Joseph M. Bynog, Jr. v. John Valenzuela

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1465

JOSEPH M. BYNOG, JR.

VERSUS

JOHN VALENZUELA, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 220,808
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Glenn B. Gremillion, Judges.

AFFIRMED.

Howard N. Nugent, Jr., Esq.
Nugent Law Firm
P. O. Box 1309
Alexandria, LA 71309-1309
(318) 445-3696
Counsel for Plaintiff/Appellant:
Joseph M. Bynog, Jr.

Steven D. Crews
Corkern & Crews, LLC
P. O. Box 1036
Natchitoches, LA 71457-1036
(318) 352-2302
Counsel for Defendant/Appellee:
Michael Powers

Randall Brian Keiser
Keiser Law Firm
P.O. Box 12358
Alexandria, LA 71315-2394
(318) 443-6168
Counsel for Defendant/Appellee:
John Valenzuela

GREMILLION, Judge.

The plaintiff, Joseph Bynog, Jr., appeals a judgment and a jury verdict

finding that the defendant, Michael Powers d/b/a Powers Construction Company, was

not at fault in causing him to suffer a severe fracture of his right leg and the ultimate

loss of that leg. For the following reasons, we affirm.

FACTS

Bynog, a self-employed painter, was contracted to paint the interior of

a new home owned by John Valenzuela, which was being built by Powers

Construction. The home was located in Alexandria, Louisiana. Powers Construction

employed the use of an air compressor, which was connected to the electrical source

located outside the home. Air hoses were then run from the compressor to wherever

the carpenters were working.

On October 14, 2004, Bynog and his son, Joseph Bynog, III, were

painting in the house. Two employees of Powers Construction were nailing cornices

on the back patio. Bynog was standing on a ladder and caulking nail holes when,

allegedly, an air hose pulled against the bottom of the ladder and caused it to become

unstable. To avoid falling and hurting his back, Bynog jumped to the floor. In doing

so, his right foot landed on an air hose and rolled, resulting in a compound fracture

of his tibia and fibula. Ultimately, Bynog’s leg was amputated below the knee.

Bynog, his wife, and son filed suit against both Powers and Valenzuela.

Valenzuela was later dismissed from the suit on a motion for summary judgment. The

matter proceeded to a jury trial. At the close of the plaintiffs’ evidence, the trial court

granted a directed verdict in favor of Powers and dismissing the claims of Joseph

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Bynog, III. After the close of evidence, the jury returned a verdict finding that

Powers was not liable to Bynog and his wife in causing Bynog’s injury. A judgment

was rendered in this matter on June 27, 2007. This appeal by Bynog followed.

ISSUES

On appeal, Bynog raises three assignments of error. He argues that the

jury and trial court was manifestly erroneous in failing to find Powers negligent in

causing his injury, in failing to award damages, and in failing to award loss of

consortium damages.

STANDARD OF REVIEW

The civil standard of review was laid out by the supreme court in Detraz

v. Lee, 05-1263, p. 7 (La. 1/17/07), 950 So.2d 557, 561-62:

Louisiana courts of appeal apply the manifest error standard of
review in civil cases. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04),
874 So.2d 90. Under the manifest error standard, a factual finding
cannot be set aside unless the appellate court finds that the trier of fact’s
determination is manifestly erroneous or clearly wrong. Smith v.
Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129,
132. In order to reverse a fact finder’s determination of fact, an
appellate court must review the record in its entirety and (1) find that a
reasonable factual basis does not exist for the finding, and (2) further
determine that the record establishes that the fact finder is clearly wrong
or manifestly erroneous. Id.

The appellate court must not re-weigh the evidence or substitute
its own factual findings because it would have decided the case
differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust
Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two
permissible views of the evidence, the fact finder’s choice between them
cannot be manifestly erroneous or clearly wrong, even if the reviewing
court would have decided the case differently. Id.

We have also consistently held that causation is a factual finding
which should not be reversed on appeal absent manifest error. Martin
v. East Jefferson General Hosp., 582 So.2d 1272, 1276 (La.1991);
Smith v. State through Dept. of Health and Human Resources Admin.,

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523 So.2d 815 (La.1988).

NEGLIGENCE

In his first assignment of error, Bynog argues that the jury and trial court

was manifestly erroneous in failing to find Powers strictly negligent in causing his

injuries. He claims that the presence of the air hose in the house created an

unnecessary and dangerous defect that could have been prevented by suspending the

hose off of the ground by one of several means.

