David Bertini v. Dale Scaife

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-1229

DAVID BERTINI, ET AL.

VERSUS

DALE SCAIFE

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 56,886
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Michael G. Sullivan,
Judges.

AFFIRMED.

John William Pickett
Attorney at Law
P. O. Box 250
Many, LA 71449
(318) 256-3846
Counsel for: Defendant/Appellant
Dale Scaife

Nathaniel Williams Esq.
Williams Family Law Firm
P.O. Box 15
Natchitoches, LA 71458-0015
(318) 352-6695
Counsel for: Plaintiff/Appellee
David Bertini
Mandy Davis

SAUNDERS, J.

This case comes to us on appeal of a trial court’s judgment finding defendant

strictly liable for damages resulting from a fire that destroyed plaintiffs’ property

located in a trailer rented from defendant. Plaintiffs entered into a lease agreement

for the rental of a trailer home with defendant. Plaintiffs lit a fire in the trailer’s

fireplace insert that eventually burned out of control and destroyed the trailer and all

property located therein. The trial judge found defendant strictly liable under La.Civ.

Code art. 2695 and awarded damages in the amount of $1,500.00. We affirm.

FACTS AND PROCEDURAL HISTORY

In November of 2003, David Bertini and Mandy Davis entered into a lease

agreement with defendant Dale Scaife. This agreement was for the lease of a trailer

home located near defendant’s residence. Mr. Bertini gave Mr. Scaife $150.00 as a

partial deposit and the parties moved into the trailer. Mr. Scaife provided appliances,

a lounge chair, a dinette set, chairs, a washer and dryer, and bath towels and cloths.

The unit also contained a wood burning fireplace insert that plaintiffs used at least

twice prior to the incident giving rise to this litigation.

Approximately two weeks after moving in, plaintiffs lit a third fire in the

fireplace that burned while the couple ate dinner. After dinner, Mr. Bertini added

another log to the fire while Mandy Davis took a shower. Shortly thereafter, Mr.

Bertini noticed smoke and flames in the vents of the fireplace insert. He called Ms.

Davis who saw the problems witnessed by Mr. Bertini. Ms. Davis then went to the

nearby home of Mr. Scaife to ask for help while Mr. Bertini attempted to extinguish

the fire by pouring water onto it. Upon arriving at the trailer, Mr. Scaife also

attempted to extinguish the fire by spraying water from a hose onto the insert. These

efforts were unsuccessful and the fire totally destroyed the trailer and all contents,

none of which were insured.

Suit was filed in the Eleventh Judicial District Court and trial was held on June

28, 2004. A written judgment in favor of plaintiffs for $1,500.00 was rendered on

June 30, 2004. Defendant timely filed this appeal and plaintiff answered asking for

an increase of the award.

ASSIGNMENTS OF ERROR

1) The trial court erred in failing to grant a directed verdict at the close of
Plaintiff’s evidence.

2) The trial court erred in finding defendant at fault at the conclusion of
trial.

STANDARD OF REVIEW

The standard of review for findings of the trial court has been clearly

established in this circuit. A court of appeal may not set aside a judge’s factual

finding unless that finding was manifestly erroneous or clearly wrong. Stobart v.

State, through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest

error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not

be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111

(La.1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate

courts are to determine if the trial court’s ruling was legally correct or not. Cleland

v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied,

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03-1380, 03-1385 (La. 9/19/03), 853 So.2d 644.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant argues that the trial court erred in

denying his motion for directed verdict. Article 1810 of the Louisiana Code of Civil

Procedure governs directed verdicts and provides that the motion is properly made

“at the close of the evidence offered by an opponent[.]” This court has previously

determined that such a motion may only be made after the closing of the non-mover’s

case. Duplechin v. John Doe, Remmer & Garrett, Inc., 365 So.2d 53 (La.App. 3 Cir.

1978). In the case sub judice, defendant moved for a directed verdict before plaintiffs

offered all evidence. According to the terms of La.Code Civ.P. art. 1810, the motion

was untimely and the trial judge was justified in denying it. Because we affirm the

entire ruling of the trial court and find that plaintiffs demonstrated a right to recover,

we do not feel that the motion should have been granted even if it had been made at

the proper time. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment, defendant argues that the trial judge erred in holding him

liable for the damages suffered by plaintiffs. No written reasons were given for the

trial court’s judgment; however, we find defendant liable according to La.Civ.Code

art. 2695 as it existed prior to the revisions that became effective January 1, 2005.

