Veazey v. Elmwood Plantation Associates, Ltd.

Citation650 So.2d 712
Parties93-2818 La
Decision Date30 November 1994
CourtSupreme Court of Louisiana

Wanda T. Anderson-Tate, Metairie, for applicant.

Jacob J. Amato, Jr., Lisa A. Dunn, Amato & Creely, Gretna, for respondent.

Lawrence S. Kullman, New Orleans, J.J. McKernan, Baton Rouge, for amicus curiae La. Trial Lawyers Ass'n.


[93-2818 La. 1] KIMBALL, Justice. *

In June, 1988, Christi Veazey leased an apartment in the Elmwood Plantation Apartments complex in Metairie, Louisiana, from Tonti Management Corporation ("Tonti"). About two weeks later, the complex was sold and Southmark Management Corporation ("Southmark") assumed management of the complex. At approximately 1:45 a.m., on October 3, 1988, an intruder entered plaintiff's second-story apartment through her bedroom window and raped her. Plaintiff was unable to identify the rapist, and the rapist's identity remains unknown.

In November, 1988, Christi Veazey commenced the instant action in negligence against Southmark. Plaintiff's allegations regarding Southmark's negligence can be grouped into two categories: (1) misrepresenting the amount of security at the complex and the number of past criminal acts occurring on the complex premises, and (2) furnishing inadequate security. As to the misrepresentations, plaintiff alleged that management represented to her and to her mother that Jefferson Parish Sheriff's Office deputies lived on the premises and provided security and that, with the exception of a burglary that occurred a few years earlier, no criminal offenses had been reported to management as having been committed on the complex premises. The truth, [93-2818 La. 2] plaintiff alleged, was the security officers were only convenience officers who had no responsibility for protecting the residents, and management was aware that other rapes or attempted rapes had been committed on the complex premises over the past year. As to the inadequacy of security, plaintiff alleged that Southmark failed to provide adequate locks on the windows, failed to maintain the premises so as to discourage potential intruders, and failed to provide adequate lighting. With regard to the latter, plaintiff further alleged that she had complained to management about the lighting in general, and about the non-functioning pool lights, in particular.

Southmark answered plaintiff's complaint generally denying all of plaintiff's allegations. Southmark also filed a third-party demand against Tonti, who had leased the apartment to plaintiff. Tonti responded by filing a motion for summary judgment. While the trial court denied Tonti's motion, the court of appeal granted writs, finding that Tonti was entitled to summary judgment. Tonti was thus dismissed from the suit, and the case proceeded to trial solely against Southmark. At the close of the four-day jury trial, Southmark requested, pursuant to La.Code Civ.Pro. art. 1812(C)(2), 1 that the trial court submit a special interrogatory so as to permit the allocation of fault to the nonparty rapist. The trial court denied Southmark's request as well as its motion for a continuance to seek emergency writs on the issue.

The jury returned a verdict itemizing plaintiff's damages as follows: $150,000 in general damages and $30,000 in special damages, for a total damage award of $180,000. The jury, however, returned an inconsistent verdict on liability. Specifically, the jury responded to interrogatory # 1 that defendant Southmark was at fault, to interrogatory # 2 that plaintiff Christi Veazey was free from fault, and to interrogatory # 3 that Southmark was 60% at fault and [93-2818 La. 3] plaintiff was 40% at fault. 2 The trial court, nonetheless, entered judgment adopting the verdict of the jury as the judgment of the court, assessing 40% fault to plaintiff and 60% fault to defendant. Plaintiff filed a motion for clarification and, in the alternative, motions for a judgment notwithstanding the verdict ("JNOV") and new trial. The trial court granted both the motions for clarification and JNOV, reallocating all of the fault to Southmark and finding it liable for the entire $180,000 damage award.

Affirming, the court of appeal found that while the trial court's granting of the motion for clarification was improper, its granting of the JNOV was proper. Veazey v. Elmwood Plantation Associates, Ltd. and Southmark Management Corp., 625 So.2d 675 (La.App. 5th Cir.1993). No error exists, the court of appeal reasoned, simply because the judgment was styled a clarification and a JNOV, as in substance "the judgment [took] on the legal posture of a JNOV and nothing more." Id. at 681. The court of appeal further reasoned that because "the record [was] devoid of any facts that would support finding Christi Veazey at fault for her own rape," the granting of the JNOV, which reallocated all of the fault to Southmark, was not manifestly erroneous. Id. at 680-81.