Louisiana Civil Code Article 2317 provides:

We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by the act of persons for whom we
are answerable, or of the things which we have in our custody. This
however, is to be understood with the following modifications.

Louisiana Civil Code Article 2317.1 states:

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 a 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. Nothing in this Article shall preclude the
court from the application of the doctrine of res ipsa loquitur in an
appropriate case.

In order to prevail on a negligence claim, Bynog must prove: (1) that the

thing which caused his damages was in Powers’ custody or control; (2) that it had a

vice or defect which created an unreasonable risk of harm; (3) that his injuries were

caused by the defect; (4) that Powers knew or should have known of the unreasonable

risk of harm; and, (5) that the damage could have been prevented by the exercise of

reasonable care, which Powers failed to exercise. Conques v. Wal-Mart Stores, Inc.,

00-619 (La.App. 3 Cir. 2/14/00), 779 So.2d 1094, writ denied, 01-0715 (La. 4/20/01),

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790 So.2d 643. Failure to prove any one of these elements will defeat Bynog’s claim.

Dauzat v. Thompson Const. Co., Inc., 02-989 (La.App. 5 Cir. 1/28/03), 839 So.2d

319.

In this instance, the jury held that Bynog failed to prove that the pulling

of the air hose was a cause in fact of his falling off the ladder. After a review of the

record in its entirety, we find that conflicting views of the evidence were presented

to the jury as to the cause of Bynog’s fall. The Bynogs presented evidence showing

that a pull on the air hose by one of Powers’ employees caused the ladder to become

unstable and led to Bynog’s decision to jump from the ladder rather than face injury

from a fall. On the other hand, Powers presented evidence showing that the location

of the air hose in conjunction with the ladder would lead to the conclusion that it

could not have caused the fall in question. A summary of the evidence follows.

Bynog testified that he was standing on a six-foot ladder, puttying the

nail holes on a door frame, when he felt the air hose hit the bottom of the ladder and

start to pull it over. He stated that he jumped off the ladder when it became unstable

because he did not want to risk injuring his back in a fall. In landing, Bynog stated

that his right foot landed on the air hose, which caused his foot to roll and led to his

injury. Although Bynog testified at trial that he felt the air hose hit the base of the

ladder, he stated in his deposition that he neither saw nor felt it hit the ladder, just that

he knew he fell.

Bynog stated that normally the air compressor, which provided pressure

for the air hose, was located at the front of the house where the electrical source was

located, as the house did not yet have electricity. However, on the day of his

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accident, he testified that the compressor was moved from the front of the house to

the garage, which was on the right side of the house. Thus, the air hose ran in a side

door, around the edge of his ladder, and then out the back door of the house. Despite

the fact that the petition stated that the compressor was located at the front of the

house, Bynog testified at trial that it was located at the side of the house. He further

stated that the air hose was already in place when he began working that day, and that

air hoses were always present whenever the carpenters were working. Bynog denied

falling from the ladder because he lost his balance. The ambulance and various

hospital records state that Bynog fell off of the ladder in recounting the cause of his

injury. Bynog explained that none of the health providers needed to know the actual

cause of his accident. The first mention of the air hose occurred on May 3, 2005, in

Dr. LeGlue’s records, after he had hired counsel.

Joseph Bynog, III testified that he was assisting his father on the day of

the accident. He stated that they were working in the living room of the house and

that air hoses were lying across the floor at the time. He stated that Bynog was on a

ladder puttying nail holes when, all of a sudden, the ladder became unstable. Joseph

stated that upon looking down at the floor, he saw that the ladder’s instability was

caused by an air hose being drug across the floor. He said that Bynog then jumped

from the ladder to the floor, injuring his leg. He stated that when Bynog was laying

on the floor, he was lying across the air hoses.

Joseph testified at trial that he saw the air hose contact the bottom of the

ladder. However, in his deposition, he stated that he saw the hose move, but did not

really see it when it came into contact with the ladder. When asked about this

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discrepancy, he stated that he did know that the carpenters were pulling on the hose

at the time of the accident. In a January 2005 statement to an investigator, Joseph

stated that he was watching Bynog at the time and that he guessed that the carpenter

was pulling the hose because the ladder began shaking and then fell.

