PAUL A. BONIN, Judge.
Kelley Burns, along with her husband,
Because we conclude that the proper standard for our review of the jury's finding is manifest error, and not de novo, and
In this Part we set out the facts involving the ramp at the apartment complex.
The complex was constructed without the ramp. At the time of construction another sidewalk led from the parking area sidewalk to the breezeway and there was a step at the breezeway entrance. The ramp feature was likely added, some years prior to Ms. Burns' fall, to the complex to comply with the model code of the American National Standards Institute (ANSI). ANSI standards, since about 1980, have been enforced by the Louisiana Fire Marshal. Congress incorporated many of the ANSI standards in its Americans with Disabilities Acts (ADA). See 42 U.S.C.A. §§ 12101-12213 (1990). The Louisiana legislature adopted the ADA requirements as a part of its building code in 1990. See La. R.S. 40:1733 et seq.
The specific ANSI standard involved in this case is identified as A17.1. Generally, it allows up to a one-quarter inch abrupt vertical change in the level of a walkway. There is no doubt that the vertical change or variance from the sidewalk to this ramp exceeds the maximum variance allowable by standard A17.1. The variance may be as much as 1.75 inches.
The reason for the variance is the improper construction of the ramp. The existing sidewalk area leading to the step at the breezeway was not removed before the concrete ramp was constructed over it. Unless special materials are used, the concrete laid over concrete will result in spalling. In fact, the ramp, which appears in photographs to be about seven feet squared, became cracked, with pieces nearly breaking completely away from the ramp, and edges nearest where the slope meets the sidewalk feathering away.
On June 14, 2003, Ms. Burns and her husband, along with family members who were helping them, were moving into an apartment in the complex. Upon her arrival at the complex she used the ramp to go to unlock the door of the apartment and return to unload her car. Her first use of the ramp was uneventful, except that she did notice the cracked pieces of the ramp and, to some extent although she did not pay close attention to it, the variance in the level of the ramp along its entire width. When she observed the condition of the ramp, it was obvious to her that the ramp was not built in that condition.
In fact, she made a mental note to be careful about the loose piece of concrete on the ramp and intended to avoid it. The chipped edges were not so much of her concern. In any event, from her car she lifted a box that was awkward to handle,
All her family members used the ramp uneventfully. The apartment complex owner repaired the ramp at a cost of less than $3,000.
The jury, in response to interrogatories on the special verdict form, found that she tripped and fell on the handicapped ramp and that her trip and fall was caused by a defect in the handicapped ramp. But the jury also found that the defect on which she tripped did not present an unreasonably dangerous condition.
In this Part we address the Burnses' contentions that the jury's finding is the result of two distinct legal errors. These legal errors, the Burnses argue, require us to consider de novo the evidence and, they hope, to independently conclude that the ramp was unreasonably dangerous. According to the Burnses, the first legal error involves the jury instructions, and the second involves the jury verdict form.
The Burnses raise two complaints regarding the jury instructions.
First, over a timely objection, the trial judge instructed the jury with language from the Louisiana Supreme Court's holding in Reed v. Wal-Mart Stores, Inc., 97-1174, p. 2 (La.3/4/98), 708 So.2d 362, 363. Because of the timely objection, we are able to consider the assignment of error on this point. See La. C.C.P. art. 1793 C (providing: "A party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds of his objection.").
We italicize below the specific portion of the charge to which the Burnses objected, in order to provide some context to its appearance in the instructions given:
The Burnses objected to the italicized language in the instruction because its source was the Reed decision, which they argued was distinguishable on its facts.
We agree with the trial judge that the precepts of law summarized in Reed are to be found in additional Louisiana jurisprudence. Indeed in Reed the Supreme Court expressly cited to its earlier holding regarding a variance in a sidewalk in Boyle v. Board of Supervisors, Louisiana State Univ., 96-1158 (La.1/14/97), 685 So.2d 1080. Boyle itself relied on earlier decisions, including White v. City of Alexandria, 216 La. 308, 314-16, 43 So.2d 618, 620 (1949), which involved a variance in a sidewalk of 1.5-2.0 inches, which did not present an unreasonable risk of harm. Boyle, supra, p. 3, 685 So.2d at 1082. The variance in this case is claimed by the expert architect to be as much as 1.5-1.75 inches.
Second, the Burnses complain that the trial judge did not give the jury the following instruction which they had requested in writing:
We have been unable, however, to locate anywhere in the trial court record where the Burnses timely objected to the court's failure to give the specially requested instruction. See La. C.C.P. art. 1793 C, supra. Nonetheless, because the Burnses' contentions concerning "negligence per se" pervade their arguments on appeal, we consider it expeditious to address those contentions.
The Burnses argue that the property owner, the lessor, violated statutory building standards or ANSI standards. The maximum permissible deviation in variance is a one-quarter inch abrupt vertical change in level. Greater deviation requires beveling. We understand the Burnses' argument to extend to claiming that a violation of the statute relieves them of the necessity of proving that the deviation which exceeded the standards presented an unreasonable risk of harm.
Although the trial judge did not give the Burnses' requested instruction, she did give the following instruction to the jury:
In a classic decision, the Louisiana Supreme Court, dealing with these same kinds of building standards, held:
Smolinski v. Taulli, 276 So.2d 286, 289 (La.1973). One of the general principles applied by the Supreme Court in Smolinski, which is highly pertinent to the Burnses' arguments about so-called "negligence per se," is that "[a]ctionable negligence results from the creation or maintenance of an unreasonable risk of harm." Smolinski, supra at 288. Thus, it is clear that even when the violation of a statute is proved, such is not a substitute for proving the existence of "an unreasonable risk of harm."
Moreover, we consider the Burnses' continued reliance upon a theory of "negligence per se" to be completely misplaced. "The doctrine of negligence per se has been rejected in Louisiana.... However, statutory violations provide guidelines for civil liability." Galloway v. State, Dept. of Transp. and Development, 94-2747, p. 5 (La.5/22/95), 654 So.2d 1345, 1347; see also Bellsouth Telecommunications, Inc. v. Eustis Engineering Co., Inc., 07-0865, p. 5 (La.App. 4 Cir. 12/19/07), 974 So.2d 749, 752. (We further treat the issue of the necessity of proving an unreasonable risk of harm under each of the Burnses' theories of recovery in Part III-A, post.)
"A trial judge has a duty to give instructions which properly reflect the law applicable in light of the facts of the particular case.... In order to fulfill that duty, he must both require that the jury consider only the correct law and avoid confusing the jury." Guidry v. Bank of LaPlace, 94-1758, p. 3 (La.App. 4 Cir. 9/15/95), 661 So.2d 1052, 1055 (ellipsis indicates citation omitted); see also Jones v. Peyton Place, Inc., 95-0574, p. 8 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 761-762. But as the third circuit has noted,
Doyle v. Picadilly Cafeterias, 576 So.2d 1143, 1152 (La.App. 3d Cir.1991). See also Maraist, 1 La. Civ. Law Treatise, Civil Procedure, § 11.10 (2d ed.).
On the one hand, the jury instruction to which the Burnses timely objected was correct, and on the other hand, the jury instruction which they requested was incorrect. The Louisiana Supreme Court in Nicholas v. Allstate Ins. Co., 99-2522, pp. 8-9 (La.8/31/00), 765 So.2d 1017, 1023, requires that in addition to finding an erroneous jury instruction, we must also find that the instruction "likely contributed to the verdict before we engage in a de novo review of the jury's verdict." Since we have not found an erroneous instruction,
We do note that we have carefully reviewed the entire and complete instructions given by the trial judge to the jury. They are clear, correct, and satisfactory.
We turn now to consider whether the content of the jury verdict form compels de novo review.
The Burnses complain on appeal that the special verdict form submitted to the jury had a "plain and fundamental" error which requires us to disregard the jury's findings of fact (including that the defect on which Ms. Burns tripped or fell did not present an unreasonably dangerous condition). See Berg v. Zummo, 00-1699, p. 13, n. 5 (La.4/25/01), 786 So.2d 708, 716, ("We find that the jury instructions and interrogatories regarding the assessment of punitive damages against The Boot misstated the law and thus contained a `plain and fundamental' error which leads us to relax the contemporaneous objection requirement.").
At the outset the Burnses concede that they failed to object contemporaneously to the special verdict form in the trial court before its submission to the jury, before the jury began deliberations, or even before the jury concluded its deliberations. The Burnses first objected to the special verdict form in their motion for judgment notwithstanding the verdict.
La. C.C.P. art. 1812 provides in pertinent part:
See also Maraist, 1 Louisiana Civil Law Treatise, Civil Procedure, § 11:12 (2d ed.).
Our court has on occasion made exceptions to the general rule of timely objection when the jury interrogatories are tainted with legal errors which prejudiced one of the parties. Marchetta ex rel Marchetta v. CPC of Louisiana, Inc., 99-0485, p. 5 (La.App. 4 Cir. 3/22/00), 759 So.2d 151, 154, citing to our earlier decision in Guidry, supra, p. 9 n. 10, 661 So.2d at 1058 (stating that a clear legal error "cannot be waived by the defendants failure to raise the proper objection.")
The "plain and fundamental" or clear legal error, according to the Burnses in their brief, is that "the jury never got to make a determination as to whether the defect caused Kelley Burns to trip/fall violated the applicable building codes." We disagree.
The jury responded affirmatively to the special interrogatory propounded to it as follows: "Do you find, from a preponderance of the evidence, that the trip/fall of Kelly [sic] Burns was caused by a defect in the handicap ramp located at Towne-Bridge Apartments?" Here again, the Burnses' argument that the determination of whether the defect is a violation of a statute is of any consequence is because they misperceive that such a finding substitutes for a finding that the defect itself presented an unreasonable risk of harm. In this case, the uncontroverted evidence is that the ramp variance exceeded the maximum deviation allowed by ANSI standards. Had the jury been given the special interrogatory (which the Burnses now propose) on the ANSI violation, a factual finding by the jury that the variance did violate the statutory standard would result in a finding that there was a "defect," the same finding made in its answer to the special interrogatory which it was given.
Article 1812 A answers the problem raised: "As to an issue omitted without such demand the court may make a finding, or if it fails to do so, it shall be presumed to have made a finding in accord with the judgment on the special verdict." Indeed, a harmonious finding of fact would find a defect as a result of the statutory violation
We conclude that the Burnses can show no prejudice to their cause and that they have not shown "the kind of plain, fundamental error which might tempt us not to heed the language of article 1793." Trans-Global Alloy Ltd. v. First National Bank of Jefferson Parish, 583 So.2d 443, 448 (La.1991). The failure of the trial court to propound on its own the interrogatory which the Burnses seek is at best, in the absence of prejudice, nothing more than "harmless error." See In re Asbestos v. Bordelon, 96-0525, p. 11 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 940.
"The manifest error standard of appellate review may not be ignored unless the proposed jury interrogatories are so inadequate or incorrect as to preclude the jury from reaching a verdict based on the law and the facts." Doyle, 576 So.2d at 1153. The interrogatories on the special verdict form in this case, we are convinced, did not preclude the jury from reaching a fair verdict. Accordingly, since we have not found in the interrogatories set forth in the special verdict form either "plain and fundamental" error or prejudice to the Burnses, we are not authorized to review the facts of this case de novo.
In conclusion, then, we do not find that the jury's findings are interdicted in any way. There is no legal basis for us as an intermediate appellate court to reject the jury's findings of fact in this case and conduct a de novo review of the evidence. Our appellate review is limited to determining whether the jury's factual finding that the ramp's defect was not unreasonably dangerous is manifestly erroneous or clearly wrong, to which task we turn in the next Part.
The Louisiana Supreme Court pronounced "that the ultimate determination of unreasonable risk of harm is subject to review under the manifest error standard." Reed, supra, 99-1174, p. 4, 708 So.2d at 365. The Court recalled its decisions in Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983) and Tillman v. Johnson, 612 So.2d 70 (La.1993) (per curiam). Reed, supra, 99-1174, p. 4, 708 So.2d at 364. Relying on them, the Court further explained:
Reed, supra, 99-1174, p. 4, 708 So.2d at 364-365. There is no doubt that the proper standard for us to review the jury's finding that the defect in the ramp did not present an unreasonable risk of harm is the manifest error standard.
The Burnses asserted three theories of recovery. The primary one is the one they characterize as "negligence per se," but we treat as a statutory violation issue. Another major theory of recovery, which we have not yet discussed in this opinion, is the strict liability of their lessor under former La. Civil Code art. 2695. The Burnses also assert a theory under the general strict liability principles of La. Civil Code arts. 2317 and 2317.1, which they acknowledge to be the equivalent of a general negligence theory. See Moffitt v. Sewerage and Water Bd. of New Orleans, 09-1596, p. 3 (La.App. 4 Cir. 5/19/10), 40 So.3d 3367 (also referencing Frank L. Maraist and Thomas C. Galligan, LOUISIANA TORT LAW § 14.2, at 330-32 (1996)).
Regardless of which of these theories of recovery is pursued, the one inescapable burden on an injured plaintiff is to establish that a person or thing presented an unreasonable risk of harm. See Oster v. Dep't of Transp. and Dev., State of Louisiana, 582 So.2d 1285, 1288 (La.1991) ("Plaintiff brought this suit essentially under negligence and strict liability theories.... Under both theories, the absence of an unreasonably dangerous condition of the thing implies the absence of a duty on the part of the defendant.") (emphasis supplied)
With special regard to the violation of ANSI standards, which is a statutory violation, we have already called attention to the holding in Smolinski that even in such a case "[a]ctionable negligence results from the creation or maintenance of an unreasonable risk of harm." Smolinski, supra, 276 So.2d at 288. As we said, proving a statutory violation is no substitute for proving the existence of "an unreasonable risk of harm."
