Williams v. Exxon Corp.

• Decision Date: 06 February 1989
• Docket Number: No. 87,87
• Citation: Williams v. Exxon Corp., 541 So.2d 910 (La. App. 1989)
• Parties: Janice WILLIAMS v. EXXON CORPORATION, Oliver Mack and Neal Chellette. CA 1272. 541 So.2d 910
• Court: Court of Appeal of Louisiana

Page 910

541 So.2d 910

Janice WILLIAMS v. EXXON CORPORATION, Oliver Mack and Neal Chellette.

No. 87 CA 1272.

541 So.2d 910

Court of Appeal of Louisiana First Circuit.

Feb. 6, 1989.

Writ Denied April 17, 1989.

Glenn Marcel, Baton Rouge, for plaintiff-appellee Janice Williams.

Kenneth Barnette, Baton Rouge, for intervenor-appellee St. Paul Fire & Marine Ins. Co.

Myron Walker, Jr., Baton Rouge, for third party defendants-appellee Crotty Bros., Inc., Oakbrook Consolidated, Inc. and Szabo Food Service Co.

William H. Bennett, III and Louise White, New Orleans, for defendant-appellant Exxon Corp.

Before COVINGTON, C.J., and EDWARDS, CARTER, LANIER and LeBLANC, JJ.

CARTER, Judge.

This is an action for personal injury damages.

FACTS

On September 13, 1984, plaintiff, Janice Williams, was employed as a cook by Szabo Food Service Company (Szabo) and was assigned to the cafeteria in the Exxon plant in Baton Rouge, Louisiana. Shortly after arriving at the plant on September 13, 1984, plaintiff was returning to her work area from the restroom when she slipped and fell through a plate glass door located between the lobby and the cafeteria dining room. As a result of this fall, plaintiff suffered serious injuries to her left hand.

On March 18, 1985, plaintiff filed this suit for personal injuries against Exxon Corporation and two of its employees who supervised the Exxon cafeteria, namely Oliver Mack and Neal Chellette. ¹ Exxon answered plaintiff's petition, denying liability and asserting numerous defenses. Thereafter, Exxon filed a third party demand against Crotty Brothers, Incorporated (Crotty Brothers) and Oakbrook Consolidated, Inc. (Oakbrook), and Szabo, a principal operating division of Oakbrook. Exxon alleged that the third party defendants are liable to Exxon, pursuant to its indemnity contract with Szabo, for any judgment rendered against Exxon.

On June 10, 1986, St. Paul Fire and Marine Insurance Company, Szabo's worker's compensation insurer, filed a petition of intervention, seeking to recover the worker's compensation and medical benefits paid to plaintiff.

After trial, the jury returned a verdict in favor of plaintiff and against Exxon. Pursuant to specific jury instructions, the jury determined that Exxon was at fault and that such fault was the cause of plaintiff's damages. The jury also determined that Szabo and plaintiff were not guilty of any negligence which caused plaintiff's damages. The jury then awarded plaintiff $604,000.00.

Thereafter, judgment was rendered in favor of plaintiff and against Exxon for $604,000.00, together with court costs and judicial interest. Judgment was also rendered in favor of St. Paul Fire and Marine Insurance Company and against Exxon and plaintiff for $40,999.59, ² plus all additional sums paid as weekly indemnity or medical payments, costs, and interest. The judgment also dismissed Exxon's third party demand for indemnification against Crotty Brothers, Oakbrook, and Szabo.

On April 9, 1987, Exxon filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial, which was denied on June 19, 1987.

From these adverse judgments, Exxon appeals, assigning the following errors:

1. The trial court erred in denying Exxon's Motion for JNOV and Motion for a New Trial.

2. The jury's finding that Exxon's fault was a legal cause of any damages sustained by plaintiff was error.

3. The jury's finding that plaintiff and Szabo were not guilty of any negligence which was a legal cause of any damages sustained by plaintiff was error.

4. The trial court erred in awarding excessive damages.

5. The trial court erred in excluding the accident report from evidence.

6. The trial court erred in dismissing Exxon's third party demand against Oakbrook, Crotty Brothers, and Szabo.

Exclusion of Accident Report

(Assignment of Error No. 5)

Exxon contends that the trial court erred in refusing to allow the introduction of the accident report prepared by Szabo following plaintiff's accident. Exxon reasons that such report did not constitute hearsay.

