Opinion
2018 CA 1379
05-31-2019
Charmane MANCHESTER v. ANPAC LOUISIANA INSURANCE COMPANY, Mr. Michael Watson & Mrs. Heather Dawn Van Watson
Russell W. Beall, William W. Thies, Kenneth A. Doggett, Jr., Jacob H. Thomas, G. Aaron Humphreys, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Charmane Manchester Keith L. Richardson, Sean Avocato, Baton Rouge, LA, Counsel for Defendants/Appellees, ANPAC Louisiana Insurance Company, Michael Watson, and Heather Dawn Van Watson
Russell W. Beall, William W. Thies, Kenneth A. Doggett, Jr., Jacob H. Thomas, G. Aaron Humphreys, Baton Rouge, LA, Counsel for Plaintiff/Appellant, Charmane Manchester
Keith L. Richardson, Sean Avocato, Baton Rouge, LA, Counsel for Defendants/Appellees, ANPAC Louisiana Insurance Company, Michael Watson, and Heather Dawn Van Watson
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
WHIPPLE, C.J.
This matter is before us on appeal by plaintiff, Charmane Manchester, from a judgment of the district court dismissing her claims in accordance with a verdict rendered by the jury after a jury trial. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY
On June 17, 2013, plaintiff filed suit for damages against Michael Watson, Heather Dawn Van Watson, and ANPAC Louisiana Insurance Company, the Watsons' homeowners insurer. In her petition, plaintiff contended that on July 7, 2012, she was at a garage sale on premises owned by the Watsons when, suddenly and without warning, a wooden post supporting the carport fell and struck her, causing her injuries. Plaintiff further averred that her damages were caused by the fault of the Watsons in, among other things, maintaining an unreasonably dangerous condition, failing to warn their guests and patrons of the dangerous condition, failing to properly inspect the wooden posts attached to the carport, having the wooden posts of the carport displayed in an area where pedestrian traffic is reasonably anticipated, and choosing to conduct a garage sale and inviting persons to buy goods in an area where it was not safe to do so.
The matter proceeded to a jury trial on November 30 and December 1, 2016. Following trial, the jury was presented with several interrogatories regarding the case on the jury verdict form and found, in accordance with the parties' stipulation that the Watsons were the owners and custodians of the post at issue. However, in response to the question of whether the jury found "by a preponderance of the evidence that the post at issue was defective and created an unreasonable risk of harm to the plaintiff at the time of the accident," the jury answered "no." At that point, the verdict form was signed and returned back to the district court.
The district court signed a judgment dated March 21, 2017 , outlining the findings of the jury. Following the subsequent denial of plaintiff's motion for judgment notwithstanding the verdict, plaintiff appealed the March 21, 2017 judgment.
Although the judgment is dated March 21, 2016, this was clearly a typographical error, in that the trial took place after that date, i.e., in November and December of 2016.
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Upon review of that judgment, this court determined that we lacked subject matter jurisdiction as the judgment lacked sufficient decretal language. Accordingly, the appeal was dismissed. See Manchester v. ANPAC Louisiana Insurance Company, 2017-1660 (La. App. 1st Cir. 6/4/18), 2018 WL 2473541 (unpublished).
Thereafter, a new judgment was presented to the district court and executed on July 2, 2018. This appeal followed.
APPLICABLE LAW
Louisiana Civil Code article 2317.1 provides in pertinent part,
The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.
In order to recover under this Article, a plaintiff must prove: (1) the thing which caused the damage was in the custody of the defendant; (2) the thing was defective because it had a condition that created an unreasonable risk of harm to the plaintiff; and (3) the defective condition of the thing caused the plaintiff's injuries. Batiste v. Bevan, 634 So.2d 893, 896 (La. App. 1st Cir. 1993).
A defect is a condition that creates an unreasonable risk of harm to persons on the premises. See Tillman v. Johnson, 94-0480 (La. App. 1st Cir. 3/3/95), 652 So.2d 605, 609. However, not every minor imperfection or irregularity will give rise to liability. The defect must be of such a nature as to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Moory v. Allstate Ins. Co., 2004-0319 (La. App. 1st Cir. 2/11/05), 906 So.2d 474, 480-81, writ denied, 2005-0668 (La. 4/29/05), 901 So.2d 1076.
