Oris Latour And Virgie Latour v. Steamboats, Llc

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #046
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 20th day of October, 2023 are as follows:
BY Weimer, C.J.:
2023-C-00027 ORIS LATOUR AND VIRGIE LATOUR VS. STEAMBOATS, LLC (Parish
of Calcasieu)
REVERSED IN PART AND RENDERED. SEE OPINION.

SUPREME COURT OF LOUISIANA
No. 2023-C-00027
ORIS LATOUR AND VIRGIE LATOUR
VS.
STEAMBOATS, LLC
On Writ of Certiorari to the Court of Appeal, Third Circuit, Parish of Calcasieu
WEIMER, Chief Justice
Plaintiff, Oris Latour, was injured after he tripped and fell at Steamboat Bill’s
restaurant (“Steamboat”) in Lake Charles, Louisiana. Mr. Latour alleged he tripped
on a concrete ledge that ran perpendicular to the end of a row of dining tables.
Contending the ledge was disguised and dangerous, he filed a negligence suit against
the restaurant owner.
A jury returned a verdict in favor of Mr. Latour, finding Steamboat 80 percent
at fault and awarding Mr. Latour damages totaling $675,053. On appeal, the court
found the district court committed reversible error related to two pretrial evidentiary
rulings which affected the outcome of the case. Thus, the court of appeal conducted
a de novo review of the entire record and found Mr. Latour met his burden of proving
negligence under La. R.S. 9:2800.6. The appellate court then assessed Steamboat
with 85 percent of the fault and Mr. Latour with 15 percent fault.
Certiorari was granted in the case to determine (1) whether the court of appeal
erred in finding Mr. Latour met his burden of proving Steamboat was negligent

pursuant to La. R.S. 9:2800.6; and (2) whether, after finding prejudicial error, the
court of appeal erred in increasing Steamboat’s percentage of fault on de novo
review, although Mr. Latour did not appeal or answer the appeal. After conducting
a de novo review of the entire record, this court finds Mr. Latour met his burden of
proof under La. R.S. 9:2800.6. This court also finds, consistent with statutory law
and secondarily, jurisprudence, Steamboat cannot be assessed with a greater
percentage of fault than the 80 percent assigned by the jury. Because Mr. Latour did
not appeal or answer the appeal, the 20 percent of fault allocated to him cannot be
reduced.1 On de novo review, this court allocates fault at 80 percent to Steamboat
and 20 percent to Mr. Latour.
FACTS AND PROCEDURAL HISTORY
On March 18, 2018, Oris Latour, his wife Virgie, son, daughter-in-law, and
grandchildren, dined at Steamboat Bill’s restaurant in Lake Charles. The restaurant
was busy and Ms. Latour and the grandchildren proceeded to sit at the only apparent
open table, while the other members of their party went to the counter to place their
orders. After ordering, Mr. Latour joined his family at the table. In that area of the
restaurant, several long dining tables were arranged side by side, with the dining
1 See La. C.C.P. art. 2133; Polizzi v. Lotz, 125 So.2d 146, 150 (La. 1960); Succession of Babin,
35 So.2d. 864, 866 (La. 1948); Matthews v. Consolidated Companies, Inc., 95-1925 (La. 12/8/95),
664 So.2d 1191, discussed infra.
2

chairs for each table arranged back to back.2 Mr. Latour intended to take the seat
across from Ms. Latour, who was seated at the far end of the table; however, a group
of diners at the adjacent table were socializing with their chairs pushed back from the
table and were blocking that aisle. Rather than disturb the group, Mr. Latour decided
to traverse down the aisle on the same side of the table as Ms. Latour, with the intent
to go around the far end of the table to sit opposite of her. The aisle was narrowed
by diners sitting at the tables and Mr. Latour had to turn sideways to negotiate his
way down the aisle. As Mr. Latour reached his wife and was moving behind her, his
foot unexpectedly hit something and he fell sideways toward the end of the table,
resulting in a serious lumbar injury. After the fall, Mr. Latour realized he had tripped
on a ledge of concrete. He reported the accident to a waiter and then spoke to a
manager as he was leaving the restaurant.
The ledge of concrete was twenty-eight feet long by two feet wide and three
and one-half inches high, and was stained the same dark brown color as the
surrounding floor of the restaurant. The ledge was surrounded on three sides by a
picket fence. On the fourth side, dining tables were situated perpendicular to the
ledge, with the legs of the tables abutting the ledge. The table tops overhung the
ledge by about four inches and there was approximately two feet of space between
the tops of the tables and the fence on the opposite side of the ledge.
2 The photographs in evidence (and embedded into this opinion) were taken subsequent to Mr.
Latour’s accident and do not reflect the exact conditions of the restaurant at the time of the accident,
specifically as to the number of customers present. Testimony in the record establishes that at the
time of the accident the restaurant was busy, and the seating around these tables full.
3

