Ann Marie Carrero, Elizabeth Ann Carrero and Nancy Carrero Vinci v. Mandina's, Inc., D/B/A Mandina's Restaurant

ANN MARIE CARRERO, * NO. 2025-CA-0254
ELIZABETH ANN CARRERO
AND NANCY CARRERO *
VINCI COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
MANDINA'S, INC., D/B/A STATE OF LOUISIANA
MANDINA'S RESTAURANT *******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-08118, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Roland L. Belsome, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

Perry R. Staub
Matthew S. Foster
TAGGART MORTON, L.L.C.
1100 Poydras Street, Suite 2100
New Orleans, LA 70163-2100

COUNSEL FOR PLAINTIFFS/APPELLANTS, Ann Marie Carrero,
Elizabeth Ann Carrero, and Nancy Carrero Vinci

Thomas G. Buck
BLUE WILLIAMS, L.L.C.
3421 North Causeway Boulevard, Suite 900
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE, Mandina’s, Inc. d/b/a
Mandina’s Restaurant

AFFIRMED
JANUARY 28, 2026

DNA

RLB

TGC

This tort case stems from a fatal fall by an elderly customer, Marie Carrero

(“Mrs. Carrero”), as she exited Mandina’s Restaurant using a ramp that leads to

and from a door serving as the main entrance and exit for customers of the

restaurant. Appellants are her daughters, Ann Marie Carrero, Elizabeth Ann

Carrero, and Nancy Carrero Vinci (collectively the “Carreros”); and Appellee is

Mandina’s, Inc. d/b/a Mandina’s Restaurant (“Mandina’s”). The Carreros seek

review of the trial court’s April 8, 2024 judgment, which adopted the jury’s verdict

and dismissed the Carreros’ claims against Mandina’s with prejudice. For the

following reasons, we affirm the trial court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Prior Appeal

This matter has previously been before this Court on appeal. In the prior

Opinion rendered by this Court, the Court summarized the relevant factual

background regarding Mrs. Carrero’s fall and the Carreros’ Petition for Damages

as follows:

On August 12, 2016, the Carreros filed a Petition for Damages
(“Petition”) against Mandina’s alleging negligence and strict liability
for the injury and death of Mrs. Carrero on August 14, 2015. On that
date, Mrs. Carrero had dined with her daughter at Mandina’s. The

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Petition allege[d] that Mrs. Carrero exited the Mandina’s building
using the sloped, step-less handicap ramp leading from the building
down to the city street. The Petition assert[ed] that, because of Mrs.
Carrero’s age and physical condition, she walked down the right side
of the ramp supporting herself with her right hand on the middle
handrail. According to the Petition, unbeknownst to Mrs. Carrero, the
middle handrail ended without warning before the ramp ended, and
when Mrs. Carrero reached the end of the ramp, her right hand slipped
off the end of the handrail, causing her to lose her balance and tumble
to the concrete ramp and the ground. As a result, Mrs. Carrero fell on
her head and sustained a closed head injury. She was taken to the
emergency room, where a computerized tomography (“CT”) scan
showed a frontal scalp hematoma. Hours after returning home, Mrs.
Carrero developed right-side weakness and lethargy. She returned to
the emergency room where a second CT scan showed a left frontal
lobe parenchymal hematoma, which had grown from two centimeters
(“cm”) in size to 6.4 cm x 5 cm x 4.6 cm, and which had surrounding
vasogenic edema, resulting in intracranial hemorrhage. On this second
visit to the emergency room, Mrs. Carrero was admitted to the
hospital and she lapsed into a comatose state. On August 17, 2015,
she was transferred to hospice care for end-of-life protocol. Mrs.
Carrero passed away from complications related to the intracranial
hemorrhage on August 22, 2015.

In the Petition, the Carreros assert[ed] that Mandina’s is liable
for survival and wrongful death damages for its failure to properly
construct, install, or maintain the ramp and handrail, free from all
vices and defects and conditions that would render it unreasonably
dangerous. The Petition also allege[d] that the handrail, which failed
to extend at least 12 inches beyond the end of the sloped ramp,
violated the ANSI Code and the Americans with Disability Act
(“ADA”) Accessibility Guidelines.

Carrero v. Mandina’s, 2019-0158, pp. 1-3 (La. App. 4 Cir. 8/7/19), 364 So.3d 19,

21-22 (footnote omitted).

In response to the Carreros’ Petition, Mandina’s filed a Motion for Summary

Judgment on two bases. Id. at p. 3, 364 So.3d at 22. First, Mandina’s alleged that it

“did not know, nor was there any reason that it should have known, of the alleged

defect in the handrail.” Id. Second, Mandina’s asserted “the handrail was not

reasonably dangerous because [the defect] was open and obvious to all.” Id. The

trial court granted the Motion for Summary Judgment and dismissed the Carreros’

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claims with prejudice. Id. The Carreros then appealed, and this Court reversed the

trial court’s judgment and remanded the matter for further proceedings. Id. at p. 14,

364 So.3d at 28.

Jury Trial

Testimony of Ann Carrero

Thereafter, the matter proceeded to trial before a jury. One of Mrs. Carreros’

daughters, Ann Carrero (“Ann”), testified and, in pertinent part, answered

affirmatively when asked whether her mother “could see just fine” prior to the

subject accident. Additionally, Ann testified that Mrs. Carrero had suffered from a

stroke around 2008 but that her mother nonetheless “got around better than” she

(Ann) did after that. Counsel for Mandina’s asked Ann about medical records from

2012 from Mrs. Carrero’s physician, which stated, “Has fallen several times; [does

not] use care.” Ann explained that she could not recall Mrs. Carrero falling prior to

the subject accident except for one backwards fall Mrs. Carrero experienced at

home in 2014 while attempting to sit in a chair. Ann testified that Mrs. Carrero did

not have a history of falling. During Ann’s testimony, counsel for Mandina’s also

pointed out a medical record from Mrs. Carrero’s physician dated July 29, 2015—

two weeks prior to the subject accident—that stated, “[Nancy Carrero] feels [Mrs.

