94-2194 La.App. 4 Cir. 7/26/95, Jones v. Hyatt Corp. of Delaware

• Citation: 681 So.2d 381
• Parties: 94-2194 La.App. 4 Cir
• Decision Date: 26 July 1995
• Court: Court of Appeal of Louisiana (US)

Page 381

681 So.2d 381

94-2194 La.App. 4 Cir. 7/26/95

Adrienne JONES v. HYATT CORPORATION OF DELAWARE, XYZ Insurance Company, et al.

No. 94-CA-2194.

Court of Appeal of Louisiana Fourth Circuit.

July 26, 1995.

Opinion Granting Rehearing,

Sept. 26, 1996.

Sonje W. Wilkerson, Iris A. Tate, Wilkerson, Tate & Williams and Russ M. Herman, Stephen J. Herman, Herman, Herman, Katz & Cotlar, L.L.P., New Orleans, for Plaintiff/Appellee.

Craig R. Nelson, Christina P. Fay, Ward, Nelson & Pelleteri and Martin A. Stern, Jeffrey E. Richardson, Adams and Reese, New Orleans, for Appellant.

E. Fredrick Preis, Jr., James M. Garner, Martha M. Young, McGlinchey Stafford Lang, New Orleans, for Amicus Curiae.

G. Bruce Parkerson, J. Marie Rudd, Phelps Dunbar, L.L.P., Martin A. Stern, Donald C. Massey, Jeffrey E. Richardson, Adams and Reese, New Orleans, and Albert C. Miranda, Elizabeth M. Truett, LeBlanc, Miranda & deLaup, Metairie, for Amici Curiae.

Before BARRY, BYRNES and LANDRIEU, JJ.

[94-2194 La.App. 4 Cir. 1] BYRNES, Judge.

Adrienne Jones brought this personal injury action against Hyatt Corporation of Delaware (Hyatt) for damages sustained in a slip and fall accident on March 18, 1989, while walking through a corridor at the Hyatt Regency Hotel in New Orleans. The case was removed to federal court, but was later remanded to state court through proceedings that are not at issue on this appeal.

A jury found Hyatt liable to plaintiff for $40,000.00 in past medical expenses; $30,000.00 future medical expenses; $45,000.00 past lost wages and benefits; $20,000.00 loss of personal services; $400,000.00 future lost wages, including earning capacity and all benefits; and $400,000.00 general damages for a total award of $935,000.00. We amend and affirm as amended.

The primary complaint of appellant, Hyatt, is that it was error for the trial court to instruct the jury that Hyatt as an innkeeper "owes his guests a high degree of care and protection." Hyatt objected to this charge and further objected to the failure to charge the jury that Hyatt should only have been required to exercise ordinary reasonable care. Hyatt contends that because the [94-2194 La.App. 4 Cir. 2] trial court instructed the jury to require an erroneously high standard of care it is now entitled to a de novo review of the record on appeal.

Hyatt argues that the cases imposing a "high" standard of care on the innkeeper instead of ordinary reasonable care are limited to damages arising out of third party criminal activity. Kraaz v. LaQuinta Motor Inns, Inc., 410 So.2d 1048 (La.1982); Banks v. Hyatt Corp., 722 F.2d 214 (5 Cir.1984). In Kraaz the court stated at 1055:

The innkeeper's position vis-a-vis his guests is similar to that of a common carrier toward its passengers. Wilson v. Iberville Amusement Co., 181 So. 817 (Orl.App.Ct.1938). Thus, a guest is entitled to a high degree of care and protection. See Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979), and Green v. TACA, 304 So.2d 357 (La.1974). [Emphasis added.]

Although the Kraaz case involved damages caused by third party criminal activity, the rationale behind the standard of care adopted by the Kraaz court as quoted above was not based on the criminal nature of the activity, but upon an analogy to the standard required of common carriers having nothing to do with criminal activity. See also: Franklin v. Paul Dupuis & Associates, 543 So.2d 970 (La.App. 3 Cir.1989), writ den. 545 So.2d 1042 (La.1989). The Galland case cited above by the Kraaz court involved a lady who was injured as she was alighting from a bus. No criminal activity was involved. The Galland court imposed the following standard and burden on the common carrier:

It is well established that common carriers are charged with the highest degree of care to their passengers and that the slightest negligence causing injury to a passenger will result in liability. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Gross v. Teche Lines, 207 La. 354, 21 So.2d 378 (1945). Further, where there is proof of injury to a fare-paying passenger, the burden shifts to the defendant carrier to show that he is free from negligence. Wise v. [94-2194 La.App. 4 Cir. 3] Prescott, supra; Carter v. New Orleans Public Service, Inc., supra. [305 So.2d 481, 483 (La.1975) ]. It is here that the court of appeal erred when it stated that the plaintiff must not merely prove that the injury was caused by an incident, occurrence or condition which is attributable to the carrier before the presumption is created in favor of the plaintiff. Properly stated, the rule is that the mere showing of injury to a fee-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincing by overcoming the prima facie case. Wise v. Prescott, supra.