Mr. Latour filed a negligence suit against Steamboat’s Seafood Warehouse,
Inc. d/b/a Steamboat Bill’s and its insurer, Nautilus Insurance Company, alleging the
4

ledge was disguised and unsafe.3 Prior to trial, the district court granted plaintiffs’
motion in limine preventing Steamboat from introducing evidence regarding the
absence of prior trip and fall accidents caused by the ledge, and excluding testimony
from Steamboat’s owner, Jason Felice, that he had personally never witnessed a trip
and fall accident on the ledge. The district court also granted plaintiffs’ motion for
an adverse presumption because Steamboat failed to preserve surveillance video of
the accident, and the court issued a standard adverse presumption jury instruction.4
Following trial, the jury assessed Steamboat with 80 percent of the fault, Mr.
Latour with 20 percent, and awarded Mr. Latour damages totaling $675,053.5 The
district court signed a judgment in accordance with the jury’s verdict. Steamboat
appealed. See Latour v. Steamboats, LLC, 22-162 (La.App. 3 Cir. 12/7/22), 354
So.3d 181. The appellate court found the district erred in disallowing testimony from
Mr. Felice that, during his time as owner of Steamboat, he was personally unaware
of any accidents caused by or attributed to the ledge. The court reasoned the history
of prior accidents is a factor to be considered by the fact-finder when determining
whether the ledge constituted an unreasonable risk of harm. Latour, 22-162 at 5, 354
So.3d at 187 (citing Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d
362; Boyle v. Bd. of Sup’rs, Louisiana State Univ., 96-1158 (La. 1/14/97), 685
So.2d 1080). The appellate court also found the district court erred in issuing an
adverse presumption. The court reasoned that Steamboat had no notice it needed to
preserve the video recording of the accident until the Latours filed suit three months
after the accident, by which time the video had already been overwritten. Thus, there
3 Virgie Latour also asserted a claim for loss of consortium damages and was awarded $83,060 by
the jury. This award was affirmed by the court of appeal and is not at issue in this court.
4 The court instructed: “The failure of a party to produce evidence within his control raises a
presumption that the evidence would have been detrimental to his case.”
5 Steamboat did not challenge the award of damages to Mr. Latour on appeal, and the award is not
at issue in this court.
5

was no evidence Steamboat intentionally failed to preserve video of the accident. Id.,
22-162 at 8-9, 354 So.3d at 188.
Finding these errors “substantially affected the outcome of the case and
constitute reversible error,” the court of appeal conducted a de novo review of the
entire record, including the excluded evidence, as to the liability issue. Id., 22-162
at 9, 354 So.3d at 189. The court found Mr. Latour met his burden of proving
negligence under La. R.S. 9:2800.6, and specifically found Mr. Latour proved the
ledge created an unreasonable risk of harm. Id., 22-162 at 17-18, 354 So.3d at 192.
After applying the factors set forth by this court in Watson v. State Farm Fire &
Casualty Insurance Co., 469 So.2d 967 (La. 1985), the court of appeal assessed
Steamboat with 85 percent of the fault and Mr. Latour with 15 percent. Latour,
22-162 at 19, 354 So.3d at 193.
Upon Steamboat’s application, certiorari was granted to review the correctness
of the rulings below. Latour v. Steamboats, LLC, 23-00027 (La. 4/4/23), 358 So.3d
855.
DISCUSSION
This writ application was granted to examine two primary issues: (1) whether
Mr. Latour met his burden of proof under La. R.S. 9:2800.6; and (2) whether
Steamboat was improperly cast with a higher percentage of fault on de novo review.
After determining the district court erred in evidentiary rulings pertaining to
Steamboat’s liability, the court of appeal conducted a de novo review of the record
as to the liability issue. Such action was in line with this court’s instruction that
“[w]here one or more trial court legal errors interdict the fact-finding process, the
manifest error standard is no longer applicable and, if the record is otherwise
complete, the appellate court should make its own independent de novo review of the
record and determine which party should prevail by a preponderance of the
6

