Reggio v. Louisiana Gas Service Co.

• Decision Date: 18 May 1976
• Docket Number: No. 7381,7381
• Citation: 333 So.2d 395
• Parties: Villere REGGIO et al. v. LOUISIANA GAS SERVICE COMPANY et al.
• Court: Court of Appeal of Louisiana — District of US

Page 395

333 So.2d 395

Villere REGGIO et al. v. LOUISIANA GAS SERVICE COMPANY et al.

No. 7381.

Court of Appeal of Louisiana, Fourth Circuit.

May 18, 1976.

Rehearing Denied June 9, 1976.

Gauthier & Murphy, Wendell H. Gauthier, Robert M. Murphy, and Porteous, Toledano, Hainkel & Johnson, Geoffrey H. Longenecker, New Orleans, for plaintiffs-appellees.

Phelps, Dunbar, Marks, Claverie & Sims, Harry S. Redmon, Jr., Harry A. Rosenberg, New Orleans (counsel on appeal only), and Jesse R. Adams, Jr., New Orleans, of counsel, and Reynolds, Nelson & Theriot, John C. Reynolds, New Orleans, for defendants-appellants.

Before GULOTTA, SCHOTT and St. AMANT, JJ.

GULOTTA, Judge.

Defendants appeal from a jury award totalling, in the aggregate, the sum of $905,000.00 for injuries sustained by a 67-year old father, 62-year old mother, a 22-year old son and a 17-year old son, resulting from a gas explosion in their home on October 26, 1974. ¹ Plaintiffs have not answered the appeal. We amend and affirm.

It is defendants' contention, on appeal: 1) that the trial judge erred in denying defendants' motion for continuance; 2) that the questioning of prospective jurors in the voir dire and the opening and closing arguments by plaintiffs' counsel improperly appealed to the prejudice and emotions of the jurors; 3) that the trial judge erroneously permitted the introduction of video tapes showing physical therapy treatment administered to Villere Reggio; 4) that plaintiffs failed to show by a preponderance of the evidence that the explosion resulted from defendants' negligence; and, 5) that the amounts of the jury awards are excessive.

With respect to the denial of the motion for continuance, defendants complain that they were not permitted sufficient time to prepare their defense. According to defendants, the accident occurred on October 26, 1974, and the trial took place on April 17, 1975. Defendants claim that only three months were allowed for preparation for trial between the date the suit was filed, January 17, 1975, and the trial date, April 17, 1975. They also point out that from the date notice of trial was received, March 6, 1975, counsel had only six weeks to prepare for a jury trial which involved the testimony of 45 plaintiffs' witnesses, 9 defense witnesses, many of whom were experts, 955 decuments and a transcript which numbers approximately 1,000 pages. According to defendants, they were unable, because of lack of sufficient time, to depose 15 of plaintiffs' witnesses or to properly study and analyze hospital records and medical reports.

In connection with plaintiffs' questioning on voir dire and opening and closing arguments, defendants suggest that plaintiffs' counsel was permitted to question prospective jurors on whether they had any reservations about rendering a $1,000,000.00 judgment. According to defendants, this prejudicial questioning by plaintiffs' counsel, in effect, elicited a promise from the prospective jurors to return a $1,000,000.00 verdict. Defendants claim that the $905,000.00 award supports this contention. Defendants further complain that plaintiffs' counsel, in opening and closing arguments, suggested that each juror identify with one of the plaintiffs and put himself in the place of that injured party. According to defendants, this 'golden rule' argument has been condemned by courts as being prejudicial, inflammatory and designed to appeal solely to the prejudice and emotion of jurors.

Louisiana Gas Service Company, hereinafter referred to as LGS, contends the trial judge erred in permitting the presentation of a video tape to the jury, showing Villere Reggio's April 5, 1975 physical therapy treatment. According to defendants, the film presentation allowed the Reggios to present self-serving testimony, not subject to cross-examination, because LGS was not given the opportunity to be present when the video tape was made. LGS further claims that the video tape was cumulative evidence, calculated to arouse sympathy for plaintiffs.

With respect to defendants' argument that plaintiffs failed to show by a preponderance of evidence that defendants' negligence was the proximate cause of the explosion, LGS contends that plaintiffs failed to establish that gas, escaping from a fracture in the curb cock, ² moved through 'connecting voids' in the subterranean organic soil (in which the service line rested), ³ collected beneath the house slab, then migrated up the side of the Reggio home into air vents, then to the attic, where the gas exploded. According to defendants, the gas would have dissipated into the air near the vicinity of the break. Apparently defendants acknowledge, by their inspection of the service line, that a fracture did occur at the curb cock, approximately 20 feet from the meter attached to the house; however, they suggest that the break resulted from the explosion, rather than caused the explosion. Inferentially, defendants suggest that the explosion could have resulted from leaks at a clothes dryer which had been connected by Michael Reggio, and not by a licensed plumber, or at the water heater, or heating system.

On quantum, defendants contend that a $702,500.00 award to Villere Reggio, a 67-year old retiree who sustained first and second degree burns over 30% Of the body requiring 59 days of hospitalization followed by one month of home physical therapy, but not requiring any skin grafts, is excessive. Defendants point out that the award does not include any amounts for past loss of earnings, future loss of earnings or substantial future medical expenses. According to defendants, the total medical expenses incurred for Villere Reggio amounted to $13,186.81.

Defendants further complain that the $127,500.00 award in favor of Marie Reggio is excessive. LGS asserts that Marie sustained first and second degree burns of between 7% And 13% Of the body, i.e., to the face, ear, right arm, left posterior upper arm and right leg. Defendants point out Mrs. Reggio was hospitalized for a period of 14 days followed by outpatient care, suffered no functional disability, requires no future surgical treatment or follow-up care, and suffered no emotional trauma as a result of the explosion. Called to our attention is the fact that Mrs. Reggio suffered no loss of earnings and incurred $2,039.40 in medical expenses.

According to defendants, the $57,500.00 award in favor of Michael Reggio, the 22-year old son, is also excessive. Defendants claim Michael sustained burns over 10% Of the body, was hospitalized for 22 days, returned for three outpatient physical therapy treatments, was declared fit to return to work on January 9 and did, in fact, return to work on January 20, less than three months after the accident occurred. Defendants represent that by early January, Michael's scars had healed and that Michael suffered no functional disability and required no future surgery. Also called to our attention by defendants is that loss of earnings was stipulated in the sum of $2,310.00, and medical expenses incurred were $2,985.20.

Defendants finally complain of the excessiveness of the $17,500.00 to Nicholas Reggio, the 17-year old son, who received, according to defendants, a laceration of the left foot and right hand and burn of the right foot. Nicholas sustained no disability and incurred medical expenses in the sum of $138.00.

CONTINUANCE

A chronology is helpful when considering whether the trial judge erroneously denied defendants' motion for continuance. The accident occurred on October 26, 1974. Plaintiffs' suit was filed on January 17, 1975. On March 6, 1975, defense counsel received notice that the trial was set for April 17, 1975. Motion for continuance was filed on April 3, 1975. The trial commenced on April 17, 1975.

The record contains uncontradicted argument by plaintiffs' counsel that on October 29, 1974 (three days after the explosion), he spoke with counsel for LGS with respect to the gas explosion. In addition, it was stipulated that on December 13, 1974, LGS was notified by counsel for plaintiffs that the residue from the Reggio residence would be removed on December 18, 1974, unless LGS had any objections. Clearly, at the time of the stipulation, defendants had notice of the impending lawsuit. The record further indicates that two days after the explosion, LGS removed the damaged service line. Therefore, their investigation of the accident commenced two days after the occurrence.

LSA-C.C.P. art. 1601 provides:

Art. 1601. Discretionary grounds

'A continuance May be granted in any case if there is good ground therefor.' (underline ours)

LSA-C.C.P. art. 1602 states:

Art. 1602. Peremptory grounds

'A continuance Shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.' (underline ours)

In denying defendants' request for a continuance, the trial judge stated:

'Well, I have give (sic) this matter a lot of thought and I know that it is probably going to be burdensome on counsel for both sides, but I don't believe that the case is going to get any better with age, and this Court is going to deny the continuance and order that this case be set for trial on Thursday morning.'

As pointed out by plaintiffs, LGS had knowledge of the existence of the possibility of an impending lawsuit within three days after the explosion and had equal, if not more, opportunity for preparation than plaintiffs. Under the circumstances, we find no merit to defendants' assertion that they were unable, with the exercise of due diligence, to obtain evidence material to their case . Defendants have not shown grounds for a mandatory continuance. Nor can we conclude that the trial judge abused his discretion in refusing to grant the motion for...