Alice Mabel Crews v. Broussard Plumbing and Heating

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1268

ALICE MABLE CREWS

VERSUS

BROUSSARD PLUMBING AND HEATING

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2005-350-A
HONORABLE JOHN P. NAVARRE, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and David E. Chatelain*,
Judges.

AFFIRMED.

J. Craig Jones
131 Highway 165 South
Oakdale, LA 71463
(318) 335-1333
COUNSEL FOR PLAINTIFF/APPELLEE:
Mable Crews

Timothy A. Maragos
John E. Ortego & Associates
Caffery Plaza, Suite 100
4023 Ambassador Caffery Parkway
Lafayette, LA 70503
(337) 988-7240
COUNSEL FOR DEFENDANT/APPELLANT:
Broussard Plumbing and Heating

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

COOKS, Judge.

Defendant, Broussard Plumbing and Heating, appeals the trial court’s judgment

awarding Plaintiff, Alice Mable Crews, $45,000.00 in damages for injuries suffered

in a slip and fall. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On the morning of July 1, 2004, Plaintiff, Alice Mable Crews, went to visit

Yvonne Strange at the Oakdale Housing Authority. Plaintiff normally visited Ms.

Strange a few times per week. Ms. Strange resided in the area of the Oakdale

Housing Authority known as the “Senior Section,” which is predominantly occupied

by senior citizens. The “Senior Section” can only be accessed by a dead end street

off of Williams Street, which was referred to by the residents as “a driveway.”

On the date in question, Plaintiff, accompanied by her six-year-old grandson,

arrived at approximately 9:00 a.m., parking on the south side of the driveway towards

Williams Street. Plaintiff testified normally she parked as close as possible to Ms.

Strange’s apartment, but could not on this date because there was construction

activity in that area. She saw a white truck with a Broussard Plumbing sign on it with

what appeared to be a pump or generator. She testified she observed water and mud

being pumped into the area, and noted there was an accumulation of water and mud

directly in front of Ms. Strange’s apartment. The area where Plaintiff parked was free

of water and mud.

Plaintiff visited with Ms. Strange until approximately 10:45 a.m., and then left

to return home. She walked to her vehicle. While walking around her vehicle to

buckle her grandchild in safely, Plaintiff stepped into a pool of mud and water and

slipped and fell. Plaintiff was unable to get up herself and yelled for help from the

nearby workers. She was helped to her feet by a worker, who also backed her vehicle

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out so she would not have to walk through the muddy area again.

Plaintiff alleged she suffered injuries to her right knee and ankle as a result of

the fall. The day after the accident she sought treatment at the Oakdale Community

Hospital. She then continued treatment with her family physician and underwent

several months of physical therapy. She was eventually diagnosed with a tear in the

meniscus in her right knee. She may eventually require knee replacement due to the

severity of the tear.

Following the accident, Plaintiff filed suit against Trahan and Chapman, Inc.,

th general contractor of the project, and Broussard Plumbing, a subcontractor

responsible for preparing and connecting the plumbing and drains for the washers and

dryers. It was plead these defendants, either together or separately, negligently

created the hazardous condition which caused her to fall and injure herself. She plead

$6,474.75 in medical specials and requested $49,999.00 in general damages. Plaintiff

determined that at the time of the incident, there was an improvement project in

progress at the housing complex. This project involved the installation of a laundry

unit to the rear of each apartment in the complex.

Prior to the bench trial in this matter, Trahan and Chapman, Inc. was

voluntarily dismissed as a defendant. Broussard Plumbing remained as the sole

defendant. Following a one-day trial, judgment was rendered against Broussard

Plumbing, and Plaintiff was awarded $45,000.00 in damages, together with interest

from date of judicial demand plus costs. Broussard Plumbing appeals and asserts the

following assignments of error:

1. The trial court committed reversible error in finding it to be at fault
for the accident.

2. The trial court committed reversible error in failing to find that the
condition which caused Plaintiff to slip was open and obvious, thus
negating a duty on the part of Appellant and establishing victim fault for

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the incident.

ANALYSIS

I. Liability of Broussard Plumbing

An appellate court may not set aside a trial court’s findings of fact in the

absence of a manifest error or unless it is clearly wrong. Stobart v. State through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). The

appellate court must determine not whether the trier of fact was right or wrong, but

whether the factfinder’s conclusion was a reasonable one, after reviewing the record

in its entirety. Mart v. Hill, 505 So.2d 1120 (La.1987); Stobart, 617 So.2d 880;

Rosell, 549 So.2d 840.

Even if the appellate court believes its inferences are more reasonable than the

factfinder’s, reasonable determinations and inferences of fact should not be disturbed

on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a

reviewing court must keep in mind that if a trial court’s findings are reasonably based

upon the record and evidence, an appellate court may not reverse said findings even

if it is convinced that had it been sitting as trier of fact it would have weighed that

evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991). The basis for this

principle of review is grounded not only upon the better capacity of the trial court to

evaluate live witnesses, but also upon the proper allocation of trial and appellate

functions between the respective courts.

Broussard Plumbing contends the evidence was insufficient to prove it caused

the slippery condition in the parking lot which caused Plaintiff’s injuries. It argues

because there were no eyewitnesses that saw Broussard Plumbing personnel set up

the pump, Plaintiff did not meet her burden of proof. We disagree.

