Sarah Johnson, Individually and on behalf of her minor child, Mi'cheala Grant VS Willie Thomas
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STATE OF LOUISIANA CQURT OF APPEAL FTRST CIftCt1IT' NO. 2 f3 CA 0081 SARAH JOHNSON, iNDIVI UALLY & ON BEHALF OF HER MINOR CHILD, MI' CHEALA GRANT VERSUS WILLIE THOMAS udgment rendered December 27, 2013. 1 1 1 '` v ' V u Appealed from the 19"' Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court No. 584, 646 Honorable Kay Bates, Judge PEfER T. DUDLEY ATTORNEY FOR BATON ROUGE, LA PLAINTIFFS- APPELLEES SARAH ] OHNSON & MI' CHEAL4 GRANT EBONY CAVALIER BATON ROUGE, LA ATTORNEYFOR EFENDANT-APPELLANT WILLIE THOMAS BEFORE: PETTIGREW, McDONALD, AND McCLENDON, 7J. PETTIGREW, 7. This is an appeal by the defend nt, Willie Thcamas ( Mr. Thomas), from a money judgment rendered against him. The trial coue ruled in favor of the plaintiffs, Sarah Johnson and her daughter, Mi' Cheala Grant, f9r sustained when a damaged garage door to their h ersona! injuries. The injuries were leased from Mr. Thomas -- fell m -- on Mi'Cheala, and Ms. Johnson attempted to iift the failen door from her. The door had been damaged during a hurricane six months earlier, and Mr. Thomas had not had it repaired. After a thorough review of the record and the arguments presented, we find no merit to Mr. Thomas's arguments and affirm the judgment of the trial court. BACKGROUND FACTS The facts are essentially undisputed. The defendant, Mr. Thomas, who resided in California, owned a house at 1925 Monterrey Boulevard in Baton Rouge. He leased the house through D L Management, LLC, a property management company in Baton Rouge. In April 2008, Dana Littles, an employee of D L Management, as agent for Mr. Thomas, leased the house to the plaintiff, Sarah Johnson. She resided in the house from April 2008 until approximately mid- 2012, with her family, including her minor daughter, Mi' Cheala Grant, who suffers from physical and learning disabilities. l Approximately five months after Ms. Johnson leased the house, Hurricane Gustav hit the Baton Rouge area, with high winds and fallen limbs causing damage to the garage door, as well as to the gutters and fence of the house at i925 Monterrey Boulevard. According to Ms. Johnson, the winds caused the garage door to cave in, come off the hinges, leaving a large visible dent, and rendering it inoperable. She immediately telephoned the leasing agenk, Dana Litties, and reported the hurricane damage to the house, particularly the damage to the garage door, ogether with her concerns that the door would fall. At the time of the incident at issue and when the petition in this matter was filed, Mi' Cheala Grant was a minor. She reached the age of majority during the litigation and was properly substituted as a plaintiff in her own right at that time. 2 A couple of days later, Ms. Llttles ves t to he house to examine the damage. She took photographs and testified that she observed " a lot" of damage to the garage door, stating that it was up, but visibly deiik d that the door may fall. appeared and " She, too, observed that it ammed." She i rjmedwatery co tacted Mr, Thomas about the damage, as well as the concerns she aro Ms. Joh sQn had that the garage door may fall. Mr. Thomas asked her to send photographs and kc also inquire about repair estimates. Ms. Littles testified that she did as Mr. Thomas requested, but that he never got back with her about repairs, and none were made. A couple of weeks following the hurricane, the garage door shifted, causing Ms. Johnson more concern about its dangerous condition. ( The record reveals that at that time, the house had only one other operable door from which to enter and exit the Ms. Johnson again immediately contacted Ms. Littles about the shift in the door house.) and her concerns. Ms. Littles again contacted Mr. Thomas and repeated the concerns that she and Ms. Johnson had that the door may fall. Again, Mr. Thomas did nothing. Approximately six months later, on March 8, 2009, the incident giving rise to this litigation occurred. Ms. Johnson testified that during the early morning hours, while her family was getting dressed and ready for their day, she suddenly heard a " loud crash and a scream" and went running taward the sound. As she entered the garage, she saw Mi' Cheala lying on the ground, screaming, with the garage door on top of her body. Ms. Johnson testified that she, too, began screaming, and instinctively, ran to her daughter and tried to lift the door so, the door as was " off of excruciatingly her. ( heavy.' She also testified that she was unable to do She called 911. When the ambulance arrived, the paramedics were able to lift the door off of Mi' Cheala, and they transported her and Ms. ] ohnson to the emergency room at the Baton Rouge General Medical Center. Ms. Johnson testified that her daughter was in great pain, crying and screaming all the way to the hospital. At the hospital, Mi' Cheala complained of being in pain all over her body, particularly, in the necic and back area. She was given medication for pain and anxiety. X- rays were taken, which' revealed no cervical or lumbar fractures. She was discharged, with muscle relaxer and anti- inflammatory prescriptions, and advised to follow 3 up with her primary care physician in 3- 5 days, or sooner, if her symptoms worsened. She was diagnosed with neck and back rnuscle spa rns ('° mild reversal of normal cervical lordosis") and a deep contusion tenderness