Latour v. Steamboats, LLC

• Decision Date: 07 December 2022
• Docket Number: 22-162,22-163
• Parties: ORIS LATOUR AND VIRGIE LATOUR v. STEAMBOATS, LLC
• Court: Court of Appeal of Louisiana — District of US

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ORIS LATOUR AND VIRGIE LATOUR v. STEAMBOATS, LLC

Nos. 22-162, 22-163

Court of Appeals of Louisiana, Third Circuit

December 7, 2022

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2018-2601 HONORABLE DERRICK D. KEE, DISTRICT JUDGE

Rex D Townsley

Jordan Z. Taylor

The Townsley Law Firm

COUNSEL FOR PLAINTIFFS- APPELLEES:

Virgie Latour

Oris Latour

John P. Wolff, III

Sydnee D. Menou

Keogh Cox & Wilson, LTD.

COUNSEL FOR DEFENDANTS-APPELLANTS Nautilus Insurance Company Steamboat's Seafood Warehouse, Inc.

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D Kent Savoie, Judges.

ELIZABETH A. PICKETT JUDGE

A restaurant owner and its insurer appeal a jury's verdict awarding the plaintiffs damages after the husband plaintiff tripped and fell in the restaurant. For the following reasons, we reverse the trial court's judgment and conduct a de novo review.

FACTS

On March 18, 2018, Oris Latour, Virgie (his wife), Nicholas (their son), his wife, and their children went to eat dinner at Steamboat Bill's restaurant in Lake Charles. Ms. Latour and the grandchildren proceeded to sit at a table while the others placed their orders. After ordering, Mr. Latour went to join Ms. Latour and the children. Mr. Latour wanted to sit across the table from Ms. Latour, but a group of boisterous men seated on that aisle was blocking the aisle. Mr. Latour decided not to disturb the men and went down the aisle behind Ms. Latour's seat with the intent to go around the end of the table to sit on the opposite side. The aisle was narrowed by diners sitting at the tables, and Mr. Latour had to turn sideways to negotiate his way down the aisle.

Mr. Latour traveled to the end of the aisle behind Ms. Latour. As he was moving behind her, his foot unexpectedly hit something, and he fell sideways toward the end of the table. When he fell, he hit the picket fence which was beyond the end of the table. Mr. Latour explained his right leg shot out from under him. As he got up, he realized he had tripped on a slab of concrete (the ledge). After being seated, he had tingling in his right foot and bad back pain.

When the waiter brought their meals, Mr. Latour reported he had tripped and fallen, hurting his back. He told the waiter he wanted to talk to the manager. As they were leaving the restaurant, Mr. Latour reported the accident to the manager. Mr. Latour testified he told the waiter and the manager that the ledge was a hazard and that something needed to be done about it. He further testified the manager responded that is "why we push the table up against the ledge." The ledge was twenty-eight feet long by two feet wide by three and one-half inches high and was poured on top of the concrete floor. It was surrounded on three sides by a picket fence. On the fourth side, dining tables were situated at a ninety degree angle to the ledge, and the legs of the tables were butted up against the ledge.

The Latours sued Steamboat's Seafood Warehouse, Inc. d/b/a Steamboat Bill's and Nautilus Insurance Company, its insurer, (Steamboat Bill's) for damages, alleging the ledge was unreasonably dangerous under La.R.S. 9:2800.6. A jury trial was held June 28 through July 2, 2021. At the conclusion of the trial, the jury awarded Mr. Latour damages totaling $675,053 and Ms. Latour $83,060 in damages for loss of consortium. The jury assessed Mr. Latour with 20% fault. The trial court signed a judgment in accordance with the jury's verdict on July 19, 2021. Steamboat Bill's appealed the judgment.

ASSIGNMENTS OF ERROR

On appeal, Steamboat Bill's assigns the following errors (footnote omitted) with the trial court proceedings:

1. The Trial Court abused its discretion when it refused to allow Appellants to present testimony that the asserted condition on which Plaintiff allegedly fell had never caused another reported trip and fall accident during the twenty-year history that Steamboat Bill's conducted business. Such an evidentiary exclusion is contrary to Louisiana Supreme Court cases that dictate the existence or absence of reported prior incidents is a factor that MUST be considered in connection with whether the condition presents an unreasonable risk of harm of which Appellant knew or should have known.