evidence.” Landry v. Bellanger, 02-1443, p. 15 (La. 5/20/03), 851 So.2d 943, 954
(citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742,
747; McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986)). Unlike a jury or trial
judge’s findings of fact, an appellate court’s factual findings on de novo review are
not based on a review of live testimony. Ordinarily, the factual determinations of the
trier of fact regarding the credibility of witnesses are entitled to great deference, and
a manifest error standard of review would be applied. Ferrell, 94-1252 at 4-5, 650
So.2d at 745-46. Such deference is demanded because “only the factfinder can be
aware of the variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840,
844 (La. 1989). However, when the court of appeal is conducting de novo review,
it is reviewing a cold record. Therefore this court, which is equally equipped to
review a cold record, does not give deference to the court of appeal’s findings. Under
these circumstances, this court applies a de novo standard of review. See, e.g.,
Wallmuth v. Rapides Parish School Bd., 01-1779, 01-1780, p. 7 (La. 4/3/02), 813
So.2d 341, 346 n.2.6
Steamboat’s liability is governed by La. R.S. 9:2800.6, which sets forth the
relevant duty and burden of proof in negligence claims against merchants. The
statute provides:
A. A merchant owes a duty to persons who use his premises to
exercise reasonable care to keep his aisles, passageways, and floors in
a reasonably safe condition. This duty includes a reasonable effort to
keep the premises free of any hazardous conditions which reasonably
might give rise to damage.
B. In a negligence claim brought against a merchant by a person
lawfully on the merchant’s premises for damages as a result of an injury,
death, or loss sustained because of a fall due to a condition existing in
6 Additionally, this court has appellate jurisdiction of both law and facts in civil matters, may
perform an independent review, and may render judgment on the merits. See La. Const. art. 5, §
5(C); Wooley v. Lucksinger, 09-0571, p. 130 (La. 4/1/11), 61 So.3d 507, 605.
7

or on a merchant’s premises, the claimant shall have the burden of
proving, in addition to all other elements of his cause of action, all of the
following:
(1) The condition presented an unreasonable risk of harm to the
claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive
notice of the condition which caused the damage, prior to the
occurrence.
(3) The merchant failed to exercise reasonable care. In
determining reasonable care, the absence of a written or verbal uniform
cleanup or safety procedure is insufficient, alone, to prove failure to
exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the
condition existed for such a period of time that it would have been
discovered if the merchant had exercised reasonable care. The presence
of an employee of the merchant in the vicinity in which the condition
exists does not, alone, constitute constructive notice, unless it is shown
that the employee knew, or in the exercise of reasonable care should
have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods,
wares, or merchandise at a fixed place of business. For purposes of this
Section, a merchant includes an innkeeper with respect to those areas or
aspects of the premises which are similar to those of a merchant,
including but not limited to shops, restaurants, and lobby areas of or
within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may
have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.
Thus, generally, Mr. Latour had the burden to prove the ledge presented an
unreasonable risk of harm that was reasonably foreseeable, that Steamboat either
created or had actual or constructive notice of the alleged dangerous condition, and
that Steamboat failed to use reasonable care.
Determining whether the ledge created an unreasonable risk of harm requires
balancing the gravity and risk of harm against the individual and societal rights and
obligations, the social utility, and the cost and feasibility of repair. Reed, 97-1174
at 5, 708 So.2d at 365. “Simply put: [t]he trier of fact must decide whether the social
8

