Emily Nikolaus VS City of Baton Rouge/Parish of East Baton Rouge
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2090 EMILY NIKOLAUS w VERSUS CITY OF BATON ROUGE OF EAST BATON ROUGE PARISH A Judgment rendered JUN 1 1 2010 On Appeal from the 19 Judicial District Court Parish of East Baton Rouge State of Louisiana Suit Number 553 Division 24 558 The Honorable R Michael Caldwell Judge Presiding Jill L Craft Counsel for PlaintiffAppellee Crystal G LaFleur Emily Nikolaus Baton Rouge Louisiana Randall J Cashio Counsel for Defendant Appellant Gwendolyn K Brown Baton Rouge Louisiana City of Baton RougeParish of East Baton Rouge BEFORE DOWNING GAIDRY AND McCLENDON JJ yss di e a us fts 2 DOWNING J The City of Baton Rouge Parish of East Baton Rouge CityParish appeals a judgment ordering it to pay damages to Emily Nikolaus the appellee for damages arising from flooding of her home For the following reasons we affirm the trial sjudgment in part and we reverse in part court PERTINENT FACTS AND PROCEDURAL HISTORY Emily Nikolaus bought a home in Baton Rouge Louisiana in August 2005 The home is not located in a FEMA flood zone In April 2006 however Ms Nikolaus arrived at her home after a strong rain and found that her house had flooded Ms Nikolaus mother reported the flooding to the CityParish which s sent a crew out to clear the drain pipes Ms Nikolaus later purchased flood insurance for her home At the end of December 2006 Ms Nikolaus was home when another heavy rain caused her home and property to flood Ms Nikolaus filed a claim with her flood insurance carrier She also filed a lawsuit against the City alleging Parish that her flood damage was caused by the CityParish failure to repair and s maintain the drainage system After a bench trial the trial court rendered judgment in favor of Ms Nikolaus and against the CityParish The trial court judgment s awarded Ms Nikolaus 3 for emotional trauma associated with the April 00 500 2006 flood 5 for emotional trauma associated with the December 2006 00 500 flood 26 in property damage for damage to her home and contents 63 750 00 756 1for the cost of the flood insurance Ms Nikolaus purchased interest and costs including expert witness fees The CityParish now appeals asserting five assignments of error 1 The trial court erred by excluding the plaintiff homeowner insurance s s policy on the basis the evidence constituted hearsay Under the express terms of the Code of Evidence the policy was not hearsay because it was an adoptive admission Further it was admissible because it was properly authenticated 2 2 The trial court erred by awarding damages for the amount of the depreciation 3 The trial court erred by awarding to the plaintiff damages in the form of the costs that she paid for her flood insurance premiums 4 The trial court erred by awarding damages to the plaintiff for the emotional trauma associated with her damage to property from the April 2006 flood event because the law indicates that a plaintiff may recover such damages only when she is present to witness the destruction of her property 5 The trial court erred by finding in favor of the plaintiff because there is no record evidence to support a finding that the conduct in question was a cause infact of the resulting harm DISCUSSION Dnauthenticated Insurance Policy Documents The CityParish first argues that an uncertified photocopy of a homeowners insurance policy that Ms Nikolaus produced in response to a request for production of documents should have been admitted into evidence as an adoptive admission The City sought admission of the document because it Parish contained a subrogation clause that allegedly would control the outcome of this matter The trial court sustained Ms Nikolaus objection that the policy and an s associated statement of loss document were hearsay and were not authenticated We find no error in the trial court ruling s Because authentication of evidence is a condition precedent to admissibility an exhibit that is not authenticated does not constitute competent evidence Price v Roy O Martin Lumber Co 04 0227 p 8 App La 1 Cir 4 915 05 27 2d So 816 822 Authentication is a process whereby something is shown to be what it purports to be Id Evidence must either be authenticated as provided in La C art 901 or it must be self authenticating Id See La C art 902 E E Louisiana Code of Evidence article 901 includes a non exclusive list of B methods that may be utilized to authenticate evidence including testimony of a 3 witness with knowledge and any method of authentication or identification provided by Act of Congress or by Act of the Louisiana Legislature Responses to discovery requests for production are not