night, which was a Friday, Ms. Sanders's boyfriend came to the apartment and began banging on the windows and door. Ms. Sanders hid in the bathroom. According to Ms. Chatman, both she and Ms. Sanders were scared. Later that night, Ms. Chatman again went upstairs to see the CA, Mr. Fezekas. She planned to tell him that she “was in an uncomfortable situation” due to her roommate's boyfriend “running around the apartment” and banging on the door coupled with her roommate's minor cousin Jamisha, who Ms. Chatman “barely [felt] safe around,” staying in the apartment. Once more, Mr. Fezekas was not there.

On Saturday, January 16, 2010, Ms. Chatman went home to spend the Martin Luther King Day weekend with her mother and family. On that Sunday morning, Ms. Chatman and her mother returned to the apartment briefly to pick up some paperwork that Ms. Chatman needed to apply for an internship. According to Ms. Chatman, when they arrived they found that the front door was unlocked, and that Jamisha and her boyfriend were in bed under one of Ms. Chatman's blankets. Ms. Chatman said that “[f]ood was all over the counter.” Ms. Sanders was not present in the apartment. Although Ms. Chatman felt this situation presented safety concerns, she did not address her concerns with Jamisha or her boyfriend to avoid conflict. Instead, Ms. Chatman retrieved her paperwork and returned to the car. She had a discussion with her mother, and they went home.

At about 5:00 p.m. on Monday, January 18, 2010, MLK Day, Ms. Chatman's mother brought her back to the apartment to stay. When they arrived, no one was there. They found that the apartment was filthy, and that Ms. Sanders and her visitors had eaten most of the food and snacks that Ms. Chatman had purchased at Wal–Mart. She and her mother planned to go to the residential life office the next day to complain. Ms. Chatman removed the remaining items that did not need refrigeration into her bedroom, and her mother went home. Ms. Chatman locked the front door of her bedroom.

A few hours after Ms. Chatman's mother left, Ms. Sanders, Jamisha, and Jamisha's boyfriend arrived at the apartment. Jamisha questioned Ms. Chatman regarding whether she had taken her Snickers candy bars that she purchased at Wal–Mart, which Ms. Chatman denied. Ms. Sanders then questioned Ms. Chatman about the whereabouts of other missing food. Ms. Chatman responded—which she admitted was untruthful—that she had given the missing food to her mother to take home. Because she was able to see the missing food visible in Ms. Chatman's room, Ms. Sanders became upset. Ms. Sanders then momentarily left Ms. Chatman's bedroom, went into the kitchen and instructed Jamisha to “go punch [Ms. Chatman] in the face.” Ms. Sanders explained that the reason she told Jamisha to do that was because Ms. Chatman had removed from the kitchen not only her own stuff, but the stuff she and Jamisha had purchased.

The attack occurred between 9:00 and 10:00 p.m. Jamisha, followed by Ms. Sanders, entered Ms. Chatman's bedroom without permission through the adjoining bathroom. After entering the room, Jamisha, following Ms. Sanders's orders, attacked Ms. Chatman. The details of the attack are disputed.

According to Ms. Sanders, she was a mere spectator. She acknowledged that she was present in Ms. Chatman's bedroom during the entire attack. She testified that she never participated in the attack by Jamisha against Ms. Chatman. Ms. Sanders denied ever touching Ms. Chatman. She also denied wearing high heel shoes that night. She admitted that she left Ms. Chatman in the apartment alone after the fight, but she denied taking Ms. Chatman's cell phone.

According to Ms. Chatman, Jamisha hit her first. Ms. Chatman fought back by grabbing Jamisha's hair. Ms. Sanders then joined in the attack, hitting Ms. Chatman. The trio then wrestled on the bed, where Ms. Chatman was sitting watching television. Ms. Sanders and Jamisha dragged Ms. Chatman off her bed and threw her against the television. Once Ms. Chatman was on the floor, Jamisha began to attack Ms. Chatman's lower body. At the same time, Ms. Sanders, who was wearing high heel stiletto shoes, kicked and stomped Ms. Chatman's head, face, and, in particular, her eyes. Ms. Chatman testified that she was certain that it was Ms. Sanders who stomped her in the face and eyes. She also noted that while Ms. Sanders was wearing high heels, Jamisha was wearing flat baby doll slippers.

After the attack, Ms. Chatman attempted to retrieve her cell phone to call her mother for help. Ms. Sanders told Jamisha to take the phone, and Jamisha complied. Not only did Ms. Sanders and Jamisha fail to provide first aid to Ms. Chatman, but Ms. Sanders also told Ms. Chatman to just put some peroxide on her face. Ms. Sanders then packed up all of her possessions and left the apartment along with Jamisha and Jamisha's boyfriend. Ms. Chatman, who then was alone in the apartment, became unconscious. She remained unconscious for about forty-five minutes. When she regained consciousness, she sought assistance from the CA who lived upstairs, Mr. Fezekas.

Mr. Fezekas was the first person who saw Ms. Chatman after the attack. He explained that he was standing on his balcony smoking a cigarette when he spotted her out in the courtyard area below him with her hands on her face. He went downstairs to her and asked her what happened. Ms. Chatman told Ms. Fezekas that her roommates—suggesting multiple people—jumped her. Ms. Chatman used Mr. Fezekas's cell phone to call her mother. He took her upstairs to his apartment. He called Coach Mike Riley, who resided in the building and was a night supervisor. They then called campus police and EMS.

Coach Riley, who responded to the call from Mr. Fezekas, testified that Ms. Chatman told him that she and her roommate had a disagreement about food. She also told Coach Riley that Jamisha and Ms. Sanders had taken her cell phone. Ms. Chatman used Coach Riley's cell phone to call her sister. Coach Riley testified that except for some hangers none of Ms. Sanders's belongings were left in the apartment.

Similarly, SUNO police officer Sabrina Baily, who was the only police officer patrolling the entire campus that night, testified that she responded to the call from Mr. Fezekas, which came in after midnight. According to Officer Baily's police report, the attack was over missing food. Officer Baily noted in her report that “[Ms.] Chatman stated that her roommate (Terneisha Sanders) were having problems earlier in the week but she left for the weekend and thought everything had calmed down.”

EMS and the New Orleans Police Department also responded to the scene. Ms. Chatman was taken by ambulance to the hospital. Despite numerous surgeries, she totally lost one of her eyes. Both Ms. Sanders and Jamisha were arrested. Ms. Sanders was criminally prosecuted for second degree assault, convicted, and sentenced to imprisonment.

In Ms. Chatman's civil suit, SUNO filed a motion for summary judgment, which was denied. In May 2015, a jury trial was held. At the close of Ms. Chatman's case, SUNO moved for a directed verdict, which was denied. At the close of the case, the jury answered affirmatively the jury interrogatories regarding SUNO as follows:

1. Do you find that [SUNO] was at fault for the attack of January 18, 2010?

2. If you have found that [SUNO] was at fault, do you find that [SUNO's] fault was a cause-in-fact of Gloria Chatman's injury”

The jury likewise answered the same two interrogatories affirmatively as to Ms. Sanders and Jamisha, both non-parties. The jury then allocated fault as follows: SUNO 15 percent; Ms. Sanders 70 percent; and Jamisha 15 percent. The jury found Ms. Chatman free from fault. The jury awarded a total of $1,055,000 in damages. After taking into account the jury's allocation of fault, the trial court rendered a judgment in favor of Ms. Chatman and against SUNO in the amount of $158,250, which included general damages of $120,000; past medical expenses of $15,000; and future medical expenses of $23,250. The trial court assessed SUNO with costs. This appeal followed.

DISCUSSION

On appeal, SUNO raises three assignments of error: (1) the trial court erred in casting SUNO in judgment because SUNO owed no legal duty to protect Ms. Chatman from such an unforeseeable criminal attack; (2) the trial court erred in failing to rule on the issue of legal cause, or alternatively, to properly instruct the jury on the issue of legal cause; and (3) the trial court erred in assessing costs against SUNO.

We first discuss whether the trial court improperly allowed the jury to decide the issue of legal cause.

The duty-risk analysis is the standard negligence analysis employed in determining whether to impose liability under La. Civ. Code art. 2315. Lemann v. Essen Lane Daiquiris, Inc., 05–1095, p. 7 (La.3/10/06), 923 So.2d 627, 632–33. A plaintiff must prove five elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element). Id. at p. 7, 923 So.2d at 633. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Id.

SUMO argues that the fourth element, known as “legal cause,” “scope of liability,” or “scope of protection,” is a legal question to be decided by the court, and not a factual issue for the jury.

Although for years the issue of whether legal cause was a fact issue or a legal issue “baffled scholars and courts,”¹ in Parents of Minor Child v. Charlet, 13–2879, p. 6 (La.4/4/14), 135 So.3d 1177, 1181, the Louisiana Supreme Court confirmed that legal cause is a mixed question of law and fact for the jury (or other fact-finder) to decide. Thus, we find no error in the trial court's decision to submit the question of legal cause to the jury.

1 See Perkins v. Entergy Corp., 98–2081, p. 34 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 412 n. 52.

We now address whether the trial court adequately instructed the jury on the element of “legal cause.”

As an initial matter, Ms. Chatman argues that SUNO did not timely object to the trial court's refusal to adopt its proposed jury charge on legal cause.

A month before trial, SUNO submitted a special jury instruction on legal cause. In a footnote, SUNO stated that it believed that the trial court should decide the issue of legal cause, and not the jury. The footnote further stated that, in the event that the court disagreed, the court should adopt SUNO's proposed jury instruction on legal cause.

At the jury charge conference in the middle of trial, the trial court decided that legal cause was a legal question for the court, and not for the jury. The parties agreed. More than an hour after jury deliberations began, the trial court summoned counsel for a conference, and ruled for the first time that legal cause was not a question of law for the court to decide, but a question of fact for the jury. The trial court concluded that its standard jury instructions would adequately convey to the jury the concept of legal cause between the defendant's conduct and the plaintiff's injury. The trial court found that SUNO's proposed instruction on legal cause was “very confusing.”

SUNO immediately objected orally, and later in writing, to the jury instruction on legal cause, arguing that the instruction was erroneous because it did not use the term “ease of association.” The trial court stated that SUNO's objection was “not new” and was “preserved” in the footnote in SUNO's proposed jury instruction on legal cause. We agree.

