Opinion
No. 92 CA 1226.
November 24, 1993. Rehearing Denied January 12, 1994.
APPEAL FROM SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF ST. MARY, STATE OF LOUISIANA, HONORABLE MARCUS A. BROUSSARD, JR., J.
Nicholas F. Larocca, Jr., Lippman, Mahfouz, Martin Larocca, Morgan City, for plaintiff.
Robert M. Pugh, Pugh, Lanier Riviere, Thibodaux, for defendant/appellant.
Before CARTER, LEBLANC, GONZALES, WHIPPLE and PITCHER, JJ.
This appeal arises out of a personal injury suit by plaintiff, Shirley Brinson (Brinson), against defendant, the Morgan City Housing Authority. The Housing Authority appeals the trial court judgment, pursuant to a jury verdict, in favor of plaintiff
In plaintiff's petition and throughout the record the defendant, Louisiana Housing/Morgan City, is incorrectly identified as the Morgan City Housing Authority. For consistency, we will refer to the defendant simply as the "Housing Authority".
FACTS
In late December, 1989, most of south Louisiana, including the Morgan City area, was hit with unusual, sub-freezing temperatures, snow, and ice. On Saturday, December 23, 1989, Brinson, a resident of Shannon Homes, one of five sites owned and operated by the Housing Authority, began to hear running water and observe moisture accumulating on the walls of her living room. Upon inspection, she found water dripping down the walls in the kitchen and collecting on the floor. She tried to mop up the water and used pots and pans to collect the falling water. She also attempted to telephone the Housing Authority, first by calling the weekend number and then the emergency number. Neither number was answered.
Brinson then called Ms. Mittie Byrd, a friend and one of the members of the five-member board which establishes policies and procedures for the Housing Authority. Ms. Byrd also attempted to reach the Housing Authority at both numbers, but could not get a response. Brinson continued to mop up and collect the dripping water, which began to flow more rapidly.
Although there was contradictory testimony as to the existence and publication of an "emergency" number for residents to use, Ms. Mittie Byrd, a member of the board, testified Brinson contacted her some four hours before the accident occurred. During that four hours, Brinson and Byrd repeatedly tried to contact the Housing Authority. Wendell Bogan, Executive Director for the Housing Authority, testified a private answering service intercepts and relays calls to the Housing Authority after hours and on the weekends. It was unexplained why Brinson and Byrd were unable to reach someone during the four hours.
After approximately four hours, a portion of the sheetrock ceiling in the kitchen of Brinson's apartment collapsed, striking her on the head and knocking her into the refrigerator.
On August 6, 1990, Brinson filed the instant suit for damages against the Housing Authority. In her petition, Brinson alleged that the ceiling and water pipes in her apartment were faulty and/or defective and were the cause of her injuries.
After a trial by jury, the defendant was found at fault and the jury allocated the fault between the parties at eighty-seven percent (87%) against the Housing Authority and thirteen percent (13%) against Brinson. The jury further awarded Brinson the following damages:
(a) Past and Future Medical Expenses: $38,700.00
(b) Loss of Earning Capacity: $25,000.00
(c) Past and Future Physical and Mental Injury, Pain and Suffering, Disability and Loss of Enjoyment of Life: $31,600.00
These amounts were reduced by Brinson's percentage of fault, and judgment was rendered for Brinson in the amount of $82,911.00.
The Housing Authority filed a motion for judgment notwithstanding the verdict, and alternatively, a motion for new trial, which were denied. From this adverse judgment, the Housing Authority appeals, assigning as error:
1. Whether Brinson proved by a preponderance of the evidence that the Housing Authority was liable under strict liability and/or negligence for plaintiff's injuries.
2. Whether Brinson's actions were a substantial cause of and/or contributed to the injuries she sustained.
3. Whether the affirmative defense of "Act of God" or "Force Majeure" is applicable to the facts of this case.
4. Whether the damages awarded by the jury were excessive.
5. Whether the jury verdict should be set aside based on the statutory prohibition against trial by jury in suits against the state.