It is undisputed that plaintiffs and defendant had a lessor/lessee relationship. A

lessor’s liability for vices and defects is established by La.Civ.Code art. 2695, which

provides that:

[t]he lessor guarantees the lessee against all the vices and
defects of the thing, which may prevent its being used even

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in case it should appear he knew nothing of the existence
of such vices and defects, at the time the lease was made,
and even if they have arisen since, provided they do not
arise from the fault of the lessee; and if any loss should
result to the lessee from the vices and defects, the lessor
shall be bound to indemnify him for the same.

The clear terms of this article do not require that the lessor act reasonably to avoid

liability, merely that the defect not be caused by the lessee. Defendant, however,

argues that the 1996 Louisiana tort reform, namely the enactment of La.Civ.Code

article 2317.1 which added a reasonable care standard to some instances previously

governed by a strict liability standard, arguably removes the traditional notion of

strict liability from La.Civ.Code art 2695. We disagree.

We believe that the traditional strict liability set forth in La.Civ.Code art. 2695

was unaffected by the 1996 reforms. That article was found in Chapter 2 of Title IX

entitled “OF THE OBLIGATIONS AND RIGHTS OF THE LESSOR” while article

2317.1 is located in Chapter 3 of Title V entitled “OF OFFENSES AND QUASI-

OFFENSES.” We are unwilling to hold that a change in standards of general tort

liability affects long standing rights and duties of a well established legal relationship.

In order to so hold, we would have to disregard the structure of our Civil Code and

Civilian methodologies. Because we find that Article 2695 was unaffected by the

1996 tort reform, traditional jurisprudence regarding that article is applicable.

In order to recover under La.Civ.Code art. 2695, a lessee must prove, by a

preponderance of the evidence, that a defect existing on the premises caused damage

or loss. McGinty v. Pesson, 96-850 (La.App. 3 Cir. 12/11/96), 685 So.2d 541. The

lessor’s liability is based on his status as landlord not on personal fault; therefore, a

landlord’s lack of knowledge regarding a defect is inconsequential. Id. Plaintiffs

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testified that they used the fireplace insert without incident on at least two prior

occasions. In fact, they had been using the fireplace for some time the night the fire

spread out of control. Suddenly and without explanation, the fire spread into the

walls of the trailer. All Mr. Bertini did was add another log to the fire just as had

been done before. The log was the same type as those previously used by plaintiffs.

Mr. Bertini further testified that he was just sitting in the room when he noticed

smoke and flames behind the fireplace’s vents. The fire spread to the walls and

eventually engulfed the entire trailer. The trial judge, sitting as the trier of fact, found

this testimony to be credible. The court concluded that plaintiffs were not at fault and

that a defect existed as evidenced by the spread of the fire into the walls of the trailer.

We cannot overturn this judgment absent manifest error. After reviewing the

record, we find that the trial court was not manifestly erroneous in ruling that a

damage causing defect existed. The fact that plaintiffs apparently did nothing

different on the night of this incident than they had previously done and that they did

not appear to be negligent in any manner indicates that it is more probable than not

that a defect existed in the fireplace insert. This defect clearly caused damage as it

resulted in the total destruction of the trailer and all property located therein. As

such, defendant is strictly liable for the damage done to plaintiffs by virtue of his

status as landlord. This assignment of error lacks merit.

In addition to arguing against reversal of the trial court’s judgment, plaintiffs

ask this court to increase the award for lost property to $4,400.00 and award general

damages because they witnessed the destruction of their property and their daughter

allegedly now suffers from nightmares. Regarding the award for lost property, it is

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undisputed that the majority of the furnishings located within the trailer were owned

by defendant. Plaintiffs did, however, have some of their own belongings inside.

After hearing the evidence regarding the nature and value of these items, the trial

court set their value at $1,500.00. We see no manifest error in this determination and

affirm the trial court’s award in this regard. Furthermore, plaintiffs’ claims regarding

general damages are not supported by the record. There is no testimony regarding

distress or anxiety due to witnessing the destruction of the property. Absent such

evidence, the trial judge was not manifestly erroneous in failing to award damages.

Finally, plaintiffs’ claims that Tai Davis, the minor child living with them, suffers

from nightmares due to the fire are equally unsupported. The child did not testify on

her own behalf and Mr. Bertini and Mrs. Davis presented no medical evidence

substantiating this allegation. The trial court was not manifestly erroneous in failing

to award general damages in this matter.

CONCLUSION

The trial court’s judgment holding defendant strictly liable for $1,500.00 of

damages due to a defect in the leased premises is affirmed. All costs of this appeal

are assessed against defendant.

AFFIRMED.

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