Cell-O-Mar, Inc. v. Gros

• Decision Date: 19 November 1985
• Docket Number: CELL-O-MA,No. CA,INC,CA
• Parties: v. Lawrence J. GROS, et al. 84 0749.
• Court: Court of Appeal of Louisiana — District of US

Page 386

479 So.2d 386

CELL-O-MAR, INC. v. Lawrence J. GROS, et al.

No. CA 84 0749.

Court of Appeal of Louisiana First Circuit.

Nov. 19, 1985.

Writs Denied Jan. 31, 1986.

Charles Hanemann of Henderson, Hanemann & Morris, Houma, for plaintiff and third appellant Cell-O-Mar.

James C. Walker, Jr., of Watkins, Walker & Prejeant, Houma, for defendant and second appellant Quality Industries, Inc.

Risley C. Triche and Daniel J. Nail of Triche, Sterfels & Nail, Napoleonville, for defendant and first appellant Lawrence J. Gros and Mr. and Mrs. Daniel Nail.

Michael R. Sistrunk, New Orleans, for defendant and first appellant Nat. Union Fire Ins. Co.

Stanley E. Loeb, New Orleans, for American Ins. Co., defendant-appellee.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

LANIER, Judge.

This is a suit for damages in tort and contract arising out of the collapse of a leased building during renovations by the lessee. The lessor-owner, Cell-O-Mar, Inc. (Cell-O-Mar), filed suit against the lessee, Lawrence J. Gros, the lessee's insurer, National Union Fire Insurance Company (National), a renovation contractor, Quality Industries, Inc. (Quality), the contractor's insurer, American Insurance Company (American), and an interior designer and her husband, Christine and Daniel Nail. ¹ The trial court found no coverage by American and no liability of Mr. and Mrs. Nail. Judgment was rendered in favor of Cell-O-Mar against Gros, Quality and National for $138,343.31. Gros, National and Quality appealed suspensively. Cell-O-Mar appealed devolutively.

FACTS

In 1965, Cell-O-Mar erected a building on property it owned, which had the address of 1900 Canal Boulevard, Thibodaux, Louisiana, and was located in Lafourche and Terrebonne Parishes. The plans for the building were obtained from the local lumber company that furnished the building materials. The building was constructed by a local general contractor. The building had a flat roof and no parapets. The roof was supported by a row of seven centrally located columns. A beam spanning the length of the building rested on top of these columns.

In 1972, a bend was discovered in one of the columns. Cell-O-Mar hired Quality to reinforce the column. (The Quality office is next door to the building.) From 1972 to 1977, the building was leased to Arlen Authement. In 1977, Authement contacted Cell-O-Mar's president, Sam Marcello, about a "spongy condition" on the rear portion of the building's roof. Cell-O-Mar hired Jim Blackmon, a roofing contractor, to inspect the roof. Blackmon found the roof dry and in sound condition. The building withstood a number of storms without incident between 1965 and 1978.

On February 13, 1978, Gros executed a written agreement with Cell-O-Mar for the lease of the building and the property on which it was located. The primary term of the lease was from February 14, 1978, to March 27, 1983, with an option to renew for five years. The rent during the primary term was $1,850 per month. The agreement provided that the "premises shall be used primarily to conduct the business of a nightclub". The agreement stated that Gros could not "make any alterations and/or improvements to the leased premises without first obtaining the written consent" of Cell-O-Mar, and any such improvements and/or alterations "shall be done at the sole cost, expense and responsibility" of Gros. In addition, the parties agreed as follows:

Lessee acknowledges that said premises are in good condition and Lessee expressly assumes the responsibility for the condition of the leased premises and Lessor shall not be held liable in damages for any injury to any tenant, employee of Lessee, occupant or any other person or property in the building or on the premises, caused by any vice or defect or change of conditions in the leased premises unless the Lessor be notified in writing of such vice or defect and shall have failed to remedy same within a reasonable time if such defect involved a repair for which Lessor is responsible under the terms of this lease and Lessee assumes full responsibility and liability for and binds himself to hold Lessor harmless from any injury and/or damage to any and all persons and/or property on the leased premises or adjacent thereto, caused by the negligence of Lessee, his employees, agents and/or otherwise and/or caused by Lessee's failure to keep said premises in good condition and/or make repairs for which Lessee is responsible under this lease and Lessee agrees to hold Lessor harmless from any and all such claims and/or damages including the payment of any judgment and/or attorney's fee and/or costs of defending any such suit.

Gros verbally advised Sam Marcello that renovations would be necessary to convert the building into a disco nightclub. However, contrary to the lease provisions, Gros commenced renovations without the written consent of Cell-O-Mar. Gros did not recall whether or not he gave a copy of his renovation plans to Cell-O-Mar. Sam Marcello testified he did not see the renovation plans until he saw them on the floor of the building long after the renovations were under way. After Marcello saw the plans, he asked Gros about them. Gros told Marcello he would have any structural problems resolved by a structural engineer.

Gros retained Christine Nail, an interior decorator, to help with the renovations. Mrs. Nail was not an engineer or an architect. Gros advised Mrs. Nail he wanted a bandstand with an unimpeded view. After the location of the bandstand was selected, Mrs. Nail determined that column 7 (closest to the rear of the building) had to be removed for an unimpeded view. To replace column 7, Mrs. Nail proposed flanking columns spanned by an I-beam. This plan was submitted to show the desired aesthetic effect; it was not offered as an alternative to plans by an architect or structural engineer. Mrs. Nail advised Gros to get a structural engineer to plan the removal of column 7.

Gros commenced renovations without the advice of a structural engineer. Three air-conditioning units weighing a total of 5,100 pounds were placed on the roof. Holes were cut in the roof to accommodate the placement of these units.

Gros subsequently had an employee of his air-conditioning contractor cut the bottom of column 7 with a cutting torch. No provision was made for additional support for the roof. When the column was cut, the roof dropped to fill the void caused by the cutting. Gros then contacted Quality to assist in replacing column 7 in accordance with Mrs. Nail's plan. Clyde Waguespack of Quality supervised Quality's work. Waguespack was not a structural engineer or an architect. Quality selected and furnished materials and selected techniques.

Quality reinforced columns 1 through 6 by welding steel plates to them. Quality installed a temporary column in the vicinity of column 7 and jacked up the center beam to the desired elevation. Quality then procured and installed two flanking columns made of schedule 40 pipe 3 1/2 inches in diameter. Quality procured and installed an 8 inch I-beam perpendicular to the center beam between the flanking columns. When Quality lowered the roof jack after this work was done, the roof sagged an inch. Waguespack had the center beam jacked back up to its former position.

Quality then procured a channel beam and welded it to the I-beam as a stiffener. The jack was lowered and the roof sagged again. The center beam was jacked back up again. Quality procured a flat bar and knee braces, welded the knee braces to the flat bar and welded the flat bar and the knee braces to the I-beam. The jack was again lowered and the roof did not sag. Although the record is not clear, it appears this work was completed on or about June 21, 1978.

On July 5, 1978, heavy rains came. Water leaked into the rear of the building and the interior was awash. The I-beam deflected downward. Quality was contacted to install a temporary column to brace the I-beam. However, before Quality could take action, the I-beam collapsed causing the flanking columns, center beam, bar joists, upper wall and roof to collapse.

LIABILITY OF GROS

Gros contends the trial court committed error by finding him liable.

The lessee of property is bound to enjoy the leased thing as a good administrator. La.C.C. art. 2710. A lessee is liable for injuries and losses caused by his fault. La.C.C. arts. 2721, 2315 and 3556(13); Bell v. Badger Dredging, Inc., 420 So.2d 1197 (La.App. 5th Cir.1982). Further, Gros contractually obligated himself to Cell-O-Mar to be responsible "for the condition of the leased premises" during the term of the lease and to be responsible for any improvements and/or alterations done to the premises by him. ² Thus, Cell-O-Mar's claim against Gros sounds in tort and contract.

The trial court found as fact that Gros was at fault by (1) not securing a structural engineer to plan the removal of column 7 and its replacement with new structural supports, and (2) not testing to see if the renovated roof support system would hold the weight of rainwater. Cf. Trahan v. Broussard, 399 So.2d 782 (La.App. 3rd Cir.1981). These factual findings are not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Gros also contends that "the fault of Quality was an intervening cause which would prevent a finding of liability on the part of Gros whose negligence was more remote". Gros contractually obligated himself to Cell-O-Mar to be responsible for the leased premises during the term of the lease and to be responsible for alterations to the premises. These contractual obligations cannot be affected unilaterally by Gros. These contractual obligations are not affected by Quality's conduct because Quality was acting at the request of Gros.

This assignment of error is without merit.

LIABILITY OF QUALITY

Quality contends the trial court erred in finding it liable. Quality asserts Cell-O-Mar did not prove (1) what standard of care (duty) a contract welder must...