and swelling in the soft tissue areas. Ms. Johnson also testified that, a couple of days later, she realized that she, too, had sustained injury while trying to lift the garage door off of her daughter. She stated that she began having pain in her shoulders, back, neck, and head. Because her daughter was also still complaining of pain, they both went to the emergency room at Lane Regional Medical Center ( Lane) in Zachary to be examined. Mi' Cheala presented with complaints of pain and soreness " all over" that had not improved and worsened with movement. She was diagnosed with muscle strain and prescribed Lortab for pain and the muscle relaxant, Flexeril. Ms. Johnson was also examined and treated at the emergency room at Lane. She presented with complaints of acute pain in her back, particularly, the lower back, and right arm. and muscle She was also diagnosed with muscle strain, and treated with the same pain relaxant prescriptions as her daughter. Both she and her daughter were advised to follow up with their primary care physician. The following week, on March 16, 2009, Ms. Johnson and Mi' Cheala went to their primary care physician, Dr. James Hines. soft Dr. Hines diagnosed Mi' Cheala with multiple tissue contusions, neck strain, and exacerbation of her asthma. He prescribed the anti- inflammatory, Mobic, and physical therapy iwice a week. The record reveals that she received physical therapy for a little over three months, being discharged on June 25, 2009. Dr. Hines noted that although she was still complaining of pain at that time, he did not believe continuation of physical therapy would be of any help. Dr. Hines also treated Ms. Johnson on March 16, 2009. Ms. Johnson complained of pain in her shoulders and arm, as well as neck and back pain. He noted she had shoulder and right forearm strain, cervical and lower back sprain, as well as multiple soft tissue injuries, which were caused by her attempts to lift the garage door off of her daughter. He prescribed a steroid, anti- inflammatory and pain medications, as well as physical therapy. He also discontinued the physical therapy for Ms. Johnson after 4 approximately three months, finding she had reached maximum medical improvement, albeit her complaints of continued pain. IMs. Johnsc n testified that she and her daughter both continue t suffer pain and sore an es, hey treat that with over-the-counter ibuprofen. PRO EDUR14L HT TORY On November 17, 2009, a petition for damages was filed, alleging that Mr. Thomas had knowledge of the condition of the damaged garage door and that he had received insurance proceeds to make repairs, but failed to do so. Mr. Thomas filed an answer, generally denying all allegations, and subsequently, filed a supplemental answer, alleging the comparative fault of the plaintiffs. The matter proceeded to a bench trial, following which the trial court rendered judgment in favor of both plaintiffs, and against Mr. Thomas, finding that he knew of the damage to the garage door, as well as the danger it presented, yet failed to repair it in the six months that lapsed before the incident causing injury to these plaintiffs. The trial court found Mr. Thomas liable under La. C. C. art. 2696, for breaching the lessor's warranty that the leased premises be suitable for the purposes of the lease and, that it be free from vices and defects The trial eourt further found the plaintifFs to be free from fault. The trial court additionally found the injuries s stained by both Mi`Cheala and her mother were caused by Mr. Thomas's failure to repair the garage doar, and awarded the following damages Sarah Johnson - medical special damages in the amount of $ 2, 434.08; general damages in the amount of $5, 000.00; for a total of $7, 434.08; and Mi' Cheala Grant medical special damages in the amount of $5, 050.40; general damages in the amount of $8, 000. 00, for a total of$ 13, 050. 40. Thus, the total amount of the money judgment against Mr. Thomas was $ 20, 484.48, together with legal interest from the date of judicial demand, until paid in full, as well as all costs. Judgment was rendered in open court on August 9, 2012, and signed on August 22, 20f2. This devolutive appeal by Mr. Thomas followed: 5 .. A 5IGNNIENT OF ERR R Mr. Thomas asserks the trial co urk rr d in ra a ng that he, the landlord, owed a duty to warn tenants, M' and S Ya- : o ns n, caf He additsonally arg es tn k, x ae tro P R u c condition. percent heala Cran# at fault and ir not as ss; rag cer r g . arry r ¬open as^ d oovioi s dangerous rrea i fndin him to be 100 of fauit tc the plaintiffs for the damages they sustained. APPLICABLE LAW/ DISCUSSION/ ANALYSIS Standard ofReview An appellate court's review of factual findings is governed by the manifest error or clearly wrong standard. Smith v. Lo isiana Dept. of Corrections, 93- 1305 ( La. 2/ 28/ 94), 633 So. 2d 129; 132, The two- part test for the appellate review of facts is: 1) whether there is a reasonabie factua basis pr the record for the finding of the triai court, and 2) whether the record establishes that the finding is not manifestly erroneous. See Mart v. Hill, 505 So. 2d 1120, 1127 ( La. 1987). Thus, if there is no reaso able factuai basis in the record for the trwei court's finding, na additional inquiry is necessary to conclude there was man fest errcr. Howrever, if a reasonable factual basis exists, an appellate court may set aside a triaf court's factual finding only if, after reviewing the record in its