Rosell v. ESCO, No. 89-C-0607

• Court: Supreme Court of Louisiana
• Writing for the Court: DENNIS
• Citation: 549 So.2d 840
• Parties: June ROSELL v. ESCO, d/b/a Jolly Elevator Corp., et al.
• Decision Date: 12 September 1989
• Docket Number: No. 89-C-0607

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549 So.2d 840 June ROSELL
v.
ESCO, d/b/a Jolly Elevator Corp., et al. No. 89-C-0607. Supreme Court of Louisiana. Sept. 12, 1989.

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Samuel C. Gainsburgh and Nick F. Noriea, Jr., Gainsburgh, Benjamin, Fallon, David & Ates, New Orleans, for applicant.

John E. McAuliffe, Jr., Bienvenu, Foster, Ryan & O'Bannon, New Orleans, for respondent.

DENNIS, Justice.

This case presents the question whether the factual finding by a jury that an elevator maintenance firm caused damage to an elevator passenger by its negligence was manifestly erroneous or clearly wrong. The Court of Appeal concluded that there was such readily perceived error and reversed. Rosell v. ESCO, 539 So.2d 937 (La.App. 4th Cir.1989). Because our reading of the record convinces us that the Court of Appeal misapplied the manifest error--clearly wrong standard, we reverse.

1.

This case arises out of an accident which befell June Rosell on January 12, 1984 as she was exiting a two-story elevator at the place of business of her employer, the Colonial Bank. Shortly before Ms. Rosell's accident, another person had become trapped in a different, five-story elevator in the bank. In response to a distress signal, Ms. Rosell took the two-story elevator up to the second floor to find help. Unable to do so, Ms. Rosell took the same elevator down to the first floor. Another bank employee, Ms. Dawn Hirstius, was in the elevator with Ms. Rosell. When the elevator reached the first floor, Ms. Rosell attempted to exit, but the doors closed colliding with her head, neck and facial area. Because of resulting injuries, Ms. Rosell filed a personal injury suit against ESCO, d/b/a Jolly Elevator Corporation, the elevator's manufacturer, and Raftery Elevator Corporation, the elevator's service contractor. ESCO was dismissed by the trial court pursuant to its motion for summary judgment, leaving Raftery as the sole defendant.

After a trial on the merits, the jury returned a verdict in favor of the plaintiff. The jury verdict consisted of answers to four interrogatories: 1) Was there negligence on the part of the defendant Raftery, constituting a proximate cause of plaintiff's injuries?; 2) Was the plaintiff guilty of negligence, constituting a proximate cause of her injuries?; 3) What percentage of fault should be assigned to plaintiff?; and 4) What amount of damages should be awarded? The jury answered interrogatories

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number one and two in the affirmative, assigning 30% fault to plaintiff under number three. As to the fourth interrogatory, the jury assessed plaintiff's damages at $500,000.00. The trial judge thereafter rendered judgment in favor of plaintiff ordering defendant to pay plaintiff $350,000.00 in damages.

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, that this condition was called to Raftery's attention, 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. ¹

The Fourth Circuit Court of Appeal reversed, holding that the jury erred manifestly or was clearly wrong in finding Raftery guilty of any negligence that caused the accident. Rosell v. ESCO, 539 So.2d 937 (La.App. 4th Cir.1989). The court noted that the jury's evident finding that the elevator doors had been operating erratically before the accident was based upon the testimony of several former Colonial Bank employees, but the court rejected their testimony as "dubious" because it was contradicted by "their own words" and the testimony of defendant's witnesses. The court found instead that the defendant's expert witnesses "provided uncontradicted testimony that the elevator doors could not have closed suddenly as an isolated incident but [would have] had to manifest ... sudden closing immediately prior to and after the accident" and that the record shows that "no one noticed the doors closing too fast in the days immediately preceding or following the accident." The court further found that "[w]hile there is little doubt that Ms. Rosell sustained an injury, much doubt exists as to how the doors could have possibly closed too fast" because plaintiff's testimony "was contradicted by the only unbiased witness present at the time of the accident, Ms. Hirstius," although the court acknowledged that Ms. Hirstius' testimony differed with the plaintiff's only with respect to whether the two were engaged in conversation at the time of the accident, whether Ms. Hirstius preceded the plaintiff in exiting the elevator, and whether the force of the blow caused the plaintiff to fall back into the rear elevator wall.

2.

Thus, the Court of Appeal assigned factual rather than legal grounds for its reversal of the jury verdict and the district court judgment, concluding that the record did not adequately support either of two crucial factual predicates for the jury's findings, viz., that the elevator doors closed too rapidly and struck plaintiff in the head;

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and that the elevator doors had been operating in a faulty manner prior to the accident. The Court of Appeal identified the standard it applied to the jury's factual findings as the "manifest error" or "clearly wrong" standard. Although the meaning of these phrases is not immediately apparent, certain general principles governing the exercise of the appellate court's power to reverse findings of a trial court or jury may be derived from the cases.

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). See also, Sevier v. United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La.1978); A. Tate, "Manifest Error" Further observations on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605, 611 (1962). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985). In applying the manifestly erroneous--clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. ² See, F. Maraist, The Work of the Louisiana Appellate Courts for the 1978-1979 Term--A Faculty Symposium, Civil Procedure, 40 La.L.Rev. 761, 764 (1980); Comment, Appellate Review of Facts in Louisiana Civil Cases, 21 La.L.Rev. 402, 412 (1961); Cf. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).

When findings are based on determinations regarding the credibility of witnesses, the manifest error--clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Canter, supra at 724; Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825, 826 (La.1987); Boulos v. Morrison, 503 So.2d 1, 3 (La.1987); Williams v. Keystone General Contractors, Inc., 488 So.2d 999, 1001 (La.1986); Johnson v. Insurance Co. of North America, 454 So.2d 1113, 1117 (La.1984); Berry v. Livingston Roofing Co., 403 So.2d 1247, 1249 (La.1981); Crump v. Hartford Accident & Indemnity Co., 367 So.2d 300, 301 (La.1979). Where documents or objective evidence so contradict

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the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. See, Wilson v. Jacobs, 438 So.2d 1119 (La.App. 2d Cir.1983), writ denied, 443 So.2d 586 (La.1983). Cf. State v. Mussall, 523 So.2d 1305 (La.1988); Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); U.S. v. U.S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). But where such factors are not present, and a factfinder's finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. See, Jackson v. Tate, 428 So.2d 882, 884 (La.App. 1st Cir.1983), citing McDonald v. Book, 215 So.2d 394 (La.App. 3d Cir.1968), overuled on other...