Nugent v. Car Town of Monroe, Inc.

• Decision Date: 28 September 2016
• Docket Number: No. 50,910-CW,50,910-CW
• Citation: 206 So.3d 369
• Parties: Audrey NUGENT, Respondent v. CAR TOWN OF MONROE, INC., Applicant
• Court: Court of Appeal of Louisiana — District of US

206 So.3d 369

Audrey NUGENT, Respondent

v.CAR TOWN OF MONROE, INC., Applicant

No. 50,910-CW

Court of Appeal of Louisiana, Second Circuit.

September 28, 2016.

NEAL LAW FIRM By: Mark J. Neal Jordan Haedicke Counsel for Applicant

STREET & STREET By: C. Daniel Street Counsel for Respondent

Before WILLIAMS, DREW and MOORE, JJ.

MOORE, J.

The defendants, Car Town of Monroe Inc. and West Monroe Land Development Co., seek supervisory review of a ruling that granted a new trial in favor of the plaintiff, Audrey Nugent, after a 12-member jury rejected Ms. Nugent's claim for personal injury. For the reasons expressed, we now grant the writ and make it peremptory, vacate the order of new trial and reinstate the jury's verdict.

Factual Background

Car Town is a used car business at 11 Louisville Avenue, essentially at the foot of the Lea Joyner (U.S. Hwy. 80) bridge, in Monroe. The building was originally designed as a service station and built over 50 years ago. The front door is on a slab that sits 7½ inches above the pavement. The service station closed and, in 1987, Car Town moved its used car lot to the location, using the building as its office; in 1989, West Monroe Land bought the lot. Steve Taylor, a co-owner of Car Town and a partner in West Monroe Land, testified that he sells about 40 cars a month and that somewhere between 140 and 175 people a week actually walk through the front door and into the office. Since his first involvement with Car Town, in 1987, nobody had ever stumbled or fallen over the 7½" step at the front door.

On the morning of November 1, 2010, Ms. Nugent came to Car Town to make a warranty claim. Her adult son had bought a car there and, on that morning, it would not start; she had to drive him to work and then she stopped at Car Town, about 7:00 am. It was still dark, but she saw lights on in the office, so she went in. She admitted she saw the 71/2" threshold and stepped over it. Two men were in the office. She asked the car salesman, Charles Wisenor, about the warranty on her son's car; Wisenor told her she had to go to Ink's Firestone (about 16 blocks down Louisville Ave.) for service on the warranty.

Ms. Nugent turned to leave and placed her hand on the lever arm to push the door open. The other man, a friend of Wisenor's who used to hang around and drink coffee there, suddenly spoke up, asking her what she had done for Halloween. She hesitated for an instant, listening to his question, and then pushed the lever and stepped out the door, forgetting that the first step was 7½" down. She strode into empty space, stumbled, and avoided hitting the pavement only by clinging to the lever arm.

Ms. Nugent filed this personal injury suit in November 2011, alleging that the incident injured her neck and middle back and aggravated a preexisting condition in her lower back. She alleged premises liability in that the 7½" drop-off was an unreasonably dangerous condition, which the defendants failed to mark, remedy or warn about. She alleged special damages of over $65,000.

Trial Evidence and Verdict

The matter came to trial in May 2014. Ms. Nugent testified as outlined above, admitting that she had entered the door without any problem but was momentarily distracted when the old guy spoke to her, and must have forgotten about the steep drop. In addition to extensive testimony about her medical history, she admitted filing suit against a Bonanza Restaurant over a slip-and-fall some 20 years earlier, receiving a settlement, and filing suits against a nursing home and a Chevrolet dealership. She also admitted that as a result of the "service" provided for her son's car, she had demonstrated in front of Car Town, recruiting as pickets immigrants who had never bought a car in the United States.

Ms. Nugent's expert, Dennis Howard, of Baton Rouge, was a certified safety professional and accepted as an expert in accident prevention. He testified that a step this high is a dangerous condition, as it causes people to "overstep" and "typically we will stumble when we encounter a change in elevation like this." He further testified that current building and safety codes require an "even area" on both sides of any door; under the ADA no more than a half-inch rise is allowed anywhere. He conceded that when this building was first built, it complied with codes, but said it was now noncompliant. He suggested that the owner should simply not use the door, but failing that, he could build a platform and gradient leading to the door, install handrails or footlights, put down a warning stripe, post a sign (at a cost of only $10-20) or, at the very least, give an oral warning.