Carrero] is less stable walking.” Ann countered that because she lived with Mrs.

Carrero prior to the subject accident, she would have known if her mother’s

stability while walking had become worse but “did not notice anything” in that

regard.

Testimony of Elizabeth Carrero

One of Mrs. Carrero’s other daughters, Elizabeth Carrero (“Elizabeth”), also

testified, explaining that she was the one who ate with Mrs. Carrero at Mandina’s

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prior to the subject fall. Regarding the fall, Elizabeth stated, “My mother was

walking on the handicap ramp ahead of me and I was directly behind her. . . . She

fell forward at the end of the ramp.” Counsel for Mandina’s asked Elizabeth about

a note in the medical records generated in the wake of Mrs. Carrero’s fall which

stated, “Patient brought into the [emergency room] after a trip and fall. Patient’s

daughter states patient tripped over her own foot.” Elizabeth testified that although

both of her sisters had already denied that they said this to anyone, she also did not

provide that statement to any medical personnel and had “no idea” from whom or

where it originated. Counsel for Mandina’s then questioned Elizabeth about how

and why Mrs. Carrero fell, and she responded, “She did not trip over her feet. . . . I

[do not] know why she fell.” During her testimony, Elizabeth also confirmed Mrs.

Carrero had been walking with a cane for a couple of years prior to the subject fall.

Testimony of Martial Votier

Martial Votier (“Mr. Votier”) testified that he had been the general manager

of Mandina’s since 2004. Regarding the date of the subject accident, Mr. Votier

explained that when he arrived at Mandina’s for work that afternoon, he noticed

“some commotion on the ramp,” specifying that it was “[n]ot [on] the sidewalk”

but rather “[u]p on the ramp probably about midway between the bottom and the

door and the main entrance.” Mr. Votier explained that upon further inspection, he

determined an elderly customer had fallen and hurt her head, whereupon he sat

with her until an ambulance arrived.

Expert Testimony

The trial court accepted Robert Oliver (“Mr. Oliver”) as an expert in the

field of architecture. Mr. Oliver testified he inspected the handrail and ramp at

Mandina’s and concluded the handrail did not comply with three different codes,

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namely the “International Building Code”; “the Life Safety NFPA 101 which is

commonly called the Fire Marshal’s Code”; and “the Americans with Disabilities

Act also known as Architectural Barriers Act or handicap code.” Specifically, Mr.

Oliver explained the handrail was non-compliant with the foregoing because of its

failure to “extend horizontally an additional 12 inches” at the “terminus of the

ramp.”

Additionally, the trial court accepted Angela Levitan (“Ms. Levitan”) as an

expert in human factors and biomechanics. When asked why it is “helpful to have

an extension of [a] handrail after . . . a change from slope to flat,” Ms. Levitan

emphasized the extension of the handrail “throughout the slope and . . . during the

transition to the level” ground provides “stability[,] particularly [for] somebody

whose balance might be a little bit more challenged.”

Both Mr. Oliver and Ms. Levitan testified on behalf of the Carreros.

Mandina’s did not refute the Carreros’ expert testimony with expert testimony of

its own.

Jury Verdict and Judgment

Pertinent to this appeal, the Carreros proposed multiple special jury

instructions that the trial court struck, whereupon the Carreros lodged

contemporaneous objections. Because the Carreros complain of this in their brief,

the proposed special jury instructions at issue in this appeal are discussed more

fully later in the Opinion.

When the jurors retired to deliberate, they answered the first jury

interrogatory in the negative, responding the Mandina’s handrail did not constitute

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an unreasonably dangerous condition.1 Because the jurors found the handrail did

not constitute an unreasonably dangerous condition, they did not proceed further

and answer any other interrogatories. Then, on April 8, 2024, the trial court signed

a judgment which dismissed the Carreros’ claims against Mandina’s with prejudice

in light of the decision reached by the jury. The Carreros’ timely appeal to this

Court followed.

ASSIGNMENTS OF ERROR

The Carreros assert five assignments of error in their brief to this Court:

(1) The [trial] [c]ourt erred in providing a final jury charge which was
so inadequate as to constitute reversible error and likely contributed to
the jury verdict.

(2) The [trial] [c]ourt erred in permitting the jury to hear irrelevant
and prejudicial information relating to the medical malpractice claim
made by the Carreros in connection to the death of Mrs. Carrero.

(3) The [trial] [c]ourt erred in permitting the jury to hear irrelevant
and prejudicial evidence and argument that implied that because the
third-party contractors and New Orleans City officials Mandina’s
relied on made mistakes that Mandina’s was not liable for harm
caused by the defective condition.

(4) The [trial] [c]ourt erred by failing to apply the law of the case
doctrine by permitting Mandina’s to argue that the fault of third
parties diminished its liability, and by failing to provide the jury with
legal principles emanating from this Court’s prior opinion in this case.

(5) The jury’s finding that the defective condition, which violated
applicable building and safety codes and was not open and obvious,
when viewed in light of the entire record and when considering the
applicable law, was manifestly erroneous.

We note that the order of the Carreros’ arguments in their brief does not match the

order of their assignments of error. For ease, our discussion will follow the same

order as the Carreos’ arguments in their brief, such that we will analyze the

1 The phrases “unreasonably dangerous condition” and “unreasonable risk of harm” will

be used interchangeably throughout the Opinion.

