Lauren Self, Individually and On Behalf of Her Minor Son Trent Ledet VS Chick-Fil-A, Inc. and Shannon Lewis
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1070 LAUREN SELF INDIVIDUALLY AND ON BEHALF OF HER MINOR SON TRENT LEDET VERSUS CHICK FILA INC AND SHANNON LEWIS DA TE OF JUDGMENT DEC 2 2 2010 ON APPEAL FROM THE THIRTY SECOND JUDICIAL DISTRICT COURT NUMBER 149 PARISH OF TERREBONNE 383 STATE OF LOUISIANA HONORABLE TIMOTHY C ELLENDER JUDGE Carolyn A McNabb Houma Louisiana Counsel for Plaintiff lant Appel Lauren Self Luis A Leitzelar DefendantsAppellees Christopher D Martin Baton Rouge Louisiana ChickFilA Inc Shannon Lewis and American Home Assurance Company BEFORE KUHN PETTIGREW AND KLINE JJ Disposition AFFIRMED he T Honorable William F Kline Jr is serving pro lenmore by special appointment oi the Louisiana Supreme Court Kuhn J This case involves an injury to a child that occurred on the premises of an indoor restaurant playroom On appeal we address the sole issue of whether the trial court committed legal error by failing to instruct the jury regarding the doctrine of res ipsu loquitui We conclude that because reasonable minds could not conclude based on the facts of this case that all of the criteria for using the doctrine were satisfied the trial court acted properly in not instructing the jury regarding this doctrine Accordingly we affirm the trial court judgment that s dismissed plaintiff suit with prejudice s I PROCEDURAL AND FACTUAL BACKGROUND On the morning of March 1 2006 plaintiff appellant Lauren Self and her four and onehalf year old son Trent Ledet arrived at the ChickFil A Inc Chick Fil A restaurant located on Martin Luther King Boulevard in Houma Louisiana The restaurant which included a glassenclosed playroom was newly constructed and had opened for business less than two weeks earlier Self proceeded to the counter to place her breakfast order and Trent went to the playroom Self motioned for Trent to return to the dining area and he did They sat at a table that was located next to the playroom Trent took a few bites of his food and ran back into the playroom Self remained at the table by the glass wall while Trent was in the playroom According to Self she was able to see inside the whole playroom from her seat outside the playroom She again motioned for Trent to return to the table the accident happened Within seconds as he came back towards the table She could see Trent diagonally through the glass and she related that as he went towards the playroom door lie fell in front of the 2 door Self heard him scream and she ran inside the playroom to attend to Trent She discovered that his nose was cut open Medical records reveal that Trent sustained a threeinch laceration across the bridge and left side of his nose A ChickFilA employee called for 911 emergency services and an ambulance arrived to transport Trent to a local hospital Ambulance records reveal that Trent stated that he hit his nose on the door of the playroom Trent was seen by a physician at the hospital and his injury was sutured When his nose became swollen and oozing the next day Self brought him to Dr O Engeron Neil a plastic surgeon who removed a blood clot and restitched the cut Although the injury healed well a scar remained Self filed suit against defendants ChickFilA Shannon Lewis dba Chick Fil A Houma FSU Lewis who operates the restaurant in question where Trent was injured and the alleged liability insurer of ChickFil A and Lewis American Home Assurance Company American Self sued on her own behalf and on s Trent behalf seeking to recover damages medical expenses and her own lost wages At trial plaintiff offered the testimony of Mitchell Wood a commercial and residential builder who was accepted by the court as an expert in the fields of architecture construction safety and commercial inspection Eighteen months after Trent accident Wood performed a site inspection of the ChickFil A s restaurant playroom that focused on the door and he concluded there was no item on the site that had apparently caused the severe laceration He testified that due 2 Plaintiff also named other defendants who were dismissed from the suit prior to trial and are not relevant to the issues addressed on appeal 3 to the passage of time the cause of the accident was conjecture Wood testified the glass door to the playroom was encased by metal and he explained that Chick Fil A had used rounded handles on the door Although Wood could not find any damaged or sharp edges at the accident site he speculated that a sharp edge had caused Trent injury and he further stated that one of the door hinges or a small s screw drilled into the door threshold edge might have caused the injury Wood s also described scratches in the door frame area as small defects in the storefront material He further speculated that a small piece of glass or a screw caused the accident and was later vacuumed up On cross examination however Wood testified there were some ninety 90 degree edges in the door frame of the playroom He further admitted that he found no code violations on the premises and overall it appeared to be a safe environment Plaintiff also offered the testimony of Dr Engeron who testified that he performed surgery on Trent which consisted of cleaning the wound removing a blood clot trimming the edges of the skin and resuturing the