entirety, it determ nes the trial court's finding was clearly wrong. See Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880, 882 ( La. 1993). Open and Obvious Condition We find Mr. Thomas`s arguments, based n yeneral negligence principles and the assertion that the dangerous cQn ition f the g age d or was opero and obvious, such that it was not unreasonabiy dangerous, are mispi ea and, theref re; have no merit. Inasmuch as this is a suit by lessees against thear iess r for injuries sustained on the leased premises, fihe codal pravisions governing a Vessor's warrankies and liabi9ity pursuant thereto are applicable. See Tewis v. Zurich Insurance Company 233 So.2d 357, 359 La. App. 1 Cir.), writ denied, 236 So. 2d 496 ( La. 1970). In determining the applicability of laws, it is axiomatic that the more specific governs over the more general. Because La. 6 C. C. articles 2696 and 2697 they are applicable 2004- 2366 ( La. App. under s ¬ c6fac. Udi, .: these corc. msta T C+ il/4/ GF;, r. sssa td e.; a;; es ' se oblsg twc ns ard warranties, homp on v. BGIC Equities, Inc., 2d 3; i; 353 5+, wriY derded; 2005- 2405 ( La. 91_ 3/ ll/06), 925 S. 2d 5 0. Lessor's Liabi/ity The lessor warrants the fessee na th ci ong R5 suitabfe for the purpose for which ot was leased and that it is free of vices or defec s that. prevent its use for that purpose. This warranty also e.xtends to vices or defects that arise after the delivery of the thing and are not attributable to the fault of the lessee. La. C C. art. 2 96. hloreover, this warranty also encompasses vices qr defects that arE Q'c kr ow t the lessor. La. C. C. art. 2697. 7hus, the lessor is essentiafly strictly liable f r vi.:es and defecks that cause harm } o his lessee, See Welis v. Norris, 46,458 ( La. Ap. 2 Cir,, B/' 1{ il),71; So. 3d 1165, 1169, vv it denied, 2011- 1949 ( La. 11/ 18/ 11), 75 So. 3d 465. However, that articie also provides that if the lessee knows of such vices or defects and fails to notify the iessor, the lessee' s recovery for breach of warranty may be reduced aec r ingfy. La. C. C. art. 2.697. Burden ofProof A tenant seeking damages for nauries a(lege accasioned by a vice or cJefec in the leased premises bears the burden of establ sh ng his claim to a legai certainty by a fair preponderance of the evidence. Tewis, 33 So. 2 at 360. Kno vledge alone on t re part of the injured party that ghe premises were in defective condition does not per se preclude his action for recovery of darrages, Te nris, 233 So. 2d at 36. App/ication ofLawto Evidence Present d The plaintiffs established that Mr, Tharnas's agent and, thraugh her, 1r. Thomas were both notified immediately after th ga ag; door was damaged. Mr. Thornas was not only notified that it was damaged, but also about Ms. Johnson and Ms. Little`s well- founded concerns that the door may fail. Mr. Thomas failed to do anything. Weeks later, he again received notice that the danger presented by the garage door had heightened, as it had recently shifted. Still, Mr. Thomas took nd action; Approximately six months IaEer, the garage door fell. 7 Under these circumstanees, th r establishing that Mr. Thomas breac ed t is r ore kh n a preponderance of evidence c ry u+ c wed by hi r as lessor to repair ty e s: the garage door and rernov ths a rPasod abay Jac gerc? s c nditi n te which khe plaintiffs lessees) were sub,jected. Acccrdi fy, ther is r.? r s lfes error nd the trial court's judgment holding Mr. Thamas liab c for thE ;, i s tif#` wr j ries caused by the fallen garage door is affirmed. Compa ative Fau/t We also find the trial court did not commit manifest error in failing to assign any percentage of fault to the plaintiffs. Initially, we note that there is no evidence in the record that Mi' Cheala, a fifteen-year-old child with physical and learning disabilities, was aware of, or even capable of understanding the' anger presented by the garage door. Furthermore, the the front door the house that there evidence established of testified she herself, was only ne other door - presumably by which to accpss and egress the house. Ms. Johnson and others, based a her alerking them, we aware of the danger and did not purposely gain access to the house r rough the garage deor; although, it was the most convenient access, and sometirr s vero v ithout thinking, she ivould wafk right out to her car when leaving he house. Considering that the condition existed for a time period of at least six months, we find the trial court did not err in finding the ac ions ofi the plaintiffs reasonable and refusing to assign fault to them. In tewis, supra, this court affirmed a trial court's judgment under similar circumstances which refused to find a plaintiff at fault when he took a more convenient route to his car In a parking 6ot, albeit claims that he knew this route contained an unreasonably dangerous condi ion required him to take a different exit rid going when the alternative route so ne additional thirty feet distanc. 233 So.2d at 361. Although Tewis vas decided under fhe assumption of risk/ contributory negligence law which preciuded recovery, we nonetheless find the same analysis and conclusion applicable urrder the comparative fault principles at issue in this case. 8 . : CONCLUSION For the foregoing reasons we find the trial courk committed no manifest error, and affirm its judgment. The defendant, WiIGe Thomas, is assessed with all wsts of this appeaL AFFIRM ED. 9
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