As for the adequacy of the trial court's jury instruction on legal cause, La. Code Civ. P. art. 1792(B) requires the trial court to instruct the jury on the law applicable to the cause submitted to them. “The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems appropriate.” Adams v. Rhodia, Inc., 07–2110, pp. 5–6 (La.5/21/08), 983 So.2d 798, 804.

“Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of the law for the jury to apply to those issues.” Adams, 07–2110 at p. 6, 983 So.2d at 804. “If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.” Id. Trial courts are given broad discretion in formulating jury instructions. Larrea v. Cefalu, 14–0607, p. 6 (La.App. 4 Cir. 3/25/15), 162 So.3d 1224, 1228. The mere discovery of an error in the trial court's instructions does not itself justify reversal. Wooley v. Lucksinger, 09–0571, p. 82, 61 So.3d 507, 574. The reviewing court must compare the degree of error with the adequacy of the jury instructions as a whole and the circumstances of each case. Adams, 07–2110 at p. 7, 983 So.2d at 804. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. Id. Accordingly, an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Id.

The trial court used its standard jury instructions on negligence, which state that the plaintiff must prove:

One, that the injury which she says she suffered was caused in whole or in part by the conduct of the defendant; two, that the conduct of the defendant was below the standards which I have told you are applicable to the defendant's conduct; and three, that there was damage to the plaintiff's person or property.... To sum up this part, to find that the defendant's conduct is substandard, you must find that an ordinarily prudent person under all of the surrounding circumstances would reasonably have foreseen that as a result of its conduct, some such injury as the plaintiff suffered would occur, and that defendant failed to do what an ordinarily prudent person would have done. You may find it helpful to ask yourself: “How would an ordinary prudent person have acted or what precautions would they have taken if faced with similar conditions or circumstances?” [Emphasis added.]²

2 The trial court's description of the three elements of negligence are taken verbatim from Louisiana Supreme Court Rule 44, Part R, which sets forth mandatory general civil jury instructions, effective October 15, 2014.

The trial court also instructed the jury that it must decide:

[w]hether the defendant's conduct was below the standard applicable to its activity.... In this case, the basic standard is that the defendant must exercise the degree of care that we might expect from an ordinarily prudent person under the same or similar circumstance.... A reasonably prudent person will avoid creating an unreasonable risk of harm. In deciding whether the defendant violated this standard of conduct, you may weigh the likelihood that someone might have been injured by its conduct and the seriousness of that injury if it should occur against the importance to the community of what the defendant was doing and the advisability of the way it was doing it under the circumstances. [Emphasis added.]³

3 This language is also taken verbatim from the Louisiana Supreme Court Rule 44 pattern jury instructions.

The trial court also told the jury that “when you think about my instructions, consider them together. Don't single out any individual sentence, or idea and ignore the others.”

SUMO argues that the trial court's jury instructions on negligence improperly addressed only the elements of “duty” and “breach of duty,” without instructing the jury on the essential element of “legal cause.” SUNO also argues that the trial court improperly combined the cause-in- fact and legal cause inquiries into one question.

SUNO contends that the trial court should have used its proposed special instruction regarding legal cause:

I've told you earlier that, for Southern to be liable to Chatman, you would have to conclude that Southern's conduct was sub-standard in relation to the rule which applies to its conduct (a reasonably prudent person under the circumstances) and that Southern's conduct must have played a substantial part in causing Chatman's injury. But there is a further finding necessary in order for you to render a verdict for the plaintiff. You must also consider whether a reasonable person, in doing or contemplating the acts or omissions which Southern is charged, would have considered the general kind of injury as that suffered in this case as one of the dangers created or enhanced by its conduct. In other words, do you think that the standard applicable to Southern's conduct was meant to cover what happened to this plaintiff? [Emphasis added.]

“Rules of conduct are designed to protect some persons under some circumstances against some risks.” Washington v. Gusman, 15–0177, pp. 19–20 (La.App. 4 Cir. 10/14/15), 183 So.3d 510, 526. Although there is no “rule” for determining the scope of a duty, the pertinent inquiry is a question of policy as to whether the particular risk of harm encountered by the plaintiff should fall with the scope of the duty owed by the defendant. Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). Louisiana courts often phrase the idea of legal cause or scope of duty in terms of the “ease of association,” which melds policy and foreseeability into one inquiry: “ ‘Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant?’ ” Jones v. Buck Kreihs Marine Repair, 13–0083, p. 7 (La.App. 4 Cir. 8/21/13), 122 So.3d 1181, 1186.

The trial court's jury instruction on legal cause closely tracks the language of the defendant's proposed jury instruction in Chaisson v. Avondale Indus., Inc., 05–1511, pp. 27–28 (La.App. 4 Cir. 12/20/06), 947 So.2d 171, 190 :

In order to find the defendant's conduct substandard, you must also determine whether a reasonable person under all circumstances surrounding his conduct, would have reasonably foreseen as a result of his conduct, some such injury as [plaintiff] suffered, and you must also find that it failed to exercise reasonable care to avoid the injury. In other words, do you think that the standard applicable to defendant's conduct was meant to cover what happened to [plaintiff].

The Chaisson court did not find legal error in this instruction. Instead, the appellate court found that the “main tenets” of this specific “foreseeability” charge were “subsumed into the actual jury charge,” which instructed the jury to find negligence if the defendant, based on the facts and circumstances that existed at the time the incident occurred, acted as a reasonable and prudent person. Id. at p. 29, 947 So.2d at 190–91.

Even though the trial court's jury instruction in this case does not use the specific phrase “ease of association,” the elements of cause-in-fact and legal cause/scope of protection are plainly separate inquiries. The jury charge properly asks the jury to decide whether the particular risk of harm encountered by Ms. Chatman fell within the scope of the duty of protection owed by SUNO to its resident students, based upon policy considerations such as the likelihood and severity of the injury. Notably, SUNO's own proposed jury instruction on legal cause also does not use the phrase “ease of association,” which SUNO now argues is essential to the jury's understanding on the law concerning legal cause.

We find that the trial court's instructions as a whole fairly and reasonably described the legal cause issue and provided the correct principles of law for the jury to apply to that issue. Adams, 07–2110 at p. 6, 983 So.2d at 804. The jury instructions, therefore, could not have misled the jury to such an extent that the jurors were prevented from dispensing justice. Id. at p. 7, 983 So.2d at 804.

SUNO also argues that the trial court erred in failing to include a specific jury interrogatory on “legal cause” on the jury verdict form, asking only whether SUNO was “at fault.” Unlike the jury instructions, SUNO did not ask for a special written question on legal fault, to be given to the jury only if the court disagreed with SUNO's position that legal cause was an issue for the court to decide. See La. Code Civ. P. art. 1812(C). SUNO was given a reasonable opportunity to object to the verdict form, and its failure to timely object to the omission of a jury interrogatory on legal cause constitutes waiver of that objection on appeal. Price v. La. Dept. of Transp. & Dev., 608 So.2d 203, 210 (La.App. 4th Cir.1992).

We now address SUNO's argument that the trial court erred in casting SUNO in judgment because SUNO owed no legal duty to protect Ms. Chatman from an unforeseeable criminal attack. Although SUNO also argues that it owed no “legal duty” to Ms. Chatman, this argument is actually a challenge to the fact-specific “legal cause” element of negligence. A “no duty” defense “generally applies when there is a categorical rule excluding liability as to whole categories of claimants or of claims under any circumstances.” Pitre v. La. Tech Univ., 95–1466, p. 22 (La.5/10/96), 673 So.2d 585, 596 (Lemmon, J., concurring). We find that the “no duty” defense is not available in this case.

We must therefore decide whether there is an “ease of association” between SUNO's housing policies that restrict visits by non-resident, minor guests and the risk of a violent physical attack such as that experienced by Ms. Chatman in her on-campus apartment.

Because legal cause is a mixed question of law and fact, it should be reviewed on appeal under the manifest error standard. Harold A. Asher, CPA, LLC v. Haik, 12–0771, p. 5 (La.App. 4 Cir. 4/10/13), 116 So.3d 720, 724. Before an appellate court may reverse a fact-finder's determination of fact, it must review the record in its entirety and: (1) find that a reasonable factual basis does not exist for the finding; and (2) further determine that the record establishes that the fact-finder is clearly wrong or manifestly erroneous. Mazzini v. Strathman, 13–0555, p. 4 (La.App. 4 Cir. 4/16/14), 140 So.3d 253, 256. As long as the trier of fact's findings are reasonable in light of the record as a whole, the appellate court will affirm. Id.

In this case, SUNO's legal duty was properly set forth in the trial court's instructions to the jury on the general duties owed by a university to its students:

Universities have a duty to provide a safe campus and to act with a reasonable regard for the students' safety. The presence of a security guard in a position where he can be seen by potential criminals has a deterrent effect on criminal activity in the area. Although a university also has a duty to implement reasonable measures to protect its students on the premises from criminal

acts, those criminal acts must be foreseeable.... Universities do not stand in loco parentis —in the place of parents—to their students. Attempts to foster the educational process and the growth and maturation of the students have relieved universities of many of their protective duties. Modern college students are considered adults capable of protecting their own interests. They demand and receive increased autonomy and decreased regulation both on and off campus.

See Williams v. State of La., 34,691, p. 6 (La.App. 2 Cir. 5/9/01), 786 So.2d 927, 932 (university has a duty to implement reasonable measures to protect the students in its dormitory rooms from foreseeable criminal acts); Boyd v. Cebalo, 15–1085, p. 5 (La.App. 4 Cir. 3/16/16), 191 So.3d 59, 61 (recognizing that “a third-party's criminal activity does not grant the university absolute immunity from liability” and “if the facts of a case prove the criminal activity was foreseeable, the university may have a duty to protect or warn students”); Robertson v. State Through Dept. of Planning & Control, 32,309, p. 14 (La.App. 2 Cir. 12/10/99), 747 So.2d 1276, 1284 (recognizing the duty of a university to provide a safe campus); Fox v. Bd. of Supervisors of La. State Univ., 576 So.2d 978, 982 (La.1991) (although at one time universities stood in loco parentis to their students which created a special relationship that imposed a duty on the college to exercise control over student conduct, in modern times there has been evolved a departure from the in loco parentis relationship); Pitre v. La. Tech. Univ., 95–1466, p. 21 (La.5/10/96), 673 So.2d 585, 595 (acknowledging that universities no longer stand in loco parentis to their students, and that attempts to foster the educational process, and the growth and maturation of students, has relieved universities of many of their protective duties).