To conclude on the requirement that a plaintiff must establish that the thing, here the ramp, presents an unreasonably dangerous consideration, we consider former La. Civil Code art. 2695, which provided:
We have held under this article that a
Freeman v. Julia Place Ltd. Partners, 95-0243, p. 7 (La.App. 4 Cir. 10/26/95), 663 So.2d 515, 519 (ellipsis indicates citation omitted).
We now consider the precepts guiding us in determining whether the jury was manifestly erroneous in finding that the Burnses did not establish that the ramp's
For a thing to be defective, it must create an unreasonable risk of harm under the circumstances. In determining whether a risk is reasonable or unreasonable, the factfinder's task is to balance the probability and magnitude of the risk against the utility of the thing, Hunt v. City Stores, Inc., 387 So.2d 585, 588 (La. 1980).
Oster v. DOTD, supra, 582 So.2d at 1289 (citing Landry v. State, 495 So.2d 1284, 1287 (La.1986)). The Oster Court continued:
Id.
Other factors which a jury must consider are the cost or feasibility of prevention or repair, and the accident history of the defect. See Reed, supra, 97-1174, pp. 6-7, 708 So.2d at 365-366.
Another important factor for the factfinder to consider is whether the defect presented an open and obvious hazard. The Louisiana Supreme Court holds in Eisenhardt v. Snook:
Eisenhardt v. Snook, 08-1287, p. 6 (La.3/17/09), 8 So.3d 541, 544-545 (emphasis supplied); Blank v. Capdeville, 94-373, p. 4 (La.App. 5 Cir. 11/16/94), 646 So.2d 1146, 1149 (plaintiff "admitted she was aware of the pothole and had avoided it in the past").
Thus, the factfinder may conclude that an open and obvious defect does not present an unreasonable risk of harm.
The Burnses place great store in the testimony of the architect who opined that the defect in the ramp presented an unreasonable risk of harm and that his opinion was uncontroverted by any other witness, expert or otherwise. "Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact." La. C.E. art. 704. But the factfinder is not necessarily bound by such opinion evidence; the factfinder may disregard expert testimony altogether. See Madere v. Madere, 93-610, p. 3 (La.App. 5 Cir. 2/9/94), 632 So.2d 1180, 1182. See also Lanasa v. Harrison, 02-0026, p. 4 (La. App. 4 Cir. 8/7/02), 828 So.2d 602, 604.
Although an expert's opinion may be very helpful to a factfinder, on this particular issue we think that the myriad considerations to be weighed by the factfinder in determining the unreasonableness of the harm firmly establishes this as a matter for the province of the jury. Stated another way, this determination is just as much within the competency of the factfinder as it is within that of a forensic architect or other expert.
Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). And the Louisiana Supreme Court explained further, in Stobart v. State Dept. of Transp. and Development, 617 So.2d 880, 882-83 (La.1993)
A ramp situated near a handicapped parking zone has tremendous social utility. A ramp in the condition of this one at the time of Ms. Burns' fall obviously has less social usefulness. The cost of remediating the defective condition was not great. The likelihood of injury was, however, not inconsiderable although there is no indication of accident history other than Ms. Burns' fall.
But then the defect in the ramp was obvious; Ms. Burns had actually observed the very defect over which she just minutes later stumbled. Moreover, the manner in which she was walking toward the ramp cannot be described as normal; she was walking backwards, carrying a box, and looking over her shoulders for trees or buildings to avoid.
We simply cannot say in this fact-intensive inquiry that the factfinder was manifestly erroneous. We do not decide whether this jury was right or wrong; its determination of the ultimate fact—that the defect in the ramp did not present an
In this Part we briefly address the Burnses' argument that the trial judge committed legal error in not granting their motion for JNOV. See La. C.C.P. art. 1811. We observe that a judgment refusing to grant a motion for JNOV is an interlocutory judgment. See La. C.C.P. art. 1914 C. "An interlocutory judgment is appealable only when expressly provided by law." La. C.C.P. art. 2083 C. The appeal is from the final judgment of dismissal, although the appellant may assign the denial of the motion as an assignment of error. See La. C.C.P. art. 1811 E.
The Louisiana Supreme Court in Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991), defined the JNOV as follows:
See also Finnie v. Vallee, 620 So.2d 897, 899 (La.App. 4th Cir.1993).
Because we have already concluded that the jury's findings of fact were not clearly wrong and were reasonable, we disagree with the Burnses that the trial court should have rendered a judgment notwithstanding the verdict.
Accordingly, we affirm the trial court's judgment in favor of CLK Investments V, L.L.C., 1st Lake Properties, Inc., and State Farm Fire and Casualty Company, and against Kelley Burns and Terry Burns, dismissing with prejudice their lawsuit.