[93-2818 La. 4] The court of appeal also found no reversible error in the trial court's refusal to submit a special interrogatory to the jury for allocation of fault to the nonparty rapist. In support of its finding, the court of appeal cited the following two rationales: (1) the wide discretion La.Code Civ.Pro. art. 1812 affords the trial court in determining whether to submit such an interrogatory; and (2) the jurisprudential "mandates" that denying a requested jury charge is reversible error only if it results in the jury being misled to such an extent as to prevent it from doing justice. Applying both rationales, the court of appeal concluded that "after careful review, we can only say the trial court did not commit reversible error because of the wide discretion granted by our statutory scheme, and, more importantly, we conclude the trial court's action did not cause the jury to be misled to such an extent as to prevent it from doing justice." Id. at 679. In reaching that result, however, the court of appeal also concluded, based on its "exhaustive search of suggested guidelines," that "it is permissible to assess fault between intentional and negligent tortfeasors." Id.

On Southmark's application, we granted certiorari to consider the correctness of the court of appeal's decision. Christi Veazey v. Elmwood Plantation Associates, Ltd. and Southmark Management Corporation, 93-2818 (La. 2/4/94), 633 So.2d 158.


While Southmark contends that the lower courts erred in finding it at fault and in holding it liable for plaintiff's damages which resulted from the rapist's intentional criminal acts, we have reviewed the record and find substantial evidence supporting the finding that the management of the apartment complex misrepresented to plaintiff the security afforded at the complex, that window locks were inadequate, that lighting was poor and that security provided by the complex was substandard. Therefore, the finding of fault on the part of Southmark, which was a contributing cause of plaintiff's damages, is not manifestly erroneous.

As such, the only issues we consider herein are whether the fault of an intentional tortfeasor and a negligent tortfeasor: (1) can; and (2) should, be compared by the finder of fact.

[93-2818 La. 5] LAW

The issues of whether Louisiana comparative fault principles can and, if so, should apply when the fault of both an intentional tortfeasor and a negligent tortfeasor contributes to the same damages are significant issues of first impression in this Court. The Louisiana comparative fault law was enacted by Act 431 of 1979 (effective August 1, 1980), and thus governs the instant case. Act 431 ushered into Louisiana a comparative fault system by amending and re-enacting La.C.C. articles 2103, 3 2323 and 2324. To adjust procedurally for those substantive changes in the Civil Code provisions, Act 431 also amended and re-enacted La.Code Civ.Pro. arts. 1811 4 and 1917. These provisions of the comparative fault law all share a common characteristic; "[they all] use the term 'fault' when referring to tortfeasor conduct and 'negligence' when referring to victim conduct." D. Robertson, Ruminations on Comparative Fault, Duty-Risk Analysis, Affirmative Defenses, and Defensive Doctrines in Negligence and Strict Liability Litigation in Louisiana, 44 La.L.Rev. 1341, 1344 n. 18 (1984) (hereinafter "Ruminations "); Turner v. New Orleans Public Service, Inc., 476 So.2d 800 (La.1985); M. Plant, Comparative Negligence and Strict Tort Liability, 40 La.L.Rev. 403, 413 (1980) (hereinafter "Plant ").

The significant effects of the comparative fault law on Louisiana tort law were two-fold. First, the comparative fault law eliminated the harsh all-or-nothing doctrine of contributory negligence, which Louisiana had borrowed from the common law. "Consequently, a plaintiff's claim for damages no longer can be barred totally because of his negligence. At most his claim may be reduced in proportion to his fault." Bell v. Jet Wheel Blast, Div. of Ervin Ind., 462 So.2d 166, 170 (La.1985); La.C.C. art. 2323. Second, the comparative fault law altered the rules regarding the relationship between joint tortfeasors, changing the basis for contribution [93-2818 La. 6] among them from virile share defined as per head to virile share defined in terms of proportionate fault, La.C.C. arts. 1804, 5 and, by later amendment, limiting solidary liability between them. La.C.C. art. 2324, as amended in 1987. In short, the comparative fault law " 'provide[d] the framework for a comprehensive scheme of loss apportionment in multiple party litigation.' Chamallas, Comparative Fault and the Multiple Party Litigation in Louisiana: A Sampling of the Problems, 40 La.L.Rev. 373 (1981)." Cole v. Celotex Corp., 599 So.2d 1058, 1062 n. 13 (La.1992).

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