The legal cause or “scope of protection” inquiry assumes that a legal duty exists and questions whether the injury suffered by the plaintiff is one of the risks encompassed by the rule of law that imposed the duty. Chaisson, 05–1511 at p. 24, 947 So.2d at 178. The extent of protection owed to a particular plaintiff is determined on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms. Todd v. State Through Dept. of Soc. Servs., 96–3090, p. 7 (La.9/9/97), 699 So.2d 35, 39. In determining the limitation to be placed on liability for a defendant's substandard conduct, the proper inquiry is often how easily the risk of injury to the plaintiff can be associated with the duty sought to be enforced. Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 294 (La.1993). Thus, a risk may be found not within the scope of a duty where the circumstances of that injury to the plaintiff could not reasonably be foreseen or anticipated, because there was no ease of association between the risk of injury and the legal duty. Lazard v. Foti, 02–2888, p. 6 (La.10/21/03), 859 So.2d 656, 661.

In the few days leading up to the attack, various non-students were coming in and out of the apartment, causing a safety concern for Ms. Chatman. In particular, Ms. Sanders brought her cousin, Jamisha, a minor child and a non-student at SUNO, to the apartment. Jamisha brought a suitcase and began staying overnight, as if she was residing in the unit. Because this was a violation of SUNO's housing rules, Ms. Chatman became justifiably concerned that this could have put them “out of the apartment.”

During this time period, other incidents occurred. One night, Ms. Sanders's boyfriend came to the apartment, “knocking like he was crazy,” “banging on the windows” and “trying to get her to open the door,” while Ms. Sanders hid in the bathroom. During the entire long weekend before the attack, two non–students— 16–year–old Jamisha and her boyfriend—were living at the apartment, sleeping in Ms. Chatman's blankets, leaving the door unlocked, and generally disrupting the apartment. Due to the rapidly escalating safety issues, Ms. Chatman tried to get help from SUNO. SUNO, however, never told Ms. Chatman who the assigned CA was for her apartment building; she only coincidentally met Mr. Fezekas when she was moving in. Several times during those few early days, Ms. Chatman tried to report her safety concerns to Mr. Fezekas who, dismayingly, didn't even know that he was the designated CA for Ms. Chatman's (and his) building. Even though SUNO's rules stated that CAs “[m]ust be available via land line or cell phone and university email daily,” Ms. Chatman was never given Mr. Fezekas's cell or apartment phone numbers or his e-mail address. SUNO did not give the CAs' cell phone numbers to any of its housing students because, astonishingly, the CAs had “limited minutes on their [personal] cell phone[s].” Ms. Chatman knocked on Mr. Fezekas's apartment door several times to complain, and no one answered. Ms. Chatman also tried to report her safety worries to the residential life office, but the office was closed.

Ira Thomas, who was employed as SUNO's chief of police at the time of the attack, testified that in January 2010 SUNO had only one police officer patrolling the entire campus on nights and weekends, and that SUNO did not have the manpower to provide 24–hour police security at the housing facility. Campus police officer Baily testified that on her night shifts (between 10:00 p.m. and 6:00 a.m.) she patrolled the entire campus by car only, and that she would simply “drive through the parking lots.” Officer Baily testified that Ms. Chatman's building was not near a parking lot, so that her vehicular patrols would never have passed Ms. Chatman's apartment.

It is clear, therefore, that the CAs' availability to the resident students, and the CAs' obligation to “vigilantly” enforce SUNO's written policies strictly limiting visits by non-residents and minors, were a crucial part of SUNO's plan to ensure the safety and security of its students living in on-campus housing. As discussed above, the evidence makes clear that SUNO failed to ensure that the CAs were always available to help SUNO students with safety and security problems. Although the CA who lived in Ms. Chatman's building knew that he was responsible for enforcing SUNO's written housing policies, he never inspected the building to make certain that no unauthorized visitors were staying in any of the apartments. Plainly, SUNO also was unreasonably lax in the enforcement of its written policies, which were intended to protect its students from risks of harm posed by unauthorized persons present in the apartments.

SUNO argues that the risk of a sudden attack by Ms. Chatman's hand-picked roommate and best friend, during a dispute over missing food, was not foreseeable or easily associated with SUNO's duty to protect its students from physical attacks by third parties inside campus housing. SUNO tries to diminish or even negate the very significant role played by 16–year–old non-student/non-resident Jamisha, who had been living in the apartment with her boyfriend without authorization for at least four days prior to the attack, in obvious violation of SUNO's visitor policies. Ms. Chatman was already frightened of Jamisha. Although Ms. Chatman's front door to her bedroom was locked, Jernisha, closely followed by Ms. Sanders, stormed into Ms. Chatman's bedroom through an adjoining bathroom without permission. Jamisha viciously attacked Ms. Chatman over something as trivial as a Snickers candy bar. Jamisha was the first person to strike Ms. Chatman while she was relaxing on her bed. Jamisha and Ms. Sanders both grabbed Ms. Chatman's arms, dragged Ms. Chatman off the bed, and “rammed” her into the television. While Ms. Chatman was lying on the floor, Jamisha began attacking Ms. Chatman's lower body, presumably holding her down while Ms. Sanders repeatedly stomped on Ms. Chatman's head and face with a stiletto heel, destroying Ms. Chatman's eye. Because Ms. Chatman “didn't have the strength to fight back,” Jamisha also stole Ms. Chatman's cell phone. Jamisha did not offer Ms. Chatman any first aid or other help, but quickly left the apartment with her boyfriend. Even though Jamisha did not physically stomp out Ms. Chatman's eye, Jamisha was a willing and active instigator and participant in the attack which resulted in Ms. Chatman's devastating injuries. The jury confirmed so by allocating 15 percent of the fault to Jamisha.

Ms. Chatman suffered a brutal criminal attack by the precise sort of person—a non-student, non-resident minor—whose SUNO's rules and policies were intended to bar from campus housing without prior authorization. SUNO's policies that guarantee its students 24–hour access to housing staff, who are responsible for enforcing SUNO's safety and visitation rules, were intended to prevent the risk of criminal behavior by such persons. We conclude that the risk of a vicious physical attack on Ms. Chatman by a non-student minor who was not authorized to be present in the apartment is easily associated with SUNO's duty to ensure the safety of its students who live in SUNO's on-campus housing. The jury, therefore, did not manifestly err in finding that Ms. Chatman proved the element of legal cause.

Finally, because we affirm the judgment in favor of Ms. Chatman, we do not address SUNO's argument that the trial court's award of costs should be reversed if the judgment is reversed.

CONCLUSION

For the reasons assigned, we affirm in all respects the trial court's judgment rendered in accordance with the jury's verdict in favor of Ms. Chatman and against SUMO.

AFFIRMED

LOVE, J., Concurs With Reasons.

TOBIAS, J., Dissents and Assigns Reasons.

LEDET, J., Dissents With Reasons.

LOVE, J., concurs with reasons.

I respectfully concur in the majority's decision to affirm the trial court's judgment. “As an appellate court, we must exercise great restraint before overturning a jury verdict based on erroneous instructions.” Brown v. Diamond Shamrock, Inc., 95–1172, p. 14 (La.App. 3 Cir. 3/20/96), 671 So.2d 1049, 1058 ; Wooley v. Lucksinger, 09–571, p. 81 (La.4/1/11), 61 So.3d 507, 574. Additionally, “[t]he manifest error standard of appellate review may not be ignored unless the proposed jury interrogatories are so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts.” Brown, 95–1172, p. 12–13, 671 So.2d at 1057 (quoting Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1153 (La.App. 3 Cir.1991). I agree with the majority in that there is no error in the trial court's decision to submit the legal cause question to the jury. As explained below, I also agree with the majority that the jury instructions adequately described the law on legal cause. Therefore, I agree with the majority that the trial court did not commit any legal errors which would require de novo review by this Court or a remand for a new jury trial.

I write separately to further expound upon the legal cause issue. Southern University alleges the jury instructions and jury verdict form fail to address legal cause and, in particular, do not reference “legal cause,” “proximate cause,” or “ease of association.” However, as the majority notes, when Southern University submitted its special jury instructions on legal cause it did not contain any of these references. Only now on appeal, Southern University alleges specific reference to these terms are essential to a jury's understanding of legal cause. The trial court recognized the same, pointing out that Southern University's own instruction on legal cause (and footnote) demonstrated Southern University's acknowledgment that the tenets of legal cause do not require express reference to the aforementioned terms to correctly instruct the jury on the applicable law.

Jurisprudence requires this Court to consider “the degree of error with the adequacy of the jury instructions as a whole and the circumstances of the case.” Wooley, 09–0571, p. 82, 61 So.3d at 574. I agree that the trial court instruction practically mirrors the instruction this Court found adequate in Chaisson v. Avondale Indus., Inc., 05–1511 (La.App. 4 Cir. 12/20/06), 947 So.2d 171. In the case sub judice, the trial court's duty/risk instruction is an adaptation of 18 La. Civ. Treatise Section 3:16. Additionally, while Southern may argue that Section 3:16 defines the limits of the scope of duty/liability, it “does so almost exclusively on the basis of ‘foreseeability’ or ‘ease of association’....” See 3:16 Comments. Therefore, I find, as in Chaisson, that the trial court's duty/risk instruction incorporated the question of legal cause.

I also find no merit to Southern University's claim that the trial court erred by confining the first issue of cause-in-fact as opposed to cause in this case. Southern University focuses its attention on the trial court's concluding remarks wherein the trial court summarized its instructions on the applicable law, which spans over twenty pages of the record. Nevertheless, elsewhere in its instructions, the trial court indicates that the first issue to determine is whether “the injury which [the plaintiff] says she suffered was caused in whole or in part by the conduct of the defendant.” (emphasis added). In that instance, the trial court did not confine the issue of causation exclusively to “cause-in-fact.” Moreover, as the majority notes, the trial court instructed the jury at the outset, that “when you think about my instructions, consider them together. Don't single out any individual sentence, or idea and ignore the others. ” (emphasis added).

