Curet v. Hiern

• Decision Date: 13 May 1957
• Docket Number: No. 20839,20839
• Citation: 95 So.2d 699
• Parties: Mrs. Elizabeth CURET v. Charles H. HIERN et al.
• Court: Court of Appeal of Louisiana — District of US

Page 699

95 So.2d 699

Mrs. Elizabeth CURET v. Charles H. HIERN et al.

No. 20839.

Court of Appeal of Louisiana, Orleans.

May 13, 1957.

Rehearing Denied June 24, 1957.

Writ of Certiorari Denied Oct. 8, 1957.

M. C. Scharff and Tucker & Schonekas, New Orleans, for plaintiff and appellee.

Michael J. Molony, Jr., Jones Walker, Waechter, Poitevent & Denegre, New Orleans, for defendants and appellants.

McBRIDE, Judge.

Plaintiff filed this suit in the Twenty-fourth Judicial District Court for the Parish of Jefferson against Charles H. Hiern and his liability insurer, Liberty Mutual Insurance Company, seeking to recover damages for injuries allegedly sustained as a result of her fall down a stairway, claimed to be defective in design and construction, located in the interior of a two-apartment building owned by Charles H. Hiern.

The petition and the supplemental and amended petition allege, in substance, that plaintiff's son-in-law and daughter were lessees of Hiern, the owner of the upper apartment identified by Municipal No. 2409 Leonidas Street; that plaintiff lives with them; that they moved into the apartment about December 1, 1951. On December 5th plaintiff was awakened in the early morning hours by the sound of wind and rain, and upon hearing a noise which sounded like the downstairs door slamming, she arose from bed intending to proceed down the stairs to close the door; that she opened an upstairs door and in 'attempting to step on what she thought to be a landing, she fell completely down the front stairs.' Plaintiff charges that the stairway is defective in several respects and not in conformity with the Building Code of New Orleans, and that her fall was caused thereby.

Defendants interposed an exception of no cause of action which was overruled by the trial court. Then answering they deny plaintiff was injured as a result of a fall on the stairway and also denied that the stairway was defective either in design or construction or that the alleged defects caused plaintiff to fall. They affirmatively aver that the stairway was constructed in accordance with the usual and customary standards prevailing in the City of New Orleans and in compliance with the New Orleans Building Code, and that the sole and proximate cause of the accident was plaintiff's own negligence in failing to pay proper heed while approaching a stairway and in failing to use the usual and ordinary care requisite when one descends a stairway. In the alternative, defendants plead that plaintiff was contributorily negligent in these respects.

On these issues the matter proceeded to trial in the lower court and judgment was rendered in favor of plaintiff awarding her $6,500 for physical injuries and future medical expenses, from which judgment the defendants have prosecuted their devolutive and suspensive appeal which has been answered by plaintiff who prays that the amount of the judgment be increased to the sum of $10,000.

No one, save plaintiff, was present when the accident happened and her narration of the occurrence stands alone. Rather than paraphrase her testimony, we quote it verbatim:

'Q. Now, on the night of the accident or the early morning of the accident, did you get out of bed? A. Well, there was a storm come up about two-thirty, I think.

'Q. About two-thirty in the morning? A. Yes, and I got up to go and put the window down. The rain was coming in.

'Q. In your room? A. In our room, yes, and so I heard the door slamming.

'Q. What door? A. Downstairs.

'Q. The downstairs door? A. Across the hall, you know, and I said, 'Well, I will go.'

'You know, lock it up. So, when I got to the door, it just opened. No lock, no nothing and I just went right on down and that was the last I ever knew.'

And again plaintiff testified:

'I thought it was there but it was the one that was pounding on top. You see, we were there three days and whenever I touched the door there, I went down. There was no lock, no locks on the door.'

For the third time plaintiff described in similar terms how the accident happened, as shown by the following testimony:

'Q. Did you say that when you started to fall, what did you do when you realized you were falling? A. I just went down. I didn't know anything, not a thing.'

