26,388 La.App. 2 Cir. 5/10/95, Pitre v. Louisiana Tech University

• Decision Date: 10 May 1995
• Citation: 655 So.2d 659
• Parties: 26,388 La.App. 2 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 659

655 So.2d 659

26,388 La.App. 2 Cir. 5/10/95, 100 Ed. Law Rep. 1214

Earl PITRE, Jr., et al., Plaintiffs-Appellants, v. LOUISIANA TECH UNIVERSITY, et al., Defendants-Appellees.

No. 26388-CA.

Court of Appeal of Louisiana,

Second Circuit.

May 10, 1995.

Gregory P. Massey, Lake Charles, for appellants.

Barham & Arceneaux by Mack E. Barham, New Orleans, Hudson, Potts & Bernstein by W. Craig Henry, Monroe, for appellees.

Before MARVIN, HIGHTOWER, BROWN, WILLIAMS and STEWART, JJ.

BROWN, Judge.

During an unusual winter storm in 1988, Earl Garland Pitre, Jr., a 20-year-old resident student at Louisiana Tech University, joined a number of other students in sledding down a hill at the school's Assembly Center. Tragically, Pitre's sport ended when he struck a light pole in the parking lot at the bottom of the hill. He is now a paraplegic.

The trial court dismissed Pitre's lawsuit against Tech on a summary judgment motion. Because the danger was obvious, the trial court ruled that Tech owed no duty to warn or protect students engaged in this voluntary activity. On appeal this court concluded that a duty existed due to Tech's ownership or custody of the land and its special relationship to its students. The case was reversed and remanded for trial on the merits to determine outstanding issues of breach, causation, comparative fault and damages. Pitre v. Louisiana Tech University, 596 So.2d 1324 (La.App. 2d Cir.1991), writ denied, 604 So.2d 998 (La.1992).

On remand and after trial, Pitre's claims were rejected as the trial court again found that Tech owed no duty to Pitre. On the duty issue, however, the facts at trial were substantially identical to those presented in the summary judgment motion. Thus, we reverse and render judgment for plaintiffs, allocating fault and assessing damages.

LAW OF THE CASE

The initial issue presented relates to the effect of the decision rendered by this court in the first appeal. Was it the "law of the case" and determinative of the duty question? The term "law of the case" denotes a principle that recognizes the binding force of trial court rulings during later stages of the trial, the conclusive effects of appellate decisions at the trial on remand, and that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971); Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81 (La.1973) (emphasis added). The law of the case doctrine avoids indefinite relitigation of the same issue, obtains consistent results in the same case, affords one opportunity for argument and decision and provides fairness to the parties involved. Coldwell Banker v. City Bank & Trust, 25684 (La.App. 2d Cir. 03/30/94), 634 So.2d 959; Clomon v. Monroe City School Board, 557 So.2d 1100 (La.App. 2d Cir.1990), affirmed, 572 So.2d 571 (La.1990).

The law of the case doctrine has been conditioned to apply only where the facts and issues on the subsequent remand or appeal are substantially the same as those involved in the prior appeal. Changes in the evidence that do not substantially affect the questions involved or the presentation of evidence that is cumulative will not defeat applicability of the law of the case doctrine. 5 Am.Jur.2d Appeal and Error § 746 (supp. 1994) (emphasis added).

The historical background for this court's first appellate decision on the duty question is fully set out in that opinion. Pitre, supra. Primarily the same evidence was introduced at the trial on the merits. The additional evidence presented addressed principally the issues of causation and damages. By way of introduction, the relevant factual background is set forth below.

FACTS

An ice and snow storm moved through northeast Louisiana in early January 1988. Prior to the storm, the Louisiana Tech Housing Office issued a winter bulletin to all dormitory residents. The bulletin, entitled "Winter Storms and Louisiana Tech", was placed on the beds of each dorm resident by a staff member. The following is excerpted from the bulletin:

We encourage snowmen, sledding, etc., in proper areas and using good judgment. We discourage sledding down the hills along Tech Drive into the path of oncoming cars--not good judgement [sic]--nor is being dragged behind a moving vehicle considered good judgement [sic]. Fifteen reported personal injuries were associated with such behavior during the last snow.

