Opinion
2013 CA 0082
2013-09-13
WILLIE THOMAS v. THE CHARTER OAK FIRE INSURANCE COMPANY, ST. PAUL FIRE AND MARINE INSURANCE COMPANY, TRAVELERS CASUALTY AND SURETY COMPANY, CLARK CONSTRUCTION CORPORATION, INC. OF MISSISSIPPI, ON-GRADE CONSTRUCTION, LLC, KEVIN HATCHER, AND JAMES LIGHTFOOT
Christopher M. Rodriguez Michael I. Rodriguez New Orleans, LA Attorneys for Appellants Plaintiffs - Willie Thomas and Rosie Thomas Daniel R. Atkinson, Jr. Baton Rouge, LA Attorney for Appellees Defendants - The Charter Oak Fire Insurance Co., St. Paul Fire & Marine Ins. Co., Travelers Casualty & Surety Company, Clark Construction Corp. of Mississippi
NOT DESIGNATED FOR PUBLICATION
Appealed from the
23rd Judicial District Court
In and for the Parish of Ascension, Louisiana
Trial Court Number 85,542
Honorable Thomas J. Kliebert, Jr., Judge
Christopher M. Rodriguez
Michael I. Rodriguez
New Orleans, LA
Attorneys for Appellants
Plaintiffs - Willie Thomas and
Rosie Thomas
Daniel R. Atkinson, Jr.
Baton Rouge, LA
Attorney for Appellees
Defendants - The Charter Oak Fire
Insurance Co., St. Paul Fire & Marine
Ins. Co., Travelers Casualty & Surety
Company, Clark Construction Corp.
of Mississippi
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WELCH, J.
Plaintiff, Rosie Thomas, appeals a judgment rendered in favor of defendants, Clark Construction, Inc. of Mississippi (Clark) and its insurers, The Charter Oak Fire Insurance Company, St. Paul Fire & Marine Insurance Company, and Travelers Casualty & Surety Company, dismissing this personal injury lawsuit. We affirm.
BACKGROUND
On March 7, 2007, Willie Thomas filed this lawsuit alleging that on March 9, 2006, while attempting to read a gas meter at a strip mall construction site in Donaldsonville, Louisiana, he was hit in the head by a piece of construction material that blew off of the roof of the building under construction. Mr. Thomas alleged that Clark, which was in control of the construction project, failed to maintain a safe construction site because Clark did not: (1) properly stack and secure construction material on top of the roof of the structure being constructed; (2) inspect and discover that the construction material was not properly secured; or (3) warn him of the dangerous condition of the construction site.
All of the defendants except Clark and its insurers were dismissed from the litigation prior to trial. Also before trial, Mr. Thomas died, and his wife, Rosie, was substituted as the proper party plaintiff. Plaintiff claimed that her husband had been struck in the forehead by an eight-by-four eighteen pound foam insulation board that blew off the roof of the building Clark was constructing. She further asserted that as a result of the accident, Mr. Thomas suffered a traumatic brain injury and injuries to his cervical spine requiring two major surgeries.
A three-day jury trial was held. Thereafter, the jury returned a unanimous verdict in which it answered "no" to the first question on the jury verdict form, finding that Mr. Thomas had not been struck in the head by a piece of construction material belonging to Clark on March 9, 2006. The trial court entered judgment in accordance with the jury verdict on April 2, 2012, dismissing this lawsuit against Clark and its insurers.
Plaintiff appealed, insisting that the jury committed manifest error in its conclusion that the alleged incident did not occur. She also contends that this court must reverse the jury's verdict for the following reasons: the defendants made prejudicial and misleading statements during closing arguments that inflamed and prejudiced the jury; the defendants misled the jury into believing that Mr. Thomas' supervisor had engaged in misconduct that could be transferred to Mr. Thomas and therefore foreclose his recovery; the sole jury interrogatory answered by the jury was vague and did not ask whether the jury found by a preponderance of the evidence that Mr. Thomas more probably than not was struck in the head by the construction material; and the trial judge committed reversible error by telling a potential juror during voir dire that the plaintiff's burden of proof is "50%, plus a little bit" and then instructing the jury in that same fashion at the end of the trial, without explaining what constitutes "a little bit."
The record reflects that plaintiff did not object to the allegedly vague jury instruction when given the opportunity by the trial court, did not object to the trial court's instruction regarding the burden of proof, and did not object to the defense's allegedly inflammatory closing argument statements. By failing to object, plaintiff failed to properly preserve these issues for review by this court. See Shaw Group, Inc. v. McInnis, 2012-0012, m.7 (La. App. 1st Cir. 11/2/12) (unpublished), writ denied, 2013-0135 (La. 3/1/13), 108 So.3d 1178; Chauvin v. Chauvin, 2010-1055 (La. App. 1st Cir. 10/29/10), 49 So.3d 565, 571. Moreover, even if we were to consider these issues in this appeal, it is evident that plaintiff has not demonstrated how the alleged errors in any way prejudiced her case, as the record abundantly supports the jury's determination that she failed to prove by a preponderance of the evidence that her husband in fact was struck in the head by a piece of construction material on the day in question. Furthermore, we find no merit to plaintiff's allegation that defendants violated the "spirit" of the trial court's ruling that prohibited the defense using the words "trespassing" or "stealing" when explaining why Mr. Thomas' supervisor was at the site on the day in question.
Plaintiff contends that the record establishes that the jury's conclusion that Mr. Thomas was not struck in the head by an insulation board was not reasonable and lacked evidentiary support. She also asserts that the jury erred in giving more weight to the testimony of Mr. Joseph rather than to the testimony of her witnesses.
The jury's factual conclusion that Mr, Thomas was not struck in the head by a piece of construction material is governed by the manifest error standard of review. Under that standard of review, this court may not set aside a trial court's factual finding unless we determine that there is no reasonable factual basis for the finding and the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record as a whole, this court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
We have thoroughly reviewed the testimony in the record and it is obvious that the jury made a credibility determination in concluding that the alleged incident simply did not occur. When, as here, a factual finding is based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given great deference by the appellate court. Id. The jury's factual conclusion is supported by the record and is not manifestly erroneous. We hold that the jury was not clearly wrong in finding that plaintiff failed to establish by a preponderance of the evidence that the incident complained of did occur.
Accordingly, we affirm the judgment and issue this memorandum opinion in compliance with Uniform Rules-Courts of Appeal Rule 2-16.1.B. All costs of this appeal are assessed to plaintiff, Rosie Thomas.
AFFIRMED.