cut with about thirty stitches On his examination of Trent injury he testified that he did not see any s indication of blunt force or bruising He explained that photographs of Trent s injury revealed that it was more of a slicing than a smashing injury In his opinion the wound was caused by something sharp or a right angle He related that the injury had to have been caused by something with some sort of an edge to it either a corner of a door or a corner of something or a piece of metal Dr Engeron testified that although he did not visit the accident site his testimony was based on his review of pictures of the accident site 4 He described the edge of the door as a right angle that was kind of sharp He opined that the edge of the door could have caught Trent as he went down Self also testified that she returned to the restaurant on the afternoon of the accident to request that Chick Fil A fill out an injury report to inspect the general area where Trent was hurt and to take pictures of this area She discovered no blood in this area but she testified that the metal on the edges of the door to the playroom was very sharp Self also testified that she could not say what Trent hit what actually caused the incident or what caused Trent to trip She related that Trent was not carrying anything when he fell Lewis the operator of the Chick Fil A restaurant testified that prior to the grand opening he had walked through the restaurant including the playroom area many times Although he did not personally ask anyone else to specifically inspect the area where the accident happened he explained that based on his inspection he would have recognized anything unsafe on the premises He related that he never saw anything defective regarding the playroom door and none of his employees had reported anything wrong with this area He explained that one of his managers walked through the store daily to make sure it was clean and that it was a proper setting for opening the store After Trent injury Lewis reported the incident to his insurer but he did s not further conduct an investigation of the area in question or attempt to determine the cause of the injury He recounted that there had been no other incidents involving an injury on the playground either before or after Trent injury and he s stated he had no knowledge prior to Trent injury of any defective condition on s the premises He also testified that no work had been performed in the playroom 5 door area since the store opened he explained that as of the time of trial the door area looked precisely as it did on the day of the incident Geneva Diggs a ChickFil A patron testified that she was having breakfast at the restaurant on the morning of March 1 2006 when the incident occurred Diggs recounted that when she looked up towards the playroom Trent was pulling up and he had fallen but she did not see the actual event that caused the injury She witnessed blood corning from Trent nose and she saw him running s to his mother who she recalled was on the phone when the accident happened Diggs never examined the door she did not see anything unreasonably dangerous or out of the ordinary and she did not see anything that would have caused Trent to trip Raymond Parrish a ChickFil A employee who had overseen the construction of the restaurant in question testified that he had inspected and regularly reviewed the site which included the playroom door area as the restaurant was built He also explained that another employee Davie Wide also inspected the premises as they were built so that together they had performed doublecheck inspections Parrish stated that the inspections of the playground area revealed that it was built according to the plans and specifications and they found no defects Parrish testified that hinge protectors had been used over the door hinges to protect against children fingers getting stuck in the door and a s strip had been installed along the bottom of the door to protect against children s toes getting caught He further explained that the door and window surrounds in the restaurant were made out of extruded aluminum with the screws held behind the glass in gaskets He described the design as having no sharp edges T Although he detected some scratches on the storefront or door frame area he related that none were significant enough to cut anyone He explained that if there had been a gouge in the storefront material as of the day of Trent injury it would s have remained visible as of the time of trial Erica Taylor a ChickFil A employee was working behind the counter when the incident occurred She testified that the manager called 911 at the s mother request Although Taylor did not witness how Trent was injured she and the ambulance driver inspected the door and rubbed it in search of sharp objects but none were found She testified that neither she nor the ambulance driver found any blood in this vicinity either Taylor further testified that the ChickFil A employees had a procedure whereby they checked the restaurant every morning to make sure everything was okay prior to opening Taylor who remained working at the restaurant as of the time of trial also testified that no work had been performed on the playroom door area since the restaurant had opened Jason Williams another ChickFil A employee who had worked at the restaurant since it