Southern University suggests the trial court's summation of the law is fatal to the jury's understanding of legal cause. However, jurisprudence requires that we view the instructions as a whole, in the same way the jury must. In this case, the instructions on the duty/risk inquiry adequately covered the law on legal cause because the instruction posed to the jury on the duty/risk analysis is based on ease of association and foreseeability. Therefore, I agree with the majority that the trial court correctly provided the law on legal cause. Further, I find the trial court's reference to “cause-in-fact” as opposed to “cause” in its summary of the law was not fatal to the adequacy of the jury instructions as to preclude the jury from reaching a verdict based on law and facts.

For the same reasons, the jury verdict form's reference to “cause-in-fact” as opposed to “cause” does not interdict the jury's verdict in this case. Cf., Hymel ex rel. Hymel v. Thomas, 99–826, p. 12–15, 758 So.2d 201, 207–09 (jury verdict form could include questions on whether the parties' negligence was a legal cause of motor vehicle accident, even though legal cause was not defined in instructions given to the jury); See also Johnson v. First Nat'l Bank Shreveport, 00–870, p. 26 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, 53 (quoting Smith v. Lincoln Gen. Hosp., 27,133, p. 6 (La.App. 2 Cir. 6/21/95); 658 So.2d 256, 262 (“[w]hile it may be the better practice to submit a separate interrogatory on each theory supporting a cause of action, the matter is within the trial court's broad discretion”).

The jury's verdict in this case was based on the totality of the evidence and proper instructions provided by the trial court. Consequently, I find no manifest error in the jury's verdict finding Ms. Chatman free from fault and allocating fault against Southern at 15%; Ms. Sanders at 70%; and Jamisha at 15%. Similarly, I find no manifest error in the jury's award of damages in the amount of $1,055,000 and the judgment rendered in accord with the jury's verdict that also assessed Southern with costs. Given the circumstances of this case, I concur in the majority's decision to affirm the trial court's judgment.

TOBIAS, J., dissents and assigns reasons.

I respectfully dissent, finding that it is inappropriate to affirm the trial court's judgment.

I agree with Judge Ledet's dissent that the errors of the trial judge interdict the jury's verdict and therefore interdict the trial court's judgment. That being said, the proffered choices for this court are either de novo review by this court or a remand for a new jury trial.

However, I respectfully disagree with my dissenting colleague that a remand is appropriate or even necessary. I find that based upon the facts of this case, a de novo review by this court would adequately result in an appropriate decision and judgment. No significant questions of fact are presented for which the trier of fact has to make any credibility calls based upon an eyeballing of the witnesses. I find that Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980) and Wegener v. Lafayette Ins. Co., 10–0810 (La.3/15/11), 60 So.3d 1220, require this court to conduct a de novo review and render a judgment based thereon. I do not find that the other jurisprudence cited by the majority or my colleague's dissent would come close to requiring a remand for a new jury trial.

To me, the underlying facts are clear. Ms. Chapman, an adult, was stabbed in the eye by her close friend and handpicked roommate, an adult, in their room in the college residence facility of the defendant. The record adequately reflects what Southern University did and did not do to protect Ms. Chapman. The duty of Southern University is readily clear from the record on appeal and thus presents no impediment to an appropriate adjudication and determination of the facts and damages, if any, to which Ms. Chapman may be entitled.

The remand and retrial will waste significant time, energy, and resources.

LEDET, J., dissents with reasons.

For the following two reasons, I respectfully dissent from the majority's decision affirming the trial court's judgment in this personal injury case. First, the jury instructions and interrogatories, taken together, were legally erroneous and that error was prejudicial to the defendant, Southern.¹ Second, under the circumstances of this case in which no trier of fact decided the pivotal, intensely fact-bound issue of legal cause, I find it inappropriate to conduct a de novo review of the record; rather, a remand for a new trial is required. I separately address each of these two reasons below.

1 The plaintiff, Gloria Chatman, commenced this suit against Southern University at New Orleans, the Board of Supervisors at Southern University and Agricultural and Mechanical College, on behalf of Southern University of New Orleans, the Southern University System, Southern University and Agricultural and Mechanical College, and Victory Ukpolo. Mr. Ukpolo, Southern University's Chancellor, was voluntarily dismissed before trial. As one of the attorneys pointed out at the beginning of the trial, “there is really just one entity that has been named in different ways.” For ease of reference, the defendants are referred to in this dissent collectively as “Southern.”

Legal error in the jury instructions and interrogatories taken together

Southern assigns as error the trial court's failure to instruct the jury on legal cause and to include a question on legal cause in the jury interrogatories. Ms. Chatman counters that Southern waived this objection by failing to timely object as required by La. C.C.P. art. 1793 C.² Alternatively, she contends that the jury instructions and interrogatories were proper. In order to address this issue, it is necessary to summarize the pertinent procedural background.

2 La. C.C.P. art. 1793 C provides as follows:

A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection. If he objects prior to the time the jury retires, he shall be given an opportunity to make the objection out of the hearing of the jury.

Following the pretrial conference, Southern, as requested by the trial court, submitted proposed special jury instructions and a proposed jury interrogatory form. Southern's Special Instruction No. 4, labeled “Legal Cause,” provided as follows:

I've told you earlier that, for Southern to be liable to Chatman, you would have to conclude that Southern's conduct was sub-standard in relation to the rule which applies to his conduct (a reasonably prudent person under the circumstances), and that Southern's conduct must have played a substantial part in causing Chatman's injury. But there is a further finding that is necessary in order for you to render a verdict for the plaintiff. You must also consider whether a reasonable person, in doing or contemplating the acts or omissions with which Southern is charged, would have considered the general kind of injury as that suffered in this case as one of the dangers created or enhanced by its conduct. In other words, do you think that the standard applicable to Southern's conduct was meant to cover what happened to this plaintiff.³

3 Southern cites the source of the above instruction as 18 H. Alston Johnson, III, LA. CIV. L. TREATISE, CIVIL JURY INSTRUCTIONS § 3:16 (3d ed. 2015). This section is entitled “Duty/risk” instruction—Emphasis on duty/risk.” Southern points out that its proposed instruction addresses the limits imposed on a party's legal duty.

Southern prefaced its proposed Special Instruction No. 4 with a footnote that read as follows:

It is within the province of the Court to decide the legal question of whether

any breach of duty by Southern is the legal cause of Chatman's injuries. However, if the Court disagrees, Southern submits the proposed jury instruction on legal cause, to follow the Court's instructions on the other requisite elements of a negligence claim.

During trial, at the May 14, 2015 charge conference, the proposed special jury instructions and the jury interrogatory form were discussed. The following colloquy ensued:

MR. BRADY [SOUTHERN'S COUNSEL]: Your Honor, I did see some ... cause-in-fact sort of language.... I didn't see any language ... on the legal cause issue about ease of association....

THE COURT: What jury charge is that?

* * * * *

MR. BRADY: That would be special Instruction No. 4, legal cause. And I guess my question was, with respect to legal cause, was Your Honor considering that an issue that you were going to decide after the jury verdict, or were you going—was that going to be allowed to go to the jury?

MR. IMPASTATO [COUNSEL FOR MS. CHATMAN]: I would submit to Your Honor that's a legal issue. That's not a—proximate cause is a legal issue, not—not a jury fact question. Cause-in-fact is a fact question, not proximate cause. Just like whether there was a duty.

THE COURT: Wait. What jury instructions are you referring to?

MR. BRADY: I was referring to Defendant Special Instruction No. 4. But we agree that legal cause is a legal question that should be decided by the Court, I mean, after the verdict.

THE COURT: I believe that any legal question is for the Court to decide.

Based on the trial court's finding that legal cause was a legal question for the court to decide, Southern's Special Instruction No. 4 was omitted. The trial court adopted Southern's proposed jury interrogatories form.

After the jury began deliberating, the trial court called a conference to address an unrelated question posed by the deliberating jury. During that conference, the trial court informed the parties that it had decided legal cause was a question of fact to be decided by the jury. Given the trial court's change in position, Southern lodged both an oral and written objection to the jury instructions and interrogatories. Ms. Chatman argued to the trial court, as she does on appeal, that such objections were waived. Southern, on the other hand, pointed out that it could not object to errors that had not yet occurred. It emphasized that the trial court decided that legal cause was a question for the jury only after the jury deliberations began. Finding Southern's objection was preserved, the trial court reasoned that Southern did, in fact, timely raise the issue in the footnote prefacing its proposed Special Instruction No. 4. The trial court thus found “the argument is not new and it's preserved.”

The trial court, however, disagreed with Southern's contention that it was erroneous to exclude its Special Instruction No. 4 on legal cause.⁴ The trial court found the following portion of its special jury instructions, which was given to the jury, was the ease of association instruction:

4 In so ruling, the trial court cited three reasons. First, the trial court noted that the instructions that it gave—aside from the special jury charges—were adapted from the Louisiana Supreme Court's uniform jury charges that every division in every parish of the state must now use. See La. Sup. Ct. Rule 44. See also 18 H. Alston Johnson, III, LA. CIV. L. TREATISE, CIVIL JURY INSTRUCTIONS § 3:1 (3d ed. 2015) (noting the adoption of “the mandatory pattern jury instructions ... by the Supreme Court of Louisiana in its Rule 44, effective October 15, 2014.”). Continuing, the trial court characterized the manner in which Special Instruction No. 4 was written as “very confusing.” Second, the trial court emphasized that the phrase “ease of association” was not present in Special Instruction No. 4. Third, the trial court noted that what Special Instruction No. 4 addressed was “the conduct as it relates to the injury, the ease of association.”

To sum up this part, to find that the defendants' conduct is substandard, you must find that an ordinary prudent person, under all of the surrounding circumstances, would reasonably have foreseen that, as a result of its conduct, some such injury as the plaintiff suffered would occur and that the defendant failed to do what an ordinarily prudent person would have done. You may find it helpful to ask yourself, “How would an ordinarily prudent person have acted or what precautions would they have taken if faced with similar conditions or circumstances?” (Emphasis supplied.)