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assignments of error out of order. Before doing so, however, we will preliminarily

delineate the elements the Carreros had to prove to succeed with their claim.

DISCUSSION

Elements Necessary to Prove the Carreros’ Claims

As mentioned previously, the jury answered only one interrogatory—

whether the handrail constituted an unreasonably dangerous condition—and

answered this question in the negative. The Carreros’ claims are rooted in La. C.C.

arts. 2317; 2317.1; and 2322. Louisiana Civil Code Article 2317 states that “[w]e

are responsible, not only for the damage occasioned by our own act, but for that

which is caused by . . . the things which we have in our custody.” In this latter

regard,

The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing that he
knew or, in the exercise of reasonable care, should have known of the
ruin, vice, or defect which caused the damage, that the damage could
have been prevented by the exercise of reasonable care, and that he
failed to exercise such reasonable care.

La. C.C. art. 2317.1. Louisiana Civil Code Article 2322 is titled “Damage caused

by ruin of building.” It provides, in pertinent part:

The owner of a building is answerable for the damage occasioned by
its ruin, when this is caused by neglect to repair it, or when it is the
result of a vice or defect in its original construction. However, he is
answerable for damages only upon a showing that he knew or, in the
exercise of reasonable care, should have known of the vice or defect
which caused the damage, that the damage could have been prevented
by the exercise of reasonable care, and that he failed to exercise such
reasonable care.

La. C.C. art. 2322. As explained in this Court’s prior Carrero Opinion, “La. C.C.

art. 2322 specifically modifies liability under [La. C.C. art.] 2317 with respect to

the owner of a ruinous building or defective component part of that building.”

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2019-0158, p. 5, 364 So.3d at 23 (internal quotation marks omitted) (quoting

Hooper v. Brown, 2015-0339, p. 6 (La. App. 4 Cir. 5/22/15), 171 So.3d 995, 1000).

As also delineated in this Court’s prior Carrero Opinion, a plaintiff must

prove six elements to succeed under La. C.C. arts. 2317, 2317.1, and 2322:

1. The thing was in the owner’s custody or control;

2. The thing contained a defect creating an unreasonable risk of harm;

3. The damage was caused by the defect;

4. The owner knew or should have known of the vice or defect;

5. The owner could have prevented the damage by the exercise of
reasonable care; and

6. The owner failed to exercise such reasonable care.

Id. (quoting Maddox v. Howard Hughes Corp., 2019-0135, p. 6 (La. App. 4 Cir.

4/17/19), 268 So.3d 333, 338 n.6). The parties do not dispute that Mandina’s

owned the subject handrail and had custody and control over it.

The next issue for the Carreros to prove was whether the handrail had a

defect that created an unreasonable risk of harm. Moreover, as previously stated,

the only interrogatory answered by the jury concerned whether the defect created

an unreasonable risk of harm.

DISCUSSION

Assignment of Error Number Four: The Trial Court Erred in Failing to
Apply the Law of the Case

In their fourth assignment of error, the Carreros assert the trial court erred in

failing to apply the “law of the case” doctrine insofar as this Court’s prior Opinion

in this matter yielded several holdings that “should have been made part of the

final jury charges.” In pertinent part, the Carreros complain about the trial court’s

rejection of their proposed special jury instruction that stated:

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The Carreros contend that the handrail, which did not extend the
required 12 inches beyond the end of the ramp, was not an open and
obvious condition which would preclude . . . liability. The defective
handrail here was not open and obvious. Photographs show that the
handicap ramp gradually sloped downward, and a pedestrian using it
would not have realized that the handrail abruptly ended before the
end of the slope until she reached the end of the handrail. This defect
is not one that is open and obvious to all.

Additionally, the Carreros contest the trial court’s rejection of their proposed

special jury instruction which stated, “The defective handrail at issue in this case

was not one that was open and obvious to all.” The Carreros also complain that the

trial court struck several of their proposed special jury instructions regarding the

issue of constructive notice. Mandina’s counters that the law of the case doctrine

does not apply to this matter. We agree with Mandina’s.

The law of the case doctrine refers, in pertinent part, to “the conclusive

effects of appellate court rulings at the trial on remand” and “the rule that an

appellate court will ordinarily not reconsider its own rulings . . . on a subsequent

appeal in the same case.” Crain v. Nat’l Liability & Fire Ins. Co., 2023-0413, p. 4

(La. App. 4 Cir. 11/21/23), 382 So.3d 995, 998 (quoting Armstrong Airport

Concessions v. K-Squared Rest., LLC, 2015-0375, p. 7 (La. App. 4 Cir. 10/28/15),

178 So.3d 1094, 1100). The law of the case doctrine applies “when an appellate

court considers arguments made on appeal,” such that its “disposition on the issue

considered becomes . . . the law of the case,” thereby “foreclosing relitigation of

that issue either in the trial court on remand or in the appellate court on a later

appeal.” Davis v. Cheema, Inc., 2014-1316, p. 20 (La. App. 4 Cir. 5/22/15), 171

So.3d 984, 994 (internal quotation marks omitted) (quoting Reed v. St. Charles

Gen. Hosp., 2008-0430, 0431, 0570-0573, p. 9 (La. App. 4 Cir. 5/6/09), 11 So.3d

1138, 1145). The doctrine applies to the resolution of “a question of law or a mixed

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question of law and fact during the course of a judicial proceeding.” Brown v.

Serpas, 2013-1679, p. 4 (La. App. 4 Cir. 7/16/14), 146 So.3d 748, 752 (quoting 1

Frank L. Maraist and Harry T. Lemmon, LOUISIANA CIVIL LAW TREATISE: CIVIL

PROCEDURE, at § 6.7).