ASSIGNMENT OF ERROR NOS. 1, 2, AND 3
At trial the plaintiff argued two theories of liability: strict liability of a landlord under La.C.C. art. 2695 and negligence under La.C.C. art. 2315.
Although the pleadings by the plaintiff only asserted a defect on the premises as the basis of her claim, both the evidence and testimony at trial, and the jury instructions, enlarge the pleadings to include ordinary negligence. Both parties introduced testimony relating to the alleged negligence by the Housing Authority. In addition, the judge's instructions specifically addressed both theories of recovery and the defendant did not object to these instructions.
La.C.C. art. 2695 states: The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even 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.
La.C.C. art. 2315 provides, in pertinent part: Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Under either a strict liability or general negligence theory, the plaintiff has the burden of proving: (1) the property which caused the damage was in the "custody" of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises (breach of the duty); and (3) that the defect in the property was a cause in fact of the resulting injury. See, Farr v. Montgomery Ward and Co., Inc., 430 So.2d 1141, 1143 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (1983).
Generally, a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong". Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). In Stobart v. State Through DOTD, 617 So.2d 880, 883 (La. 1993), the Supreme Court reiterated the standard of review, stating, "where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong."
We find, after a careful reading of the record before us, that there is a reasonable factual basis for the finding of negligence on the part of the Housing Authority. There was testimony that the Housing Authority knew of the forecast of extremely cold temperatures, that the Housing Authority met to discuss plans for dealing with the cold yet failed to agree on a course of action, and that residents of the apartments of Shannon Homes did not, without the aid of a special tool unavailable to them, have access to the shut-off value to turn their water off.
In addition, Brinson was unaware that there were water pipes in the ceiling of her apartment. During the years Brinson had resided in the Housing Authority apartments, her pipes had never frozen. At no time prior to this incident nor during this episode of cold weather did the Housing Authority advise Brinson that there were pipes in the ceiling or that she should take precautions against the pipes freezing and then bursting. We find no error in the jury's determination of fault on the part of the Housing Authority.
The defense of "force majeure" does not shield the defendant from liability. In Rector v. Hartford Acc. Indem. Co. of Hartford, Conn., 120 So.2d 511, 515 (La.App. 1st Cir. 1960), an "act of God" was defined as follows:
An Act of God is an unusual, extraordinary, sudden, and unexpected, manifestation of the forces of nature which man cannot resist. The fact that no human agency can resist an Act of God renders misfortune occasioned solely thereby a loss by inevitable accident which must be borne by the one upon whom it falls. On the other hand, when an Act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct of omission.
No one is liable for an injury proximately caused by an Act of God, which is an injury due directly and exclusively to natural causes, without human intervention, which could not have been prevented by the exercise of reasonable care and foresight. [footnote omitted] [emphasis in original]
While it is true the extreme weather may be considered an "act of God", the injuries to Brinson were not "occasioned solely thereby". The "negligent conduct of omission", failing to advise residents of the precautions they should take, failing to respond within a reasonable time after notice to Byrd of the problem, and failing to provide the residents with a means of turning off their water, makes the Housing Authority liable.
However, Brinson's own actions were found by the jury to have contributed to the accident. Brinson remained in her apartment for approximately four to five hours after the problem was discovered, attempting to mop up and collect the flow of water. The jury found Brinson thirteen percent at fault and the Housing Authority eighty-seven percent at fault. The Housing Authority argues this allocation is erroneous.
The percentage allocation of fault in a comparative negligence case is a question of fact. Brooks v. City of Baton Rouge, 558 So.2d 1177, 1179 (La.App. 1st Cir.), writ denied, 566 So.2d 982 (1990). As any other question of fact, it should not be disturbed in the absence of manifest error on the part of the trier of fact. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978).
