Opinion
No. 41,171-CA.
August 4, 2006. Rehearing Denied November 27, 2006. Opinion Dissenting From Denial of Rehearing November 27, 2006.
Appeal from the First Judicial District Court, Parish of Caddo, Trial Court No. 474382, Roy L. Brun, J.
Davis Law Office by: S.P. Davis, Sr., for Appellant.
Barham Warner by: Henry N. Bellamy, Shreveport, for Appellee.
Before STEWART, MOORE and LOLLEY, JJ.
The plaintiffs, Dronzy and Charles Linnear, sued for damages after Mrs. Linnear fell in her yard in an area where the defendant, CenterPoint Energy Arkla ("CenterPoint"), had recently placed a new gas line. The Linnears alleged that CenterPoint's failure to restore the property to its pre-repair condition caused the accident. A jury found no fault on the part of CenterPoint, and the trial court denied motions for a new trial and a judgment notwithstanding the verdict ("JNOV"). The Linnears appealed. Finding legal error in the trial court's failure to include an instruction on res ipsa loquitur in the charge to the jury and finding liability established by application of that doctrine, we reverse the trial court's judgment, award damages, and render judgment in favor of appellants.
FACTS
On July 8, 2002, the Linnears noticed a gas leak at their home. CenterPoint dispatched a crew to investigate. The crew located the leak, turned off the gas, and placed a temporary line to maintain service at the residence. CenterPoint's crew returned to the Linnears' home a couple of days later to install a new gas line measuring 80 to 90 feet in length and running from the meter in the back of the Linnears' house to the street in the front of the house. The crew dug a trench measuring 4 inches wide and 18 inches deep for the new gas line. Part of the trench ran parallel to the Linnears' driveway, with about two or three feet of distance between it and the trench. The Linnears used the area alongside their driveway as a path for walking to and from their vehicles.
The Linnears incorrectly named the defendant as CenterPoint Energy Entex/Reliant Energy. The correct name is CenterPoint Energy Arkla, a division of CenterPoint Energy Resources Corp. The defendant is referred to as CenterPoint in this opinion.
After digging the trench and placing the line in it, the crew backfilled the trench with dirt. According to testimony, the crew added up to 4 inches of dirt at a time and packed it down by stepping on it. Once the trench was full, they used a 30-pound steel tamper to further pack the ground. A backhoe was also driven over some areas. The crew leader, Herbert Randy Burkins, tested the compaction of the dirt by inserting a screwdriver into the ground. Burkins also did a visual inspection of the area. The crew did not replace sod or asphalt in areas where the trench had been dug.
The accident at issue occurred on July 16, 2002. It had rained sometime that night or during the early morning hours prior to Mr. Linnear leaving for work at 6:30 a.m. Around mid-morning, Mrs. Linnear prepared to run an errand to her church with her granddaughter. Mrs. Linnear walked to her vehicle to place some items in the backseat on the driver's side. As she stepped back around the open rear door to return to her porch to get her granddaughter, Mrs. Linnear's right foot sank into the ground, and she fell forward. She felt a sharp pain in her lower back. She used the door handle on her vehicle to pull herself up and was able to continue on her errand. She called Mr. Linnear to tell him about the accident. He returned home around noon to find Mrs. Linnear in pain. He photographed the area of the fall where Mrs. Linnear claimed that her right leg sunk into the ground up to her knee.
Mrs. Linnear sought treatment for her injury and was diagnosed as having a herniated disk. She underwent surgery in December 2003. However, the injury continues to cause her pain for which she remains in treatment.
The Linnears sued CenterPoint for damages alleging that the crew's failure to restore their property to its pre-repair condition by properly backfilling the trench and replacing sod caused Mrs. Linnear's accident. According to their trial testimony, the Linnears had lived at their residence for 23 years with no accidents occurring in their yard. They also testified that after Mrs. Linnear's accident, CenterPoint sent the crew to restore their property by replacing the sod and asphalt and spreading dirt on the ground. No further accidents happened after the restoration of their property.