If the appellate court reverses the trial court’s grant of a summary judgment

on the grounds that there remain genuine issues of material fact or affirms the trial

court’s denial of summary judgment for that reason, then the law of the case

doctrine does not apply to those aspects of the case moving forward. Hansen v.

River Cities Disposal Co., 51,700, p. 7 (La. App. 2 Cir. 11/15/17), 245 So.3d 213,

219 (citations omitted). That is, regarding any genuine issues of material fact as

decreed by the appellate court, “the only ‘law of the case’ . . . was that there were

issues of fact which needed to be decided upon by a jury.” Roger v. Dufrene, 1997-

1946, p. 15 (La. App. 4 Cir. 9/9/98), 718 So.2d 592, 600. As previously noted,

Mandina’s sought summary judgment on two bases: (1) Mandina’s did not know,

nor was there any reason that it should have known, of the alleged defect in the

handrail (lack of constructive notice); and (2) the handrail was not unreasonably

dangerous because it was open and obvious to all. This Court’s focus in the prior

Carrero Opinion was thus necessarily about these two issues, so we must

determine whether this Court made any pronouncements regarding same that now

call for us to apply the law of the case doctrine.

In the prior Carrero Opinion, this Court discussed the open and obvious

nature of the handrail defect, and the open and obvious nature of a defect relates to

the plaintiff’s burden of proving that a defect was unreasonably dangerous.

Mendoza v. Ace Prop. & Cas. Ins. Co., 2024-0604, pp. 14-15 (La. App. 4 Cir.

5/27/25), 414 So.3d 1172, 1183 (quoting Haynes v. Sewerage & Water Bd. of New

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Orleans, 2023-0678, p. 23 (La. App. 4 Cir. 7/31/24), 399 So.3d 626, 643).

However, while a court can resolve the open and obvious issue on summary

judgment, this Court’s prior Carrero Opinion did not do so. See Jones v. Stewart,

2016-0329, p. 14 (La. App. 4 Cir. 10/5/16), 203 So.3d 384, 393 (holding that

“absent any material factual issue, the summary judgment procedure can be used to

determine whether a defect is open and obvious and thus does not present an

unreasonable risk of harm”) (citations omitted). Specifically, in the prior Carrero

Opinion, this Court stated, “Mandina’s has failed to establish a prima facie case

that the handrail was an open and obvious danger.” 2019-0158, p. 14, 364 So.3d at

28. Importantly, the Court went on to hold in the conclusion of the Opinion “that

the Carreros produced factual support sufficient to contest whether the handrail at

issue was unreasonably dangerous” and “open and obvious . . . . Thus, under the

particular facts of this matter, we conclude there are remaining genuine issues of

material fact, and summary judgment is not appropriate.” Id. The Court merely

found Mandina’s did not meet its summary judgment burden of proof but did not

unequivocally rule whether the handrail defect was open and obvious so as to

create a law of the case in this regard.

Likewise, the prior Carrero Opinion did not generate any law of the case

regarding whether Mandina’s had constructive notice of the handrail defect.

Regarding constructive notice, this Court first held: “We find that evidence of . . .

violations of safety and building codes governing handrails created a genuine issue

of material fact as to whether Mandina’s had constructive knowledge of the

handrail’s unreasonably dangerous condition.” 2019-0158, p. 10, 364 So.3d at 26.

This Court also held the Carreros “established a genuine issue of material fact as

[to] whether Mandina’s had constructive knowledge of the defect on its handrail

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based on the alleged errors by [the] architect, contractor, and inspector.” Id. at p.

12, 364 So.3d at 27. As with the open and obvious issue, the Court subsequently

couched the entire constructive notice issue in summary judgment terms in its

conclusion by stating the Carreros “produced factual support sufficient to contest .

. . whether Mandina’s had constructive knowledge of the defect.” Id. at p. 14, 364

So.3d at 28. The Court did not unequivocally rule on the constructive notice issue

so as to create a law of the case that Mandina’s did or did not have constructive

notice. Moreover, in terms of the importance—or lack thereof—regarding what

this Court previously stated about constrictive notice, we reiterate that the jury did

not even reach the issue of constructive notice because the jurors first found the

handrail was not unreasonably dangerous which ended their inquiry in this matter.

In sum, the Carreros’ fourth assignment of error lacks merit. This Court’s

prior Carrero Opinion yielded no “law of the case” regarding the issues of the

open and obvious nature of the defect and constructive notice but instead held there

remained genuine issues of material fact for these aspects of the case.

Assignment of Error Number One: The Final Jury Charge Necessitates
Reversal

In their first assignment of error, the Carreros contend the trial court

“omitted numerous essential legal principles from the final jury charge,” such that

reversal is warranted. Again, the Carreros assign error to the trial court’s rejection

of some of their proposed special jury instructions. Countering, Mandina’s asserts

the trial court adequately instructed the jury about the substance of the law.

Mandina’s further argues there is nothing to support a finding that the trial court’s

rejection of the Carreros’ proposed special jury instructions resulted in prejudice to

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them or materially affected the outcome. Before addressing the merits of the

parties’ arguments, we begin with the applicable standard of review.

Standard of Review Regarding the Jury Instructions

An appellate court reviews the instructions given to the jury under the

manifest error standard of review. PVCA, Inc. v. Pac. W. TD Fund LP, 2020-0327,

p. 7 (La. App. 4 Cir. 1/20/21), 313 So.3d 320, 327 (citing Fireman’s Fund Ins. Co.

v. R.S. Homes, LLC, 2019-0621, 0622, pp. 3-4 (La. App. 4 Cir. 3/25/20), 294 So.3d

54, 59). Because “[t]rial courts” have “broad discretion in formulating jury

instructions,” the appellate court should not reverse the trial court as “long as the

charge correctly states the substance of the law.” Id. (quoting Adams v. Rhodia,

Inc., 2007-2110, p. 6 (La. 5/21/08), 983 So.2d 798, 804).