Brinson's negligence did contribute to her injuries. Brinson exposed herself to an increasingly greater risk as she remained in her apartment while the water flow continued to increase. Although she was unsure of the origin of the problem and could not identify the source of the water, she knew the water flow was increasing. She had over four hours to consider the growing risks she faced by remaining in the apartment; yet, she did not leave. We find that it was clearly wrong for the trial court to allocate the fault between the Housing Authority and Brinson at eighty-seven percent and thirteen percent, respectively. Brinson must share in a greater percentage of fault.
Considering the factors listed in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), we conclude the proper allocation of fault to Brinson is twenty-five percent. Brinson was aware that she faced a danger. She knew water was entering her apartment from an unknown source. Although she could not recognize the exact nature of the risks she faced, she could perceive that, with the increasing flow of water, the risks were also increasing. In addition, she was not required to act in haste; rather, she had over four hours to comprehend the risks she faced and exit the apartment.
ASSIGNMENT OF ERROR NO. 4
In its next assignment of error, the Housing Authority argues the award of damages to Brinson is excessive. It is well-settled that before an appellate court can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion. Reck v. Stevens, 373 So.2d 498, 501 (La. 1979); Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976). The Supreme Court in the recent case Hae Woo Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), reiterated the rule of law recognizing the "vast" discretion afforded the factfinder, and the absolute necessity to find an abuse of this discretion before an appellate court may alter a general damage award.
The jury determined Brinson's damages to be $38,700.00 for past and future medical expenses, $25,000.00 for loss of earning capacity, and $31,600.00 for pain and suffering, for a total of $95,300.00. This amount was reduced by her percentage of fault, and Brinson was awarded $82,911.00.
We do not find an abuse of the vast discretion of the trial court in the award of $31,600.00 for pain and suffering, nor in the $25,000.00 for loss of earning capacity. Although these awards may be high, they are not an abuse of the factfinder's discretion.
However, the award of $38,700.00 for past and future medical is excessive and not supported by the record. Future medical expenses are a legitimate form of recovery, even though they are not susceptible of precise mathematical calculations. However, awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. Holliday v. United Services Auto. Ass'n., 569 So.2d 143, 146 (La.App. 1st Cir. 1990).
Brinson had accumulated approximately $3,700.00 in medical bills at the time of trial. Testimony at trial by Dr. Warren Williams, Brinson's treating physician, recounted Brinson's medical condition and expenses to date. Dr. Williams stated Brinson would need continued office visits for her injuries, medicine, and other non-surgical treatments; however, he did not consider Brinson a candidate for surgery.
While the record does support an award for future medical expenses, the record does not establish the cost of future treatment. We do have the medical bills that were admitted into the record, and they may be used to conclude what award for future medical expenses would be supported by the record. Holliday, 569 So.2d at 147; Davis v. Husqvarna Motor, 561 So.2d 847, 855 (La.App. 2nd Cir.), writ denied, 569 So.2d 958 (1990). We find the highest amount which reasonably could have been awarded under the circumstances for this element of damages is $13,700.00.
ASSIGNMENT OF ERROR NO. 5
The Housing Authority also argues the jury verdict should be set aside based on La.R.S. 13:5105, which states:
No suit against the state or a state agency or political subdivision shall be tried by jury.
Appellant maintains the cases of Descant v. Rapides Parish Police Jury, 409 So.2d 1226 (La. 1982), and Scott v. Clark, 583 So.2d 938, 942 (La.App. 1st Cir. 1991), which hold the statutory prohibition mandatory, control. However, these cases are distinguishable since in both, the jury order was struck before trial.
The cases of Simmons v. Beauregard Parish School Board, 315 So.2d 883, 885 (La.App. 3rd Cir.), writ denied, 320 So.2d 207 (1975), and Callahan v. Town of Bunkie, 287 So.2d 629, 636 (La.App. 3rd Cir. 1973), writ not considered, 290 So.2d 905 (1974), are controlling. In these cases, as in the instant case, the governmental defendant sought relief from an adverse judgment rendered by a jury consented to by all parties. The Third Circuit held in both cases that the failure to object to a jury trial before the trial began was a waiver of the right to object to a trial by jury. We agree. Once liability has been validly determined and assessed, it would be an injustice to allow the defendant to escape liability on this basis. As stated in Callahan, 287 So.2d at 636, this would "allow the state or other public body to have 'two bites at the apple.'"
