Johnson ex rel. Child v. Thomas

• Decision Date: 27 December 2013
• Docket Number: No. 2013 CA 0081.,2013 CA 0081.
• Citation: 137 So.3d 632
• Parties: Sarah JOHNSON, Individually & on Behalf of her Minor Child, Mi'Cheala Grant v. Willie THOMAS.
• Court: Court of Appeal of Louisiana — District of US

137 So.3d 632

Sarah JOHNSON, Individually & on Behalf of her Minor Child, Mi'Cheala Grant

v.Willie THOMAS.

No. 2013 CA 0081.

Court of Appeal of Louisiana, First Circuit.

Dec. 27, 2013.

Peter T. Dudley, Baton Rouge, LA, Attorney for Plaintiffs–Appellees Sarah Johnson & Mi'Cheala Grant.

Ebony Cavalier, Baton Rouge, LA, Attorney for Defendant–Appellant Willie Thomas.

Before PETTIGREW, McDONALD, and McCLENDON, JJ.

PETTIGREW, J.

This is an appeal by the defendant, Willie Thomas (Mr. Thomas), from a money judgment rendered against him. The trial court ruled in favor of the plaintiffs, Sarah Johnson and her daughter, Mi'Cheala Grant, for personal injuries. The injuries were sustained when a damaged garagedoor to their home—leased from Mr. Thomas—fell on Mi'Cheala, and Ms. Johnson attempted to lift the fallen door from her. The door had been damaged during a hurricane six months earlier, and Mr. Thomas had not had it repaired. After a thorough review of the record and the arguments presented, we find no merit to Mr. Thomas's arguments and affirm the judgment of the trial court.

BACKGROUND FACTS

The facts are essentially undisputed. The defendant, Mr. Thomas, who resided in California, owned a house at 1925 Monterrey Boulevard in Baton Rouge. He leased the house through DL Management, LLC, a property management company in Baton Rouge. In April 2008, Dana Littles, an employee of DL Management, as agent for Mr. Thomas, leased the house to the plaintiff, Sarah Johnson. She resided in the house from April 2008 until approximately mid–2012, with her family, including her minor daughter, Mi'Cheala Grant, who suffers from physical and learning disabilities.¹

Approximately five months after Ms. Johnson leased the house, Hurricane Gustav hit the Baton Rouge area, with high winds and fallen limbs causing damage to the garage door, as well as to the gutters and fence of the house at 1925 Monterrey Boulevard. According to Ms. Johnson, the winds caused the garage door to cave in, come off the hinges, leaving a large visible dent, and rendering it inoperable. She immediately telephoned the leasing agent, Dana Littles, and reported the hurricane damage to the house, particularly the damage to the garage door, together with her concerns that the door would fall.

A couple of days later, Ms. Littles went to the house to examine the damage. She took photographs and testified that she observed “a lot” of damage to the garage door, stating that it was up, but visibly dented and “jammed.” She, too, observed that it appeared that the door may fall. She immediately contacted Mr. Thomas about the damage, as well as the concerns she and Ms. Johnson had that the garage door may fall. Mr. Thomas asked her to send photographs and to also inquire about repair estimates. Ms. Littles testified that she did as Mr. Thomas requested, but that he never got back with her about repairs, and none were made.

A couple of weeks following the hurricane, the garage door shifted, causing Ms. Johnson more concern about its dangerous condition. (The record reveals that at that time, the house had only one other operable door from which to enter and exit the house.) Ms. Johnson again immediately contacted Ms. Littles about the shift in the door and her concerns. Ms. Littles again contacted Mr. Thomas and repeated the concerns that she and Ms. Johnson had that the door may fall. Again, Mr. Thomas did nothing.

Approximately six months later, on March 8, 2009, the incident giving rise to this litigation occurred. Ms. Johnson testified that during the early morning hours, while her family was getting dressed and ready for their day, she suddenly heard a “loud crash and a scream” and went running toward the sound. As she entered the garage, she saw Mi'Cheala lying on the ground, screaming, with the garage door on top of her body. Ms. Johnson testified that she, too, began screaming, and instinctively, ran to her daughter and tried to lift the door off of her. (She also testifiedthat she was unable to do so, as the door was “excruciatingly heavy.”) She called 911. When the ambulance arrived, the paramedics were able to lift the door off of Mi'Cheala, and they transported her and Ms. Johnson to the emergency room at the Baton Rouge General Medical Center.

