Shaw v. Fidelity & Cas. Ins. Co.

Decision Date19 June 1991
Docket NumberNo. 22,478-CA,22,478-CA
Citation582 So.2d 919
CourtCourt of Appeal of Louisiana — District of US
PartiesEddie Mae SHAW, Janice Marie Toliver, Ruby Lee Shaw Petteway, Nathaniel Shaw, Jr., and Gerlene Shaw Phillips, Plaintiffs-Appellants, v. FIDELITY & CASUALTY INSURANCE COMPANY and Eola B. Watson, Defendants-Appellees.

Robert A. Jahnke, Shreveport, for plaintiffs-appellants.

Lunn, Irion, Johnson, Salley & Carlisle by Ronald E. Raney, Shreveport, for defendants-appellees.

Before SEXTON, NORRIS and VICTORY, JJ.

SEXTON, Judge.

The plaintiffs, Eddie Mae Shaw, Janice Marie Toliver, Ruby Lee Shaw Petteway, Nathaniel Shaw, Jr., and Gerlene Shaw Phillips, the widow and adult children of Nathaniel Shaw, Sr., appeal the jury verdict denying their claims against the defendants, Eola B. Watson and her insurer, Fidelity & Casualty Company of New York, 1 for Mr. Shaw's wrongful death. Fidelity & Casualty has answered the appeal, seeking reversal of the trial court judgment holding it liable to the plaintiffs for $4000 pursuant to the medical payment provisions clause of Mrs. Watson's insurance policy. We affirm.

Nathaniel Shaw, Sr. was a self-employed house painter with over 35 years experience painting houses. At approximately 4:30 p.m. on January 5, 1982, Mr. Shaw came to the residence of his longtime customer, the defendant, Mrs. Watson, apparently at her request, to clean out her gutters and to give her an estimate on painting her house. After talking with Mrs. Watson, Mr. Shaw placed a 16-foot extension ladder against the gutters along the roof of her house with the bottom of the ladder on Mrs. Watson's concrete front porch. Mrs. Watson then reentered her house. At that time Mr. Shaw was four or five rungs up the ladder. Several minutes later, Louis Southall, who was doing yard work on the opposite side of Mrs. Watson's house, heard "the ladder make a tremendous noise" of metal scraping against metal. When Mr. Southall investigated the noise, Mr. Shaw was lying on the concrete porch with the ladder lying nearby. There was additionally a trashbag of pine needles on the porch. Mr. Shaw suffered head injuries in the fall and died 93 days later as a result of those injuries. There were no eyewitnesses to the accident and Mr. Shaw was never able to relate his version of the incident, so the specific details of the accident are mostly conjectural. Nathaniel Shaw, Jr., who viewed the scene of his father's accident two days later, noted that the portion of the roof closest to the chimney had been cleared of pine needles, suggesting to him that his father had begun cleaning the roof of pine needles prior to cleaning the gutters.

The plaintiffs filed a wrongful death action alleging both negligence and strict liability as grounds for recovery. A jury found no negligence on the part of Mrs. Watson and found that her property did not create an unreasonable risk of injury to the decedent.

The trial court determined the applicability of the medical payment provisions of the insurance policy in favor of the plaintiffs and ordered Fidelity & Casualty to pay $4000 to the plaintiffs. 2 This decision involved an interpretation of a professional services exclusion in the policy. The trial court found that the decedent was not a professional gutter cleaner, that the cleaning of the gutters was not incidental to a painting job, and therefore the decedent was not rendering professional services at the time of the accident. The exclusion was thus found not to apply. A judgment encompassing both the jury and trial court findings was thereafter signed.

LIABILITY

The plaintiffs initially argue that the jury committed manifest error in failing to find Mrs. Watson guilty of negligence or strictly liable for the condition of her house. We disagree.