As this Court has previously explained, “In considering an argument of

improper jury instruction, the [appellate] court should consider the entirety of the

charges and determine if they adequately provide[d] the correct principles of law

applicable to the issues as framed by the pleadings and the evidence, and whether

they provide[d] adequate guidelines for the jury.” Hero Lands Co. v. Chevron

U.S.A., Inc., 2022-0224, p. 31 (La. App. 4 Cir. 3/7/23), 359 So.3d 130, 149

(quoting Seal v. State Farm Fire & Cas. Co., 2000-2375, p. 4 (La. App. 4 Cir.

3/20/02), 816 So.2d 868, 872). The Louisiana Fifth Circuit Court of Appeal (“Fifth

Circuit”) has defined “[a]dequate jury instructions” as “those which fairly and

reasonably present the issues and which provide correct principles of law for the

jury to apply to those issues.” Goodman v. Allstate Ins. Co., 1998-732, p. 3 (La.

App. 5 Cir. 5/19/99), 736 So.2d 310, 312. The trial court does not have “to give the

precise instructions submitted by either party, but must give instructions which

properly reflect the law applicable in light of the facts of the particular case.” Id.

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(first citing Jones v. Liberty Mut. Ins. Co., 568 So.2d 1091, 1094 (La. App. 5th Cir.

1990); and then citing LaFrance v. Bourgeois, 1997-376, p. 4 (La. App. 5 Cir.

10/15/97), 701 So.2d 1026, 1029). Appellate courts are to “exercise great restraint

before overturning a jury verdict on the suggestion that the instructions were so

erroneous as to be prejudicial.” Id. at pp. 3-4, 736 So.2d at 312 (citing Cuccia v.

Cabrejo, 429 So.2d 232, 235 (La. App. 5th Cir. 1983)). The appellate courts are to

compare “the degree of error with the jury instructions as a whole and the

circumstances of the case.” Id. at p. 4, 736 So.2d at 312 (citing Belle Pass

Terminal, Inc. v. Jolin, Inc., 634 So.2d 466, 488-89 (La. App. 1st Cir. 1994)). See

also Hero Lands Co., 2022-0224, p. 31, 359 So.3d at 149-50 (holding that “this

Court reviews jury instructions as a whole and in light of the circumstances of the

case” (quoting Seal, 2000-2375, 816 So.2d at 872)).

“The pertinent question” for the appellate court “in deciding whether

reversible error has occurred is whether the jury was misled to such an extent as to

prevent it from doing justice.” Goodman, 1998-732, p. 4, 736 So.2d at 312 (citing

Jones, 568 So.2d 1091, 1094). See also Hero Lands Co., 2022-0224, p. 31, 359

So.3d at 150 (defining this as “the determinative question” (quoting Adams, 2007-

2110, p. 7, 983 So.2d at 804)). Only if the jury charge was “so inadequate that the

jury [could not] reach a verdict based on the law and the facts of the case” should

the appellate court conduct a de novo review of the record. PVCA, Inc., 2020-0327,

p. 7, 313 So.3d at 327 n.7 (citing Seal, 2000-2375, p. 5, 816 So.2d at 872). With

these precepts in mind, we turn to the Carreros’ contentions.

Constructive Notice and the Mistakes of Others

The Carreros argue the trial court should have instructed the jury, as they

proposed in a special jury instruction, that the absence of prior accidents was

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immaterial to whether Mandina’s had constructive notice of the defect. The

Carreros contend the trial court should have instructed the jury, as they proposed in

another special jury instruction, that because the handrail had been in use “for

more than a decade,” then “there should be a presumption that the property owner

constructively knew of the defect.” Further, the Carreros also contend this Court

“explicitly rejected” the argument asserted by Mandina’s that it “was not liable for

the mistakes of contractors or other third parties” and assert the trial court erred in

denying their proposed special jury instruction restating this holding. These

purported “omissions” from the jury instructions do not even pertain to the

question actually considered by the jury, i.e., whether the handrail defect was

unreasonably dangerous and created an unreasonable risk of harm. Because the

jury did not even get past the threshold issue of finding the defect was

unreasonably dangerous, we find it is of no merit whether and how the trial court

instructed the jury regarding the distinct, unrelated issues of constructive notice

and the mistakes of others. The jury was not “misled to such an extent as to prevent

it from doing justice.” Goodman, 1998-732, p. 4, 736 So.2d at 312 (citing Jones,

568 So.2d 1091, 1094).

Open and Obvious

Next, the Carreros also argue the trial court should have informed the jury

the handrail defect was not open and obvious per this Court’s prior Carrero

Opinion and erred in rejecting their proposed special jury instruction to this effect.

But, as previously explained, this Court held there remained genuine issues of

material fact about the open and obvious nature of the defect and did not dispose of

that issue entirely. This argument is without merit.

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Building and Safety Code Violations

The Carreros also argue the trial court should have accepted their proposed

special jury instruction “that under Louisiana law[,] building and safety code

violations are relevant evidence in determining whether a condition is

unreasonably dangerous and that those violations may serve as guidelines for

determining civil liability.” In support of this argument, the Carreros cite, in

pertinent part, to this Court’s prior Carrero Opinion and Trayanoff v. Omni Hotels

Management Corp., 2024-0366 (La. App. 4 Cir. 12/10/24), 408 So.3d 221. In

Carrero, this Court found that evidence of violations of safety and building codes

governing handrails created a genuine issue of material fact as to whether

Mandina’s had constructive knowledge of the defect. 2019-0158, p. 10, 364 So.3d

at 26. Likewise, in the section of Trayanoff cited by the Carreros, this Court held

that “building code violations create a question of fact as to whether a defendant

should have known of a defective condition,” i.e., again speaking to the

constructive notice issue that the jury did not reach, not the issue of whether a

defect is unreasonably dangerous. 2024-0336, p. 14, 408 So.3d at 230.

