95-158 La.App. 5 Cir. 6/28/95, Verret v. Tonti Management Corp.
| Decision Date | 28 June 1995 |
| Parties | 95-158 La.App. 5 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Jason W. Robideaux, Lafayette, for plaintiff-appellant.
Jack E. Truitt, James A. Williams, Metairie, for defendant-appellee.
Before BOWES, GRISBAUM and WICKER, JJ.
[95-158 La.App. 5 Cir. 1] GRISBAUM, Judge.
This appeal relates to a personal injury action. The plaintiff was a lessee of defendant, Tonti Management Corporation who suffered personal injuries which were inflicted upon him by another Tonti resident. A jury verdict found no negligence on the part of Tonti from which plaintiff appeals. We affirm.
This litigation arose from an incident which occurred on December 22, 1991. Preston Verret, a resident of Sunlake Apartments in Kenner, was severely beaten by another tenant, Grant Gunderson, as he exited a taxicab. The attack occurred within the apartment complex in the parking lot-common ground area outside of the Verret's building. Sunlake Apartment complex is owned and managed by Tonti Management Corporation.
Verret filed suit against Tonti Management Corporation alleging the attack was caused "solely by the negligence and omissions and breach of duty by defendant and its agents." His petition was amended to include a contractual [95-158 La.App. 5 Cir. 2] claim. Verret claimed defendant and its security guards failed to take those steps necessary to remove the assailant from attacking him by failing to summon the police in a timely fashion.
One of the witnesses who testified surrounding the events of December 22, 1991, was Kerri Smith. Smith testified she was present at Sunlake Apartments visiting her friend, Michael Pradat, along with Chad Pradat and Brandon Boyland. Smith testified Grant Gunderson showed up at Pradat's apartment around 9:00 p.m., in a drunken and argumentative state. Gunderson was asked to leave the apartment, whereupon he went outside and began punching at trees in the parking lot.
Because she was concerned Gunderson might harm her car, Smith went outside to move it and was eventually followed by the others. According to Smith, Gunderson tried to pick a fight with Boylan and Michael and Chad Pradat. Eventually, Gunderson and Chad Pradat started wrestling on the ground. Smith described the wrestling match as a physical fight, which was definitely not horseplay, since the two men were not getting along at that point.
Smith testified she saw a security guard approach the scene as she watched the fight from more than twenty feet away. Although she did not hear everything he said, she did hear the guard say several times to break it up or he would call the police. Smith testified the guard did not get very close to the fight. Smith stated the guard appeared to be working for Tonti.
Pradat and Gunderson stopped fighting, and the group eventually dispersed. Later that night, sometime after midnight, Smith heard a car pull up and looked outside of the second story window. She observed a man (Verret) getting out of a taxicab, who suddenly was attacked by Gunderson. Gunderson approached Verret screaming and demanding money. Before Verret could react, Gunderson started to beat and kick him. Smith estimated the beating lasted [95-158 La.App. 5 Cir. 3] about five minutes. Smith testified the beating ceased when Gunderson ran off and Verret crawled to his third floor apartment and summoned an ambulance, which arrived minutes later.
Brandon Boyland also testified regarding the incident. Boyland confirmed Gunderson was at Pradat's apartment earlier and was intoxicated and argumentative. Boylan testified Gunderson displayed a violent temper that night. Boylan also described the earlier fight between Gunderson and Pradat as a true, physical fight, not a friendly wrestling match. However, Boylan testified he did not see a security guard approach and break up the fight. He stated he was standing about five feet away from Pradat and Gunderson and his attention was more focused on them since Gunderson had tried to instigate a fight between them all.
Later that night Boylan claimed he witnessed the beating of Verret. He testified he wanted to call the police but Michael Pradat objected because he feared repercussions due to Gunderson's reputation as a drug dealer.
Preston Verret's description of the incident was the same as Smith's and Boylan's. He stated as he exited a taxicab in front of his building, he was confronted by a stranger who demanded money. When he did not give the man any money, the beating started and abruptly ended several minutes later. As a result of the beating, Verret suffered crushed bones in his face and skull which required surgical repair.
Verret testified he moved into the Sunlake complex in the fall of 1989. He stated his previous apartment was not a good place to live and was attracted to Sunlake because, "It was clean, well-lighted, there was a security guard on the premises, it was reasonably priced."
When he moved into Sunlake, he was given a key tag, which was a permit to the facilities. He was told to keep the tag with him as identification when using [95-158 La.App. 5 Cir. 4] the pool, tennis courts, and exercise rooms. Verret testified he was told the security guards had the right to challenge anyone who was on Sunlake property and force them to leave if they were not a resident.
Sandra Thomas, the manager of Sunlake Apartments, testified Sunlake did have a security guard hired by Tonti. However, his only purpose was to walk the property and check the physical plant. Thomas stated if a guard encountered someone on Tonti property without a proper pass, they were asked to leave. Thomas explained this was to insure Tonti residents had space to use the facilities, and to protect the property from being damaged or vandalized.
Thomas stated Tonti Management does not provide security for its tenants, and that the tenants are told there is no security. The lease states the security guard is there to protect the physical plant only. Thomas described the proper course of action for a security guard if he witnesses a fight is to call the police.
Philip Giorello, a Kenner policeman who responded to the December 22, 1991 incident, testified he was not aware of any prior robberies at Sunlake Apartments. Giorello stated he Kenner Police Department would routinely patrol the driveways of Sunlake Apartments checking the cars, etc.
After a jury trial on July 12-14, 1994, the jury returned a verdict in favor of Tonti Management. After the reading of the verdict, plaintiff made an oral motion for judgment notwithstanding the verdict which was denied. The trial court adopted the finding of the jury and signed a judgment on September 1, 1994.
We are called upon to determine a number of specific questions.
1. Whether the trial court gave jury instructions which were confusing and erroneous warranting a de novo review:
[95-158 La.App. 5 Cir. 5] 2. Finding a de novo review mandated, we must then necessarily determine whether the lessees injuries were caused by the negligence of Tonti in that there was a duty owed which was breached by Tonti and secondly, whether Tonti, lessor, breached his obligations as defined under La. C.C. 2692(3), which bonds the lessor to cause a lessee to remain in peaceable possession.
Our jurisprudence tells us that the adequacy of jury instructions given by a trial court must be determined in light of the jury instructions as a whole. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstance of the case. Jones v. Liberty Mutual Ins. Co., 568 So.2d 1091, 1094 (La.App. 5 Cir.1990), writ denied 572 So.2d 72 (La.1990).
The pertinent question involved in deciding whether reversible error had occurred is whether the jury was misled to such an extent as to prevent it from doing justice. Cuccia v. Cabrejo, 429 So.2d 232 (La.App. 5 Cir.1983), writ denied 434 So.2d 1097 (La.1983). Appellant complains the trial court erred in characterizing the assailant/tenant, Grant Gunderson, as a "third party with no right to the premises", which led to the erroneous charge to the jury under La.C.C. art. 2703. The relevant portion of the trial court's jury charge reads:
Our statutory scheme in our civil code art. 2703 provides, "The lessor is not bound to guarantee the lessee against disturbances caused by persons not claiming any right to the premises; but in that case the lessee has a right of action for damages sustained against the person occasioning such disturbance." Appellants argue Gunderson should not be considered a third person simply because he was a tenant with a right to be on the property. We agree.
A review of the pertinent jurisprudence of this court shows in Credithrift of America, Inc. v. Sinclair, 430 So.2d 822 (La.App. 5 Cir.1983):
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