opened confirmed that no work had been done to alter the playroom storefront area since the incident had occurred Before the case was submitted to the jury plaintiff requested a jury instruction on the doctrine of res ipsa loquitur which the trial court rejected s Plaintiff counsel objected to the court exclusion of the requested charge After s a threeday trial the jury returned a verdict in favor of defendants finding that neither Lewis nor ChickFil A was at fault with respect to the subject incident In accordance with the jury verdict the trial court signed a September 8 2009 judgment in favor of ChickFilA Lewis and American that dismissed Self s 7 claims with prejudice Self has appealed urging that t doctrine of r ipso he es loquitur was tailormade for the evidentiary circumstances surrounding Trent s injury and the trial court was clearly wrong in holding otherwise Self further contends that the trial court refusal to instruct the jury regarding this doctrine s constituted legal error that impeded its fact finding process I1 ANALYSIS Louisiana Civil Code articles 2317 1 and 2322 address an owner or s custodian liability for defective things and buildings Article 2317 provides 1 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 Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case Article 2322 addresses the circumstances in which an owner of a building is answerable for damages as follows The owner of a building is answerable for the damage occasioned by its ruin when this is caused by neglect to repair it or when it is the result of a vice or defect in its original construction However he is answerable for damages only upon a showing that he knew or in the exercise of reasonable care should have known of the 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 Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case Louisiana Revised Statutes 9 addresses a plaintiff burden of proof 6 2800 s in a negligence claim brought against a merchant as set forth below in pertinent part A A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles passageways and floors in a reasonably safe condition This duty includes a reasonable effort to 8 keep the premises free of any hazardous conditions which reasonably might give rise to damage B In a negligence claim brought against a merchant by a person lawfully on the merchant premises for damages as a result of s an injury death or loss sustained because of a fall due to a condition existing in or on a merchant premises the claimant shall have the s burden of proving in addition to all other elements of his cause of action all of the following 1 The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable 2 The merchant either created or had actual or constructive notice of the condition which caused the damage prior to the occurrence In 3 The merchant failed to exercise reasonable care determining reasonable care the absence of a written or verbal uniform cleanup or safety procedure is insufficient alone to prove failure to exercise reasonable care D Nothing herein shall affect any liability which a merchant may have under Civil Code Arts 660 667 669 2317 2322 or 2695 At trial Self sought a jury instruction on the doctrine of res ipsa loquitur which permits the inference of negligence from the surrounding circumstances Broussard v Voorhies 06 2306 p 6 La App 1 st Cir 9 970 So 1038 07 19 2d 1043 writ denied 07 2052 La 12 970 So 535 Res ipsa loquitur is 07 14 2d not a substantive legal tenet but rather an evidentiary doctrine under which a tort claim may be established by circumstantial evidence Id In Linnear v CenterPoint Eneergy Entex Energy 06 3030 L Reliant a 07 5 9 966 So 36 the supreme court addressed the doctrine of res ipsa 2d loquitur Therein a plaintiff homeowner sustained an injury that resulted when she allegedly stepped into a sinkhole next to her driveway as she was placing 9 items in the backseat of her car Linnear 063030 at pp 1 2 966 So at 38 39 2d Eleven days before the accident the defendant company had been dispatched to investigate a gas leak at the plaintiffs residence After locating the leak and turning off the gas the defendant installed a temporary line to maintain service and returned a few days later to install a new gas line To perform that work the defendant had dug a trench parallel to the driveway and about two to three feet away from it The accident occurred in the general area where the trench was dug when Mrs Linnear stepped backward from the open rear door of her car According to Mrs Linnear testimony her foot sank into a sinkhole Both s Mr and Mrs Linnear alleged that defendant had negligently filled the trench and failed to resod the area resulting in a sinkhole that caused her to fall Mrs Linnear testified that the area where the accident occurred was wet but it was not muddy and it appeared stable Photographs of the accident scene taken by Mr Linnear showed a muddy area with an indentation of a footprint in the mud Id 06 3030 at p 2 966 So at 39 Mr Linnear testified that it had rained on the 2d morning of the accident and again between the time of the accident and when he took the photograph Workers for the defendant testified regarding the work that had been performed at the Linnear residence which testimony described the back filling of the trench and the process used to tamp down and harden