included in the Art 901B list And we know of no code article statute or case that automatically makes a response to a request for production an admission or otherwise admissible on the basis that it was produced in discovery alone To the contrary evidence is not admissible solely on the ground that it was produced in response to a discovery request See Newpark Resources Inc v Marsh McLennan of Louisiana Inc 96 0935 p 5 6 La 1 Cir 2 691 So 208 211 App 97 14 2d Under La E C art 901 authentication of evidence is a condition precedent to admissibility Id Nonetheless the City argues that the photocopy of the policy is an Parish adoptive admission and as such is an exception to the hearsay rule pursuant to La E C art 801 D which provides that a party statement is not hearsay if it is a b 2 s statement of which he has manifested his adoption or belief in its truth The Parish City suggests an answer to an interrogatory is such an admission The Parish City argues that the photocopy should be admitted where nothing calls the s document authenticity into question citing Reed v American Equity Ins Co 05 1298 p 6 La App 3 Cir 4 927 So 1210 1215 among other cases 06 5 2d In that regard we first note that the record contains no statement either testimonial or written by which Ms Nikolas has manifested her belief that the photocopy is an authentic copy of the insurance policy even if she were qualified to attest to the copy authenticity s Rather when questioned Ms Nikolaus testified that she believed the flood insurance policy would have been something The remedy for failure to adequately respond to discovery requests under La C art 1462a is a motion to P compel Under La C art 1471 failure to comply with an order to compel may result in an order that a matter P shall be taken as established We also note that failure to answer a request for admission could result in the admission of a matter La C art 1467 See also Arias v Stolthaveu New Orleans L 08 1111 pp 13 P C 16 La 5 09 9 So 815 824 25 for a discussion distinguishing a party insurer 3d sfi3ilure to respond to requests for admissions from other failures to respond to discovery El different than the photocopy provided Further Ms s Nikolaus counsel specifically objected to the photocopy as being unauthenticated and hearsay Also at the beginning of the trial the parties declined to stipulate to the admissibility and authenticity of the evidence Here the photocopy of the insurance policy is not self authenticating and is not otherwise authenticated We additionally note that La R 13 provides a mechanism for S 3733 authenticating business records and documents for purposes of under Louisiana law admissibility The City however did not employ this statutory Parish mechanism The City also argues that the photocopy is admissible as a business Parish record pursuant to La C art 901A The trial court disagreed noting that Ms E Nikolaus was not in the business of being flooded The trial court did not err in this regard We therefore conclude that the trial court did not err in failing to admit the unauthenticated photocopies of the insurance policy and other documents into evidence The City first assignment of error is without merit s Parish Depreciation Without the evidence contained in the excluded insurance documents the record contains no evidence whether or not sufficient regarding depreciation in value of Ms Nikolaus s property and improvements Accordingly the s Parish City second assignment of error is without merit Insurance Premiums The City next argues that the trial court erred in awarding Ms Parish Nikolaus the premiums she paid for flood insurance This third assignment of error has merit While we agree with the trial court that Ms Nikolaus would not have had to purchase flood insurance but for her flooding problems we are aware of no law or 5 jurisprudence that allows her to recover for these damages In Severn Place Associates v American Bldg Services Inc 05859 La 5 Cir 4 App 06 11 930 So 125 the Louisiana Fifth Circuit analyzed whether a cause of action 2d existed for increased insurance premiums under Louisiana law Concluding that no such cause of action exists the fifth circuit concluded that the policy considerations and reasons for denying causes of action in tort apply to the instant case Id 05 859 at p 8 930 So at 129 2d We agree with the fifth circuit reasoning in Severn Place Associates and s conclude that no right of action exists for recovery of insurance premiums based on a tortfeasor snegligence or strict liability Accordingly we will reverse the trial s court judgment insofar as it awards 1 to Ms Nikolaus for flood 00 756 insurance premiums Emotional Distress The