Smith v. Jack Dyer & Associates, Inc.
| Decision Date | 29 December 1993 |
| Docket Number | No. 93,93 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Cheryl SMITH v. JACK DYER & ASSOCIATES, INC. and Metro Properties Management, Inc. CA 0564. |
On appeal from the Eighteenth Judicial District Court, Number 21,340, in and for the Parish of West Baton Rouge; Thomas W. Tanner, Judge Presiding. 1
Brian C. Beckwith, New Orleans, for plaintiff Cheryl Smith.
Arthur R. Cooper, Baton Rouge, for defendants Metro Properties Management, Inc. and City Sav. Bank & Trust Co.
Before LOTTINGER, C.J., and GONZALES and WHIPPLE, JJ.
This appeal arises from a judgment following a bench trial in a "trip and fall" case in which the plaintiff was awarded $29,941.22 for the damages she sustained when she tripped and fell over a carpet buckle on a staircase. The defendants, one a property management firm and the other the property owner, were cast liable, jointly, severally and in solido, for the plaintiff's injuries. The defendants appeal, urging four assignments of error.
In December of 1987, Cheryl Smith, appellee, was visiting Ronald Armstead, then her fiance, at the apartment he leased in Addis, Louisiana. Ronald is now the appellee's husband. The leased apartment was owned by City Savings Bank and Trust Company (City Savings) and managed by Metro Properties Management, Inc. (Metro), appellants. As the appellee was descending the internal staircase of the apartment, she tripped on a buckle in the carpeting covering the stairs and fell, causing immediate injury to her back and elbow. The staircase was bifurcated into an upper and lower portion, designated by a turn which separated the upper half from the lower half. Although the staircase had a handrail for the upper steps, it contained no handrail for the lower steps. Furthermore, the only light which illuminated the steps was fixed at the top of the staircase. Hence, there was no light fixture placed in the stairwell to illuminate the lower portion.
At trial, Ronald testified that he had complained about the staircase to the management prior to appellee's accident. He stated that he tripped on the carpet buckle approximately one week after he had moved into the apartment. Further, Ronald stated that he reported the carpet problem on the staircase to the management. However, he testified that the management never sent anyone to investigate and correct the problem.
Due to the injuries she sustained, appellee sought the care of Dr. George Murphy, an orthopedist. Originally, Dr. Murphy diagnosed appellee's injury as a lumbar strain and prescribed analgesic drugs to curtail the pain. However, appellee developed an adverse reaction to the prescribed medication because she is allergic to medication containing Codeine. Because she continued to complain of pain, medical tests were performed on appellee. After these tests, Dr. Murphy diagnosed appellee as suffering from permanent nerve root damage in her lower back. Moreover, Dr. Murphy mentioned to appellee that surgery was a possibility.
While expecting another child at the time of trial, appellee relayed the extent that her injuries have impacted her life. Appellee testified that although she is still able to continue her employment, her injuries prevent her from dancing and playing volleyball. Furthermore, she stated that she has difficulty rising from bed and dressing herself. In addition to stating that she cannot put laundry in or take it out of the dryer, appellee conveyed that it is painful for her to sit for long periods of time. Furthermore, appellee testified that she is unable to enjoy a playful relationship with her daughter because she cannot run with her daughter nor pick her up. Also, appellee stated that because pregnancy puts an additional strain on her back, her legs sometimes give out.
Appellee's husband testified at trial that because of his wife's injuries, he must perform the daily household chores such as scrubbing and other activities that require her to bend over. Further, Ronald provided that appellee can barely make the bed. He also stated that he must bathe their daughter because this activity also requires her to bend over. Moreover, in addition to being unable to go dancing with him, Ronald testified that he and appellee can no longer engage in horseplay. Additionally, he stated that at times when he requests sexual intercourse with appellee, she complains about her back.