CONCLUSION
For the above reasons, the judgment of the trial court is amended to apportion fault seventy-five percent against the Housing Authority and twenty-five percent against Brinson, and to reduce the award for past and future medical expenses to $13,700.00. Accordingly, the judgment in favor of Shirley Brinson is amended to award her the total amount of $52,725.00. The judgment of the trial court is affirmed in all other respects. The costs of this appeal total $400.79. Defendant is to pay seventy-five (75%) percent thereof, in the amount of $300.59. Brinson is to pay twenty-five (25%) percent of the appeal costs, in the amount of $100.20.
AMENDED, AND AS AMENDED, AFFIRMED.
GONZALES, J., dissents and assigns reasons.
CARTER, J., dissents and assigns additional reasons.
I respectfully dissent from the majority opinion affirming the trial court's finding that the Housing Authority was negligent in this case.
Under a duty-risk analysis, the critical issue in the instant case is whether the injury Ms. Brinson sustained was within the scope of some duty owed to her by the Housing Authority. Although the majority does not discuss the Housing Authority's responsibility to Ms. Brinson in terms of "duty," they implicitly find, and I agree, that the Housing Authority, as owner and operator of Shannon Homes, had a duty to properly maintain the premises occupied by the tenants of Shannon Homes. However, I do not find that the Housing Authority's duty encompassed the risk that record-breaking cold temperatures would cause the water in the pipes in Ms. Brinson's apartment to freeze, which in turn would then cause the pipes to burst; that the water would then thaw and begin running inside the interior of the walls and ceiling in Ms. Brinson's apartment, which in turn would cause a portion of the sheetrock ceiling to collapse and strike Ms. Brinson resulting in personal injury to her.
In determining the limitation to be placed on the Housing Authority's duty to properly maintain the Shannon Homes premises, the proper inquiry is to determine how easily the risk of injury to Ms. Brinson can be associated with the duty sought to be enforced. As stated by the Supreme Court in Roberts v. Benoit, 605 So.2d 1032, 1054 (La. 1991) (on rehearing), the ease of association inquiry, which addresses policy and foreseeability, is simply: "Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant?" Absent an ease of association between the duty breached and the damages sustained, there is a lack of legal fault. Hill v. Lundin Associates, Inc., 260 La. 542, 256 So.2d 620, 622-623 (La. 1972).
In this case, the ease of association between the Housing Authority's alleged negligence in failing to take action in light of its knowledge of the extremely cold temperatures and the risk that Ms. Brinson would be injured under the circumstances and in the manner presented by these facts is, at best, attenuated. Although the freezing of the water in the pipes and subsequent bursting of the pipes may be associated with the Housing Authority's failure to take preventive action, the chance that the ceiling in Ms. Brinson's kitchen would fall, and happen to fall at the exact moment when she was standing near enough to be struck and injured, is not an occurrence which one would associate with the duty to maintain the premises in the face of freezing weather.
Therefore, I disagree with the majority's implicit finding that the scope of the Housing Authority's duty encompassed the risk that Ms. Brinson would sustain personal injury. Absent the requisite ease of association, the Housing Authority was not at legal fault.
CARTER, Judge, dissenting.
I respectfully dissent from the majority opinion which affirms the trial court's finding that the Housing Authority was negligent. As noted by the majority, plaintiff pursued her claim against the Housing Authority under theories of negligence and strict liability. Although the majority does not state its position relative to plaintiff's strict liability claim, I believe that the record fails to support a finding of liability on the part of the Housing Authority under either theory.
In a typical negligence action against the owner of a thing which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Kent v. Gulf States Utilities Company, 418 So.2d 493, 497 (La. 1982). Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm. Kent v. Gulf States Utilities Company, 418 So.2d at 497.