value and utility of the hazard outweigh, and thus justify, its potential harm to
others[.]” Id. Courts have adopted a risk-utility balancing test to determine whether
a condition is unreasonably dangerous, most recently discussed by this court in
Farrell v. Circle K Stores, Inc., 22-00849 (La. 3/17/23), 359 So.3d 467. The test
consists of four relevant factors: (1) the utility of the complained-of condition; (2) the
likelihood and magnitude of harm, including the obviousness and apparentness of the
condition;7 (3) the cost of preventing the harm; and (4) the nature of the plaintiff’s
activities in terms of social utility or whether the activities were dangerous by nature.
Farrell, 22-00849 at 6-7, 359 So.3d at 474.
Regarding the first factor, it is virtually undisputed that the ledge serves no
utility. Mr. Felice, owner of Steamboat since 2015, testified the ledge existed at the
time he took over the restaurant. Mr. Felice’s understanding was that it was formerly
topped by a seafood counter or grocery display. However, he admitted the ledge no
longer served a purpose: “It’s just there.” Mr. Latour’s expert, Todd English, was
accepted by the court as an expert in safety engineering. Mr. English testified the
ledge served no utility. Michael Bellard, Steamboat’s expert, was accepted by the
court as an expert in construction matters. When pressed regarding the current
purpose of the ledge, Mr. Bellard suggested it was used as a highchair storage aisle.
Considering the evidence in the record, and considering the ledge was clearly not
necessary to store highchairs, this court finds no utility for the raised ledge in the
middle of the dining room.
7 In Farrell, this court clarified proper application of the so-called “open and obvious doctrine”:
“[W]hether a condition is open and obvious is embraced within the breach of the duty element of
the duty/risk analysis and is not a jurisprudential doctrine barring recovery, but only a factor of the
risk/utility balancing test. Specifically, it falls within the ambit of the second factor of the risk/utility
balancing test, which considers the likelihood and magnitude of the harm, and it is not a
consideration for determining the legal question of the existence of a duty. Thus, although this Court
has so stated before, it is inaccurate to profess that a defendant generally does not have a duty to
protect against an open and obvious condition.” Farrell, 22-00849 at 12-13, 359 So.3d at 478.
9

In evaluating the likelihood and magnitude of harm, including the obviousness
and apparentness of the condition, relevant considerations include the size, context,
and location of the condition, as well as the accident history. See, e.g., Farrell, 22-
00849 at 7-8, 359 So.3d at 474-75; Broussard v. State ex. rel. Office of State
Bldgs., 12-1238, p. 16 (La. 4/5/13), 113 So.3d 175, 187; Reed, 97-1174 at 5-6, 708
So.2d at 365-66. Mr. English opined the ledge was unreasonably dangerous,
testifying as to best practices set forth in various code regulations as well as general
principles of safety engineering that should be applied to identify and eliminate
hazards. Mr. English testified the ledge was relatively hidden to someone
approaching the tables. He explained that due to the spacing of the tables and chairs,
and considering customers would be sitting in the chairs distanced from the table,
there was only approximately nine inches of space for someone to walk down the
aisle between the tables. Thus, one’s vision down towards the floor would be
relatively blocked. Moreover, Mr. English explained the ends of the tables were not
flush against the fence and there was at least a two-foot space between the ends of the
tables and the fence. Mr. English testified there was no reason a customer would
think the walkway ended at the ends of the tables, and the space was a foreseeable
path for someone to get from one side of the table to the other. Mr. English further
explained that because the legs of the tables were pushed up against the ledge, but the
table tops overhung the ledge by about four inches, the ledge was hidden from view
even if someone was looking down. Mr. English testified the ledge and the
surrounding floor were both stained a dark color, making them less reflective of light.
He opined the ledge was essentially camouflaged, and stated it could have been
painted a different color to make it stand out.
By contrast, Mr. Bellard opined the area where Mr. Latour tripped was not
unreasonably dangerous. He focused on compliance with the fire code, explaining
10