The Carreros also cite to Tannehill v. Joguyro, Inc., 1997-571 (La. App. 5

Cir. 4/9/98), 712 So.2d 238. Therein, the Fifth Circuit explained that experts

testified before the jury that the subject ramp failed to comply with certain building

and safety codes. Tannehill, 1997-571, p. 6, 712 So.2d at 242. Thereafter, the Fifth

Circuit explained the “trier of fact[] has great discretion to accept or reject

testimony of experts like any other witness.” Id. at p. 6, 712 So.2d at 242-43 (citing

Manchack v. Willamette Indus., Inc., 621 So.2d 649, 654 (La. App. 2d Cir. 1993)).

Regarding the expert testimony, the Fifth Circuit ultimately ruled: “We cannot say

that the trial court abused it[s] discretion in accepting the experts’ testimony and

16

finding that the ramp presented an unreasonable risk of harm.” Id. at pp. 6-7, 712

So.2d at 243. The Fifth Circuit then explained why the situation satisfied the other

risk-utility balancing factors that inform whether a defect created an unreasonable

risk of harm. Id. See Mendoza, 2024-0604, p. 15, 414 So.3d at 1183 (delineating

the risk-utility balancing factors as: “[a.] the utility of the complained-of condition;

[b.] the likelihood and magnitude of harm, including the obviousness and

apparentness of the condition; [c.] the cost of preventing the harm; and [d.] the

nature of the plaintiff’s activities in terms of its social utility or whether it is

dangerous by nature” (alterations in original) (quoting Haynes, 2023-0678, p. 23,

399 So.3d at 643)).

Nonetheless, while compliance with codes and safety standards is a factor to

be considered in determining premises liability, the Louisiana First Circuit Court

of Appeal (“First Circuit”) has cautioned that it is not the only one. Primeaux v.

Best W. Plus Houma Inn, 2018-0841, p. 11 (La. App. 1 Cir. 2/28/19), 274 So.3d

20, 30 (citing Calcagno v. Kuebel, Fuchs P’ship, 2001-691, p. 9 (La. App 5 Cir.

11/14/01), 802 So.2d 746, 751). In fact, in Handy v. City of Kenner—an opinion

issued by the Fifth Circuit after Tannehill—the court specifically held that

evidence of code violations alone cannot satisfy the plaintiff’s burden of proving

the existence of an unreasonably dangerous condition. 2012-135, p. 9 (La. App. 5

Cir. 6/28/12), 97 So.3d 539, 545. Thus, even if the jurors had received the

proposed special jury instruction urged by the Carreros, the jury’s acceptance of

same would not have established the existence of an unreasonably dangerous

condition. Further, the Carreros cite to no jurisprudence requiring such a jury

instruction in a premises liability case nor has this Court located any.

17

Moreover, the record reflects the trial court properly instructed the jury on

the applicable law regarding unreasonably dangerous conditions. Specifically, the

trial court instructed the jury that the Carreros had to prove by a preponderance of

the evidence that the handrail contained a defect creating an unreasonable risk of

harm. The trial court defined an unreasonable risk of harm for the jury as “when

the likelihood that harm might occur and the seriousness of such harm if it did

happen outweighs the importance to society of the thing and the way the owner or

custodian has chosen to maintain the thing under the circumstances.” Further, the

trial court instructed the jury:

A landowner owes a duty to a plaintiff to discover any
unreasonably dangerous conditions, and to either correct the condition
or warn of its existence. While landowners generally do not have a
duty to protect against an open and obvious hazard, in order for an
alleged hazard to be considered obvious and apparent, the hazard
should be one that is open and obvious to everyone who may
potentially encounter it. The degree to which a danger may be
observed by a potential victim is a factor in the determination of
whether the condition is unreasonably dangerous.

A landowner does not insure against the possibility of an
accident on his premises, but rather he must act reasonably in view of
the probability of injuries to others.

The trial court also instructed the jury that testimony by a witness

constituted direct evidence which could prove a fact. In this regard, the jury heard

and considered Mr. Oliver’s expert testimony the handrail failed to comply with

the “International Building Code”; “the Life Safety NFPA 101 which is commonly

called the Fire Marshal’s Code”; and “the Americans with Disabilities Act also

known as Architectural Barriers Act or handicap code.” The trial court’s jury

instructions did not mislead the jurors to such an extent so as to prevent them from

doing justice regarding the unreasonably dangerous nature of the defect. This

contention lacks merit.

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Expert Testimony

Finally, the Carreros complain about the trial court’s rejection of their

proposed special jury instruction that “uncontradicted expert testimony should be

accepted as true in the absence of circumstances in the record that cast suspicion

on the reliability of the testimony.” In support of that statement, the Carreros cite

to In re Succession of Lovoi, 2000-1391 (La. App. 5 Cir. 12/27/00), 777 So.2d 627.

The Carreros correctly observe that Mandina’s did not present any expert

testimony at the trial to refute theirs.

As quoted by the Carreros, in In re Succession of Lovoi, the Fifth Circuit

held that “uncontradicted expert testimony should be accepted as true in the

absence of circumstances in the record that cast suspicion on the reliability of the

testimony.” 2000-1391, p. 5, 777 So.2d at 630 (quoting Arnold v. Town of Ball,

1994-972, p. 8 (La. App. 3 Cir. 2/1/95), 651 So.2d 313, 319). However, in the

proposed special jury instruction and in their brief to this Court, the Carreros

omitted the first part of the quote that importantly explains that “uncontradicted

expert testimony is not binding on the trier of fact.” Id. Moreover, in Mathews v.

