Rosenblath v. Louisiana Bank & Trust Co.

• Decision Date: 03 May 1983
• Docket Number: No. 15314-CA,15314-CA
• Citation: Rosenblath v. Louisiana Bank & Trust Co., 432 So.2d 285 (La. App. 1983)
• Court: Court of Appeal of Louisiana
• Parties: Philip F. ROSENBLATH, Jr., Plaintiff-Appellee, v. LOUISIANA BANK & TRUST CO., et al., Defendants and Third Party Plaintiffs-Appellants, and Mentor Insurance, Ltd. & Controlled Demolition, Inc., Defendants-Appellants.

Page 285

432 So.2d 285

Philip F. ROSENBLATH, Jr., Plaintiff-Appellee, v.LOUISIANA BANK & TRUST CO., et al., Defendants and Third Party Plaintiffs-Appellants and Mentor Insurance, Ltd. & Controlled Demolition, Inc.Defendants-Appellants.

No. 15314-CA.

Court of Appeal of Louisiana Second Circuit.

May 3, 1983.

Rehearing Denied June 8, 1983.

Frederic L. Miller, Shreveport, for plaintiff-appellee, Philip F. Rosenblath, Jr.

Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for defendants and third partyplaintiffs-appellants, Louisiana Bank & Trust Co. and Louisiana Parking Garage, Inc.

Greene, Ayres & Mayo by Ronald D. Smith, Shreveport, for defendant and third partyplaintiff-appellant, H & W Wrecking Co., Inc.

Blanchard, Walker, O'Quin & Roberts by Jerald L. Perlman and Kay Cowden Medlin, Shreveport, for defendants-appellants, Controlled Demolition, Inc. and Mentor Ins. Co., Ltd.

Before PRICE, FRED W. JONES and NORRIS, JJ.

NORRIS, Judge.

This suit filed by Philip F. Rosenblath, Jr., d/b/a Rosenblath's against Louisiana Bank and Trust Company(LBT), Louisiana Parking Garage, Inc.(LPG), H & W Wrecking Company, Inc.(H & W), Controlled Demolition, Inc.(CDI), and Mentor Insurance, Ltd.(Mentor) is for damages resulting from the demolition of the Washington Youree/Captain Shreve Hotel Complex in Shreveport, Louisiana.¹

Rosenblath is the owner of a local clothing store located in downtown Shreveport, Louisiana.LBT and LPG are the owners of the demolished properties, H & W is the principal demolition contractor, CDI is the blasting sub-contractor who felled the hotels with explosives on December 16, 1979, and Mentor is CDI's insurer.

Plaintiff sought the following damages for loss of business:

(1)   September 26 & 27, 1979                         $2000
                      (allegedly caused by interruption of telephone
                      service and loss of electricity for two hours)
                (2)   December 17-19 & 21, 1979                       $7650
                      (allegedly caused by a gas leak which occurred)
                (3)   December 24-26, 1979                            $3313
                      (allegedly caused by an interruption of telephone
                      services)
                (4)   January 8-9, 1980                               $1500
                      (allegedly caused by dust problems and odor from
                      a leaking gas main)
                (5)   April 15, 1980                                  $ 500
                      (allegedly caused by debris falling which disrupted
                      telephone service and caused another gas leak)
                

Plaintiff also claimed inconvenience damage in the amount of $2000 and other damages in the nature of necessary repairs to his store, unbudgeted advertising, loss of cash flow and interest due on a note to LBT which the interference with his business caused him to be unable to pay.

LBT, LPG and H & W answered denying plaintiff's allegations and filed a third party demand against CDI and Mentor alleging that the demolition of the structures by dynamite was under the exclusive control of CDI who was insured by Mentor, and that third partyplaintiffs were entitled to be fully indemnified by CDI for any damages awarded plaintiff against them resulting from CDI's activities.

CDI and Mentor answered denying plaintiff's allegations but affirmatively pled that the alleged damages on September 26-27, 1979, January 8-9, 1980, and April 14, 1980, were the result of activities over which CDI had no supervision and control.CDI and Mentor denied the third party demand of LBT, LPG and H & W and filed their own third party demand against those defendants requesting indemnification in solido or alternatively, contribution, for any sums awarded plaintiff against CDI and Mentor for damages attributable to those dates.