On the other hand, in a strict liability action against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. However, the claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage or that the thing was defective. The resulting liability is strict in the sense that the owner's duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk (the factor which usually gives rise to a duty under negligence concepts). Under strict liability concepts, the owner's relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. Kent v. Gulf States Utilities Company, 418 So.2d at 497. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in his custody. Accordingly, the owner will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another. Kent v. Gulf States Utilities Company, 418 So.2d at 497.
Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of an unreasonable risk of harm presented by the thing) is different in strict liability cases and ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends on the particular facts and circumstances of each case. Kent v. Gulf States Utilities Company, 418 So.2d at 497.
As the majority points out, under either theory of liability, Brinson had the burden of proving that (1) the property which caused the damages was in the "custody" of the defendant, (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises, and (3) the defect in the property was a cause in fact of the resulting injury. Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141, 1143 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La. 1983).
In the instant case, critical to Brinson's action against the Housing Authority as the owner of the apartment under either theory of liability is proof that her damages were the result of a vice or defect in the thing owned or leased. See Albritton v. J.C. Penney Company, Inc., 385 So.2d 549, 552 (La.App. 3rd Cir.) writ denied, 393 So.2d 727 (La. 1980). Not every defect can serve as a basis for a claim for damages. The defect must be of such a nature as to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Wood v. Cambridge Mutual Fire Insurance Company, 486 So.2d 1129, 1132 (La.App. 2d Cir. 1986); Albritton v. J.C. Penney Company, Inc., 385 So.2d at 552. The term "defect" more appropriately denotes a condition which presents an unreasonable risk of harm and renders the premises unreasonably dangerous in normal use. This standard is consistent with the strict liability standard contained in LSA-C.C. arts. 2317, 2318, 2319, 2320, 2321, and 2322. See Entrevia v. Hood, 427 So.2d 1146 (La. 1983); Kent v. Gulf States Utilities Company, 418 So.2d at 497; Hunt v. City Stores, Inc., 387 So.2d 585, 588 (La. 1980). The reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Farr v. Montgomery Ward and Company, Inc., 430 So.2d at 1143.
In the instant case, the evidence of record fails to establish the existence of any defect in the premises. No expert or lay witness testified that the ceiling, plumbing, or any other aspect of Brinson's apartment unit was substandard or unreasonably dangerous in normal use, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing.
There was no evidence that Brinson or any other tenant had encountered any problems with water leaking into the apartment prior to December 23, 1989. Nor was there any evidence that the plumbing leaked after the December 23, 1989, incident. Moreover, there was no evidence to establish that the configuration of the plumbing in the ceiling constituted a defect.
The undisputed testimony established that the atypical and severe weather conditions caused the water pipes in the apartment ceiling to freeze. The freezing conditions caused the pipes to burst. Thereafter, when the water in the pipes began to thaw, water flowed freely from the pipes. The water from the pipes then caused the insulation in the ceiling to become wet, which in turn caused the ceiling to fall.
Quite simply, this isolated incident caused by the inclement weather did not create an unreasonable risk of injury which is necessary for a finding of liability based upon a defect in the premises under negligence or strict liability principles. See Le v. Johnstown Properties, 572 So.2d 1070, 1073 (La.App. 5th Cir. 1990); Duncan v. State Farm Fire and Casualty Company, 499 So.2d 632, 634 (La.App. 4th Cir. 1986), writ denied, 503 So.2d 21 (La. 1987); Wilson v. Wal-Mart Stores, Inc., 448 So.2d 829, 832 (La.App. 2nd Cir. 1984); Stone v. Trade-Mark Homes, Inc., 431 So.2d 61, 62 (La.App. 1st Cir. 1983); Miller v. Broussard, 430 So.2d 330, 332 (La.App. 3rd Cir.), writ denied, 434 So.2d 1093 (La. 1983). Because there was no defect in the leased premises, there can be no liability on the part of the Housing Authority.