The trial court thus ruled that Special Instruction No. 4 was covered by its charges. As to the verdict form, the trial court's response to Southern's objection was that the verdict form it used was the one that Southern submitted. Southern then reminded the court that when it prepared the verdict form, “it was agreed by counsel this [legal cause] was a question of law, which meant the verdict form was fine. It wouldn't be going to the jury if it's a question of law.” The trial court, in response, reiterated its finding that the jury instructions it gave were not erroneous and covered legal cause.

Before addressing whether the jury instructions and interrogatories were erroneous, it is first necessary to decide whether the trial court was correct in finding that legal cause was a factual issue for the jury to decide. As the majority points out, “[a]lthough for years the issue of whether legal cause was a fact issue or a legal issue ‘baffled scholars and courts,’⁵ in Parents

5 Justice, then Judge, Weimer extensively addressed the issue of whether legal cause is purely a question of law in the appellate court opinion in Perkins v. Entergy Corp., 98–2081–83, p. 34 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 412, n. 52, aff'd, 00–1372, 00–1387, 00–1440 (La.3/23/01), 782 So.2d 606, stating:
The interrelated issue of whether legal cause is a fact issue or a legal issue has baffled scholars and courts for decades and begs for resolution in Louisiana. See [David W.] Robertson, [The Vocabulary of Negligence Law: Continuing Causation Confusion, ] 58 La.L.Rev. [1,] 19 [ (1997) ]: “The Louisiana Supreme Court has vacillated on whether legal cause should be a question of law [subject to de novo review] or a question of fact [subject to manifest error review], and the lower court decisions sometimes reflect the uncertainty. However, prevailing practice [at the trial level] treats the issue [of legal cause] as one for the trier of fact. (Footnotes omitted.)” Robertson cites Kenney v. Cox, 95–0126 (La.3/30/95), 652 So.2d 992, 992 (Dennis J., concurring): “I feel that our jurisprudence has not clarified the distinction between the existence of a general duty of care (a legal question) and the ‘legal cause’ or ‘duty/risk’ question of the particular duty owed in a particular factual context (a mixed question of law and fact)[.]” Also cited is Freeman v. Julia Place Limited Partners, 95–0243 (La.App. 4 Cir. 10/26/95), 663 So.2d 515, 517, writ denied, 95–2808 (La.1/26/96), 666 So.2d 680, which documents the vacillation.
If legal cause, which essentially serves the same purpose as scope of duty or proximate cause, is “a mixed question of law and fact,” it should be resolved by the jury at the trial level and then be subject to manifest error review at the appellate level. As indicated, Fowler [v. Roberts, ] 556 So.2d [1,] 4 [ (La.1989) ], listed five elements for evaluating negligence: the duty element is to be decided by the judge, but the other four elements of breach, cause in fact, scope of liability (legal cause) and damages, are to be decided by the jury unless reasonable minds could not differ. See also Wilson [v. State Through Dep't of Pub. Safety & Corr. ], 576 So.2d [490,] 493 [ (La.1991) ]. This division of labor between the judge and jury is essentially what is proposed in W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 45, 319–321. “[T]he hornbook says proximate cause is a question for the jury. As such, one would expect a court to review a jury decision on proximate cause much as it would review any jury determination, with great discretion accorded the fact-finder.” [Thomas C.] Galligan, [Jr., A Primer on the Patterns of Negligence], 53 La. L.Rev. [1509,] 1513 [ (1993) ]. Consider Reed v. Wal–Mart Stores, Inc., 97–1174, pp. 3–4 (La.3/4/98), 708 So.2d 362, 364, holding that whether a thing creates an unreasonable risk of harm is a mixed question of law and fact and, thus, subject to the manifest error standard of review. See also LSA–C.C.P. art. 1812(C)(1)(a), which provides the jury is to answer the legal cause question. See also [David W.] Robertson, [Allocating Authority Among Institutional Decision Makers in Louisiana State–Court Negligence and Strict Liability Cases,] 57 La. L. Rev. [1079,] 1104 [ (1997) ] and 58 La. L.Rev. at 34, wherein the author makes the argument for allowing the trier of fact (judge or jury) to decide legal cause issues.
However, if legal cause is a question of law, it should be decided by the judge, as opposed to the jury, at the trial level and be subject to de novo review at the appellate level. See Todd [v. State Through Dep't of Soc. Servs., Office of Cmty. Servs., 96–3090, pp.] 6–7 [ (La.9/9/97) ], 699 So.2d [35,] 38–39, wherein the Louisiana Supreme Court states unequivocally that legal cause is purely a legal issue. Todd never mentions Fowler or Wilson . See also Galligan, 53 La.L.Rev. at 1522–1525, noting Professors Green and Malone, the fathers of duty-risk analysis, indicated it was the obligation of the judge to determine whether the duty extended to encompass a particular risk.

of Minor Child v. Charlet, 13–2879, p. 6 (La.4/4/14), 135 So.3d 1177, 1181, [cert. denied, ––– U.S. ––––, 135 S.Ct. 1154, 190 L.Ed.2d 923 (2015),] the Louisiana Supreme Court confirmed that legal cause is a mixed question of law and fact for the jury (or other fact-finder) to decide.”⁶ It is well-settled that mixed questions of law and fact are for the trier of fact—here the jury—to decide. See Broussard v. State ex rel. Office of State Bldgs., 12–1238, p. 9 (La.4/5/13), 113 So.3d 175, 183. I thus find no error in the trial court's decision to submit the question of legal cause to the jury.

6 There, the Louisiana Supreme Court held that legal cause is a mixed question of law and fact, reasoning as follows:
Whether this particular priest [defendant] owed this particular duty to the plaintiffs in this particular factual context is a mixed question of law and fact. See Kenney v. Cox, 95–0126, p. 1 (La.3/30/95), 652 So.2d 992 (Dennis, J., concurring) (noting there is a “distinction between the existence of a general duty of care (a legal question) and the ‘legal cause’ or ‘duty/risk’ question of the particular duty owed in a particular factual context (a mixed question of law and fact)”); see also Pitre v. Louisiana Tech University, 95–1466, 95–1487, p. 22 (La.5/10/96), 673 So.2d 585, 596 (Lemmon, J., concurring; joined by Kimball, J.) (noting “[i]n the usual case where the duty owed depends upon the circumstances of the particular case, analysis of the defendant's conduct should be done in terms of ‘no liability’ or ‘no breach of duty.’ ”).

Charlet, 13–2879 at p. 6, 135 So.3d at 1181 ; see also Carr v. Sanderson Farm, Inc., 15–0953, p. 4 (La.App. 1 Cir. 2/17/16), 189 So.3d 450, 456 (citing Charlet for the proposition that “whether a particular defendant owes a particular duty to a plaintiff in a particular factual context is a mixed question of law and fact.”); Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 5–2 (1996) (“Duty is generally considered a question of law for the judge, but legal causation is a mixed question of law and fact that the jury decides.”).

Nor do I find any error in the trial court's finding that Southern preserved its right to object to the jury instructions and interrogatories. Although the majority finds that Southern preserved its right to object to the jury instructions, it finds that it waived its right to object to the jury interrogatories. I disagree. The same rationale that supports a finding that Southern preserved its right to object to the jury instructions—that it objected at the earliest possible opportunity without any undue delay—likewise supports a finding that it preserved its right to object to the jury interrogatories. Under the circumstances of this case, I find Ms. Chatman's contention that Southern waived its objection to the jury instructions and jury interrogatories unpersuasive. I now turn to the issue of whether, the trial court, in changing course on the factual versus legal nature of the legal cause issue, failed to instruct the jury accordingly.

Louisiana Code of Civil Procedure Article 1792 governs jury instructions; it provides that the trial court “shall instruct the jurors on the law applicable to the cause submitted to them.” La. C.C.P. art. 1792 B. “The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate.” Adams v. Rhodia, Inc., 07–2110, pp. 5–6 (La.5/21/08), 983 So.2d 798, 804 (citing Baxter v. Sonat Offshore Drilling Inc., 98–1054, p. 6 (La.App. 1 Cir. 5/14/99), 734 So.2d 901, 906 ).

In Adams, the Louisiana Supreme Court provided the following guidance on reviewing jury instructions:

Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.

Adams, 07–2110 at p. 6, 983 So.2d at 804. The Supreme Court in Adams further explained that reviewing courts must assess the targeted portion of the jury instruction in the context of the entire jury charge; the Court stated:

In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges adequately provide the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Nicholas v. Allstate Insurance Company, 99–2522, p. 8 (La.8/31/00), 765 So.2d 1017, 1023 ; see also Brown v. White, 405 So.2d 555, 560 (La.App. 4 Cir.1981), rev'd on other grounds on reh'g, 430 So.2d 16 (La.1983) (the question is whether the jury was misled to the extent that it was prevented from doing justice) and Jones v. Liberty Mutual Insurance Company, 568 So.2d 1091, 1094 (La.App. 5 Cir.1990), writ denied, 572 So.2d 72 (1991) (reversible error occurs when the jury is misled to such an extent as to prevent it from doing justice).

Adams, 07–2110 at p. 7, 983 So.2d at 804 ; see also Larrea v. Cefalu, 14–0607, p. 6 (La.App. 4 Cir. 3/25/15), 162 So.3d 1224, 1228.

“The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the adequacy of the jury instructions as a whole and the circumstances of the case.” Wooley v. Lucksinger, 09–0571, p. 82 (La.4/1/11), 61 So.3d 507, 574. Generally, “ ‘the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining party has been injured or prejudiced thereby.’ ” Wooley, 09–0571 at p. 81, 61 So.3d at 574 (quoting Rosell v. ESCO, 549 So.2d 840, 849 (La.1989) ). Indeed, it is well-settled that “a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction.” Wooley, supra (citing Adams, 07–2110 at p. 6, 983 So.2d at 804 ; Nicholas, 99–2522 at p. 8, 765 So.2d at 1023 ). When the trial court fails to give proper instructions or interrogatories and the error taints the jury's verdict, the verdict is disregarded; if the record is sufficiently complete for a de novo review, the appellate court makes an independent finding of fact. See Rigaud v. Deruise, 613 So.2d 761, 765 (La.App. 4th Cir.1993) ; Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993).