Trial was held in January; and in July, 1982, the trial judge filed an "Opinion" in which he:

(a) denied plaintiff's claims for damages on September 26-27th in the amount of $2000 stating that plaintiff"failed in his burden to prove any loss of profits on either September 26 or 27, 1979;"

(b) denied plaintiff's claim for any damages on April 14, 1980 again on the basis that plaintiff failed to prove any damages and that "mere inconvenience will not be sufficient;"

(c) awarded plaintiff the following damages against all defendants for the period of December 16-26, 1979:

(1)  loss of net profits during this
                     period                           $14,209.00
                (2)  Porter's Carpet Cleaners             291.27
                (3)  Carpet Workroom                      140.00
                (4)  Burns Security Services              587.25
                (5)  Don Evans Advertising                388.80
                (6)  Air conditioner repair               114.00
                

and awarded LBT, LPG, AND H & W judgment against CDI and Mentor for these sums;

(d) denied plaintiff's claim for interest owed to LBT on the loan; and

(e) awarded plaintiff damages against LBT, LPG, and H & W for $750 for "disruption of plaintiff's retail business and general inconvenience" on January 9, 1980, and awarded judgment in favor of LBT and LPG against H & W.

It is from the judgment signed in accordance with the trial court's reasons that all defendants and third partyplaintiffs and defendants appeal.Plaintiff did not appeal nor answer the appeal.Therefore, those portions of the judgment rejecting certain damages sought are final and not reviewable.La.C.C.P. Art. 2133.

LBT, LPG and H & W assign the following errors on their appeal:

(A)The Trial Court erred in placing responsibility on LBT, LPG and H & W for any damages resulting from a gas leak on January 9, 1980, in that the leak was caused by the City of Shreveport; and

(B)The Trial Court erred in awarding plaintiff $14,209 for loss of profits during the December 16-26, 1979 period.

CDI and Mentor assign the following errors on appeal:

(A) The legal standard applied by the Trial Judge in assessing lost profits was erroneous;

(B)The Trial Court erred in sustaining damages alleged for December 24 and December 26, 1979 against CDI and Mentor contrary to the terms of their contractual agreement and the facts regarding the cause of the damage; and

(C) The Trial Judge erred in awarding damages to plaintiff in excess of the amount prayed for by him in his original and amended petitions and argued by him in his brief to the Trial Court.

It is conceded by the parties to this action that Rosenblath is entitled to recover for damages proven to have resulted from defendants' activities in demolishing the Washington Youree/Captain Shreve Annex structures.The crucial areas of disagreement center around the $14,209 award for lost profits for the December 16-26, 1979 period; the responsibility of CDI and Mentor for the December 24-26 damages, and defendants' legal responsibility for the January 9, 1980 award.

We agree that defendants are strictly liable for all damages suffered by plaintiff which are shown to have been proximately caused by defendants' demolition activities, regardless of whether or not such demolition activities were conducted with all reasonable care and in accordance with modern and accepted methods.It is clear that the absence of negligence on the part of the landowner who conducts ultra-hazardous activities on his property, e.g., demolition of buildings by ball, crane, and blasting, is immaterial to his liability for damages caused by such activities.It is equally well settled that, under the circumstances, liability attaches to the agent or contractor who becomes solidarily liable with the proprietor.Be this as it may, plaintiff is only entitled to recover from the respective defendants such damages as are shown by a preponderance of the evidence to have been proximately caused by defendants' activities.SeeRussell v. Windsor Properties, Inc., 366 So.2d 219(La.App. 3d Cir.1978) and cases cited therein.

DAMAGES AWARDED FOR JANUARY 9, 1980

The trial court awarded plaintiff damages in the amount of $750 for disruption of plaintiff's retail business and general inconvenience.Our careful study of the record reveals that plaintiff's complaint as to this particular date concerns a gas leak which caused gas odor to be present in the store which he claims affected sales volume, customers who came into the store and left because of the odor and employees who had to leave the store from time to time.The only evidence in the record as to the cause of this gas leak is the testimony of William Fulton, leakage technician for Arkla Gas, who testified that this leak was caused by the City of Shreveport who broke Arkla's gas line while working on the city water line.

We conclude that the lower court was clearly wrong in attributing this leak to LBT, LPG and H & W.Although H & W was still in the area working, there is no evidence in the record to support a conclusion that the gas leak was attributable to its activities.Consequently, this award is disallowed.Arceneaux v. Domingue, 365 So.2d 1330(La.1978).

DAMAGES AWARDED FOR THE PERIOD OF DECEMBER 16-26, 1979

The damages awarded for this time period are in reality the focal point of this appeal.H & W began work pursuant to a contract with LBT and LPG in September, 1979.By contract dated November 30, 1979, H & W contracted with CDI for the felling of the hotel buildings by the use of dynamite.The actual blasting was accomplished on Sunday, December 16, 1979.As a result of the explosion, dirt and dust were blown in the air and debris fell into the alley at the rear of plaintiff's store rupturing a natural gas line owned by Arkla Gas.Thereafter, gas accumulated in plaintiff's store at dangerous levels, and plaintiff was called by the Shreveport Fire Department to unlock his store.After gaining entry to the store, the fire department turned off the electricity, opened both front and rear doors and installed large fans at the front and rear of the store which operated until Tuesday morning.Arkla and Shreveport Fire Department personnel maintained a vigil in and around the store from Sunday through Tuesday.Gas odor accumulated in the store, carpets were soiled by...