Ms. Johnson testified that her daughter was in great pain, crying and screaming all the way to the hospital. At the hospital, Mi'Cheala complained of being in pain all over her body, particularly, in the neck and back area. She was given medication for pain and anxiety. X-rays were taken, which revealed no cervical or lumbar fractures. She was discharged, with muscle relaxer and anti-inflammatory prescriptions, and advised to follow up with her primary care physician in 3–5 days, or sooner, if her symptoms worsened. She was diagnosed with neck and back muscle spasms (“mild reversal of normal cervical lordosis”) and a deep contusion—tenderness and swelling in the soft tissue areas.

Ms. Johnson also testified that, a couple of days later, she realized that she, too, had sustained injury while trying to lift the garage door off of her daughter. She stated that she began having pain in her shoulders, back, neck, and head. Because her daughter was also still complaining of pain, they both went to the emergency room at Lane Regional Medical Center (Lane) in Zachary to be examined. Mi'Cheala presented with complaints of pain and soreness “all over” that had not improved and worsened with movement. She was diagnosed with muscle strain and prescribed Lortab for pain and the muscle relaxant, Flexeril.

Ms. Johnson was also examined and treated at the emergency room at Lane. She presented with complaints of acute pain in her back, particularly, the lower back, and right arm. She was also diagnosed with muscle strain, and treated with the same pain and muscle relaxant prescriptions as her daughter. Both she and her daughter were advised to follow up with their primary care physician.

The following week, on March 16, 2009, Ms. Johnson and Mi'Cheala went to their primary care physician, Dr. James Hines. Dr. Hines diagnosed Mi'Cheala with multiple soft tissue contusions, neck strain, and exacerbation of her asthma. He prescribed the anti-inflammatory, Mobic, and physical therapy twice a week. The record reveals that she received physical therapy for a little over three months, being discharged on June 25, 2009. Dr. Hines noted that although she was still complaining of pain at that time, he did not believe continuation of physical therapy would be of any help.

Dr. Hines also treated Ms. Johnson on March 16, 2009. Ms. Johnson complained of pain in her shoulders and arm, as well as neck and back pain. He noted she had shoulder and right forearm strain, cervical and lower back sprain, as well as multiple soft tissue injuries, which were caused by her attempts to lift the garage door off of her daughter. He prescribed a steroid, anti-inflammatory and pain medications, as well as physical therapy. He also discontinued the physical therapy for Ms. Johnson after approximately three months, finding she had reached maximum medical improvement, albeit her complaints of continued pain. Ms. Johnson testified that she and her daughter both continue to suffer pain and soreness, and they treat that with over-the-counter ibuprofen.

PROCEDURAL HISTORY

On November 17, 2009, a petition for damages was filed, alleging that Mr. Thomas had knowledge of the condition of the damaged garage door and that he had received insurance proceeds to make repairs,but failed to do so. Mr. Thomas filed an answer, generally denying all allegations, and subsequently, filed a supplemental answer, alleging the comparative fault of the plaintiffs.

The matter proceeded to a bench trial, following which the trial court rendered judgment in favor of both plaintiffs, and against Mr. Thomas, finding that he knew of the damage to the garage door, as well as the danger it presented, yet failed to repair it in the six months that lapsed before the incident causing injury to these plaintiffs. The trial court found Mr. Thomas liable under La. C.C. art. 2696, for breaching the lessor's warranty that the leased premises be suitable for the purposes of the lease and, that it be free from vices and defects. The trial court further found the plaintiffs to be free from fault.

The trial court additionally found the injuries sustained by both Mi'Cheala and her mother were caused by Mr. Thomas's failure to repair the garage door, and awarded the following damages:

Sarah Johnson—medical special damages in the amount of $2,434.08; general damages in the amount of $5,000.00, for a total of $7,434.08; and

Mi'Cheala Grant—medical special damages in the amount of $5,050.40; general damages in the amount of $8,000.00, for a total of $13,050.40.

Thus, the total amount of the money judgment against Mr. Thomas was $20,484.48, together with legal interest from the date of judicial demand, until paid in full, as well as all costs. Judgment was rendered in open court on August 9, 2012, and signed on August 22, 2012. This devolutive appeal by Mr. Thomas followed.

ASSIGNMENT OF ERROR

Mr. Thomas asserts the trial court erred in ruling that he, the landlord, owed a duty to warn tenants, Mi'Cheala Grant: and Sarah Johnson, of an open and obvious dangerous condition. He additionally argues that the trial court erred in finding him to be 100 percent at fault and in not assessing any percentage of fault to the plaintiffs for the...