On cross-examination she was questioned as to her explanation of the fall as compared with the allegations of her petition, and her testimony appears thus:

'Q. And you said that according to the statement in your petition here, that you assumed there would be a landing there and you stepped out, is that right? A. No, whenever I took the door this way, and I just went right on down, because there was no lock. I thought the door was locked.'

The upstairs door Mrs. Curet alludes to is situated in a hall between the dining room and living room and this area was in darkness, or as the plaintiff put it, there were 'no lights nowhere.' Some contention is made that the hallway was sufficiently illuminated by the bedroom light, but we do not believe this to be a fact; at least it cannot be squared with Mrs. Curet's statement that there were no lights. Plaintiff made no attempt to switch on the light above the stairway door through which she says she fell.

No claim is made that any portion of the stairs broke, crumbled or gave way, and the ground of complaint is that the staircase was unsafe by virtue of its peculiar design, the alleged structural defects being, viz.: that the door should not have opened into a stairwell without a landing or platform; that a handrail was lacking; the flight of steps was entirely too steep; and that the individual steps, which were too narrow, varied in height and width.

Some controversy exists over which particular articles of the LSA-Civil Code have application to the case--670, 2315, 2322, 2692, 2693 or 2695--but a discussion thereof is unnecessary in view of our conclusion as to the negligence vel non of the property owner.

Our concern is whether Hiern, the owner and lessor, was guilty of actionablenegligence in maintaining the stairs in his premises. Any question of the steepness thereof, or the narrowness, or the disparity in the width and height of the component steps may be eliminated from discussion and consideration of these defects, if they actually existed, can play no part in the case because plaintiff does not attribute her fall thereto, and it does not appear that the accident was caused thereby. If the defendants are liable for plaintiff's damages, it must not only be shown that the premises were defective but that the defects were the proximate cause of the injuries.

Plaintiff attempted to show that the stairway is unsafe from an architectural point of view and that the manner of construction thereof is in direct violation of the Building Code of New Orleans. Maxwell, a licensed architect, testified, and Markey, who investigated the premises on behalf of defendants, stated in writing that the opening of the upper door directly onto a flight of stairs created a hazard. Maxwell insisted that a landing or platform having a width equal to the door should have been provided and further there should have been handrails to enable a person to maintain equilibrium in ascending or descending. Maxwell went so far as to assert that this is violative of the New Orleans Building Code (Ordinance 17,525, C.C.S.) adopted December 17, 1948, of which he claims co-authorship. He stated that his opinion, and that entertained by a majority of those whose duty it is to enforce the ordinance, is that certain articles, which he referred to by number, would have application to the premises in question.

The argument is made that we should adopt Maxwell's construction of the provisions of the ordinance under the principle of law that rulings of administrative officials charged with the interpretation of their own regulations carry great weight and are usually followed by the courts.

We have made careful analysis of the portions of the Building Code brought into question, and it seems clear, notwithstanding Maxwell's contrary opinion, that the ordinance does not by any of its provisions regulate the general design, style, or requirements for stairways, or landings or platforms, or railings thereon in two-family or duplex dwellings. By art. 103 of the Building Code a building designed for or occupied exclusively by two families is a 'Two family dwelling,' and by the provisions of art. 1401 'dwellings' are classified as 'Group 1 Occupancies.' In art. 3301 et seq., Chapter 33, it is stated: 'The provisions of this Chapter shall not apply to Group 1 Occupancies except as specifically stated * * *.' Nowhere in Chapter 33, which governs stairs and ramps, is there any indication that Group 1 Occupancies are brought within the purview of the provisions of any of the articles of said chapter.

No ambiguity exists in the pertinent provisions of the Building Code, and therefore there is no room to admit the construction given them by Maxwell. No contemporaneous construction is necessary to aid the court and such would be irrelevant where the language of the ordinance is free from doubt. Gulf Shipside Storage Corporation v. Thames, 217 La. 128, 46 So.2d 62; Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601.

Some attempt was made to show that Ordinance 17,525, C.C.S., has since been amended and that its provisions presently require that stairways in duplex dwellings be equipped with landings and handrails and that the opening of doors into stairwells is prohibited. The amendments to the ordinance, if any, have no retroactive effect. The erection of the stairway was...