The courts of this state have long held that circumstantial evidence can be

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sufficient to support a trial court’s judgment. The Louisiana Supreme Court in Lacey

v. Louisiana Coca-Cola Bottling Co., Ltd., 452 So.2d 162, 164, (La. 1984), stated as

follows:

In a civil case, the plaintiff’s burden is to prove her case by a
preponderance of the evidence. This burden may be met by direct or
circumstantial evidence. If, as in this case, circumstantial evidence is
relied upon, that evidence, taken as a whole, must exclude every other
reasonable hypothesis with a fair amount of certainty. This does not
mean, however, that it must negate all other possible causes. Weber v.
Fidelity & Casualty Insurance Co. of N.Y., 257 La. 599, 250 So.2d 754
(1971); Naquin v. Marquette Cas. Co., 244 La. 569, 153 So.2d 395 (La.
1963).

The record in this case sufficiently sets forth circumstantial evidence tending to prove

that Broussard Plumbing was the only subcontractor on site the day of Plaintiff’s

injuries. Plaintiff testified she saw a white pickup truck with a “Broussard Plumbing”

sign on the door when she drove into the “Senior Section.” She specifically testified

she saw no other truck in the area. She further stated she saw a machine on the back

of the truck, which was making a very loud noise, and observed mud and water being

pumped into the street. When she left Ms. Strange’s apartment, Plaintiff noticed the

Broussard Plumbing truck was still pumping mud and water into the driveway.

Furthermore, after she slipped and fell on the mud, the man she saw working on the

back of the Broussard Plumbing truck came over to help her to her feet.

Eric Broussard, the owner of Broussard Plumbing, acknowledged his company

had a contract during that time frame to dig up sewer lines at the “Senior Section.”

Mr. Broussard also confirmed Broussard Plumbing had a white pickup truck that was

used at the site.

Although Ms. Strange did not witness Plaintiff’s fall, and was not told about

it until the following day, she did observe mud and water being pumped into the

driveway when she left her apartment to check her mail that day. Ms. Strange

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testified she saw two workers digging on the date in question, and stated she saw only

the Broussard Plumbing truck in the area.

Broussard Plumbing argued they could not have been responsible for the

accident because on that date, July 1, 2004, it rained heavily in the area and they were

unable to work that day. However, both Plaintiff and Ms. Strange testified the

weather was nice that day and there was no rain. Further, Plaintiff and Ms. Strange

both stated they saw a white Broussard Plumbing truck on the date of the accident.

Broussard Plumbing also argues Plaintiff did not prove it was responsible for

the mud and water which caused her to slip and fall. Broussard Plumbing argues it is

possible that the muddy condition next to Plaintiff’s vehicle may have been caused

by someone other than it. Plaintiff’s testimony, however, points to only Broussard

Plumbing at the scene. This testimony was never rebutted and Broussard Plumbing

offered no evidence to support its hypothesis that there could have been other

contractors on the scene that day. In brief, Broussard Plumbing mistakenly argues it

was up to Plaintiff to disprove this speculation. Plaintiff is not required to negate all

other possible causes, but only to negate all other reasonably probable explanations,

“otherwise the mere identification in the record of another possible explanation, no

matter how improbable, would defeat any claim based upon circumstantial evidence.”

Babin v. Burnside Terminal, Greater Baton Rouge Port Comm’n, 577 So.2d 90, 96

(La.App. 1 Cir. 1990), citing Carter v. City Parish Gov't of East Baton Rouge, 423

So.2d 1080 (La.1982).

In considering the evidence presented and testimony of the respective

witnesses, the trial court was required to make certain credibility determinations and

findings of fact. After a review of the record, we find the evidence presented was

sufficient to support the trial court’s conclusion that Broussard Plumbing was

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responsible for the slippery condition of the driveway which caused Plaintiff to fall

and injure herself.

II. Comparative Fault

Broussard Plumbing argues the trial court erred in failing to find that the

condition which caused Plaintiff to slip was open and obvious, and, thus established

victim fault on her part for the accident. It requests we apportion some measure of

fault to Plaintiff. We disagree.

Apportionment of fault is a finding of fact and is, therefore, reviewed pursuant

to the manifest error-clearly wrong standard of review. Broussard v. Family Dollar

Store, 05-645 (La.App. 3 Cir. 12/30/05), 918 So.2d 1148, writ denied, 06-303 (La.

4/28/06), 927 So.2d 287.

The trial court reasonably concluded the muddy conditions were caused by the

actions of Broussard Plumbing. The trial court evidently also concluded Plaintiff’s

failure to observe the mud on the ground was reasonable. We find no manifest error

in the trial court’s conclusion. Plaintiff testified when she parked her vehicle earlier,

the area was completely dry and free from mud. When she returned to the area

approximately an hour later, and walked around her car she slipped in the mud.

Plaintiff specifically testified she never would have imagined there would be mud

where just a short time earlier there had been none. The trial court’s finding that

Plaintiff was free from fault was not clearly wrong.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed against Defendant-Appellant, Broussard Plumbing and

Heating.

AFFIRMED.

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