that Steamboat would have been issued a citation by the fire marshal if it was not
within code compliance. Mr. Bellard explained the fire code regulations apply to
means of egress and walkways, and the ledge did not fall into these categories. The
designated walkways run in between each of the tables for table access. Although he
admitted the ledge was not visible when someone walks into the restaurant, Mr.
Bellard testified the ledge was open and obvious from the fourth side, and the fence
makes it obvious something is being protected.
Mr. Felice testified regarding the absence of prior accidents caused by the
ledge. Specifically, Mr. Felice testified he had never personally witnessed someone
trip and fall on the ledge and that he did not know of anyone else tripping and falling
on the ledge.8 Additionally, Mr. Felice testified the same table configuration existed
at the time he took over the restaurant in 2015. No renovations were made in the
building prior to Mr. Latour’s fall. He agreed the ledge is not visible when a
customer walks into the restaurant. Mr. Felice testified it was Steamboat’s policy that
if a customer reports a fall to an employee, the employee should get a manager to
prepare an incident report. Mr. Felice also testified an incident report was not
prepared in this case. Mr. Felice testified he has observed customers on top of the
ledge, although it was a rare occurrence. Steamboat also stores highchairs on the
ledge and Mr. Felice explained that a customer could reach over and grab a high chair
without the necessity of stepping onto the ledge. Despite having observed customers
walk up onto the ledge, Mr. Felice never took precautions to prevent customers from
accessing the ledge because he never considered it unreasonably dangerous.
Having reviewed the record, the weight of the evidence supports a finding that
the likelihood and magnitude of harm was high. The configuration of the tables,
8 This testimony was proffered at trial in light of the district court’s grant of plaintiffs’ motion in
limine. Because that ruling was found to be reversible error by the court of appeal, the testimony
is now part of the record and properly considered on de novo review.
11

chairs, and fence serve to camouflage the ledge. The ledge is hidden from a customer
entering the restaurant by the existence of the fence surrounding three sides. The
fence does not sit atop the ledge, but extends below it to the surrounding floor, thus
blocking any view of the ledge. When customers approach the tables on the fourth
“open” side of the ledge, their view of the ledge is diminished due to the spacing of
tables and chairs, which is minimized when customers are sitting in the chairs.
Additionally, the coloring of the ledge is the same as the surrounding floor area,
further camouflaging the ledge from a customer’s view. Moreover, the edges of the
tables are not flush against the fence. As explained by Mr. English, the edges of the
tables overhang the ledge by four inches, and there is an approximate two-foot space
between the edges of the table tops and the fence, suggesting to customers an
available path to maneuver around the tables. The fact that there is no evidence of
prior trip and fall accidents on the ledge does not alter this court’s finding. As
recognized in Broussard, although the absence of prior accidents is a factor to
consider, it is not a bar to recovery. Broussard, 12-1238 at 16, 113 So.3d at 187. It
is also notable that no incident report exists in this case, despite Steamboat’s policy
necessitating such a report under the facts of this case. Thus, although Mr. Felice’s
testimony that he was unaware of any prior accidents may be accurate, it is possible
other customers have tripped or nearly tripped on the ledge without the incident being
reported to management or without a report being completed.
There is also no real dispute that the cost to prevent the harm would have been
minimal. Mr. English testified regarding three feasible safety measures Steamboat
could have taken to prevent the harm, all of which were relatively inexpensive. The
best choice would be to remove the ledge with a jackhammer. Mr. English also noted
this option would give Steamboat more area for seating. The second option would
be to barricade the area. This would require Steamboat to erect a fence around the
12

fourth side of the ledge. The last option would be to make the ledge more readily
apparent by painting it yellow. Mr. Bellard was questioned regarding the costs of
these measures. He testified it would have taken only a week to do the work required
to jackhammer out the ledge at a cost of $5000; it would cost $500 to add fencing
around the fourth side of the ledge; and it would cost $200 to paint the ledge yellow.
The last factor of the risk-utility analysis requires consideration of the nature
of Mr. Latour’s activities in terms of social utility or whether the activities were
dangerous by nature. Mr. Latour went to Steamboat to have dinner with his family.
The accident happened as he maneuvered around a full dining table to take a seat
across from his wife. There is certainly social utility to having dinner with your
family and patronizing a local restaurant. Moreover, there is nothing inherently
dangerous about maneuvering to a seat at a dining table in a crowded restaurant. Mr.
Latour’s decision to go around the end of the table to access his seat was reasonable
under the circumstances.
In light of the above analysis of the risk-utility factors, this court finds the
ledge created an unreasonable risk of harm to Mr. Latour, and the risk of harm was
reasonably foreseeable.
Under La. R.S. 9:2800.6, Mr. Latour was also required to prove Steamboat
created or had actual or constructive notice of the condition which caused the
damage. According to the record, the ledge existed at the time Mr. Felice took over
as owner of Steamboat in 2015. Mr. Felice understood the ledge previously served
a purpose, but also recognized that purpose no longer existed. Steamboat maintained
the restaurant configuration around the ledge, which included barricading the ledge
on three sides by a fence and pushing the table legs against the ledge on the fourth
side. These actions were aimed at preventing customer access to the ledge and
indicate an awareness of the dangerous nature of a raised concrete ledge in the middle
13