In Le v. Johnstown Properties, 572 So.2d 1070, 1073 (La.App. 5th Cir. 1990), the court determined that it was more probable than not that, given the severe weather conditions on that day, water entered the apartment. Although the plaintiff testified that she had previously complained of water leaking into the apartment, maintenance records were void of any such evidence. There was also no evidence that water had leaked into the apartment since that time. Therefore, the jury may have concluded that the flooding was a one-time occurrence, brought about by an act of God, Hurricane Danny. Using the utility-risk balancing test, it was reasonable to conclude that, although there may have been cracks in the exterior wall, this did not create the unreasonable risk of injury necessary for a finding of strict liability. With regard to the negligence issue, the court determined that the defendants had no duty to warn plaintiffs since both plaintiffs were aware that there was water on the floor and that this created a potential hazard.
In Duncan v. State Farm Fire and Casualty Company, 499 So.2d 632, 634 (La.App. 4th Cir. 1986), writ denied, 503 So.2d 21 (La. 1987), the court determined that the trial court was correct in finding that the presence of a faucet by the front door of the apartment did not pose an unreasonable risk of harm. The expert testimony showed that regardless of the faucet's location, a careless person could have left the garden hose strung out across the walkway.
In Wilson v. Wal-Mart Stores, Inc., 448 So.2d 829, 832 (La.App. 2nd Cir. 1984), the court affirmed a trial court determination that, considering the failure to establish that the assumed leakage produced a quantity of water, which with reasonable attention, could not have been controlled or sealed off from customers even if Wal-Mart knew of the presence of the water as early as its employees indicated, there was no defect which presented an unreasonable risk of harm.
In Stone v. Trade-Mark Homes, Inc., 431 So.2d 61, 62 (La.App. 1st Cir. 1983), the court affirmed a trial court determination that a cup-shaped hole, seven inches in diameter by three inches deep, on a vacant lot, does not create an unreasonable risk of injury.
In Miller v. Broussard, 430 So.2d 330, 332 (La.App. 3rd Cir.), writ denied, 434 So.2d 1093 (La. 1983), the appellate court determined that the trial judge erred in concluding that the step down was defective or created an unreasonable risk of harm or that the defendants were negligent.
However, in its opinion, the majority points out that Brinson's pleadings only asserted a claim for liability arising from defective premises, but the pleadings were enlarged to include ordinary negligence under LSA-C.C. art. 2315.
In analyzing Brinson's claim for ordinary negligence, the standard analysis we employ is the duty-risk analysis, which consists of the following four-prong inquiry:
I. Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred?
II. Did the defendant owe a duty to the plaintiff?
III. Was the duty breached?
IV. Was the risk, and harm caused, within the scope of the duty breached?
See Roberts v. Benoit, 605 So.2d 1032, 1041 (La. 1991); Mart v. Hill, 505 So.2d 1120, 1122 (La. 1987).
A. CAUSE IN FACT.
The first inquiry is whether any causal relationship exists between the harm suffered by plaintiff and the defendant's alleged negligent conduct. Thus, if plaintiff can show that she probably would not have suffered the injuries complained of but for the defendant's conduct, she has carried her burden of proof relative to cause in fact. Chapman v. Gulf Insurance Company, 425 So.2d 277, 282 (La.App. 3rd Cir. 1982), writ denied, 432 So.2d 268 (La. 1983).
Cause in fact is generally a "but for" inquiry; if the plaintiff probably would not have sustained the injuries but for the defendant's substandard conduct, such conduct is a cause in fact. Roberts v. Benoit, 605 So.2d at 1042. In other words, the inquiry is whether the defendant contributed to the plaintiff's harm.
An alternative method for determining cause in fact, which is generally used when multiple causes are present, is the "substantial factor" test. Fowler v. Roberts, 556 So.2d 1, 5 (La. 1989). Under this test, cause in fact is found to exist when the defendant's conduct was a "substantial factor in bringing about plaintiff's harm."