The owner of immovable property has a duty to keep such property in a reasonably safe condition. The owner must discover any unreasonably dangerous condition on the premises and either correct it or warn potential victims of its existence. Williams v. Exxon Corporation, 541 So.2d 910 (La.App. 1st Cir.1989), writ denied, 542 So.2d 1379 (La.1989); Carter v. Board of Supervisors of Louisiana State University, 459 So.2d 1263 (La.App. 1st Cir.1984), writ denied, 462 So.2d 1248 (La.1985). Under either a negligence (LSA-C.C. Art. 2315) or a strict liability (LSA-C.C. Arts. 2317 and 2322) theory of recovery against the owner or custodian of immovable property, the plaintiff has the burden of proving: (1) that the defendant had custody of the property causing the damage; (2) that the property was defective because it had a condition that created an unreasonable risk of harm; and (3) that the defect was the cause in fact of the injury. Barnes v. New Hampshire Insurance Company, 573 So.2d 628 (La.App. 2d Cir.1991); Waters v. McDaniel Recreation Center, Inc., 521 So.2d 788 (La.App. 2d Cir.1988), writ denied, 524 So.2d 520 (La.1988). The difference between the two theories of liability is proof as to the defendant's knowledge. Under a negligence theory, the plaintiff must prove that the defendant knew or should have known of the unreasonable risk of harm posed by the property. Under a strict liability theory, the plaintiff is relieved of proving such knowledge. Barnes v. New Hampshire Insurance Company, supra; Waters v. McDaniel Recreation Center, Inc., supra.

Clearly Mrs. Watson, as owner of the property, had custody of the house where the accident occurred. Thus, the ultimate issue presented in the instant case, under either a negligence or strict liability theory, is whether the property was defective. The plaintiffs assert that various conditions combined to create an unreasonable risk of harm, rendering Mrs. Watson's property defective. The factors which plaintiffs contend combined to create an unreasonable risk of harm were the condition of: (1) the gutters, allegedly defective because they were not securely fastened to the fascia board and were full of pine needles and other debris; (2) the roof shingles, allegedly defective because they were old and brittle; (3) the concrete porch, allegedly defective because it was slippery; and (4) the roof itself, allegedly defective because of its steepness.

We conclude that all of these factors should have been readily apparent to the decedent, who had years of experience painting houses and using ladders and had apparently performed similar work at Mrs. Watson's house without incident several times in the past. The evidence revealed that the condition of the gutters could be determined from the ground. Nathaniel Shaw, Jr. noted that from the ground he could see the pine needles in the gutter and that the gutter was sagging away from the house; this observation was made only two to three days after his father's accident. Additionally, the younger Shaw admitted that a defective condition of the gutter would be noted immediately by a person climbing a ladder which rested against such a gutter.

There was no evidence of any cracked or broken shingles on the roof, although Mr. Shaw, Jr. described the shingles as "old and crispy" (apparently a reference to granules inherent on shingles). However, Mr. Shaw, Jr. testified that he noticed these granules while still on the ladder. Additionally, Phillip Barron, the defendants' expert in general contracting, testified that these granules appear on every roof, more so on new roofs than on old ones.

The slickness of the concrete porch was, according to Mr. Barron, exacerbated because the concrete had been painted. Yet this factor, too, should have been determined from the ground. Finally, the steepness of the roof is readily apparent from the photograph of the house admitted into evidence.

In short, all of the allegedly defective conditions of the house should have been readily apparent to Mr. Shaw. Several of the defects should have been apparent to any layman and all should have been apparent to a man like Mr. Shaw, who had over 35 years experience in the field. Notwithstanding these readily apparent hazardous conditions, Mr. Shaw did not attempt to take any of the measures described as typical precautions by the witnesses at trial. Mr. Shaw did not stretch a rope across the roof to give himself something to hold; he did not use a second, secured ladder on the roof itself; he did not tie his ladder to a gutter spike or other secure feature on the house; he did not have someone hold the ladder or otherwise secure it at the bottom so it would not slide; 3 and he did not clean the roof from the ladder with a tree trimmer as his son eventually did.

Although a landowner owes a duty to discover unreasonably dangerous conditions on his premises, the landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to the visitor as it was to the landowner. Barnes v. New Hampshire Insurance Company, supra; Spencer v. Magee, 563 So.2d 564 (La.App. 4th Cir.1990), writ denied, 567 So.2d 1123 (La.1990); Paul v. Commercial Union Insurance Company, 535 So.2d 1319 (La.App. 5th Cir.1988). Mrs. Watson and her insurer could not be held liable for the readily apparent conditions of her home, especially where these conditions should have been more obvious to Mr. Shaw than to Mrs. Watson. The jury verdict finding no liability appears correct and is surely not clearly wrong.

EVIDENCE

The plaintiffs assert that two evidentiary rulings by the trial court were erroneously made and require reversal of the judgment. First, pursuant to a motion in limine by the defendants, the trial court refused to allow any testimony that, subsequent to the accident, a portion of the gutters in the back of the house were repaired and/or replaced. As Mr. Shaw's accident occurred in the front of the house, the trial court ruled that any repair work done to the physically separate gutters in the rear of the house would be irrelevant.

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