of a restaurant. The record supports a finding that Steamboat had actual or
constructive knowledge of the dangerous condition of the ledge.
Finally, Mr. Latour was required to prove Steamboat failed to use reasonable
care. Although Steamboat had some measures in place to block customer access to
the ledge, and may not have intended the ledge to be accessed as a walkway or
pathway, those measures were insufficient. Steamboat maintained the previous
configuration of the restaurant when Mr. Felice took over the business in 2015, but
made no additional efforts to prevent customers from purposefully or accidentally
encountering the ledge. In fact, Steamboat placed high chairs on the ledge, with the
understanding that customers would take the chairs from that location, thus,
increasing the likelihood that certain customers would encounter the ledge. Mr.
Felice admitted he had observed customers on the ledge previously, yet he failed to
take further action to prevent recurrent access. Considering the evidence in the
record, this court finds Steamboat failed to use reasonable care to remove the ledge,
fully barricade the ledge, or sufficiently draw customers’ attention to the ledge.
Having found Mr. Latour met his burden of proving all necessary elements
pursuant to La. R.S. 9:2800.6, proper allocation of fault must be considered.
Preliminarily, this court finds the court of appeal legally erred in assessing Steamboat
with a higher percentage of fault than the 80 percent assigned by the jury. By
increasing Steamboat’s fault by 5 percent, the court of appeal lowered the percentage
of fault assigned to the non-appealing party, Mr. Latour. Jurisprudence has long held
that appellate courts cannot amend a judgment in favor of a party who failed to
appeal. See, e.g., Polizzi v. Lotz, 125 So.2d 146, 150 (La. 1960) (“[H]aving failed
to appeal or answer the appeal, [defendant] is not entitled to prevail since under the
well settled jurisprudence this Court, in reviewing a judgment of a lower court at the
instance of one party, will not amend the judgment to appellant’s prejudice and to the
14

advantage of a party who has sought no remedy[.]”); Succession of Babin, 35 So.2d.
864, 866 (La. 1948) (“It is well settled that an appellate court cannot amend a
judgment in favor of a party who has neither appealed nor complained by way of an
answer to the appeal.”). This court expounded further on this principle in Matthews
v. Consolidated Companies, Inc., 95-1925 (La. 12/8/95), 664 So.2d 1191.
Matthews involved a personal injury action in which the jury awarded plaintiff
certain medical expenses, future lost wages, and general damages. Plaintiff appealed,
but defendant did not appeal nor answer plaintiff’s appeal. The appellate court found
the jury’s award of damages was internally inconsistent, reviewed the record de novo,
and awarded damages in a lesser amount than the jury. In finding the court of appeal
erred in reducing the damages to an amount less than the trial court’s judgment, this
court explained:
Since only plaintiff appealed, and defendants did not appeal or
answer plaintiff’s appeal, the total amount of damages awarded by the
jury to plaintiff cannot be reduced by the appellate court because to so
do would result in a modification in favor of the non-appealing
defendant, contrary to Louisiana law. While a defendant who has not
appealed or answered the appeal and who did not seek modification,
revision or reversal of that judgment may assert in support of that
judgment any argument supported by the record under La. C.C.P. art.
2133, he may not obtain a modification of the judgment without
appealing or answering the appeal.
Matthews, 95-1925 at 1-2, 664 So.2d at 1191-92 (internal citations removed).9 The
same conclusion must be reached here. Mr. Latour did not appeal nor answer
9 The reasoning is rooted in La. C.C.P. art. 2133, governing when answers to appeals are necessary.
That article provides in relevant part:
A. An appellee shall not be obliged to answer the appeal unless he desires to
have the judgment modified, revised, or reversed in part or unless he demands
damages against the appellant. ... The answer filed by the appellee shall be
equivalent to an appeal on his part from any portion of the judgment rendered against
him in favor of the appellant and of which he complains in his answer ....
B. A party who does not seek modification, revision, or reversal of a
judgment in an appellate court, including the supreme court, may assert, in support
of the judgment, any argument supported by the record, although he has not appealed,
answered the appeal, or applied for supervisory writs.
15