the dirt The defendant denied the presence of a sink hole and argued that based on the photographs presented by plaintiffs Mrs Linnear simply stepped into an open and obvious muddy area and slipped Id 063030 at pp 3 4 966 So at 39 40 2d In Linnear the court reasoned that the doctrine of res ipsa loquitur did not apply to the facts presented because direct evidence was used by both parties to 10 explain the accident or injury Id 06 3030 at pp 8 9 966 So at 42 43 The 2d court explained that res ipsa loquitur only applies where direct evidence of a s defendant negligence is not available to assist the plaintiff to present a prima facie case of negligence Id 06 3030 at p 8 966 So at 42 The Linnear court 2d further instructed that in cases where plaintiff uses circumstantial evidence only to meet its burden of proof res ipsa loquitur may be applicable if the trial judge sequentially determines that the three criteria for its use are satisfied The Linnear court set forth the following three criteria 1 the injury is of the kind which does not ordinarily occur in the absence of negligence on someone part 2 the s evidence sufficiently eliminates other more probable causes of the injury such as the conduct of the plaintiff or of a third person and 3 the alleged negligence of the defendant must be within the scope of the defendant duty to the plaintiff Id s 06 3030 at p 10 966 So at 44 The Linnear court further directed that the trial 2d court must determine whether reasonable minds could differ on the presence of all three criteria If reasonable minds could not conclude that all three criteria are satisfied then the legal requirements for the use of res ipsa loquitur are not met and consequently the jury should not be instructed on the doctrine Id if reasonable minds could differ as to all three criteria then the law permits the use of res ipsa loquitur to allow the jury to infer negligence if it chooses to do so from the circumstances presented including the incident itself Id Applying the applicable criteria the Linnear court determined that the trial court had properly rejected plaintiffs request for a res ipsa loquitur instruction his T case does not pass the first requirement as this injury was of the kind which can ordinarily occur in the absence of negligence on s someone part In Cangelosi v Our Lady of the Lake Regional Medical Center 564 So 654 L 1989 we explained that the 2d a 11 event must be such that in light of ordinary experience it gives rise to an inference that someone must have been negligent People fall in their yards and injure themselves all the time without any third party involvement at all We have long held that rles ipso loquitur as a qualification general that negligence is not to be presumed must be sparingly applied The doctrine only applies when the circumstances surrounding an accident are so unusual as of the rule to give rise to an inference of negligence It does not apply to cases involving ordinary accidents or injuries that often occur in the absence of negligence such as this one It is clear that reasonable minds could not differ on this point That being the case there is no need to consider the other two requirements Linnear 06 3030 pp 10 11 966 So at 44 citations omitted 2d In the instant case Self offered only circumstantial evidence from which defendants negligence might have been inferred However if reasonable minds could not have concluded that all three criteria for the use of the res ipso loquitur doctrine were satisfied then the legal requirements for its use were not met As did the court in Linnear we conclude this case does not meet the first requirement of the criteria because Trent injury is the kind that can ordinarily occur in the s absence of negligence on someone part Children fall and injure themselves s frequently without any third party involvement Although the exact cause of s Trent injury is unknown no one disputes that Trent fell in the area of the playroom door Dr Engeron testimony further supports that the injury may have s been caused by Trent falling against the right angle of the playroom door or its s frame The doctrine of res ipso loquitur only applies when the circumstances surrounding an accident are so unusual as to give rise to an inference of negligence Id 06 03 0 at p 11 966 So at 44 3 2d It is clear that reasonable minds could not differ on the finding that injuries of this type routinely occur in the absence of negligence Thus it is unnecessary 12 to consider the other two requirements for applying the doctrine and we conclude the trial court properly decided that it was improper to instruct the jury regarding this doctrine Accordingly we find no legal error that impeded the jury fact s finding process as alleged by plaintiff 11I CONCLUSION For these reasons we affirm the trial court judgment that dismissed Self s s claims against ChickFi Lewis and American with prejudice Appeal costs are lA assessed against plaintiff appellant Lauren Self AFFIRMED s Although Self filed this appeal in pauper since we find no merit in her appeal appeals forrna is costs may be assessed against her See Johnson v State Dept ofSocial Services 051597 P I 1 10 2d 1085 sce also La C arts 5186 and 5188 0 n SoApp 1 st Cir 06 943 So 374 n writ denied 062866 La 02 La 09 2d 381 1 07 948 P 13
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