2. The Trial Court abused its discretion when it granted Plaintiffs' Motion for Adverse Presumption absent proof of Appellants' intent to spoliate, especially where the evidence established that Appellants had no knowledge of an accident or injury to place it on notice of anticipation of litigation, no intent and had a reasonable explanation for the non-preservation of evidence. It seriously compounded this error when it repeatedly instructed the jury that it must apply the adverse presumption without offering any instruction that the presumption was rebuttable.

3. The Trial Court erred when it issued multiple jury instructions on La. C.C. Art. 2315. Such instructions confused the issues such that a reasonable jury could not have known to follow the mandate of La. R.S. 9:2800.6.

4. The Trial Court abused its discretion when it allowed Jason English to testify based on improper data and methodologies. This ruling, combined with the Court's prohibition on essential defense evidence, supplied prejudicial weight to all his opinions.

5. Multiple additional legal errors collectively constitute cumulative error that when coupled with other improper circumstances, was so prejudicial to Defendant-Appellants that they constitute reversible error, including, to wit:

a) Subsequent remedial measures-Plaintiffs' counsel referenced subsequent remedial measures in violation of L[a]. C.E. Art. 407 and court rulings.

b) Loss of consortium award-The jury committed clear error when it awarded Ms. Latour Latour $83,060.00 for loss of consortium.

c) Award of costs-The Trial Court erred in taxing costs to Appellants.

DISCUSSION

As a general rule, findings of fault and the assessment of fault are factual determinations and are reviewed under the manifest error-clearly wrong standard of review. Courville v. Allstate Ins. Co., 16-556, 16-557 (La.App. 3 Cir. 3/8/17), 215 So.3d 310.

If a trial judge commits consequential error by denying the jury relevant, admissible evidence, or by admitting evidence that should have been excluded, the fact finding process is interdicted; thus, the verdict is tainted. Generally, when a legal error interdicts the fact finding process, the manifest error standard no longer applies. If the record is otherwise complete, the reviewing court should conduct a de novo review and decide which party should prevail by a preponderance of the evidence.

Said v. Federated Rural Elec. Ins. Exchange, 21-78, p. 3 (La. 4/20/21), 313 So.3d 1241, 1243 (citations omitted). Therefore, the standard of review applied here will depend on our resolution of errors assigned by Steamboat Bill's.

We first review Steamboat Bill's complaint that the trial court refused to allow them to present evidence that Steamboat Bill's owner, Jason Felice, was unaware of any accident being caused by the ledge since he became owner of Steamboat Bill's in 2015. The Latours raised this issue in a motion in limine, arguing that allowing such argument would be "highly misleading" and "unfairly prejudicial." At the hearing on the motion, the trial court granted the Latours' request finding Mr. Felice's testimony was "not provable" and would "mislead everyone."

Steamboat Bill's argues the trial court's ruling is manifestly erroneous because the history of prior accidents is a factor to be considered by the fact finder when considering whether the ledge constituted an unreasonable risk of harm. See Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362; Boyle v. Bd. of Sup'rs, Louisiana State Univ., 96-1158 (La. 1/14/97), 685 So.2d 1080. In light of this jurisprudence, we find the trial court erred in not allowing Mr. Felice to testify that during his time as owner of Steamboat Bill's, he was personally not aware of any accidents caused by or attributed to the ledge.

We next consider whether the trial court abused its discretion in granting an adverse presumption in favor of the Latours because of Steamboat Bill's failure to preserve a video recording of the accident. The Latours argued they were entitled to an adverse presumption that the video recording was detrimental to Steamboat Bill's defense because it failed to preserve the video recording and allowed it to be overwritten by later video recordings. Steamboat Bill's acknowledged it records activities in the restaurant but argued the presumption does not apply because it did not have a written policy for reporting and documenting accidents and its failure to preserve the video recording was not intentional. The trial court granted the Latours' request and instructed the jury, "The failure of a party to produce evidence within his control raises a presumption that the evidence would have been detrimental to his case," then immediately repeated the instruction to the jury. The trial court also refused to allow Steamboat Bill's to present Mr. Felice's testimony that the video was not preserved because his staff had not reported the accident to him pursuant to Steamboat Bill's oral policy regarding accidents and he had no knowledge a lawsuit would be filed. Steamboat Bill's proffered Mr. Felice's testimony on this issue. He testified Steamboat Bill's employees are instructed to report accidents to him and that when an accident is reported, he reviews the video recordings and downloads the video segment of the accident to a thumb drive. He also testified the restaurant's video recordings are automatically overwritten after sixty days.

"Where a litigant fails to produce...