Turning to the jury instructions that were given in this case, the jury was instructed that this is a negligence case and that there were three parts of the plaintiff's case, which are as follows: (i) negligence or fault; (ii) “the injury the plaintiff suffered was, in fact, caused by the conduct of the defendant” (emphasis supplied); and (iii) that there was actual damage to the plaintiff's person. Summarizing this instruction, the trial court, in charging the jury, stated that the plaintiff “has to demonstrate: One, that the injury which she says she suffered was caused in whole or in part by the conduct of the defendant; two, that the conduct of the defendant was below the standards which I have told you are applicable to the defendant's conduct; and, three, that there was damage to the plaintiff's person.” Likewise, in the jury interrogatories, the jury was required to find whether each listed actor was at fault for the attack on the plaintiff; whether each listed actor was a “cause-in-fact” of her injuries; and to determine the damages the plaintiff sustained.

Southern contends that the jury had no opportunity to decide the issue of legal cause because both the jury instructions and the verdict form were silent on the issue. Stated otherwise, Southern points out that under the duty-risk analysis, a plaintiff also must establish an additional element that the trial court's jury instructions and interrogatories failed to address—legal cause. Southern stresses that the trial court's instructions do not contain a reference to “legal cause,” “proximate cause,” “ease of association,” or any other formulation that adequately instructed the jury regarding the law on legal cause.

Ms. Chatman counters that the trial court properly instructed the jury on legal cause within the court's negligence instruction. She further counters that this court in Chaisson v. Avondale Indus., Inc., 05–1511, p. 27 (La.App. 4 Cir. 12/20/06), 947 So.2d 171, 190, rejected the same argument that Southern raises here. In Chaisson, this court held that the trial court did not commit legal error by failing to give the appellant's proposed charge on legal cause.⁷ This court reasoned that “[t]he main tenets of the proposed jury charge were subsumed into the actual jury charge.” Chaisson, 05–1511 at p. 29, 947 So.2d at 191.

7 The appellant in Chaisson requested the following instruction to the jury:
In order to find the defendant's conduct substandard, you must also determine whether a reasonable person under all circumstances surrounding his conduct, would have reasonably foreseen as a result of his conduct, some such injury as Mrs. Chaisson suffered, and you must also find that it failed to exercise reasonable care to avoid the injury. In other words, do you think that the standard applicable to the defendant's conduct was meant to cover what happened to Mrs. Chaisson.

Chaisson, 05–1511 at pp. 27–28, 947 So.2d at 190.

Even assuming—as the majority, citing Chaisson, finds in this case—that the jury instructions the trial court gave subsumed the question of legal cause, I nonetheless would find that the jury instructions and jury interrogatories, taken together, were erroneous. The error in this case lies in the trial court's instruction to the jury that it was to decide only three issues—(i) cause-in-fact, (ii) fault or negligence, and (iii) damages—coupled with the jury interrogatories requiring the jury only to decide those same three issues. By confining the first issue the jury was to decide to cause-in-fact as opposed to “cause,” the trial court precluded the jury from deciding legal cause. See Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 4–1 (1996) (noting that “[t]he causal relationship consists of two separate elements: cause-in-fact and legal cause.”).

A commentator has explained the problem of drafting jury interrogatories in this context as follows:

[Generally,] the cause-in-fact issue shows up in reported litigation in company with the legal cause and/or breach issues. One recurrent trouble area involves jury interrogatories: in cases in which the evidence would support a finding of cause in fact, how should the [legal cause] question be put to the jury? Recent cases suggest three answers....

(a) In Clement v. Griffin, [91–1664, 92–1001, 93–0591–97, 93–0648 (La.App. 4 Cir. 3/3/94), 634 So.2d 412,] the fourth circuit concluded that the “legal cause” interrogatory and instructions used by the trial court failed to put the cause-in-fact issue before the jury at all.⁸

(b) In Chambers v. Graybiel, [25,840 (La.App. 2 Cir. 6/22/94), 639 So.2d 361 ], and Weaver v. Valley Electric Membership Corp., [615 So.2d 1375 (La.App. 2d Cir.1993),] the second circuit was satisfied with interrogatories that evidently tucked the cause-in-fact issue into the breach issue.

(c) More typically, courts seem to use a single “legal cause” interrogatory that is deemed to combine the cause-in-fact and legal cause/scope-of-protection inquiries. [See Bannerman v. Bishop, 28,382 (La.App. 2 Cir. 7/2/96), 688 So.2d 570 (quoting interrogatories asking the jury (a) whether the defendant was “guilty of any fault or negligence” and (b) whether “the negligence or fault of [defendant was] a proximate cause” of the injuries in the suit).]

8 Ms. Chatman cites Clement v. Griffin, 91–1664, 92–1001, 93–0591–97, 93–0648 (La.App. 4 Cir. 3/3/94), 634 So.2d 412, 431, for the propositions that “the definition of legal cause is too broad and too vague to be left to the jury” and that a jury interrogatory on legal cause is problematic because it asks the jury to answer on “an amorphous concept which could not have been understood by the average juror.” Id. Ms. Chatman's reliance on Clement is misplaced. In Clement, a products liability case, this court noted that the context of the interrogatory indicated that the trial judge was seeking a decision on whether a manufacturing defect in a tire was a cause-in-fact of the accident, not a legal cause.

David W. Robertson, The Vocabulary of Negligence Law: Continuing Causation Confusion, 58 La. L. Rev. 1, 25 (1997). Here, the trial court adopted none of the above three approaches; instead, the trial court posed solely the question of cause-in-fact. As a result, the jury was precluded from deciding the separate question of legal cause. In the context of the present case, I find the inclusion of cause-in-fact and the exclusion of legal cause in both the instructions and interrogatories was erroneous.

The error in the jury instructions and jury interrogatories was prejudicial to Southern. This is not a case in which the legal cause issue is insignificant. To the contrary, the legal cause issue, as demonstrated below, is a pivotal issue in this case.

Legal cause

As noted, this is a negligence case. “ ‘To establish negligence the plaintiff must prove: 1) duty of care to the plaintiff; 2) breach of the duty; 3) cause-in-fact; 4) legal causation (scope); and 5) damages.’ ” Espinosa v. Accor N. Am., Inc., 14–1276, p. 8 (La.App. 4 Cir. 7/8/15), 174 So.3d 123, 128–29 (quoting Chaisson, 05–1511 at p. 8, 947 So.2d at 180 ). If a plaintiff fails to prove any one of the five elements, a defendant will not be held liable. Lemann v. Essen Lane Daiquiris, Inc., 05–1095, p. 7 (La.3/10/06), 923 So.2d 627, 633. On appeal, Southern contends that Ms. Chatman failed to prove two of these five elements—duty and legal cause. Given the posture of this appeal, the only relevant element is legal cause.

“ ‘Cause’ in legal cause demands an inquiry into whether a legal standard of care exists and requires delving into policies for and against extending the asserted legal standard of care to protect the particular plaintiff against the particular harm.” Todd v. State Through Dep't of Soc. Servs., Office of Cmty. Servs., 96–3090, p. 6 (La.9/9/97), 699 So.2d 35, 38. “The essence of legal cause is whether the risk and harm encountered by the plaintiff falls within the scope of protection of the duty.” Barr v. Jacobson, 34,975, p. 3 (La.App. 2 Cir. 9/28/01), 795 So.2d 1244, 1246. “Every negligence case must be decided on its own facts and circumstances.” Todd, 96–3090, p. 7, 699 So.2d at 39 (citing Roberts v. Benoit, 605 So.2d 1032 (La.1991) ). “There is no rule for determining the scope of the duty.” Morrison v. Kappa Alpha Psi Fraternity, 31,805, p. 14 (La.App. 2 Cir. 5/7/99), 738 So.2d 1105, 1117 (citing Roberts, supra ). “Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty.” Roberts, 605 So.2d at 1044 (citing Edwards v. State, 556 So.2d 644, 648–49 (La.App. 2d Cir.1990) ).

Summarizing the scope of duty or legal cause inquiry, the Louisiana Supreme Court in Faucheaux v. Terrebonne Consol. Gov't, 615 So.2d 289, 293–94 (La.1993), stated:

Rules of conduct are designed to protect some persons under some circumstances against some risks. Gresham v. Davenport, 537 So.2d 1144, 1147 (La.1989) ; Malone, Ruminations on Cause–in–Fact, 9 Stan.L.Rev. 60, 73 (1956). The scope of protection inquiry asks whether the enunciated rule extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Crowe, The Anatomy of a Tort–Greenian, As Interpreted by Crowe Who Has Been Influenced by Malone—A Primer, 22 Loy.L.Rev. 903 (1976). In determining the limitation to be placed on liability for defendant's substandard conduct, the proper inquiry is often how easily the risk of injury to plaintiff can be associated with the duty sought to be enforced. Hill [v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972) ].

When the circumstances of the injury cannot reasonably be foreseen or anticipated, the scope of a duty may not encompass the risk encountered because of the lack of an ease of association between the risk of injury and the duty. See Lazard v. Foti, 02–2888, p. 6 (La.10/21/03), 859 So.2d 656, 661 (citing Hill, supra ). Legal cause thus requires a determination of whether the duty was designed to protect the class of claimants of which plaintiff is a member from the hazard she encountered.⁹

9 To illustrate, Justice Lemmon in Fowler v. Roberts, 556 So.2d 1, 8, n. 14 (La.1989), cited Lewis v. Kehoe Academy, 346 So.2d 289 (La.App. 4th Cir.1977), as an example of the use of the scope of protection element to limit the “but for” consequences of a defendant's negligent conduct, noting:
[In Lewis, ] Plaintiffs' small child, while at a day care center, ingested rat poison which exaggerated the appearance of some minor bruises. The juvenile authorities, upon seeing the bruises, sought to remove the child from plaintiffs' custody. The court held that the defendant's duty to prevent young campers from ingesting rat poison did not encompass the risk that, if the poison causes accentuation of subsequently incurred bruises, the juvenile court will reach the erroneous conclusion that the child was neglected.

The legal cause or scope of duty inquiry “assumes a duty exists and questions whether the injury the plaintiff suffered is one of the risks encompassed by the rule of law that imposed the duty.” Roberts, 605 So.2d at 1044. Stated differently, “[f]or the purpose of a legal cause determination, we can assume a breach of duty which is the cause in fact of the plaintiff's damages.” Perkins, 98–2081–83 at p. 31, 756 So.2d at 410.