Galland, 377 So.2d at 85.

Likewise, the Green case also cited by the Supreme Court in Kraaz involved a common carrier passenger injured in a fall. No criminal activity was involved. The Supreme Court in Green, 304 So.2d at 359, described the applicable standard:

The duty owed by a common carrier in Louisiana to its passengers is stringent, whether it be termed "the highest standard of care," [footnote omitted] "highest degree of vigilance, care and precaution for the safety of those it undertakes to transport," or "the strictest diligence."

The Banks case cited by Hyatt involves innkeeper liability for third party criminal acts, but the Banks court did not limit the high standard of care to third party criminal acts. In Banks, 722 F.2d at 221, the court stated that: "Under Kraaz, innkeepers owe a high degree of care, which embraces a duty to take reasonable precautions against criminal assaults on guests." The Banks court was making the point that the duty to take precautions against third party criminal acts was only one aspect of the high degree of care owed by the innkeeper in connection with tort liability generally.

The Banks court also noted that the theory of innkeeper tort liability is an expanding field. Cases expanding the scope of the duties imposed on innkeepers cause previous cases calling for a more limited scope to become [94-2194 La.App. 4 Cir. 4] outdated quickly. In this regard we note that the innkeeper liability cases cited by Hyatt ante-date the Supreme Court's pronouncement in Kraaz and are no longer controlling.

In Brown v. Harlan, 468 So.2d 723 (La.App. 5 Cir.1985), dismissal granted, writ not considered 472 So.2d 26 (La.1985),the court found error in jury instructions that imposed only a standard of ordinary care on an innkeeper. No criminal activity was involved. The Brown court quoted from Banks explaining that the higher standard "is no doubt rooted in the belief that business patrons of innkeepers, like those of common carriers and unlike those of other businesses, have entrusted their personal security to the innkeeper." Brown at 727.

Sutter v. Audubon Park Com'n, 533 So.2d 1226 (La.App. 4 Cir.1988), writ den. 538 So.2d 597 (La.1989) fails to support the proposition for which it is cited by the defendants. In Sutter the court considered for the first time the liability of a public park for third party criminal activity. The Sutter case has no bearing on the instant case because the Sutter court did not consider either in dicta or by implication an innkeeper's standard of care for general tort liability.

On the other hand, Lorio v. The San Antonio Inn, 454 So.2d 864 (La.App. 5 Cir.1984), applied the Kraaz "high degree of care" where no third party criminal activity was involved. In doing so it was not inconsistent for the Lorio court to cite Brasseaux v. Stand-By Corp., 402 So.2d 140 (La.App. 1 Cir.1981), writ den. 409 So.2d 617 (La.1981), for the proposition that inspections of the premises and mechanical equipment are duties owed by the innkeeper; [94-2194 La.App. 4 Cir. 5] and to cite Kauffmann v. Royal Orleans, Inc., 216 So.2d 394 (La.App. 4 Cir.1968), for the proposition that the innkeeper will be held to have constructive knowledge of dangerous conditions that existed long enough that they should have been discovered, even though both of these cases ante-dated Kraaz.

In Gregor v. Constitution State Ins. Co., 534 So.2d 1340, 1343 (La.App. 4 Cir.1988), writ den. 536 So.2d 1238 (La.1989), this court considered the standard of care owed to a claimant who fell from defendant's roof: "An innkeeper owes his guest a high degree of care and protection." This means a "greater than ordinary standard of care." Id.

Hyatt cites cases involving the duty of merchants, but merchants are governed by a specific statute, LSA-R.S. 9:2800.6, which does not apply to innkeepers. See Neyrey v. Touro Infirmary, 94-0078 (La.App. 4 Cir. 6/30/94), 639 So.2d 1214. Additionally we note that LSA-R.S. 9:2800.6 applies only to causes of action arising on or after September 1, 1990, the effective date of the act.

In Johnson v. Beavers, 496 So.2d 1251, 1257 (La.App. 5 Cir.1986), the court stated that "the hotel owed a duty to its invitees to use reasonable care" which Hyatt notes is a lesser standard than a "high degree of care." However, there is no indication that the Johnson court chose "reasonable care" over "high degree of care." As the court found the innkeeper liable under the lesser standard of care there was no need for the court to decide whether the innkeeper would have been liable under the more demanding "high degree of care" standard and the question never came up.

[94-2194 La.App. 4 Cir. 6] Based on the foregoing, we find no error in the jury instruction requiring "a high degree of care and protection."

There is no presumption of fault simply because a person falls. Kinchen v. J.C. Penney Co., Inc., 426 So.2d 681 (La.App. 1 Cir.1982). Defendants contend that "because plaintiff did not put on any evidence to prove a defect in the lighting or the floor surface, the sole...