Joseph testified that the hoses were already present when he and his

father arrived at the house and that the compressor was located out the front of the

house. He first stated that the air hoses ran through the front door into the house and

then out the back door. However, he then testified that he was unsure if the hoses

entered the house from the front door, as he was certain that they ran along the french

doors where his father’s ladder was set up. He recalled stating in his deposition that

he was unsure if they entered the house from the side or the front, but was sure that

they exited the house through the back door. In his January 2005 statement, Joseph

stated that the hoses entered the house from the front door. At trial, he stated that he

was unsure if this was correct. He testified that if the hoses stretched along the french

doors, as he knew they did, then he felt that they must have come from the side of the

house, rather than the front door.

Joshua Wilson, Valenzuela’s employee, testified that he was outside the

house at the time of Bynog’s accident. He stated that he heard screaming and went

inside where he saw Bynog lying on the ground, the ladder turned over, and two air

hoses nearby. Wilson stated that the compressor was located at the front of the house,

where the electrical supply was located. He testified that two air hoses ran through

the front door and then out the back door to the patio, where Powers’ employees were

working.

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Wilson testified that the ladder had come to rest approximately one-half

foot to a foot to the left of the air hoses. In his deposition, he stated that he felt that

Powers had a sufficient length of hose to do his work in the house, but upon further

reflection he did not believe that to be the case. He felt that the hose being pulled was

the only thing which could have caused the ladder to fall. However, he admitted that

he did not see the accident.

Powers testified that two of his employees were working at the site the

date of Bynog’s accident, Rossney Dupuy, his lead carpenter, and Brian Pennington.

He said that his employees laid out the air hoses depending on where they were

working at the time. He further stated that he advised the workers about pulling the

air hoses so that they did not hit any finished walls.

Dupuy testified that on the date of the accident, he was working on the

back patio, when he heard a noise and went inside. He stated that he saw Bynog lying

on the floor and the ladder lying on its side approximately six feet from the back door,

with its legs pointing toward Bynog. Up to that point, he testified that he did not

think that anyone had pulled on the air hose. When he spoke to Bynog, he stated that

Bynog told him that he lost his balance and jumped.

Dupuy testified that the electrical source for the house was located by the

street, approximately 500 feet from the front of the house. He stated that the

compressor was hooked to that power source and then the air hoses were run to the

house. He said that he would not have moved the compressor to the side of the house

because he would have been required to run extension cords from the power source

to the compressor. Dupuy said that he was short of air hoses, so he ran the hose

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through the front door and then out the back door to where he was working on the

back patio. He said that the compressor was never placed by the garage because that

area lacked a power source. He said he never considered doing this because running

extension cords from the power source to the side of the house would have drawn

down on the amperages run to the motor. He further stated that a feeder air hose was

not run from the garage and then through the back door, which would have been

along the rear of Bynog’s ladder, as he had been working out back for approximately

a week.

Pennington testified that on the date of Bynog’s accident, the air hose

was laid out by either him or Dupuy, the only workers that day. He stated that the

compressor was located at the front of the house and that he believed that they were

using only one air hose. He said that they were working on the ceiling in the back

patio and had plenty of slack in the air hose such that they were not required to pull

it. Pennington said that Bynog was working in front of the back windows,

approximately seven to eight feet from the air hose. He stated that there should have

been no air hose near his ladder as it ran in from the front door and then out the back

door.

Pennington testified that he heard a noise in the house and went in to

find Bynog laying on the ground and hollering that his leg was broken. He stated that

the ladder was laying on his side, still open, and that the nearest hose was

approximately six to eight feet from it.

After reviewing the record in its entirety, we find that it was reasonable

for the jury to conclude that the action of one of Powers’ workers in pulling the air

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hose was not a cause in fact of Bynog falling off the ladder. The jury was presented

with differing views of the evidence and it was reasonable for it to conclude that the

compressor was located out the front of the house near the power source and that the

air hose entered the house through the front door and then exited through the back

door. In concluding so, the jury obviously discounted the testimony of Bynog and his

son that the compressor was located off the side of the house, as no power source was

located there. This is especially true, as Joseph stated that he was unsure of the

location of the compressor, but that if it was located at the front of the house, then he

could not imagine how the air hose could have caused the accident. In light of

evidence in its entirety, we find that the jury’s determination with regard to causation

was entirely reasonable. Accordingly, the verdict of the jury and the judgment of the

trial court as regards to causation is affirmed. That being our finding, we need not

consider the final two assignments of error alleged by Bynog as they are rendered

moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court finding that

Michael Powers d/b/a Powers Construction Company is not liable for causing the

accident suffered by the plaintiff-appellant, Joseph Bynog, Jr., is affirmed. The costs

of this appeal are assessed to Bynog.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION,
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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