Dousay, the plaintiffs similarly “requested that the trial court instruct the jury that

in evaluating evidence, the trier of fact should accept as true the uncontradicted

testimony of a witness where the record indicates no sound reason for its rejection”

regarding an economist’s expert testimony. 1996-858, p. 8 (La. App. 3 Cir.

1/15/97), 689 So.2d 503, 509. On appeal, the Louisiana Third Circuit Court of

Appeal (“Third Circuit”) affirmed the trial court’s denial of the request, explaining:

We find that the jury instructions, taken as a whole, were not so
incorrect or inadequate as to preclude the jury from reaching a verdict
based on the relevant law and facts. The trial court instructed the jury
that a witness is presumed by law to speak the truth and that the jury
could accept all, some, or none of a witness’ testimony. Additionally,

19

the trial court instructed the jury that experts must give reasons for
their opinions and that if the jury felt that an expert’s opinion [was]
not based on sufficient background, that the expert’s reasons were not
supported by the facts of the case, or that the expert’s opinion [was]
outweighed by other evidence, it could disregard the expert’s opinion.
While the requested instruction would have been an accurate
statement of the law in light of the other instructions actually given to
the jury on expert testimony, we do not find that the jury was misled
to such an extent as to be prevented from doing justice.

Id. at p. 9, 689 So.2d at 510.

Likewise, in the matter sub judice, the jury instructions, as a whole, were not

so incorrect or inadequate as to preclude the jury from reaching a verdict based on

the relevant law and facts. The trial court instructed the jury that “[t]he law

presumes that a witness is telling the truth about facts that are within his

knowledge.” The trial court told the jurors they did not “have to accept all of the

testimony of a witness as being true or false” and could “accept and believe those

parts of the testimony that [they] consider[ed] logical and reasonable” while

“choos[ing] not to believe those parts that seem impossible or unlikely.” Regarding

expert witnesses specifically, the trial court instructed the jury that they “are

allowed to express opinions because their education, expertise or experience in a

particular field or on a particular subject might be helpful.” The trial court further

instructed the jurors that they should consider the expert witnesses’ opinions and

rely on the opinions based on “the weight” the jurors thought “they deserve[d].”

The trial court also advised the jurors that they were allowed to disregard an

expert’s opinion entirely if they determined the expert’s opinion was not based on

sufficient education, expertise or experience; if the reasons given in support of the

opinion were not sound; or if other evidence outweighed the opinion. As in

Mathews, the Carreros’ requested instruction would have been an accurate

statement of the law; but, in light of the other instructions actually given to the jury

20

on expert testimony, we conclude the jury was not misled to such an extent as to

prevent it from doing justice.

In light of our foregoing analysis, we hold the Carreros’ first assignment of

error is without merit.

Assignments of Error Numbers Two and Three: The Trial Court Permitted
the Jury to Hear Information that Was More Irrelevant and Prejudicial

Next, the Carreros argue “[t]he jury was . . . permitted to hear information

relating to the medical malpractice suit brought by the Carreros in connection to

[Mrs. Carrero’s] fatal fall, and to hear testimony and argument relating to the

potential fault of contractors, architects, and New Orleans City officials.” They

contend the information was not only irrelevant but also substantially more

prejudicial than probative, such that the trial court should have disallowed it under

La. C.E. arts. 402 and 403. Mandina’s counters that even assuming arguendo that

the Carreros’ contention is correct that the information was irrelevant and

prejudicial, it is of no merit as the information did not affect the outcome of the

case. We agree with Mandina’s.

Louisiana Code of Evidence Article 402 provides that “[a]ll relevant

evidence is admissible, except as otherwise provided by the Constitution of the

United States, the Constitution of Louisiana, this Code of Evidence, or other

legislation. Evidence which is not relevant is not admissible.” If evidence may

result in prejudice, confusion, or a waste of time, a trial court can exclude it under

La. C.E. art. 403. That Article states: “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time.” La. C.E. art. 403.

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As previously explained by this Court, “A trial court’s ruling as to relevancy

will not be disturbed absent a clear abuse of discretion.” State v. White, 2009-0025,

p. 9 (La. App. 4 Cir. 9/16/09), 22 So.3d 197, 204 (quoting State v. Hall, 2002-

1098, p. 8 (La. App. 4 Cir. 3/19/03), 843 So.2d 488, 496). Likewise, “A trial court

is vested with much discretion in determining whether the probative value of

relevant evidence is substantially outweighed by its prejudicial effect.” Id. If the

trial court improperly admitted evidence, that “decision . . . is subject to a harmless

error analysis.” State v. Green, 2016-0793, p. 8 (La. App. 4 Cir. 5/3/17), 220 So.3d

103, 108 (citing State v. Ard, 2008-1440, p. 8 (La. App. 4 Cir. 6/17/09), 15 So.3d

1166, 1170). “For an error to be harmless, it must be shown beyond a reasonable

doubt that the complained-of error did not contribute to the verdict.” Id. at pp. 8-9,

220 So.3d at 108-09.

As stated previously, the jury did not get past the threshold issue of finding

the handrail defect constituted an unreasonably dangerous condition. Even

assuming that the Carreros are correct the subject information was irrelevant and

more prejudicial than probative, it did not contribute to the jury’s verdict.

Information regarding the Carreros’ medical malpractice claim and the work done

by third parties in designing, building, installing, and inspecting the handrail had

no bearing on the issue of whether the defect presented an unreasonably dangerous

condition. The Carreros’ brief does not attempt to explain how such information

contributed to the jury’s finding that the handrail defect was not unreasonably

dangerous. Even if the trial court erred by admitting the information, an issue

which we need not reach, such error would accordingly be harmless. The Carreros’

second and third assignments of error are without merit.

