Brinson v. Morgan City Housing Authority, 92

CourtCourt of Appeal of Louisiana (US)
Citation629 So.2d 1214
Docket NumberNo. 92,92
Decision Date24 November 1993

Page 1214

629 So.2d 1214
No. 92 CA 1226.
Court of Appeal of Louisiana,
First Circuit.
Nov. 24, 1993.
Rehearing Denied Jan. 12, 1994.

Page 1215

Nicholas F. Larocca, Jr., Lippman, Mahfouz, Martin & Larocca, Morgan City, for plaintiff.

Robert M. Pugh, Pugh, Lanier & Riviere, Thibodaux, for defendant/appellant.



This appeal arises out of a personal injury suit by plaintiff, Shirley Brinson (Brinson), against defendant, the Morgan City Housing Authority. 1 The Housing Authority appeals the trial court judgment, pursuant to a jury verdict, in favor of plaintiff.


In late December, 1989, most of south Louisiana, including the Morgan City area, was hit with unusual, sub-freezing temperatures, snow, and ice. On Saturday, December 23, 1989, Brinson, a resident of Shannon Homes, one of five sites owned and operated by the Housing Authority, began to hear running water and observe moisture accumulating on the walls of her living room. Upon inspection, she found water dripping down the walls in the kitchen and collecting on the floor. She tried to mop up the water and used pots and pans to collect the falling water. She also attempted to telephone the Housing Authority, first by calling the weekend number and then the emergency number. Neither number was answered.

Brinson then called Ms. Mittie Byrd, a friend and one of the members of the five-member board which establishes policies and

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procedures for the Housing Authority. Ms. Byrd also attempted to reach the Housing Authority at both numbers, but could not get a response. 2 Brinson continued to mop up and collect the dripping water, which began to flow more rapidly.

After approximately four hours, a portion of the sheetrock ceiling in the kitchen of Brinson's apartment collapsed, striking her on the head and knocking her into the refrigerator.

On August 6, 1990, Brinson filed the instant suit for damages against the Housing Authority. In her petition, Brinson alleged that the ceiling and water pipes in her apartment were faulty and/or defective and were the cause of her injuries.

After a trial by jury, the defendant was found at fault and the jury allocated the fault between the parties at eighty-seven percent (87%) against the Housing Authority and thirteen percent (13%) against Brinson. The jury further awarded Brinson the following damages:

(a) Past and Future Medical Expenses: $38,700.00
                (b) Loss of Earning Capacity: $25,000.00
                (c) Past and Future Physical and Mental Injury, Pain and $31,600.00
                 Suffering, Disability and Loss of Enjoyment of Life:

These amounts were reduced by Brinson's percentage of fault, and judgment was rendered for Brinson in the amount of $82,911.00.

The Housing Authority filed a motion for judgment notwithstanding the verdict, and alternatively, a motion for new trial, which were denied. From this adverse judgment, the Housing Authority appeals, assigning as error:

1. Whether Brinson proved by a preponderance of the evidence that the Housing Authority was liable under strict liability and/or negligence for plaintiff's injuries.

2. Whether Brinson's actions were a substantial cause of and/or contributed to the injuries she sustained.

3. Whether the affirmative defense of "Act of God" or "Force Majeure" is applicable to the facts of this case.

4. Whether the damages awarded by the jury were excessive.

5. Whether the jury verdict should be set aside based on the statutory prohibition against trial by jury in suits against the state.


At trial the plaintiff argued 3 two theories of liability: strict liability of a landlord under La.C.C. art. 2695 4 and negligence under La.C.C. art. 2315. 5

Under either a strict liability or general negligence theory, the plaintiff has the

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burden of proving: (1) the property which caused the damage was in the "custody" of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises (breach of the duty); and (3) that the defect in the property was a cause in fact of the resulting injury. See, Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141, 1143 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (1983).

Generally, a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong". Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In Stobart v. State Through DOTD, 617 So.2d 880, 883 (La.1993), the Supreme Court reiterated the standard of review, stating, "where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong."

We find, after a careful reading of the record before us, that there is a reasonable factual basis for the finding of negligence on the part of the Housing Authority. There was testimony that the Housing Authority knew of the forecast of extremely cold temperatures, that the Housing Authority met to discuss plans for dealing with the cold yet failed to agree on a course of action, and that residents of the apartments of Shannon Homes did not, without the aid of a special tool unavailable to them, have access to the shut-off value to turn their water off.

In addition, Brinson was unaware that there were water pipes in the ceiling of her apartment. During the years Brinson had resided in the Housing Authority apartments, her pipes had never frozen. At no time prior to this incident nor during this episode of cold weather did the Housing Authority advise Brinson that there were pipes in the ceiling or that she should take precautions against the pipes freezing and then bursting. We find no error in the jury's determination of fault on the part of the Housing Authority.

The defense of "force majeure" does not shield the defendant from liability. In Rector v. Hartford Acc. & Indem. Co. of Hartford, Conn., 120 So.2d 511, 515 (La.App. 1st Cir.1960), an "act of God" was defined as follows:

An Act of God is an unusual, extraordinary, sudden, and unexpected, manifestation of the forces of nature which man cannot resist. The fact that no human agency can resist an Act of God renders misfortune occasioned solely thereby a loss by inevitable accident which must be borne by the one upon whom it falls. On the other hand, when an Act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct of omission.

No one is liable for an injury proximately caused by an Act of God, which is an injury due directly and exclusively to natural causes, without human intervention, which could not have been prevented by the exercise of reasonable care and foresight. [footnote omitted] [emphasis in original]

While it is true the extreme weather may be considered an "act of God", the injuries to Brinson were not "occasioned solely thereby". The "negligent conduct of omission", failing to advise residents of the precautions they should take, failing to respond within a reasonable time after notice to Byrd of the problem, and failing to provide the residents with a means of turning off their water, makes the Housing Authority liable.

However, Brinson's own actions were found by the jury to have contributed to the accident. Brinson remained in her apartment for approximately four to five hours after the problem was discovered, attempting to mop up and collect the flow of water. The jury found Brinson thirteen percent at fault and the Housing Authority eighty-seven percent at fault. The Housing Authority argues this allocation is erroneous.

The percentage allocation of fault in a comparative negligence case is a question of fact. Brooks v. City of Baton Rouge, 558 So.2d 1177, 1179 (La.App. 1st Cir.), writ denied, 566 So.2d 982 (1990). As any other question of fact, it should not be disturbed in

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the absence of manifest error on the part of the trier of fact. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

Brinson's negligence did contribute to her injuries. Brinson exposed herself to an increasingly greater risk as she remained in her apartment while the water flow continued to increase. Although she was unsure of the origin of the problem and could not identify the source of the water, she knew the water flow was increasing. She had over four hours to consider the growing risks she faced by remaining in the apartment; yet, she did not leave. We find that it was clearly wrong for the trial court to allocate the fault between the Housing Authority and Brinson at eighty-seven percent and thirteen percent, respectively. Brinson must share in a greater percentage of fault.

Considering the factors listed in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), we conclude the proper allocation of fault to Brinson is twenty-five percent. Brinson was aware that she faced a danger. She knew water was entering her apartment from an unknown source. Although she could not recognize the exact nature of the risks she faced, she could perceive that, with the increasing flow of water, the risks were also increasing. In addition, she was not required to act in haste; rather, she had over four hours to comprehend the risks she faced and exit the apartment.


In its next assignment of error, the Housing Authority argues the award of damages to Brinson is excessive. It is well-settled that before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion. Reck v. Stevens, 373 So.2d 498, 501 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976). The Supreme Court in the recent case Hae Woo Youn v. Maritime Overseas Corp., ...

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2 cases
  • 94 1631 La.App. 1 Cir. 4/7/95, Doucet v. Champagne
    • United States
    • Court of Appeal of Louisiana (US)
    • 7 Abril 1995 used to conclude what award for future medical expenses would be supported by the record. Brinson v. Morgan City Housing Authority, 629 So.2d 1214, 1218 (La.App. 1st Cir.1993), writ denied, 635 So.2d 1134 (La.1994). Based on the past medical records, we find that the trial judge's award ......
  • Brinson v. Morgan City Housing Authority
    • United States
    • Supreme Court of Louisiana
    • 7 Abril 1994
    ...4/7/94 Shirley BRINSON v. MORGAN CITY HOUSING AUTHORITY. No. 94-C-0358. Supreme Court of Louisiana. April 7, 1994. Prior report: La.App., 629 So.2d 1214. In re Morgan City Housing Auth.;--Defendant(s); applying for writ of certiorari and/or review; to the Court of Appeal, First Circuit, No.......

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