In this case, Southern's duty was defined in the jury instructions as follows:

Universities have a duty to provide a safe campus and to act with a reasonable regard for the students' safety.¹⁰ The presence of a security guard in a position where he can be seen by potential criminals has a deterrent effect on criminal activity in the area.¹¹

Although a university also has a duty to implement reasonable measures to protect its students on the premises from criminal acts, those criminal acts must be foreseeable. The most important factors for you to consider in determining whether a criminal act is foreseeable is the existence, frequency, and similarity of prior incidents of crime on the premises. However, the location, nature, and condition of the property should also be taken into account.¹²

Universities do not stand in loco parentis—in the place of parents—to their students. Attempts to foster the educational process and the growth and maturation of students have relieved universities of many of their protective duties. Modern college students are considered adults capable of protecting

10 See Williams v. State, 34,691, pp. 6–7 (La.App. 2 Cir. 5/9/01), 786 So.2d 927, 932 (holding that “the universities' general duty to provide a safe campus and to act with reasonable regard for their students' safety remained constant.”).

11 See Peterson v. Doe, 94–1013, p. 7 (La.App. 4 Cir. 12/15/94), 647 So.2d 1288, 1292 (holding that “the presence of a security guard in a position where he can be seen by potential criminals has a deleterious effect on criminal activity in the area.”).

12 See Williams, 34,691 at p. 7, 786 So.2d at 932 (holding that “[t]he question of whether such a duty extends to protect students from the criminal acts of third parties is very similar to the issue presented in Posecai [v. Wal–Mart Stores, Inc., 99–1222 (La.11/30/99), 752 So.2d 762 ]. The university/student relationship, where students reside as guests or patrons in a dormitory, parallels the relationship of a business and its customers. Accordingly, following Posecai, we find that a university likewise has a duty to implement reasonable measures to protect its students in dormitories from criminal acts when those acts are foreseeable.”); see also Boyd v. Cabelo, 15–1085, pp. 4–5 (La.App. 4 Cir. 3/16/16), 191 So.3d 59, 62 (finding student stated a cause of action against university for attack in college dormitory and citing Williams, supra ).

their own interests. They demand and receive increased autonomy and decreased regulation both on and off campus.¹³

13 See Brennan v. Bd. of Trustees for Univ. of Louisiana Sys., 95–2396, p. 11 (La.App. 1 Cir. 3/27/97), 691 So.2d 324, 331 (citing Fox v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 576 So.2d 978, 982 (La.1991) ; and Pitre v. Louisiana Tech University, 95–1466, 95–1487, p. 21 (La.5/10/96), 673 So.2d 585, 595 ).

Southern contends that the only seemingly relevant duties that Ms. Chatman has identified are two-fold: a general duty to provide security,¹⁴ and a duty to enforce its internal rules prohibiting guests from staying overnight in leased apartments.¹⁵ Southern contends that Ms. Chatman has not shown an ease of association between the risk of a sudden, criminal attack by her hand-picked roommate, within their shared apartment, in a dispute over missing food, and a general duty to provide security or a university policy that unregistered guests should not stay past 2:00 a.m.¹⁶ Given that legal cause is absent, Southern contends that it is not negligent as a matter of law.

14 Southern points out that security measures generally are intended to protect against intruders—external threats—not roommates and their invited guests—internal threats. To illustrate, Southern cites Peterson v. Doe, 94–1013 (La.App. 4 Cir. 12/15/94), 647 So.2d 1288, in which this court found an ease of association between the risk of a student being shot by a third party—an external threat—and a security counselor's refusal to accompany the student to his car upon his request. Southern emphasizes that Ms. Chatman's roommate, Ms. Sanders, and her guest, Jamisha, were internal, not external, threats. Ms. Sanders was a co-lessee and lawfully in her own apartment when she attacked Ms. Chatman. Jamisha was Ms. Sanders' guest. According to Southern, “[n]o reasonable security measure is aimed to guard against that.”

15 According to Southern, the primary purpose of its rule against overnight guests (after 2:00 a.m.) is to avoid nonresidents overstaying their welcome—living on campus without paying rent and becoming squatters. Even assuming a safety—as opposed to strictly a financial—concern behind the rule, Southern emphasizes the lack of a prohibition against guests before 2:00 a.m. The fight occurred around 10:00 p.m. Therefore, Southern contends that the rule was inapposite. Regardless, even assuming that the rule established a duty on the part of Southern to search out guests after 2:00 a.m. to ensure registration, Southern contends that such a duty has no ease of association with the harm Ms. Chatman suffered.

16 Southern further contends that even taking into account the non-student's (Jamisha's) mere presence as a factor in the attack on Ms. Chatman, the following multi-step chain of events is far too attenuated to satisfy a finding of legal cause:

1. If security measures had prevented Jamisha from visiting the apartment, the bulk of Ms. Chatman's food might not have been eaten.

2. If her food had not been eaten, Ms. Chatman would not have been upset that much of the food had been consumed.

3. If Ms. Chatman had not been upset, she would not have hidden the remaining food in her bedroom.

4. If Ms. Chatman had not hidden the food, Terneisha would not have asked her where it was.

5. If Terneisha had not asked Ms. Chatman where the food was, Ms. Chatman would not have misstated the food's whereabouts.

6. If Ms. Chatman had not misstated the food's whereabouts, Terneisha would not have become enraged when she realized the food was, in fact, in Ms. Chatman's bedroom.

7. If Terneisha had not become enraged about Ms. Chatman's misstatement, she would not have attacked Ms. Chatman.

Southern thus contends that there is simply no ease of association between the absence of additional security measures and this bizarre, attenuated chain of events.

Ms. Chatman counters that Southern frames the legal cause inquiry too narrowly; the correct inquiry, she contends, is whether the “general manner of harm was foreseeable.” Cay v. State, Dep't of

Transp. & Dev., 93–0887 (La.1/14/94), 631 So.2d 393, 399 ;¹⁷ see also Smith v. Louisiana Health & Human Res. Admin., 93–1434, p. 8 (La.App. 4 Cir. 5/18/94), 637 So.2d 1177, 1184.¹⁸ Ms. Chatman contends that the harm she suffered was within the “scope of the general range of risks” that Southern foresaw from a lack of security measures, including available residential facility staff such as the community assistants (“CAs”).

17 In Cay, the Supreme Court held that “[t]he fact that the precise manner of harm (an intoxicated person's staggering or being frightened toward a bridge railing) may not have been anticipated does not break the claim of causation. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 43 (5th ed. 1984). There is an ease of association between an accidental fall over the railing of a bridge and the failure to build the railing to a height above an average person's center of gravity.” 631 So.2d at 399.

18 In Smith, this court held that “[w]hile the particular harm that befell Mr. Smith might not have been foreseeable, that harm lay within the scope of the general range of risks to which Mr. Smith was peculiarly subject.” 93–1434 at p. 8, 637 So.2d at 1184.

According to Ms. Chatman, the availability of CAs was an essential part of Southern's security measures for its on-campus housing. She points out that the CAs were hired to live in the housing facility to be the eyes and ears of the university in the housing facility, reporting any issues in the housing facility to the campus police or housing office as needed.¹⁹ Ms. Chatman contends there is an ease of association between Southern's rules and security measures and the risk of a criminal attack by a non-student/non-resident living on campus. Ms. Chatman further contends that Southern's rules and security measures were intended to create the sort of visibility that would deter individuals—such as Ms. Sanders and her guest, Jamisha—from criminal behavior. According to Ms. Chatman, she suffered a criminal attack by the precise sort of person—a non-student/non-resident minor—that Southern's rules and security measures were intended to exclude from residing on campus.²⁰ Ms. Chatman thus contends that legal cause was established.

19 Ms. Chatman contends that the tension between her and her roommate (and the other nonstudents the roommate had living in the apartment) was much deeper than a simple, isolated argument over food. She points out that at least one nonstudent—Ms. Sanders' boyfriend—was beating on the windows and door, trying to get into their unit. She further points out that other nonstudents—Jamisha and her boyfriend—allowed the apartment to be left unlocked. To address the problem, Ms. Chatman testified that she unsuccessfully attempted to speak to the CA multiple times before the attack and that she attempted to go to the residential housing office, but it was closed. I note, however, that neither Ms. Sanders' boyfriend nor Jamisha's boyfriend was involved in the fight. Nor was the fight caused by leaving the door to the apartment unlocked. I further note that Ms. Chatman acknowledged that before the attack the problem with her roommate and her roommate's guests never reached the level that she felt the need to call campus security. Indeed, Ms. Chatman testified that before the attack, she was not physically in fear for her physical safety or of an assault; instead, she was bothered by all the comings and goings of guests, the commotion, the noise, and the mess.

20 Ms. Chatman testified that what she believed Southern could have done differently to prevent her attack was that “[t]hey could've had more security. They could've had their residents [CAs] more available to us. They could've—you know, it just—they could have signs stating where a resident [CA] was.”

As the above synopsis of the parties' diametrically opposed positions on the legal cause issue demonstrates, the legal cause issue presented in this case is intensely “fact-bound.” See Roberts v. Benoit, 605 So.2d 1032, 1055 (La.1992) (on reh'g ). Indeed, “ ‘[g]enerally, the scope of protection inquiry becomes significant in “fact-sensitive” cases in which a limitation of the “but for” consequences of the defendant's substandard conduct is warranted. Fowler [v. Roberts, ], 556 So.2d [1,] 6 [ (La.1989).] These cases require logic, reasoning and policy decisions be employed to determine whether liability should be imposed under the particular factual circumstances presented.’ ” Haydin v. Crescent Guardian, Inc., 01–1986, p. 12 (La.App. 4 Cir. 5/15/02), 818 So.2d 1033, 1041. Such is the case here.

Legal cause is thus a pivotal issue in this case. The error in the jury instructions and interrogatories, taken together, therefore was prejudicial to Southern. This finding that the error was prejudicial requires a determination of the appropriate course of appellate action—a de novo review of the record or a remand for a new trial. For the reasons explained below, I find a remand for a new trial is required here.