Steamboat’s appeal. Therefore, the appellate court was without power to modify the
judgment to decrease his allocated fault. This court is likewise limited in its de novo
allocation of fault.
Determining percentages of fault requires consideration of the nature of each
party’s conduct and the extent of the causal relationship between that conduct and the
damages claimed. Tisdale v. Hedrick, 22-01072, p. 8 (La. 3/17/23), 359 So. 3d 484,
490 (citing Watson, 469 So.2d at 974). Consideration of several factors (“Watson
factors”) aids in the determination of a proper degree of fault: (1) whether the conduct
resulted from inadvertence or involved an awareness of the danger; (2) how great a
risk was created by the conduct; (3) the significance of what was sought by the
conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any
extenuating circumstances which might require the actor to proceed in haste, without
proper thought. Id.
After de novo application of the Watson factors, this court finds Steamboat
bears the majority of fault for Mr. Latour’s accident. Steamboat had notice of the
ledge and the potential for hazard; Steamboat’s failure to use reasonable care to
remove the ledge, or completely block access to the ledge, created a risk that a
customer would intentionally or inadvertently encounter the ledge; Steamboat was in
a superior position to prevent customers from encountering the ledge; and Steamboat
could have easily taken measures to eliminate or reduce the danger of the ledge. On
the other hand, Mr. Latour was simply maneuvering around a dining table in the
crowded restaurant to sit across from his wife when the accident happened; Mr.
Latour was not engaged in risky behavior; Mr. Latour was unaware of the ledge, and
the spacing of the tables, chairs, and other customers blocked his potential view of
the ledge. Although Mr. Latour could have accessed his seat by asking other patrons
to move and make room for him to pass down the same side aisle, it was not
16

unreasonable for Mr. Latour to believe there was space and a path for him to
maneuver around the end of the table to access his seat more easily.
While this court cannot assess Steamboat with greater than the 80 percent fault
assigned by the jury, our de novo review of the record supports a finding of at least
80 percent fault attributable to Steamboat. In assessing fault, this court rejects
Steamboat’s argument that the finding of consequential error due to the exclusion of
Mr. Felice’s testimony regarding the absence of prior accidents and the imposition
of an adverse presumption mandates a more favorable outcome. When the jury’s
verdict is tainted by a trial court’s erroneous exclusion of evidence, the result is that
the verdict is simply not entitled to a presumption of regularity, and not entitled to the
appellate court’s deference under a clearly wrong or manifestly erroneous standard.
Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 86-87 (1990); McLean,
495 So.2d at 1304. The court of appeal must then redetermine the facts de novo from
the entire record (including the proffered testimony) and decide the merits of the case.
Ferrell, 94-1252 at 4, 650 So.2d at 745. De novo review entails an independent
determination of which party should prevail, McLean, 495 So.2d at 1304, but there
is no requirement that a de novo review yield a result more favorable to Steamboat.
Considering the excluded testimony from Mr. Felice does not change the ultimate
result. As explained supra, the absence of prior accidents is only one factor for
consideration. Likewise, elimination of the adverse presumption does not change this
court’s conclusions, which are based on a de novo review of all of the evidence in the
record.10
10 Steamboat also asserts error because the lower courts taxed it with all costs. There is no
requirement that a district or appellate court tax costs equivalent to percentages of fault. A court can
tax costs against any party in any manner it considers equitable. See La. C.C.P. arts. 1920, 2164.
Considering the specific facts of this case, and the legal limitation on the percentage of fault that can
be allocated to Steamboat, this court declines to modify the award of costs.
17

CONCLUSION
For the foregoing reasons, after conducting a de novo review of the record, this
court finds Mr. Latour met his burden of proof that Steamboat is negligent pursuant
to La. R.S. 9:2800.6. Fault is allocated at 80 percent to Steamboat and 20 percent to
Mr. Latour.
DECREE
REVERSED IN PART AND RENDERED.
18