Under either method, in determining cause in fact it is irrelevant whether the defendant's actions were "lawful, unlawful, intentional, unintentional, negligent, or non-negligent." Roberts v. Benoit, 605 So.2d at 1042. Rather, the cause in fact inquiry is a neutral one, free of the entanglements of policy considerations — morality, culpability, or responsibility — involved in the duty-risk analysis.
Applying these principles to the instant case, I find the cause in fact determination somewhat difficult. The majority finds that the Housing Authority's failure to advise residents of precautions to take, failure to respond within a reasonable time, and failure to provide the residents with a means of turning off their water was the conduct giving rise to liability. I do not agree that these actions constitute negligence or that the Housing Authority had a duty to perform any of these alleged omissions; however, given the neutrality of the cause in fact inquiry, I acknowledge that the actions by the Housing Authority were a cause in fact of Brinson's injury.
B. DUTY.
Whether a defendant owes a plaintiff a legal duty is a question of law. Phillips v. K-Mart Corporation, 588 So.2d 142, 144 (La.App. 3rd Cir. 1991); Annis v. Shapiro, 517 So.2d 1237, 1238 (La.App. 4th Cir. 1987). Simply put, the inquiry is whether the plaintiff has any law — statutory or jurisprudential — to support his claim. Roberts v. Benoit, 605 So.2d at 1043.
Although the majority opinion does not specifically address any duty on the part of the Housing Authority, they imply that the Housing Authority had a duty to advise Brinson of the weather forecast and the precautions to take, to make affirmative plans for the cold temperatures because they met to discuss some, to provide the tenants with a means to turn off the water in their units, and to respond within a reasonable time after receipt of notice. I do not agree that the Housing Authority owed these duties to any of its tenants. However, as owner and operator of the apartment buildings in which Brinson resided, the Housing Authority had a duty to properly maintain the apartments.
C. BREACH OF THE DUTY.
Whether a defendant has breached a duty owed is a question of fact. Phillips v. K-Mart Corporation, 588 So.2d at 144; Annis v. Shapiro, 517 So.2d at 1238. After carefully reviewing the duty of the Housing Authority to maintain the apartments, it is evident that the primary purpose for imposing the duty to maintain the apartments is to ensure that the apartments are safe for human habitation. By all accounts, the Housing Authority did so. Therefore, I do not find that the Housing Authority breach the duty it owed to Brinson. There was no condition inherent in the apartment which the Housing Authority had the duty to correct and failed to correct. As such, it did not breach its duty Brinson.
Even assuming for the sake of argument that the Housing Authority was burdened with the duties outlined by the majority (to advise residents of the weather and the precautions to take, to respond within a reasonable time, and to provide residents with a means to turn their water off), I do not find that the record supports that the Housing Authority breached these duties.
With regard to the alleged duty to advise residents of the weather and the precautions to take, the evidence presented at the trial showed that any information officials at the Housing Authority had regarding the weather was acquired from publicized weather reports. The Housing Authority had no superior knowledge as to the severity of the weather conditions. The only information which the Housing Authority could have provided tenants would have been a reiteration of the weather reports from the radio and television broadcasts. Moreover, not all of the tenants failed to take precautions to address the cold conditions. Even though the Housing Authority did not advise the tenants as to what precautions to take, numerous tenants permitted their water to drip overnight. The plumbing of those tenants who had acted in this manner did not freeze. The record simply does not support a finding that the Housing Authority breached any duty to advise its tenants of the weather or of what precautions to take in the event of freezing temperatures.
Further, with regard to the alleged duty to respond within a reasonable time, the evidence presented at the trial showed that, at most, five (5) hours elapsed between the time that Brinson observed the first few drops of "sweat" accumulating on her walls (9:30 a.m.) and the time that the ceiling collapsed (2:30 p.m.). Brinson was not the only Housing Authority tenant to experience problems caused by the freezing temperatures. Approximately twenty-one units in two different complexes operated by the Housing Authority experienced problems on December 23, 1989. The icy conditions also made travel to the sites difficult.
