Wexler v. Occhipinti

• Decision Date: 11 December 1979
• Docket Number: No. 10454,10454
• Citation: 378 So.2d 1073
• Parties: Rosalyn F. WEXLER v. A. R. Kaye OCCHIPINTI, d/b/a Cabana Club Apartments and Allstate InsuranceCompany.
• Court: Court of Appeal of Louisiana — District of US

Page 1073

378 So.2d 1073

Rosalyn F. WEXLER v. A. R. Kaye OCCHIPINTI, d/b/a Cabana Club Apartments and Allstate InsuranceCompany.

No. 10454.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 11, 1979.

Rehearing Denied Jan. 18, 1980.

Jonathan M. Lake, New Orleans, for plaintiff-appellee.

Robert O. Homes, Jr., Metairie, for defendants-appellants.

Before BOUTALL, GARRISON and CHEHARDY, JJ.

BOUTALL, Judge.

Rosalyn F. Wexler sued the owner of the Cabana Club Apartments, A. R. Kaye Occhipinti, and his insurers, Allstate Insurance Company, for personal injuries and damages resulting from a slip and fall on a walkway of the apartment complex. A jury returned a verdict in her favor, and the defendants appeal from the resulting judgment.

The undisputed facts are that Mrs. Wexler had been a tenant in the Cabana Club Apartments for some ten years, and at the time of the accident was leasing and living in Apartment No. 38, which was on the second floor of a two-story building. The apartments were arranged in two long two-story buildings facing an inner courtyard containing a pool and patio area. Mrs. Wexler's apartment was on the second floor, and down along the front of that row of apartments was a walkway or gallery, upon which each apartment opened and was for the common use of the tenants. While returning home one night Mrs. Wexler slipped and fell on this walkway and received injuries. The exact point of the slip is in dispute.

A number of assignments of error have been urged to us, but all of them basically revolve about the location of Mrs. Wexler's slip and fall, and the cause thereof. Each apartment had the compressor end of a room-type air conditioner protruding through the wall above the walkway. These machines dripped to a more or less degree upon the walkway when in operation. It is Mrs. Wexler's contention that she slipped on a slippery or slimy substance which dripped on the walkway from the air conditioner in the apartment next door to hers, which was occupied by the son of the defendant apartment owner. The defendant contends that Mrs. Wexler slipped in front of her own apartment and that if the dripping there constituted a dangerous condition, Mrs. Wexler could not recover because the lease between them provided that she was responsible for the maintenance of the apartment, and that the landlord's liability would attach only after failure to cure a defect after written notice.

The evidence preponderates that Mrs. Wexler slipped in front of the neighboring apartment occupied by Dennis Occhipinti where the condensation drippings from that air conditioner ran across the walkway. The evidence clearly shows that the defendant employed a caretaker whose duty it was to keep the area clean and safe, but this caretaker had been on a two-week's vacation. There is sufficient evidence to support a finding that the maintenance of the area was poor and that it was seldom, if ever cleaned. It is undisputed that the area had not been cleaned in a period of over two weeks. The constant dripping of water from an air conditioner across this walkway would obviously create a dangerous and slippery condition constituting a hazard to those persons who had to use the walkway. We conclude that the dripping of the moisture coupled with the lack of maintenance prior to the fall caused plaintiff to slip and injure herself.

Because of the location of the slip, that is, not in the premises leased by plaintiff nor caused by her air conditioner, the responsibility provisions of the lease are not applicable to this case, and that defense is unavailable to the defendants. Instead, plaintiff's right arises out of the obligations of a lessor to his lessee as stated in Civil Code Article 2695:

"Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor should be bound to indemnify him for the same."

