Plaia v. Stewart Enters., Inc.

Decision Date26 October 2016
Docket Number CONSOLIDATED WITH: NO. 2015–CA–1176,NO. 2014–CA–0159,CONSOLIDATED WITH: NO. 2014–CA–0746,2014–CA–0159
Citation229 So.3d 480
Parties Lisa PLAIA and Peter Plaia, Individually and on Behalf of Their Minor Children Petra Plaia and Carolina Plaia v. STEWART ENTERPRISES, INC., Greenwood Funeral Home, Firemen's Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company Lisa Plaia and Peter Plaia, Individually and on Behalf of Their Minor Children Petera and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Firemen's Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company Lisa Plaia and Peter Plaia, Individually and on Behalf of Their Minor Children Petra Plaia and Carolina Plaia v. Stewart Enterprises, Inc., Greenwood Funeral Home, Fireman's Charitable & Benevolent Association, Lafayette Insurance Company, United Fire Group, First Baptist Church of New Orleans, Church Mutual Insurance Company
CourtCourt of Appeal of Louisiana — District of US

(Court composed of Judge Dennis R. Bagneris, Sr., Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Paul A. Bonin )

Judge Max N. Tobias, Jr.

The matter before us concerns three separate judgments and one motion that were consolidated on appeal. As such, each consolidated case presents distinct issues. After setting forth the facts, we discuss each case and its issues separately.

FACTS AND PROCEDURAL HISTORY
The Accident and Injuries

On 1 July 2010, the plaintiff/appellant (Case No. 2015–CA–0159),1 Lisa Plaia ("Ms. Plaia") had dropped her toddler, Carolina, off at a daycare facility operated by the First Baptist Church of New Orleans ("FBCNO").2 As Ms. Plaia was driving away with her four-year-old daughter, Petra, in the backseat, a solid steel traffic pole gate swung into the road and pierced the windshield of Ms. Plaia's vehicle. The force was sufficient to sever her seatbelt and struck her on the right side of her face. A bystander helped apply pressure to her wound

while waiting for the paramedics to arrive. Petra remained secured in the backseat throughout the ordeal.

Ms. Plaia was taken by ambulance to Ochsner Hospital for treatment, where she remained for five days. As alleged by the plaintiffs, her injuries included, four skull fractures

, the partial severance of her ear, a crushed ear canal, severe right facial trauma, right facial nerve weakness, and a hematoma that was drained into a bucket by her hospital bed. The plaintiffs maintain that Ms. Plaia developed facial nerve weakness, Bell's palsy, including partial facial paralysis, chronic pain and headaches, trigeminal neuralgia problems with her salivary glands, hearing loss, permanent facial disfigurement, and a temporomandibular ("TMJ") disorder that requires the constant wearing of a splint. Later, the plaintiffs asserted that Ms. Plaia had also suffered a traumatic brain injury that caused permanent deficits in memory, concentration, and attention.

Following the accident, the plaintiffs filed suit against three distinct defendant entities and their insurers: Fireman's Charitable & Benevolent Association ("FCBA"), and its insurers, Lafayette Insurance Company, and United Fire Group; Stewart Enterprises, Inc. ("Stewart Enterprises"), and Greenwood Funeral Home (collectively "Stewart Enterprises" [if appropriate in context]" or "funeral defendants"); and FBCNO and Church Mutual Insurance Company ("CMIC"). Stewart Enterprises is the parent company of both S.E. Funeral Homes of Louisiana, LLC ("SEFH"), and S.E. Cemeteries of Louisiana, LLC. SEFH was added as a defendant in the plaintiffs' first supplemental and amending petition, as the owner and operator of Greenwood Funeral Home. SEFH was dismissed from the initial action on 9 April 2013. All cross claims and third-party demands against it were dismissed on 2 May 2014.

The Leases and Actions of the Various Defendants

The land on which the accident took place is owned by FCBA. In 1992, FCBA entered into a base lease for a portion of the property with the funeral defendants ("base lease"). In 2004, SEFH entered into a sublease ("Sublease") with FBCNO as sublessee and FCBA as "intervenor." At the same time, FCBA entered into a ground lease with FBCNO ("Cherry Street lease"). This came about because FCBNO bought some property in the rear of the Greenwood Cemetery to build a church. It was discovered that the access road they planned to use was not adequate for the church's needs. As a result, FBCNO approached FCBA requesting permission to build a road to the cemetery that would connect the church facilities to Canal Boulevard.

FCBA denied the request on three occasions. Later, it learned that FBCNO had spoken with the funeral defendants whereby the road would go through the land leased under the base lease; the funeral defendants put pressure on FCBA and it finally agreed.