However, upon receipt of notice of the problems from the Morgan City Police, the Housing Authority director met with the architect to formulate a plan to address the problems. The two men also conducted a telephone conference with the mayor. The Housing Authority director also attempted to contact the maintenance supervisor, but the maintenance crews were already working on the problems at the other Housing Authority complex. Thereafter, the Housing Authority director attempted to make accommodations for housing and meals for the residents for the weekend, contacting the Red Cross, local motels, and area restaurants. The record simply does not support a finding that the Housing Authority breached any duty to respond within a reasonable time. House v. Thompson, 452 So.2d 1195, 1201 (La.App. 1st Cir.), writ denied, 457 So.2d 15 (La. 1984);
In House v. Thompson, 452 So.2d 1195, 1201 (La.App. 1st Cir.), writ denied, 457 So.2d 15 (La. 1984), there was ample evidence to support that defendant received notice of the defect but failed to repair it within a reasonable time. Plaintiff first notified defendant through his wife on April 5th. Two days later a repairman arrived but departed without fixing the unit, telling plaintiff that he would have to get specific authorization from the defendant. The repairman's employer testified that his office contacted the defendant that day to request authorization but defendant declined to engage their services. Defendant stated he was not informed until several days later that the unit had not been repaired. There was also a dispute over when plaintiff informed defendant of water leaking and whether defendant was ever told that water was leaking onto the stairs. Defendant admitted he knew of leaking water on the 13th. The unit was not finally repaired until the 21st or 22nd, and expert testimony indicated the repair could have been accomplished within several hours.
With regard to the alleged duty to provide residents with a means to turn their water off, the evidence presented at the trial showed that past problems caused the Housing Authority to limit access to the valves supplying water to each tenant. Water in vacant apartments had been turned on, causing problems to adjacent tenants. Area adolescents turned off water to tenant apartments as pranks, leaving tenants without water when there was no legitimate reason to be without water. The record shows that justifiable reasons for limiting tenant access to the water valves existed and, even though no tenant had access to the water valves, only a few tenants experienced problems with freezing plumbing. The record does not support a finding that the Housing Authority breached any duty to Brinson because of the lack of access to the water valves.
D. WAS THE RISK WITHIN THE SCOPE OF THE DUTY BREACHED?
This inquiry questions whether the injury the plaintiff sustained was within the contemplation of the duty. In other words, is the risk which caused the injury within the ambit of protection of the duty? There is no rule for determining the scope of the duty; it is a question of policy.
In Smith v. Travelers Insurance Company, 430 So.2d 55, 58 (La. 1983), the Louisiana Supreme Court noted that, in this policymaking decision:
All rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.
See also Dornak v. Lafayette General Hospital, 399 So.2d 168, 170 (La. 1981).
In making this decision, we must determine how easily the risk of injury to the plaintiff can be associated with the duty sought to be enforced. Although ease of association encompasses the idea of foreseeability, it is not based on foreseeability alone. Absent an ease of association between the duty breached and the damages sustained, legal fault is lacking.
There is no ease of association between the Housing Authority's duty to maintain the apartments and the risk of injury to this particular plaintiff under these particular circumstances. The Housing Authority's duty to maintain the apartments was designed to protect some people under some circumstances against some risks. However, the Housing Authority does not have an obligation to protect every tenant against every risk that may befall him, merely because it is shown that it has a duty. The duty of the Housing Authority to maintain the apartments did not encompass the risk that south Louisiana would be afflicted with an aberrant snow storm, which would cause the pipes in apartment ceilings to burst, that these pipes would then thaw, causing water to flow into the ceilings and walls of Brinson's apartment, that the insulation would become saturated, that the ceiling would collapse under the weight of the damp insulation and water, and that Brinson would be standing beneath the ceiling and be struck by the falling material, resulting in her personal injuries. Clearly, the risk which caused Brinson's injury was not within the ambit of the protection of the duty.
CONCLUSION
For these reasons, I believe that the judgment of the trial court imposing liability on the Housing Authority was in error and should have been reversed.