City Parish argues in its fourth assignment of error that the trial court erred in awarding damages for emotional distress resulting from the April 2006 flood in her home because she was not present to witness the destruction of her property We disagree An award for mental anguish as a result of damage to property is normally permitted in four instances 1 property damaged by an intentional or illegal act 2 property damaged by acts for which the tortfeasor will be strictly or absolutely liable 3 property damaged by acts constituting a continuous nuisance and 4 property damaged at a time which the owner thereof is present or situated nearby and the owner experiences trauma as a result Boudreaux v State Dept of Transp and Development 04 0985 p 15 La 1 Cir 6 906 So App 05 10 2d 695 707 It appears that these categories were first cumulated and examined in Farr v Johnson 308 So 884 88586 La 2 Cir 1975 The Farr court 2d App then distinguished cases in which emotional distress was caused by ordinary ri negligence presumably pursuant to La C art 2315 It said Without analyzing in this opinion the varying rationale of the cases allowing recovery it should suffice to say they are distinguishable from the instant case where the act causing the property damage was simple negligence the property owner was not present and received no direct mental injury from the act itself and the mental anguish proven amounted to minimal worry and inconvenience over the consequences of the damage Id 308 So at 886 2d Here the trial court found the CityParish liable under La R 9 La S 2800 S 2800A R 9 provides that a public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody Article 2317 applies to acts of others and things in custody and formerly imposed strict liability for damage occasioned by things in our custody Accordingly an award of damages for emotional distress was allowable pursuant to the above criteria While Civil Code Article 2317 removes Art 2317 from strict liability the 1 factual basis for imposing liability under Article 2317 is unchanged We see no legal logical or reasonable basis to exclude damages for mental anguish and suffering based on the elimination of strict liability Accordingly an award of damages for emotional distress is still allowable for damages imposed pursuant to Civil Code Article 2317 Even so the owner of the damaged property may not recover for mental anguish unless he or she proves a psychic trauma in the nature of or similar to Article 2317 provides that lwle are responsible not only for the damage occasioned by our own act but for that which is caused by the act of persons for whom we are answerable or of the things which we have in our custody I his however is to be understood with the followine modifications Article 317 effective April 16 1996 provides that itlhe owner or custodian of a thing is answerable for 1 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 iuin 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 7 physical injury directly resulting from the property damage Creel v Southern Natural Gas Co 03 2761 p 17 La 1 Cir 10 917 So 491 502 App 05 14 2d Here the trial court noted that the issue and extent of the emotional damage was questioned The trial court further noted Ms Nikolaus testimony regarding her s emotional distress in connection with the April 2006 flood which was corroborated by testimony of other witnesses Under these circumstances we cannot conclude that the trial court was clearly wrong in implicitly finding that Ms Nikolaus had proven sufficient psychic trauma to support the award for emotional damage in connection with the April 2006 flood at her home We therefore find no merit in the City sfourth assignment of error Parish Sufficiency of the Evidence In its fifth assignment of error the City argues that the evidence in Parish the record does not support a finding that the CityParish conduct was a cause in s fact of Ms Nikolaus harm We disagree s The record clearly reflects that the trial court imposed liability on the CityParish for failure to maintain and repair the drainage system around Ms shome The CityParish however asserts that the trial court based its Nikolaus ruling on defects in the drainage system after the trial court found that such claims had prescribed While the trial court did hear some testimony that implicated the design of drainage system the trial court expressed that it would not consider such evidence The record readily supports the trial court judgment on the bases of s inadequate maintenance and repair While some of the evidence was conflicting between Ms Nikolaus and her witnesses and the City and its witnesses we Parish cannot conclude that the trial court was clearly wrong in crediting the evidence supporting Ms Nikolaus Accordingly we conclude the CityParish fifth assignment of error lacks s merit F DECREE For the foregoing reasons we reverse the judgment of the district court insofar as it awarded Ms Nikolaus 1for flood insurance premiums In all 00 756 other respects we affirm the judgment of the trial court Costs of this appeal are assessed to the City of Baton Rouge of East Baton Rouge in the amount of Parish 96 182 3 REVERSED IN PART AFFIRMED IN PART In STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2090 EMILY NIKOLAUS VERSUS CITY OF BATON ROUGE OF EAST BATON ROUGE PARISH DOWNING J specially concurring I write this special concurrence to reiterate some of the acceptable methods for introducing insurance policies into evidence 1 When an insurance company is a party its produced policy could be considered an admission under certain circumstances See Arias v Stolthaven New Orleans L 08 1111 pp 13 16 La 5 9 So C 09 3d 815 824 25 for a discussion distinguishing a party insurer failure to s respond to requests for admissions 2 An insurance policy could be introduced as a properly authenticated business record of an insurance company 3 A party that is not an insurance company could request the production of an insurance policy certified according to La R 13 S 3733 4 The parties could stipulate to admissibility and authenticity of a policy 5 An opposing party could decline to object to the introduction of an insurance policy 6 Possibly a party that is not an insurance company could be requested to admit that the terms and conditions of a copy were the actual terms and conditions of the policy in question 10 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 2090 EMILY NIKOLAUS VERSUS CITY OF BATON ROUGE OF EAST BATON ROUGE PARISH GAIDRY J agreeing and assigning additional reasons I agree with the majority sreasoning and the result reached and offer the following additional observations I take issue with the contentions of the City and the holding of Parish the trial court regarding the prescription of any claims based upon defective design of the drainage system The City argues that any allegations Parish or claims of negligent design of the subdivision and its drainage system had long prescribed since the approval process occurred in 1966 The trial court seemed to uncritically accept without analysis the astonishing proposition that a type of negligent act or omission can prescribe before any damage is sustained and a cause of action for damage resulting from the act or omission accrues Negligent acts or omissions do not prescribe causes of action prescribe A delictual cause of action under our dutyrisk analysis requires that damage or injury be caused as the result of the breach of a legal duty Until such damage is found to have occurred there is no tort Such an 1 incomplete tort cannot prescribe because the prescriptive period will not have commenced Thus even if the trial court had predicated its finding of liability upon negligent design of design of the subdivision and its drainage system it would not have been in error on the issue of prescription 2 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 2090 EMILY NIKOLAUS VERSUS CITY OF BATON ROUGE PARISH OF EAST BATON ROUGE McCLENDON J dissents in part I disagree with the majority holding that emotional distress damages are s recoverable recovery under the facts of this case for mental anguish Louisiana courts have recognized for damage to property in four limited circumstances including recovery of such damages for acts in which the tortfeasor is strictly liable See Farr v Johnson 308 So 884 88586 2d App La 2 Cir applications not considered 310 So 854 315 So 143 La 2d 2d 1975 However Louisiana Civil Code art 2317 no longer imposes strict liability upon the tortfeasor but rather utilizes a negligence standard SeeSeeea Frank L Maraist and Thomas C Galligan Jr Louisiana Tort Law 02 14 2004 Consequently the addition of knowledge as part of the plaintiff scasein chief sounds the death knell for Article 2317 strict liability and William E Crawford Tort Law Louisiana Civil Law Treatise Volume 12 3 25 pp 68384 2009 T legislature dramatically returned the articles including 2317 to he negligence standards with explicit language l Accordingly because Article 2317 is no longer a strict liability article and because I find that none of the other circumstances recognized by the court in Farr are applicable under the facts of this case I would reverse the trial court judgment to the extent that it awarded s damages for emotional distress 1
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