In order to approve the plan to construct an access road, FCBA required that swinging arm barricade gates be installed to prevent access from the roadway to be built onto Cherry and/or Osier Streets and the cemetery after it closed at 5:00 p.m. daily.3 FBCNO attached architectural plans to the signed lease showing exactly how the gates would be built and exactly where they would be located; FCBA and the funeral defendants approved the plans. The gates, as well as the gate posts on which they pivot, were installed on the property covered by the Cherry Street lease. As originally constructed under the terms of the leases, no tie posts were installed to keep the gates secured open.

Because of the way the gates were designed and located, they had to swing through the access road to be opened and closed. After a similar accident in late 2004,4 two wooden posts or "tie posts" were installed on the property; one post was located on property covered by the Cherry Street lease and the other on property covered by the Sublease just over the boundary of the land covered under the Cherry Street lease. At the time of the accident, the gates were secured to the tie posts with metallic snap shackles when open during the day. Reverend Robert R. Moore of FBCNO testified that the same architect who designed the gates also designed the tie posts.5 Once Reverend Moore received the tie-post design in November 2004, it was forwarded to FCBA. Reverend Moore testified that the church did not build the tie posts or determine how the gates would be kept open. He acknowledged, however, that the tie post plan called for a padlock to be used to keep the gates open during the day. He was never given a combination or key that could be used on a padlock, if one had been installed.

The record reveals that, in November 2004, Reverend Moore sent the plans to FCBA's attorney who forwarded them to John C. Freese, Jr., FCBA's secretary-treasurer, by letter. The attorney's cover letter stated that "they," meaning the church, would "fix the gates so that the gates no longer blow open."

Mr. Freese testified that, to his knowledge, no one from FCBA installed the tie posts, but stated that he had seen the plans for same that showed the use of a padlock. He admitted that he never communicated to the sexton of the cemetery, Patrick John Gately, that the plans indicated that a padlock should be used. Mr. Freese said that there was no need to have a lock on the wooden post itself because the snap bolt was "sufficient to hold all that up." He agreed that at one time they had used some bungee cords, and even a dog leash with a snap bolt on the end of it, which they would wrap around and keep the gates open during the day. During the time the snap bolts were used, no problem existed with that gate until the day of Ms. Plaia's accident on 1 July 2010. Mr. Freese believed that the tie posts were erected about two weeks after the November 2004 accident. He also stated that he never told anyone else at FCBA that the architect's design of the tie post called for a padlock.

Mr. Gately, as sexton of the cemetery, made all the arrangements for funerals that were held at Greenwood Cemetery. He regularly opened the subject gates, among others, every morning and did so on the morning in question. He testified that he knew that the gates could be very dangerous, so he secured the latches to keep them open every morning when he opened them.

Mr. Gately testified that FBCA had possibly modified the gate in question. He also admitted that both bungee cords and dog leashes had been used to secure the gate to the tie post over the years. He testified that he himself put a latch on the gate so it could be secured to the tie post.

It was further established that, on the date of the accident, landscape personnel employed by Stewart Enterprises were present at the site of the gates and tie post cutting grass. As will be covered more in depth infra , testimony at trial indicates that an unidentified...

To continue reading

Request your trial
18 cases
  • Abs Servs., Inc. v. James Constr. Grp.
    • United States
    • Court of Appeal of Louisiana — District of US
    • December 21, 2018
    ...However, that limit must allow a party to present evidence to support the litigant's case. Plaia v. Stewart Enterprises, Inc., 2014-0159 (La. App. 4 Cir. 10/26/16), 229 So.3d 480, 490, writs denied, 2016-2264 (La. 2/3/17), 215 So.3d 692, 2016-2261 (La. 2/3/17), 215 So.3d 698, and 2016-2258 ......
  • Forrest v. Ville St. John Owners Ass'n, Inc.
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 7, 2018
    ... ... " Plaia v. Stewart Enterprises, Inc. , 14-0159, p. 35 (La. App. 4 Cir. 10/26/16, 229 So.3d 480, 504 ... ...
  • Perniciaro v. McInnis, 2018-CA-0113
    • United States
    • Court of Appeal of Louisiana — District of US
    • September 7, 2018
    ... ... Chrysochoos Grp., Inc. , 2015-0064, p. 8 (La. App. 4 Cir. 5/13/16), 194 So.3d 751, 756 (citing ... " Plaia v. Stewart Enterprises, Inc. , 2014-0159, p. 35 (La. App. 4 Cir ... ...
  • Chevron Oronite Co. v. Jacobs Field Servs. N. Am., Inc., CIVIL ACTION NO. 18-2279 SECTION: M (4)
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • October 10, 2018
    ...the four corners of the insurance policy. See, e.g., Vaughn v. Franklin, 785 So. 2d 79, 84 (La. App. 2001); Plaia v. Stewart Enterprises, Inc., 229 So. 3d 480, 504-05 (La. App. 2016). 67. R. Doc. 39-3 at 11-12 (citing Weaver v. CCA Indus., Inc., 2009 WL 1322290, at *13 (W.D. La. May 12, 200......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT