Rosell v. ESCO

• Citation: 558 So.2d 1360
• Decision Date: 14 March 1990
• Docket Number: No. 88-CA-0661,88-CA-0661
• Parties: June ROSELL v. ESCO d/b/a Jolly Elevator Corporation and Raftery Maintenance Services.
• Court: Court of Appeal of Louisiana (US)

Page 1360

558 So.2d 1360

June ROSELL v. ESCO d/b/a Jolly Elevator Corporation and Raftery

Maintenance Services.

No. 88-CA-0661.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1990.

Clyde A. Ramirez, Ivan David Warner, III, Patricia D. Miskewicz, Ramirez, Warner and Miskewicz, New Orleans, for plaintiff/appellee June Rosell.

John E. McAuliffe, Jr., Bienvenu, Foster, Ryan and O'Bannon, New Orleans, for defendant/appellant Raftery Elevator Corp.

Before LOBRANO, ARMSTRONG and BECKER, JJ.

BECKER, Judge.

This appeal has been remanded to this Court pursuant to the Louisiana Supreme Court's decision in Rosell v. ESCO, d/b/a Jolly Elevator Corp., et al, 549 So.2d 840 (1989), for a review of the trial court's findings on the issues of "contributory negligence, comparative fault and quantum." The defendant, Raftery Maintenance Services, had originally appealed the trial court's judgment in favor of the plaintiff, finding Raftery liable for plaintiff's alleged injuries.

Another panel of this Court reversed the trial court's finding of liability on Raftery, stating that the plaintiff failed to meet her burden of proof. ¹ The Supreme Court granted writs from the appellate court's ruling, and reversed this Court's judgment, reinstating the trial court's determination of liability.

The plaintiff had filed suit for injuries she allegedly incurred when an elevator door hit her in the head. Plaintiff sustained this injury while in the scope of her employment with Colonial Bank. Included as defendants were ESCO, the manufacturer of the elevator, and Raftery Maintenance Services, the company which provided maintenance on the elevator in question. ESCO was dismissed from the litigation by a summary judgment.

After a trial on the merits, the jury found plaintiff, June Rosell, thirty percent at fault; defendant, Raftery Maintenance Services, seventy percent negligent; and awarded plaintiff $500,000.00 in general damages. Upon motion of the plaintiff, the trial judge made the jury's verdict the judgment of the court, rendering defendant, Raftery Maintenance Services, liable to plaintiff for damages in the amount of $350,000.00 (the award of $500,000.00 minus plaintiff's thirty percent apportionment of fault).

Defendant, Raftery Maintenance Services, appealed the judgment of the trial court. As stated above, another panel of this Court reversed the trial court's findings of liability on the part of Raftery. The Louisiana Supreme Court reversed this Court's decision, reinstating the trial court's judgment, and remanding the matter for a review on the issues of "contributory negligence, comparative fault and quantum."

The accident sued upon allegedly occurred as plaintiff was exiting the elevator at her place of employment. Plaintiff contends that as she was walking out of the elevator, the elevator doors closed too quickly, hitting her in the face, causing plaintiff to fall backwards and strike her head on the elevator's rear wall. The trial court found that Raftery failed to reasonably maintain the elevators in a safe condition. Several employees of Colonial Bank testified at trial that the elevator doors kept closing too quickly, and that they had seen Raftery's employees at the bank on numerous occasions working on the elevator in question.

Plaintiff testified also that on other occasions when she used the elevator she noticed that the timing of the elevator doors was too fast. According to her testimony, the elevator door would close after one person had the opportunity to exit the elevator.

The jury found that the plaintiff was also negligent in the causation of the accident. A review of the trial transcript supports the jury's finding. The record revealed that the bank employees had a general knowledge that the elevator doors were not working properly. Further, there is evidence that the plaintiff was not attentive to her surroundings as she exited the elevator. The testimony of Dawn Hirstius, who was in the elevator with the plaintiff, indicates that the plaintiff and Ms. Hirstius were involved in a conversation as they exited the elevator.