The manifest error standard of review applies to the jury's finding of whether a defect creates an unreasonable risk of harm. See Williams v. City of Baton Rouge, 2002-0682 (La. App. 1st Cir. 3/28/03), 844 So.2d 360, 366 ; Reed v. Wal-Mart Stores. Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 365. There is no fixed rule for determining whether a thing presents an unreasonable risk of harm. In evaluating whether a defect creates an unreasonable risk of harm, a risk-utility balancing test must be employed. The trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. This balancing test is not a simple rule of law which can be applied mechanically to the facts of the case. Because of the plethora of factual questions and other considerations involved, the issue necessarily must be resolved on a case-by-case basis. See Higginbotham v. Community Christian Academy, Inc., 2003-0462 (La. App. 1st Cir. 12/31/03), 868 So.2d 765, 769-770.
When reviewing a jury's factual findings, the issue to be resolved by the appellate court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 806, citing Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Adams, 983 So.2d at 806, citing Stobart, 617 So.2d at 882-83. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Adams, 983 So.2d at 806, citing Stobart, 617 So.2d at 883.
Further, where the findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the jury's findings of fact. Adams, 983 So.2d at 806-07, citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Indeed, where the factfinder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Adams, 983 So.2d at 807, citing Rosell, 549 So.2d at 845. This rule applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Adams, 983 So.2d at 807, citing Lasyone v. Kansas City Southern Railroad, 2000-2628 (La. 4/3/01), 786 So.2d 682, 693.
DISCUSSION
The jury answered one interrogatory in rendering its verdict, whether the plaintiff had proven by a preponderance of the evidence that the post at issue was defective and created an unreasonable risk of harm to her at the time of the accident. Therefore, the issue before us is whether the jury's finding in the negative was manifestly erroneous.
The evidence presented to the jury relevant to this finding consisted of several photographs of the post and the premises after the post fell, as well as testimony by several witnesses, including Juan Manchester, Sidney Chaisson, the plaintiff, Tammy Lamana, Brittany Lamana, and the defendants, Heather and Michael Watson.
Juan Manchester testified that upon arriving at the garage sale, he and his then wife, the plaintiff, separated to look at different goods for sale. He did not see the post fall or know that the post had fallen until he heard another patron, Tammy Lamana, exclaim that she had been hit by the post. Mr. Manchester testified that he then looked for his wife, whom he found stooping down holding her head. Mr. Manchester stated that upon his reuniting with his wife, the plaintiff told him she had been hit by the post. Mr. Manchester described the bottom of the post as rotted and brittle.
Sidney Chaisson, plaintiff's expert in home inspection, testified that he had never personally seen the post in question, but had examined photographs taken of the subject post, and visited the property where the incident had occurred in order to determine the most likely cause of the post falling. Mr. Chaisson described what he saw as "rot here and rot there" in the photographs taken of the premises and fallen post, and testified that "[a]s a home inspector that would have been written up to say that was an unsafe situation." He clarified that statement by saying, "[t]hat doesn't mean that [the post] would fall or not fall, it would have just been an unsafe maintenance." Mr. Chaisson went on to describe the post, from what he observed in the photographs, and further elaborated that the post was "toenailed at the top", and lacked a base plate at the bottom of the post. Mr. Chaisson then informed the jury that there was no law or code regulating posts of this nature for safety, only that they be "tied up here, but nothing on the bottom," essentially finding that the post at issue was placed according to building standards. Mr. Chaisson further testified that the photographs showed that the post in question had six to twelve inches of rot on the bottom. He opined that it was quite obvious the subject post was deteriorating due to prolonged water exposure. Mr. Chaisson then described what happens to a wood post if exposed to water over time:
The post is going down. The structure of the house is pushing the post down. So gradually I am decomposing, crushing the bottom of the post. So the post that was holding this up now is being held up here, but it is falling so it is going to go down. When that post literally gets to a point where it could fall enough where there is enough separation at the top it would go over. I am not - I don't know anything about anything other than that situation. I can't tell you other than if you let it rot far enough it will fall over.
Mr. Chaisson looked at the photograph of the subject post laying at the garage sale and described how water could be picked up by the post through a seam in the concrete. He stated "It - here is the original part right here that is completely collapsed. It fell. You can see by the gray right here it probably went down a little bit, allowed the top to go over. Now, I cannot attest whether someone hit the post or nothing like that. All I am saying is that this right here would allow the post to essentially come down enough in the right situation where you have a gap it could go over." Mr. Chaisson stated that installing a base plate at the foot of the post was a good building practice as it could alleviate the water exposure/retention issues, but conceded that such an installation was not required by law or building codes. After again looking at the photographs of the post in question again, Mr. Chaisson testified that he would deem the post a complete failure and opined that it was probably quite damp to the touch and soft, not brittle. Mr. Chaisson's testimony concluded by agreeing with plaintiff's counsel that although neither the law nor any building code required for a property owner to install a base plate under a wood post to avoid prolonged water exposure, such a practice was a good common sense rule which could prevent the post from falling into a state of disrepair.
Plaintiff testified that she was at the garage sale, maneuvering around two ladies standing near a jewelry section when something hard hit her from behind. Plaintiff testified that she was unsure of what had hit her, only that it was very hard and made impact with the left side of her head, back and shoulder area. Plaintiff stated that the impact caused her to buckle under the post and fall to her right knee; at the same time, she put her hands beneath her to catch herself from falling all the way to the ground. Plaintiff testified that she was able to stand back up on her own and moved back towards the right side of the tables, to where she was standing prior to the accident. Plaintiff testified that at the same time she was rising and holding her head, she heard Tammy Lamana yelling about being hit by the post. Plaintiff further stated that she only learned that she had been hit by the post when Mr. Manchester informed her of this fact. Plaintiff testified that Tammy Lamana also told others at the garage sale, including Mr. Manchester, that plaintiff had also been hit by the post. Plaintiff further stated that she was concerned about being hit in the head by the post because she had been born with a "brain problem." Plaintiff further stated that although she had been involved in several previous accidents which she could not remember, she remembered the details of this incident quite vividly. Plaintiff testified that EMS was called, and she was checked out by a technician; she had no cuts, bleeding, swelling, welts or any signs of trauma, but stated she complained of ringing in her head. Although she was concerned of the trauma to her head because of her "brain problem," she refused immediate medical attention, opting instead to go to an aftercare clinic with her husband.
Plaintiff testified that following the incident, she suffered from headaches, jaw pain, and soreness in her neck, but that all of these symptoms eventually subsided. She stated that the one complaint that gave her the most trouble and which she had to treat the longest was the injury to her right shoulder. Plaintiff testified that the right shoulder pain was consistent with the injury she suffered when the post hit her because she used her right arm to brace herself from falling to the ground. However, defense counsel pointed out that this version of these events differed from her previous testimony, where she had stated that she used her right arm to catch herself on a nearby brick wall that was not in the vicinity of the fallen post.
Defendant, Michael Watson, testified that he was not at home when the incident occurred, but returned shortly thereafter, finding ambulances and fire trucks at his residence. He further testified that when he got to the driveway, he saw both plaintiff and Tammy Lamana as well as the post on the ground. He described the post as wet and rotten looking underneath.
Co-defendant, Heather Watson, testified that she was present at the time of the incident. She explained the position of all of the garage sale patrons near her, including plaintiff and Tammy Lamana, and identified Ms. Lamana as the lady actually hit by the post. She explained that Ms. Lamana was in front of the cash table when the post fell on her, and noted that the post did not fall on or near the jewelry table where plaintiff was stationed. Ms. Watson clarified that it was only after she had tended to Tammy Lamana, by getting her a bag of ice and sitting her down, that she realized plaintiff was also claiming she had been hit by the post. Specifically, she stated that when the post fell, only Tammy Lamana made any indication that she had been hit, by grabbing her face, and exclaiming that the post had fallen on her. However, plaintiff remained silent. Ms. Watson reiterated that plaintiff was not in the area where the post fell.