Based on this codal provision, the principle is well established that a lessee who, without fault, sustains an injury caused by a defect in the leased premises is entitled to recover damages from his lessor. Bates v. Blitz, 205 La. 536, 17 So.2d 816 (La.1944); Sabin v. C. & L. Development Corp., 141 So.2d 482 (La.App. 1st Cir. 1962); Green v. Southern Furniture Co., 94 So.2d 508 (La.App. 1st Cir. 1957); Gaida v. Hourgetts, 67 So.2d 737 (La.App. Orleans, 1953); Estes v. Aetna Casualty & Surety Company, 157 So. 395 (La.App. Orleans, 1934). The owner-lessor is held to strict liability as we stated in Phillips v. Cohen, 183 So.2d 473 (La.App. 4th Cir. 1966) at page 475:

" 'Under Louisiana law, particularly L.S.A.-C.C. Articles 670 and 2322, the owner-lessor is held to strict liability, i. e., liability without fault on his part, for personal injuries sustained as a result of the defective condition of the leased premises and he cannot successfully defend on the basis of ignorance of the condition of the building or of the fact that the defect could not be detected; knowledge of even latent defects for which he is responsible is imputed to the owner-lessor and he is presumed to know of them.' "

In this case, the liability of the owner-lessor is based not only on his strict liability but additionally upon the factual finding of fault or negligence which we have detailed above. The walkway or approach to the door of plaintiff's leased apartment is within the responsibility of the lessor to the lessee. Glain v. Sparandeo, 119 La. 339, 44 So. 120 (La.1906 ); Estes v. Aetna Casualty & Surety Company, supra.

Alternatively, the appellant contends that the plaintiff was contributorily negligent, had assumed the risk, or that plaintiff should have used an alternate path, having been aware of the dangerous situation. As we appreciate the evidence, while plaintiff knew that the air conditioners did drip upon the walkway, the plaintiff was not aware that the walkway was made as slippery as it was on this circumstance. Plaintiff had traversed the walkway on numerous occasions and had not slipped and fallen previously. Indeed, on this occasion, plaintiff's escort had traversed the walkway immediately in front of her and had not slipped. As we stated above, it was not simply the fact condensation had dripped in the area, but that combined with the non-cleaning of the area for several weeks had caused it to become obviously much slipperier than it had previously been. Plaintiff testified that she was being careful and attentive of her path when the slip occurred, and we have no reason to disbelieve her testimony. Those defenses are simply not proven by defendant. See Revon v. American Guarantee & Liability Ins. Co., 285 So.2d 354 (La.App. 4th Cir. 1974), damages amended 296 So.2d 257; Anderson v. Sciambra, 310 So.2d 128 (La.App. 4th Cir. 1975].

We next consider defendant's assignment of error based upon the rulings and remarks by the trial judge and remarks made by plaintiff's attorney, which defendant contends has prejudiced its defense and prevented a fair trial.

In connection with plaintiff's attorney's remarks, the defendant contends that during the examination of prospective jurors, plaintiff's attorney remarked that defendant's attorney was unethical, and later on in the trial, in connection with the examination of the treating physician, defendant's attorney made an attempt to make him appear unethical in securing authorization to obtain copies of plaintiff's medical records, and particularly the possession of the doctor's office notes. As to the first, that is, the remark during voir dire, that portion of the trial was not recorded, and there is nothing upon which we could base an examination, much less a conclusion. As to the examination into the authorization for obtaining medical records, we simply note that this came towards the end of the trial and that the trial had been a long and bitter contest. Everything was put at issue by both parties, and while defendant was cross-examining the treating physician, he produced the doctor's office notes, which plaintiff's attorney had apparently never previously seen. An encounter occurred as a result of this, with plaintiff's attorney demanding to know, and attempting to find out, how these notes were obtained. Whatever inference may be made from this evidence is a matter for the jury to consider, and we see nothing prejudicial about it.

Appellant complains of a number of remarks and rulings by the trial judge, which he alleges constituted prejudice individually and in toto. In considering these complaints we note the following. Defendant objected that a fellow tenant of plaintiff was not permitted to compare her lease with the plaintiff's lease. The ruling was correct, there being no foundation laid to show that she knew what was contained in the leases.

Defendant next complains that the judge accused him of attempting to confuse the jury during the cross examination of an actuary, Dr. Wolfson. We note that there was a long interchange between the parties and the court as to the salary basis for computation of past and future loss of wages. The defendant attorney persisted in an attempt to establish use of several past year's income taxes rather than the present salary as a basis. Finally the court stopped him and in so doing did indeed make a comment on the evidence during his ruling. However it was in explanation of the ruling and the court pointed out to the jury that it could make its own determination, and that it was the jury's function to do so. The remark of confusing the jury was brought up in this context, and we find that the trial judge was simply trying to sort the evidence so that the jury could understand its...