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Assignment of Error Number Five: The Jury Verdict Was Manifestly
Erroneous

Finally, the Carreros assert the jury’s verdict was manifestly erroneous and

ask us to conduct a de novo review of the record in light of the legal errors

committed in this matter. Our foregoing analysis explains why the legal errors

complained of by the Carreros cannot be said to have interdicted the fact-finding

process. Further, as an appellate court, we are to review the jury’s verdict under the

manifest error standard of review, bearing in mind:

Because the determination of whether a defective thing presents
an unreasonable risk of harm “encompasses an abundance of factual
findings, which differ greatly from case to case, followed by an
application of those facts to a less-than scientific standard, a
reviewing court is in no better position to make the determination than
the jury or trial court.” Accordingly, the fact-finder’s unreasonable
risk of harm determination is subject to the manifest error standard of
review and should be afforded deference on appeal. Under the
manifest error standard of review, a court of appeal may not set aside
a jury’s finding of fact unless it is manifestly erroneous or clearly
wrong. The reviewing court must only decide whether the fact-
finder’s conclusion was reasonable, not whether it was right or wrong.
In order to reverse a jury’s factual finding as manifestly erroneous, an
appellate court must find the record, when reviewed in its entirety, (1)
contains no reasonable factual basis for the jury’s finding and (2)
establishes the finding is clearly wrong. The court of appeal must
always be mindful that if the jury’s findings “are reasonable in light of
the record reviewed in its entirety . . . [it] may not reverse even though
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently.”

Broussard v. State ex rel. Office of State Bldgs., 2012-1238, p. 13 (La. 4/5/13), 113

So.3d 175, 185-86 (alterations in original) (internal citations omitted).

In their brief, the Carreros note they offered Ms. Levitan’s expert opinion

that the extension of the handrail at the point of transition to ground level would

have provided stability for someone with balance issues who held onto the

handrail. As succinctly stated by the First Circuit, however, the jury could “accept

or reject in whole or in part any [expert] opinion.” Naquin v. Church Mut. Ins. Co.,

23

2024-0303, p. 23 (La. App. 1 Cir. 12/30/24), 403 So.3d 1188, 1209. Likewise, the

jury had broad discretion in deciding the effect and weight accorded to the expert

testimony. Id. In so doing, the jury could “accept or reject any expert’s view” and

could “even . . . substitut[e] its own common sense and judgment for that of an

expert witness” if warranted by the evidence as a whole. Id. Even having heard

from Ms. Levitan about an extension of the handrail being useful to someone like

Mrs. Carrero, the jury concluded there was no unreasonable danger. The law

affords the jury the latitude to reach such a conclusion.

Moreover, the jurors also had other information and evidence before them

that could explain their verdict. In particular, the jurors heard conflicting evidence

about the location of Mrs. Carreros’ fall. According to Elizabeth, Mrs. Carrero fell

at the bottom of the ramp; but, according to Mr. Votier, Mrs. Carrero was in the

middle of the ramp. The jurors heard nothing definitive about the reason Mrs.

Carrero fell. In fact, Elizabeth testified, “I [do not] know why she fell”; and the

medical records generated after the fall contained the notation that one of Mrs.

Carrero’s daughters reported that Mrs. Carrero “tripped over her own foot.” That

is, the Carreros did not undeniably establish the handrail was the reason for Mrs.

Carrero’s fall. The jurors also heard about Mrs. Carreros’ medical records, which

called into question Ann’s testimony about Mrs. Carrero’s history of falls and

stability while walking. In this latter regard, Elizabeth confirmed Mrs. Carrero

used a cane in the years preceding the subject accident.

The Carreros further contend that “[t]his Court previously held that the

defective condition in the handrail ‘was not open and obvious.’” As already

discussed extensively, this Court did not unequivocally issue such a holding in the

prior Carrero Opinion, but instead ruled there remained genuine issues of material

24

fact in this regard. The Carreros also note that “[i]t was undisputed in this case that

the handrail that Mrs. Carrero was using when she fell was non-compliant with

applicable building codes and ADA safety standards.” To this end, the Carreros

argue that while this is “not dispositive” under Louisiana law, it “alone is sufficient

for a finding that a condition was unreasonably dangerous.” Again, the Carreros

cite to this Court’s prior Carrero Opinion; but, as we have already explained, that

Opinion never held violations of building codes or safety standards rendered a

condition unreasonably dangerous but instead related to the issue of constructive

knowledge. As support for this contention, the Carreros also cite to another Fourth

Circuit case, Perniciaro v. Liberty Mutual Insurance Co., 2002-0889 (La. App. 4

Cir. 5/20/02), 820 So.2d 600. Nowhere in the Perniciaro Opinion did this Court

hold that building code and safety standard violations meant a condition was

unreasonably dangerous. In fact, that case merely involved whether the defendants

could introduce evidence of the fault or negligence of architects, contractors, and

others involved in the original construction of a shopping center. The Carreros

misconstrue the foregoing jurisprudence. As explained previously, violations of

codes and safety standards alone do not establish a condition is unreasonably

dangerous. Handy, 2012-135, p. 9, 97 So.3d at 545.

Even if we may have weighed the evidence differently sitting as the trier of

fact, a review of the record in its entirety does not support a reversal of the jury’s

verdict. The jury’s finding that the defective handrail was not unreasonably

dangerous is reasonable in light of the record viewed in its entirely. The Carreros’

fifth and final assignment of error is without merit.

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DECREE

For the foregoing reasons, we affirm the trial court’s April 8, 2024

judgment, which adopted the jury’s verdict and dismissed the Carreros’ claims

against Mandina’s with prejudice.

AFFIRMED

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