Hearsay evidence is generally inadmissible as being unreliable because it is based on statements made by persons who are not before the court, have not been sworn, and are not available for cross-examination. LaSalle Pump & Supply Co., Inc. v. Louisiana Midland Railroad Co., Inc., 433 So.2d 745 (La.App. 3rd Cir.1982), writ denied, 435 So.2d 450 (La.1983).

Louisiana courts have recognized the business records exception to the hearsay rule. A four-fold test is generally applied by the courts in determining whether or not business records are admissible in evidence. This test is (1) whether the person who himself made the record is unavailable for testimony or production of said person would be a needless burden; (2) the writing is the first writing reflecting the transaction; (3) the records are identified at trial by one familiar with the bookkeeping procedure used by the business keeping the records; and (4) the evidence is reliable. American Supply Co. of Morgan City, Inc. v. Genina Marine Services, Inc., 470 So.2d 964 (La.App. 1st Cir.), writ denied, 475 So.2d 1107 (La.1985); LaSalle Pump & Supply Co., Inc. v. Louisiana Midland Railroad Co., Inc., supra. See Herlitz Construction Company, Inc. v. Clegg Concrete, Incorporated, 378 So.2d 1002 (La.App. 1st Cir.1979).

Further, when the trial judge rules that evidence is inadmissible, a proffer (offer of proof) can be made. LSA-C.C.P. art. 1636. It is incumbent upon the party who contends his evidence was improperly excluded to make a proffer, and if he fails to do so he cannot contend such exclusion was error. Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329 (La.App. 1st Cir.1984),writ denied, 467 So.2d 531 (La.1985); Grusich v. Grusich, 447 So.2d 93 (La.App. 4th Cir.1984); Jeffers v. Amoco Production Company, Inc., 405 So.2d 1227 (La.App. 1st Cir.1981).

In the instant case, although Exxon attempted to introduce a copy of the accident report, Exxon failed to proffer such report after the trial judge determined that the evidence was inadmissible. Since Exxon failed to avail itself of the opportunity to proffer this evidence, it cannot now complain that such exclusion was error. Engineered Mechanical Services, Inc. v. Langlois, supra; Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir.), writ denied, 401 So.2d 988 (La.1981).

This assignment of error is without merit.

Factual Finding of Fault

(Assignments of Error Nos. 2 & 3)

Exxon contends that the trial court erred in finding that Exxon's negligence or strict liability was the legal cause of plaintiff's damages. Exxon reasons that the legal cause of plaintiff's damages was plaintiff's own negligence and/or the negligence of Szabo.

The owner, or person having custody, of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La.1983); Haney v. General Host Corporation, 413 So.2d 624 (La.App. 1st Cir.1982); Boutte v. Pennsylvania Millers Mutual Insurance Company, 386 So.2d 700 (La.App. 3rd Cir.1980); Albritton v. J. C. Penney Company, Inc., 385 So.2d 549 (La.App. 3rd Cir.), writ denied, 393 So.2d 727 (La.1980). This duty is the same under the strict liability theory of LSA-C.C. art. 2317 as under the negligent liability theory of LSA-C.C. art. 2315. See Shipp v. City of Alexandria, 395 So.2d 727 (La.1981) and Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976).

LSA-C.C. art. 2315 provides in pertinent part:

Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.

LSA-C.C. art. 2316 further provides:

Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.

Under these articles, the elements of a cause of action in negligence are fault, causation, and damage. Buckley v. Exxon Corporation, 390 So.2d 512 (La.1980); Buxton v. Fireman's Fund Insurance Company, 422 So.2d 647 (La.App. 3rd Cir.1982).

To establish liability under LSA-C.C. art. 2317, a plaintiff bears the burden of proving three things: (1) the thing which caused damage was in the custody of the defendant; (2) the thing was defective (created an unreasonable risk of injury); and (3) the injury was caused by the defect. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Loescher v. Parr, 324 So.2d 441 (La.1975); 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); McSweeney v. Department of Transportation and Development of Louisiana, 442 So.2d 659 (La.App. 1st Cir.1983). The only difference between the negligent liability of LSA-C.C. art. 2315 and the strict liability of LSA-C.C. art. 2317 is the element of proof of the defendant's scienter. In negligent liability, the plaintiff must show that the defendant either knew or should have known of the defect, whereas under strict liability, the plaintiff is relieved of proving this element. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982); Carter v. Board of Supervisors of Louisiana State University, supra; Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983).

In both negligent and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). Under either theory of liability, the court must decide if the risk which causes the injury is within the ambit of protection of the duty. Hessifer v. Southern Equipment, Inc., 416 So.2d 368 (...