Remand for a new trial

In Louisiana, unlike in other states, a trial court's prejudicial error involving jury instructions or interrogatories generally affects only the standard of appellate review—a de novo as opposed to a manifest error standard. 1 Frank L. Maraist & Harry T. Lemmon, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 14:15 (1999) (hereinafter “Maraist & Lemmon ”). “Because a Louisiana appellate court in civil cases has the constitutional power to review facts, the appellate court, when there is a complete record, generally will review the record without according any deference to the trial court, whether judge or jury, and will render judgment on the merits based on the de novo review of the record, rather than remand the case for a new trial.” Id. The Louisiana Supreme Court recognized an exception to this general rule in Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707, 708 (La.1980). Explaining the exception, the Supreme Court stated the following:

This is not to say, and Gonzales [v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975) ] should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.

Ragas, 388 So.2d at 708.

Thereafter, the Louisiana Supreme Court, in a pair of per curiam decisions, called into doubt the continued validity of the exception to a de novo review it recognized in Ragas —Willis v. Letulle, 581 So.2d 1048 (La.Ct.App. 1st Cir.), vacated and remanded, 583 So.2d 484 (La.1991) ; and Gunn v. Amica Mut. Ins. Co., 600 So.2d 849 (La.Ct.App.3d Cir.), vacated and remanded, 604 So.2d 957 (La.1992). Citing this pair of per curiam decisions, a treatise states that “the appellate court almost always is required to decide the case on the record.” Maraist & Lemmon, § 14:15. In its more recent decisions, however, the Supreme Court has not only cited with approval, but also applied the exception it recognized in Ragas. Jones v. Black, 95–2530 (La.6/28/96), 676 So.2d 1067 ; Masters v. Courtesy Ford Co., 00–1330 (La.6/30/00), 765 So.2d 1055 ; Wegener v. Lafayette Ins. Co., 10–0810 (La.3/15/11), 60 So.3d 1220.

In Jones, the Supreme Court noted that “[a]fter taking the unusual step of sending for and reviewing the entire record in this case,” it was convinced the Ragas exception applied. Quoting Ragas, the Supreme Court held that this case is one in which “ ‘the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.’ ” Jones, 95–2530 at p. 1, 676 So.2d at 1067 (quoting Ragas, 388 So.2d at 708 ). The Supreme Court thus vacated the appellate court's decision and remanded the case for a new trial.²¹

21 See Salassi v. State, Dep't of Pub. Safety & Corr., Admin. Hearing Section, 96–0321, p. 4 (La.App. 1 Cir. 11/15/96), 684 So.2d 1014, 1016, n. 2 (noting that “[t]his court in Willis v. Letulle, 597 So.2d 456 (La.App. 1st Cir.1992), cast doubt on the continued viability of a Ragas remand for retrial where a first-hand view of the witnesses is necessary for a fair resolution of the matter. However, the Supreme Court in Jones reiterated its holding in Ragas and ordered a remand for that reason.”)

Citing Jones and Ragas, the Supreme Court in Masters reasoned that “[a]lthough the court of appeal correctly found the district court erred in excluding Randy Rainwater's statement, the court of appeal erred in conducting a de novo review of the record in this case, where a view of the witnesses is essential to a fair resolution of conflicting evidence.” Masters, 00–1330 at p. 1, 765 So.2d at 1055. The Supreme Court thus vacated the appellate court's decision and remanded for a new trial at which Mr. Rainwater's statement could be admitted.

In Wegener, the Supreme Court cited La. C.C.P. art. 2164 as authorizing an appellate court to remand a case to the trial court for proper consideration when the interest of justice so requires. 10–0810 at pp. 19–20, 60 So.3d at 1233–34.²² In that case, the Supreme Court held that a remand for a new trial, rather than a de novo review, was appropriate due to prejudicial jury instructions regarding whether the plaintiffs—the Wegeners—were entitled to damages and penalties under La. R.S. 22:1220. Citing the exception in Ragas, the Supreme Court concluded that the interest of justice was best served by remanding the case for a new trial. In reaching that result, the Supreme Court reasoned as follows:

22 La. C.C.P. art. 2164 provides as follows:
The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

After considering this standard, we conclude that under the specific facts and circumstances of this case, and the particular legal errors involved, a remand of the case for a new trial is dictated. The issues affected by the legal errors are damages and penalties under La. R.S. 22:1220, primary components of the Wegeners' case. Whether the Wegeners suffered mental distress as a result of Lafayette's adjustment of their insurance claim, and whether the Wegeners are entitled to penalties due to Lafayette's breach of its duties under this statute are both issues which are affected greatly by the credibility of the plaintiffs and the claims personnel from Lafayette. We find these issues necessarily require the fact finder to examine first-hand the witnesses' demeanor and testimony. We cannot, by examination of the cold record alone, properly determine the issues involved.

Wegener, 10–0810 at 20, 60 So.3d at 1234.²³

23 Below is a collection of appellate court cases in which the Ragas exception has been applied and the matter remanded for a new trial; in each of these cases, the Louisiana Supreme Court has denied writs:

• Abney v. Smith, 09–0794, p. 12 (La.App. 1 Cir. 2/8/10), 35 So.3d 279, 287, writ denied, 10–0547 (La.5/7/10), 34 So.3d 864 (reasoning that “[b]ecause a preponderance of the evidence cannot be determined fairly from the cold record due to the substantial conflict in testimony on the condition of the single stop sign situated in the right-of-way that buttressed the gas station, remand is proper in this case.”);

• Palumbo v. Shapiro, 11–0769, p. 12 (La.App. 4 Cir. 12/14/11), 81 So.3d 923, 930, writ denied, 12–0140 (La.3/23/12), 85 So.3d 93 (reasoning that “we cannot conduct a de novo review, but must instead remand the matter for a new trial because a view of the witnesses is essential to a fair resolution of the conflicting evidence. Specifically, the remaining defendants, especially Mr. Pigg and Mr. Bartels, hold to the position that they cannot be liable for malpractice because they never entered into an attorney-client relationship with Palumbo.”);

• Delo Reyes v. Liberty Mut. Fire Ins. Co., 08–0769, pp. 4–5 (La.App. 4 Cir. 2/18/09), 9 So.3d 890, 893, writ denied, 09–0898 (La.6/5/09), 9 So.3d 874 (reasoning that “[t]he plaintiffs complain of debilitating injuries, similar to injuries sustained in a previous automobile accident, while the defendants are contesting the issue of negligence as well as causation” and finding that “the allegations and defenses in the case sub judice are of a nature that necessitates the witnesses' credibility be taken into account to such a degree that rendering a just verdict on a cold record would not be possible.”);

Mladenoff v. Louisiana Med. Mut. Ins. Co., 13–477, p. 8 (La.App. 5 Cir. 3/26/14), 139 So.3d 8, 13, writ denied, 14–0862 (La.6/20/14), 141 So.3d 813 (finding that “this case is one in which a view of the witnesses is essential to a fair resolution of the evidence and issues.”);

Hoffman v. Paracelsus Elmwood Med. Ctr., Inc., 03–0659 (La.App. 4 Cir. 9/1/04, 16–17); 881 So.2d 796, 807, writs denied, 04–2683, 04–2651 (La.1/7/05), 891 So.2d 690, 694 (finding that “the weight of the evidence is so nearly equal that a firsthand view of the witnesses is essential to a fair resolution of the issues.”);

Franklin v. Franklin, 05–1814, pp. 8–9 (La.App. 1 Cir. 12/22/05), 928 So.2d 90, 94, writ denied, 06–0206 (La.2/17/06), 924 So.2d 1021 (reasoning that “[t]he trial court's firsthand view of the witnesses is necessary for a fair determination of credibility, especially in this custody case with equivocal allegations of child abuse. With such substantial conflicts and the need for numerous credibility determinations, a preponderance of the evidence cannot be fairly determined from this cold record. Therefore, we are convinced that the interests of justice will be best served by remanding this case for a new trial.”); and

Diez v. Schwegmann Giant Supermarkets, Inc., 94–1089, pp. 6–7 (La.App. 1 Cir. 6/23/95), 657 So.2d 1066, 1070–71 ), writ denied, 95–1883 (La.11/17/95), 663 So.2d 720 (reasoning that a remand was appropriate in slip-and-fall case in which credibility of the witnesses was pivotal given the testimony of the defendant's employees and others involved in assisting after the plaintiff's fall occurred was the only available proof and that the court would not “attempt to make credibility determinations on the cold record and thus deprive plaintiffs of their right to present their case before a trier of fact.”).

See also Gorman v. Miller, 12–0412, pp. 8–9 (La.App. 1 Cir. 11/13/13), 136 So.3d 834, 841, writ denied, 13–2909 (La.3/21/14), 135 So.3d 620 (remanding for new trial and noting that “in limited circumstances, when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court should remand the case to the trial court under the authority of Code of Civil Procedure article 2164, rather than undertaking de novo review.”).

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In sum, the current state of the jurisprudence is as follows:

In certain cases, a preponderance of the evidence cannot be determined fairly from a cold record, such as when there is substantial testimonial conflict that can only be resolved depending upon the fact-finder's view of the witnesses' credibility. In such cases the appellate court may conclude that the appropriate remedy is to remand for a new trial.

Oddo v. Asbestos Corp. Ltd., 14–0004, p. 17 (La.App. 4 Cir. 8/20/15), 173 So.3d 1192, 1205, writ denied, 15–1712 (La.11/6/15), 180 So.3d 308 (citing Palumbo, 11–0769 at p. 12, 81 So.3d at 930 ; Diez, 94–1089 at pp. 6–7, 657 So.2d at 1070–71 ). “Whether a particular case should be remanded is a matter which is vested largely within the court's discretion and depends upon the circumstances of the case.” Wegener, 10–0810 at p. 20, 60 So.3d at 1234 (citing Alex v. Rayne Concrete Service, 05–1457 (La.1/26/07), 951 So.2d 138, 155 ).

Applying the above principles to the circumstance of this case, I find a remand for a new trial is required for two interrelated reasons. First, neither the trial court nor the jury determined the issue of legal cause. Second, as demonstrated above, the issue of legal cause in this case is an intensely fact-bound, pivotal issue. Accordingly, I would reverse the trial court's judgment and remand for a new trial.