It is well settled that an appellate court may not set aside a trier of fact's findings in the absence of manifest error. Further, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Dominque, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973).

We can not say that the jury's finding of negligence on the part of the plaintiff was manifestly erroneous. While plaintiff refutes Ms. Hirstius' testimony, this conflict of testimony was resolved against the plaintiff by the jury. It is the jury's role, in assessing credibility, to determine which witnesses to believe. Further, it is settled that a jury need not accept a witness's entire testimony as true; the jury is entitled to accept those parts of a witness's testimony which it deems to be true.

Neither do we find error in the jury's apportionment of fault. Findings as to fault are factual and should be upheld on appellate review unless determined to be manifestly erroneous or clearly wrong. Garrett v. Celino, 489 So.2d 335 (La.App. 4th Cir.1986). In apportioning fault, the trier of fact must consider "both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages." Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 964 (La.1985).

To assist in the assessment of the nature of the conduct of the parties, the Louisiana Supreme Court has recognized the following considerations:

(1) Whether the conduct resulted from inadvertence or involved an awareness of the danger;

(2) how great a risk was created by the conduct;

(3) the significance of what was sought by the conduct;

(4) the capacities of the actor, whether superior or inferior; and

(5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by the concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. Watson, supra at 974.

In its review, the Supreme Court found that "the jury evidently concluded that the accident had been caused by the negligent or improper maintenance of the elevator by Raftery's service personnel." This inference undoubtedly was based on the jury's decision to credit the testimony of the plaintiff's witnesses that the elevator doors operated erratically and too rapidly at times prior to the accident, and that Raftery's employees responded to the complaints but always failed to correct the problem. From these facts the jury apparently inferred that the elevator doors were in a defective condition that should have been discovered and remedied by a reasonable person acting as a professional elevator maintenance firm. Rosell v. ESCO, 549 So.2d 840 (1989).

Therefore, we conclude that the defendant had knowledge of the condition which was a cause-in-fact of the accident. The risk created by such a defective condition is easily recognizable as several employees testified that they had received bruises on their arms from the elevator doors striking them. Further, Raftery was in a superior position to the plaintiff as it was in Raftery's control to correct the defective condition. Raftery's failure to correct the condition is clearly a substantial cause of plaintiff's injuries. The jury did not err in apportioning Raftery with seventy per cent of the fault for plaintiff's accident.

The facts also support a finding that plaintiff was also partially at fault. There was sufficient evidence for the jury to find the plaintiff inattentive in a situation where she knew that a danger, however slight, existed. However, plaintiff's negligence could cause only injury to herself. The jury did not commit error in finding plaintiff thirty percent at fault.

The defendant, Raftery Maintenance Services, further argued on appeal, that the damage award received by plaintiff was excessive. In connection with this argument, the defendant assigned the following specifications of error:

(1) The court erred in allowing the introduction of uncorroborated, double hearsay testimony of plaintiff's medical condition;

(2) The judge failed to instruct the jury on the presumption that arises as a result of failing to call witnesses with no explanation;

(3) The jury erred in finding that plaintiff sustained a head injury;

(4) The judge erred in allowing a neurosurgeon to testify with respect to the results of another doctor's psychological evaluation and plaintiff's mental condition;

(5) The court erred in failing to instruct the jury on the presumption that arises in failing to call a treating psychologist;

(6) The jury erred in awarding any amount for past or future wage loss; and

(7) The jury erred in awarding $500,000.00 in damages.

Plaintiff has alleged that she had suffered from epileptic seizures as a result of the accident. Yet at trial, the plaintiff did not call as witnesses her husband and daughter. Both had been in the plaintiff's presence during her seizures. Further, Dr. Palmer, plaintiff's treating neurologist, testified at trial that plaintiff at first was not aware she was having seizures until informed by her husband. Plaintiff related to Dr. Palmer what her husband told her about what would occur during the seizure. The trial court allowed Dr. Palmer to testify to this information as part of plaintiff's medical history. The defendant objected to this testimony as double hearsay. While the trial court may have committed error in allowing such testimony, such error is not reversible. The trial court further did not commit reversible error...