Chapeuis v. Cassimano

• Decision Date: 25 September 1990
• Docket Number: No. 89-C-2050,89-C-2050
• Citation: 568 So.2d 606
• Parties: Michael CHAPEUIS v. Edwin CASSIMANO, McKinley Bright, Roosevelt Walker, First Horizon Insurance Company, Shell Oil Company, St. Charles Avenue Shell Service Station, United States Fidelity and Guaranty Company, Charles L. Bernard, St. Charles Service Station, Inc., Ed's Cab Service, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 606

568 So.2d 606

Michael CHAPEUIS v. Edwin CASSIMANO, McKinley Bright, Roosevelt Walker, First

Horizon Insurance Company, Shell Oil Company, St. Charles

Avenue Shell Service Station, United States Fidelity and

Guaranty Company, Charles L. Bernard, St. Charles Service

Station, Inc., Ed's Cab Service, Inc.

No. 89-C-2050.

Court of Appeal of Louisiana, Fourth Circuit.

Sept. 25, 1990.

Writ Denied Nov. 30, 1990.

James Ryan, III, Brent P. Abadie, Sessions & Fishman, New Orleans, for defendants-relators.

Maurice B. Friedman, New Orleans, for plaintiff-respondent.

Before SCHOTT, C.J., and CIACCO and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Pursuant to the April 16 order of the Supreme Court of Louisiana we issued a writ of certiorari in order to consider the issue originally submitted to us in application for supervisory writs in the above captioned matter; whether the trial court erred in granting plaintiff's motion for new trial and denying defendant's motion for summary judgment.

The facts and history of this case are as follows:

On June 2, 1985 plaintiff was a customer at the St. Charles Avenue Shell Station. As plaintiff pumped gas into his own vehicle at a self service pump, an Ed's Cab Service, Inc. taxi cab operated by Roosevelt Walker drove into the station and stopped opposite the plaintiff's vehicle. Walker opened the hood of his cab and attempted to cool the radiator with a water hose while the vehicle remained running.

Plaintiff noticed the activities of Walker and warned Walker not to open the radiator cap. Plaintiff turned his back and Walker proceeded to open the radiator cap despite plaintiff's warnings.

Upon Walker's opening of the radiator, hot water spewed from the taxi cab and rained on plaintiff who had remained standing near the cab. Plaintiff's back and buttocks were burned by the radiator water.

Plaintiff filed suit for damages on May 30, 1986. The parties thereafter engaged in discovery including interrogatories and the deposition of plaintiff. On June 27, 1988, defendants-relators filed a Motion for Summary Judgment on the basis that plaintiff's petition stated no cause of action against defendants-relators, plaintiff's own fault was a substantial cause of the accident and his injuries, and that defendants-relators owed no duty to protect plaintiff from the particular risk encountered. Trial of this Motion for Summary Judgment was set for October 7, 1988.

Defendants-relators' Motion for Summary Judgment was tried on October 7, 1988. Only counsel for movers was present at the trial. At the close of the trial of the motion, judgment was rendered in favor of defendants CHARLES BERNARD, individually and d/b/a ST. CHARLES AVENUE SHELL SERVICE STATION, INC. and against the plaintiff, MICHAEL CHAPEUIS, dismissing plaintiff's petition as to those parties without prejudice, each party to bear its own costs.

On October 11, 1988, counsel for plaintiff filed a motion for new trial on the motion for summary judgment which had been heard on October 7, 1988.

On November 29, 1988, the trial court read and signed its judgment on the defendants-relators' motion for summary judgment which had been rendered on October 7, 1988.

Thereafter, counsel for plaintiff filed a second motion for new trial on defendants-relators' motion for summary judgement on December 19, 1988.

Plaintiff's motion for new trial was heard on July 10, 1989. The trial court rendered judgment in favor of plaintiff granting a new trial on that date, which judgment was read in open court and signed on July 14, 1989. On that same date, defendants-relators' motion for summary judgment was also denied.

Notice of intention to seek supervisory writs and a request to fix a return date for filing of application of supervisory writs was filed in the trial court on October 19, 1989. The trial court granted defendants-relators through October 31, 1989 to seek writs.

The application for supervisory writs was filed in the Court of Appeal, Fourth Circuit, number 89-C-2050. By order dated January 31, 1990, the writ was denied indicating that relator had an adequate remedy on appeal.

The denial of defendants-relators' application for supervisory writs was appealed to the Supreme Court of the State of Louisiana, No. 90-CC-0427. Writs were granted on April 16, 1990 with the matter transferred back to the Fourth Circuit Court of Appeal for briefing, argument and opinion.

Defendants-relators', Charles Bernard, individually and d/b/a St. Charles Avenue Shell Service Station and St. Charles Aveneue Shell Service Station, Inc., (Charles Bernard), argue that the trial court abused its discretion by granting plaintiff's Motion for New Trial and denying its Motion for Summary Judgment. Charles Bernard's contention is that 1) he was entitled to summary judgment as a matter of law and 2) that the trial court acted improperly in considering plaintiff's motion for new trial because it was not timely filed. We will address Mr....