On cross-examination, Mr. Howard conceded that he formed his opinions strictly using four photos, before he actually visited the site; that the doorstep complied with all codes when it was built; and that a pedestrian should be on the lookout for dangerous conditions. He also admitted that an ADA-compliant ramp outside this door would have to be at least 7 feet long and would lead pedestrians directly into the path of vehicular traffic.

Steve Taylor testified that the threshold had existed ever since he first got involved with the company, in 1987, and in that time nobody had ever stumbled or fallen trying to get through the door. He admitted that about 23 feet from the front door was a side door for which they added a wheelchair ramp in 2000; however, very few handicapped customers patronized Car Town, because they usually could not drive. Also, when he renovated the side door, neither his engineer, the Fire Marshal nor any of his insurance agents told him he also needed to redo the front door.

Car Town's salesman, Wisenor, largely corroborated Ms. Nugent's account of how the accident occurred. He testified that the other guy in the office that morning was now deceased. He confirmed that in his 14 years at Car Town, he had never seen anybody stumble on the front doorstep.

Car Town's expert, Fred Vanderbrook Jr., of Covington, was a mechanical engineer and accepted as an expert in forensic engineering and accident analysis. He testified that the 7½" step was code-compliant when the structure was built and still compliant, as structures are not required to upgrade every time codes change. He also testified that the history of accidents was very relevant to the question of safety, and that in his view this doorstep was not unreasonably dangerous. As a proffer—outside the presence of the jury—Mr. Vanderbrook testified that he had also inspected the Fourth Judicial District Courthouse and found that many steps leading into the building, and inside the courtroom itself, did not comply with current codes.

After deliberating under two hours, the jury returned a verdict form, answering the first interrogatory, "Do you find that plaintiff, Audrey Nugent, proved by a preponderance of the evidence that the 71/2 inch drop-off at the door of Car Town constituted an unreasonably dangerous condition at the time she was injured?"—NO. The jury was polled; the vote was 9-3.

Grant of New Trial

Ms. Nugent filed a motion for JNOV or new trial, urging chiefly that both experts "agreed" that codes and standards affecting this business have changed to eliminate the 7½" drop-off at doorways. The defendants opposed the motion, countering that both experts agreed the doorstep was code-compliant when built and did not have to be modified.

The district court held a hearing in May 2015 and issued an eight-page ruling granting a new trial. After citing the standards for premises liability, JNOV and new trial, the court first found that because the drop-off had existed since the defendants acquired the building, they had actual notice of the condition of the door, as required by La. C.C. arts. 2317.1 and 2322, and that the condition is "plain and obvious to all." However, the court found the defendants had a duty to "warn or post signs" because the drop-off "posed a risk of harm," and they failed to do so. Finally, the court "disagreed" with the defendants' position that the absence of prior incidents absolved them: "numerous appellate decisions" have found an unreasonable risk of harm when the plaintiff's injury was the first reported in a certain place.¹ The court therefore granted Ms. Nugent a new trial.

The defendants applied for supervisory review, which this court granted on April 18, 2016, and set for oral argument.

The Parties' Positions

The defendants designate one assignment of error: the court committed legal error in determining Ms. Nugent was entitled to a new trial on the ground that the verdict is clearly contrary to the law and evidence. They cite the standard for new trial, "the verdict or judgment appears clearly contrary to the law and evidence," La. C. C. P. art. 1972 (1), and the caselaw that a verdict should not be set aside "if it is supportable by any fair interpretation of the evidence," Davis v. Wal – Mart Stores Inc. , 2000–0445 (La. 11/28/00), 774 So.2d 84. They argue that under the cases interpreting Art. 2317.1, the owner is liable only if the condition is "unreasonably dangerous," e.g., Burns v. CLK Investments V , 2010–0277 (La.App. 4 Cir. 9/1/10), 45 So.3d 1152, writ denied , 2010–2283 (La. 1/7/11), 52 So.3d 886, while the district court explicitly found only a "risk of harm." They strongly dispute Ms. Nugent's assertion that Mr. Vanderbrook "agreed" the front entrance posed an unreasonable risk of harm, and reject this as a complete misstatement of his testimony. They reiterate that in over 20 years no accidents had ever been reported at the entrance; that buildings not in compliance with new codes are not required to modify unless there is a "major renovation," Luminais v. O.R.S.T. Inc ., 06–749 (La.App. 5 Cir. 1/30/07), 951 So.2d 1200 ; and that there was no trial evidence that any kind of warning sign was required or would have prevented this accident. They urge this court to reinstate the jury's verdict.

Ms. Nugent responds that the district court did not abuse its...