Earl Pitre, Jr., was a sophomore at Louisiana Tech in January 1988. Earl, who lived in a dormitory on campus, attended a Lady Techsters basketball game the evening of January 7, 1988. Classes had been canceled that day as a result of the ice storm and many students, confined to the campus by the weather, took the opportunity to enjoy the snow. After the game, Earl met with some friends who were going sledding off the hill between the Thomas Assembly Center and the Joe Aillet Football Stadium. The hill, which was approximately 85 feet high, led to a large, open parking lot, which was illuminated by several large light posts spaced approximately 150 feet apart. On the other side of the parking lot was the football stadium.

The students at the Assembly Center used makeshift sleds, such as cardboard boxes, plastic advertising signs and serving trays. Also utilized by the sledders were part of a rocking chair and a toilet seat. The most popular sled was a large, round, plastic trash can lid, approximately five feet in diameter. Because the lid was faster, traveled further and would hold several people on one ride, students waited in line for its use. After several trips down the hill on a cardboard sled, Earl joined the line of students who were using the lid. While riding on the lid, Earl and three other students struck one of the concrete-based lights in the parking lot. Earl received head and back injuries in the accident and is paralyzed from mid-chest down.

Earl and his parents filed suit against Louisiana Tech and the Board of Trustees for State Colleges and Universities, alleging that the university was negligent in failing to prohibit sledding around the Thomas Assembly Center and in failing to warn of the hazards of sledding in that area. Plaintiffs also alleged that Louisiana Tech was negligent in encouraging sledding in areas known to be hazardous and in failing to place cushions around the bases of the light posts in the parking lot.

Plaintiffs and defendants filed motions for summary judgment. The trial court found that there were no disputed issues of material fact and that the issue was whether plaintiffs or defendants were entitled to judgment as a matter of law. The trial court denied plaintiffs' motion for summary judgment, granted defendants' motion and dismissed plaintiffs' demands.

Plaintiffs appealed. This court concluded that the trial court erred in finding that no duty existed, reversed and remanded for trial. Pitre, supra.

Trial was held in March 1993. The trial court once again found that defendants did not have a duty to implement, disseminate or enforce a no-sledding policy on campus. Judgment in defendants' favor was rendered and plaintiffs' demands were dismissed on January 14, 1994. It is from this judgment that plaintiffs appeal, arguing that the trial court erred in revisiting the duty issue and in failing to find that their injuries were caused by defendants' negligence.

APPLICABLE LEGAL PRINCIPLES

LSA-C.C. Art. 2315 provides in part that every act of man that causes damage to another obliges him by whose fault it happened to repair it. If this act involves the failure to exercise reasonable care, it is deemed negligence. Meany v. Meany, 94-0251 (La. 07/05/94), 639 So.2d 229.

In order to prevail in a negligence action, a plaintiff must prove:

(1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element);

(2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element);

(3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause in fact element);

(4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and

(5) actual damages (the damages element).

Mathieu v. Imperial Toy Corporation, 94-0952 (La. 11/30/94), 646 So.2d 318; Roberts v. Benoit, 605 So.2d 1032 (La.1991); Fowler v. Roberts, 556 So.2d 1 (La.1989); Thomas C. Galligan, Jr., A Primer on the Patterns of Negligence, 53 La.L.Rev. 1509 (1993).

Duty

Duty is defined as the obligation to conform to the standard of conduct associated with a reasonable man in like circumstances. Fox v. Louisiana State University Board of Supervisors, 576 So.2d 978 (La.1991). The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide. Mathieu, supra; Berry v. Department of Health and Human Resources, 93-2748 (La. 05/23/94), 637 So.2d 412; Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La.1984).

The duty issue was first presented to this court two years ago when plaintiffs appealed from the trial court's judgment granting defendants' motion for summary judgment, which was based on the erroneous legal conclusion that no duty was owed by defendants. We reversed and remanded the matter for trial. The following is excerpted from this court's opinion on rehearing:

The [winter storms] bulletin established Tech's knowledge of the general risk of injuries related to sledding, stating that:

... Fifteen reported personal injuries were associated with such behavior (sledding) during the last snow.

On the other hand, Tech's Security Police prohibited sledding anywhere on-campus. The Security Police believed that sledding off the hill at the Thomas Assembly Center was hazardous because of the specific danger of striking a light pole in the parking...