Tammy Lamana testified that she attended the garage sale with her two daughters, and had been at the sale for about twenty minutes before the carport post fell and hit her. She testified that when she was hit by the post, she was standing in front of the cash table with her daughter Brittany on her right side. Ms. Lamana further testified that at that time, Mr. Manchester was leaning against the post, and plaintiff was looking at the jewelry, further to the other side of her daughter, Brittany. Ms. Lamana testified that when she was hit, she did not really understand what had happened, but felt like her teeth were going to fall out of her mouth; she also felt dizzy, nauseated, and wanted to sit down, although she remained on her feet after the initial impact. Ms. Lamana stated that the post did not hit her daughter Brittany who was standing directly next to her, but instead, fell between them. According to Ms. Lamana, plaintiff never moved from the spot where she had been standing in front of the jewelry section, which was nowhere near the post, until after the post had fallen. She testified that when EMS arrived, they took her vitals and suggested taking her to the emergency room; however, Ms. Lamana's husband had arrived at the sale by that time, and he took her instead. She was later diagnosed with having a concussion. Ms. Lamana testified that at the time she was hit, plaintiff was not in her direct line of vision. She conceded that she initially did tell other people at the sale that plaintiff had been hit because she saw plaintiff holding her head. Ms. Lamana stated that it was not until her daughter suggested that plaintiff could not have been hit by the post because of where she was standing that Ms. Lamana began to second guess whether plaintiff had actually been hit. Ms. Lamana testified that upon reflection, she believed without a shadow of a doubt that plaintiff could not have been hit by the post where she was standing.
Last to testify was Brittany Lamana, Tammy Lamana's daughter. She testified that she took the photographs used during the trial at the garage sale right after the post fell. She testified that right before the post fell, she was standing next to her mother, Tammy Lamana, by the cash table waiting to check, while plaintiff was standing further away. According to Brittany, she was in front of the table displaying fingernail polish, with her mother directly to her left. Brittany testified that she did not see the post fall, or hit her mother, or know what happened until her mother said "oh my God". She recalled the post that hit her mother, who was standing right next to her, did not hit her at all, and that the only other person in the vicinity was plaintiff, who had not moved from where she was standing in front of the jewelry section. She testified that Mr. Manchester standing by the post that fell, appearing to be propped up against it, but stated she does not believe that plaintiff was hit by the post.
Considering this evidence, we are unable to say that the jury was manifestly erroneous when it found that plaintiff failed to prove by a preponderance of the evidence that the post at issue was defective and created an unreasonable risk of harm to her at the time of the incident. Although most of the evidence demonstrates that the wooden post suffered from rot, the fact that it was in a condition of disrepair does not independently establish that the post was defective or created an unreasonable risk of harm to plaintiff. We note that plaintiff's own expert gave conflicting testimony, initially categorizing the post as a complete failure, but then clarifying that he could not say that the post would fall on its own in the condition it was in. Moreover, he conceded that the good building practice he alluded to was not legally required by law or any Code and that the placement of the post did not violate any laws or building codes. The bulk of the expert's testimony tended towards how wooden structures rot over time when exposed to water, and how the Watson's property could accumulate moisture, which also did not serve to prove any unreasonable risk of harm posed by the post at issue to plaintiff. The remainder of the testimony and evidence completely called into question whether plaintiff was even hit by the post. We find that with such a fact-intensive trial and issue, it was not unreasonable for the jury to make its credibility determinations regarding the witnesses' testimony and to find that plaintiff did not prove by a preponderance of the evidence that the post at issue was defective and created an unreasonable risk of harm to her at the time of the incident. Accordingly, the jury's verdict was not manifestly erroneous and must be affirmed.
CONCLUSION
For the above and foregoing reasons, the July 2, 2018 judgment of the district court rendered in favor of defendants, ANPAC Louisiana Insurance Company, Mr. Michael Watson and Mrs. Heather Dawn Van Watson and against plaintiff, Charmane Manchester, dismissing plaintiff's claims in accordance with the jury's verdict, is hereby affirmed. Costs of this appeal are assessed against plaintiff/appellant, Charmane Manchester.
AFFIRMED.
McClendon, J. concurs with the result reached by the majority.