Appellants denied any responsibility for the accident. Appellants maintained that the lease executed by Ronald contained a provision pursuant to La.R.S. 9:3221 that allows the lessee to assume responsibility for injury caused by the condition of the leased premises. However, appellants were unable to produce the original lease executed by Ronald. In lieu of the original lease, appellants introduced a copy of a form lease containing a provision in which the lessee assumes responsibility for the leased premises and maintained that the copy was an exact duplicate of the lease Ronald executed. Appellants attempted to prove their assertion by introducing the deposition of Nadine Kittrell, an employee of Metro, who stated at her deposition that Ronald could not have entered into any lease agreement except for the one stipulated in the copy. Although Ronald acknowledged that he signed "a copy of a lease," he never indicated that the copy contained a lease agreement identical to the one he signed.
The trial court found that appellants failed to prove that Ronald assumed responsibility for the apartment. Accordingly, the trial court found appellants liable to appellee jointly, severally and in solido. Consequently, the trial court awarded appellee $29,941.22 ($25,000.00 in general damages and $4,941.22 for her medical bills), plus judicial interest.
Appellants submit four assignments of error. Specifically, appellants maintain: (1) the trial court erred in finding that they did not prove the terms of the lease executed by Ronald Armstead; (2) the trial court erred in failing to relieve them of responsibility for appellee's injuries under the terms of the lease; (3) alternatively, should we find that they owe an obligation to appellee, the trial court erred in failing to find that Ronald or appellee was solely or comparatively at fault for the accident; and (4) the trial court abused its discretion in awarding general damages to appellee.
Appellants' assignments of error raise the following questions for review: First, did the trial court commit manifest error because it failed to find that appellants proved the contents of the lease agreement executed by Ronald? Second, did the trial court err by not relieving appellants of responsibility for appellee's accident because Ronald did not notify appellants in writing of the carpet buckle on the staircase? Third, did the trial court err in failing to find that Ronald or appellee was solely or comparatively at fault for the accident? Finally, did the trial court abuse its discretion in awarding $25,000.00 in general damages to appellee?
Appellants submit that the trial court erred in finding that they did not prove the terms of the lease executed by Ronald. Specifically, appellants argue that because the trial court failed to recognize a form copy of a lease that they contended was an exact duplicate of the lease agreement executed by Ronald, the trial court's finding is manifestly erroneous. Hence, appellants claim that the trial court should have recognized the form copy of the lease that contained a provision drafted pursuant to La.R.S. 9:3221 as the lease agreement identical to the one executed by Ronald. Although the contract contemplated by La.R.S. 9:3221 may be either written or oral, the lessor has the burden of proving with legal certainty the existence of such a contract. Clofort v. Matmoor, Inc., 370 So.2d 1305, 1307 (La.App. 4th Cir.1979).
It is a settled principle of law that an appellate court cannot set aside the trial court's findings of fact in the absence of "manifest error" or unless the finding is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
At trial, appellants presented the trial court with a copy of a form lease containing a provision which stipulated that the lessee assumed responsibility for injuries caused by defects in the apartment. Appellants asserted that the lease executed by Ronald was identical to the copy presented to the trial court. In an attempt to prove their assertion, appellants offered the deposition of Nadine Kittrell, an employee of Metro who did not testify at trial. At her deposition, Kittrell stated that the copy of the form lease agreement is the only one that Ronald could have executed. Further, Kittrell stated that although she was not responsible for the leases at the time Ronald moved into the apartment, it was her personal knowledge that there was no other lease agreement form available for Ronald to sign except the one that appellants assert that he signed.
Ronald admitted at trial that he executed a written lease with Metro and did not make any changes to the lease that he signed. However, although Ronald testified that he had a written lease, he indicated only that he signed "a copy of a lease." Hence, Ronald never acknowledged that the lease agreement that he signed was an exact duplicate of the copy that appellants maintain he signed.
According to the testimony presented, the trial court found that appellants failed to prove that the lease agreement signed by Ronald contained a provision which stipulated that the lessee assumed responsibility for injuries caused by defects in the apartment. Thus, because the trial court drew a reasonable inference of fact from its evaluation of conflicting testimony, we conclude that appellants failed to prove with legal certainty that the lease agreement executed by Ronald contained a provision pursuant to La.R.S. 9:3221. Hence, the trial court's finding is...
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