The record shows that the trial court did not include an instruction on res ipsa loquitur as requested by the Linnears. Their counsel objected and proffered the rejected instruction into the record. The jury rejected the Linnears' claim for damages by a vote of 10 to 2, finding no liability on the part of CenterPoint.
The Linnears filed motions for a new trial and JNOV. They argued that the verdict was clearly contrary to the law and the evidence. They specifically contended that the jury disregarded their undisputed evidence and improperly credited the testimony of the crew members, whose testimony contained inconsistencies and should have been considered unreliable. The trial court denied both motions. In its oral reasons, the trial court found that the photographic evidence belied Mrs. Linnear's claim that she stepped into a sinkhole up to her knee. The trial court found that the photograph depicted only a footprint in a muddy area and that the evidence showed only that Mrs. Linnear slipped in the mud on a rainy day. The trial court concluded there was no proof of how Center Point was responsible for the accident.
DISCUSSION
In this appeal, the Linnears argue that the jury was manifestly erroneous in finding no fault on the part of CenterPoint and that the trial court erred in not granting either the JNOV or a new trial. However, our review of the record convinces us that legal error impeded the fact-finding process as will be explained.
The manifest error standard applicable on appellate review provides that a jury's verdict cannot be reversed unless the court, after reviewing the record in its entirety, finds there to be no reasonable factual basis for the jury's findings and determines them to be manifestly erroneous or clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La. 1993). However, where legal error interdicts the fact-finding process, the manifest error standard no longer applies. Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742. In such instances, if the record is complete, the appellate court is charged to make its own independent de novo review of the record. Id.
Although the Linnears did not assign as error the failure of the trial court to instruct the jury on res ipsa loquitur, this court is charged to render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. The article empowers us to do justice on the record regardless of whether a particular legal point or theory was made, argued, or passed upon by the lower court. Rachal v. Rachal, 35,074 (La.App. 2d Cir.10/12/01), 795 So.2d 1286.
The Linnears' counsel had requested inclusion of the following jury instruction by the trial court:
Res ipsa loquitur is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not caused the injury. Spott v. Otis Elevator Co., 601 So.2d 1355 (La. 1992).
The trial court did not include the instruction. Counsel objected and tendered the instruction as a proffer in the record, thereby preserving the issue for review.
Adequate jury instructions are those which fairly and reasonably address the issues and provide correct principles of law for the jury to apply to the issues. Smart v. Kansas City Southern R.R., 36,-404 (La.App. 2d Cir.11/6/02), 830 So.2d 581; Kennedy v. Thomas, 34,530 (La.App. 2d Cir.4/4/01), 784 So.2d 692. The trial court is not required to give the precise instruction submitted by a party. The court need only give instructions that properly reflect the applicable law and adequately convey the issues. Smart, supra; Kennedy, supra. The sufficiency of the jury charge is determined by reading all the charges together as a whole, human v. Highlands Ins. Co., 25,445 (La.App. 2d Cir.2/23/94), 632 So.2d 910. Instructions that are misleading or confusing, as well as those that omit an essential legal principle, do not adequately set forth the law and may constitute reversible error. Smart, supra; Kennedy, supra.
Before overturning a jury verdict on the basis of an erroneous jury instruction, the appellate court must determine whether the jury was misled to such an extent as to have been prevented from doing justice. Smart, supra. The reviewing court must consider the gravity or degree of the error, the instructions as a whole, and the circumstances of the case in determining that a de novo review is warranted. Kennedy, supra. Appellate courts exercise great restraint in overturning a jury verdict on the basis of an erroneous instruction. Id. We may not ignore the manifest error standard unless the instructions were so incorrect or inadequate as to have precluded the jury from reaching a verdict based on the law and the facts. Id.
In its instructions to the jury, the trial court explained that the plaintiffs have the burden of proving their case by a preponderance of the evidence and instructed the jury to deliberate without being swayed by sympathy, prejudice, or passion. The trial court referred to La. C.C. arts 2315 and 2316 and defined negligence as "conduct which falls below the standard established by law for the protection of others and one's self against an unreasonable risk of harm." The court explained that liability is based on fault as determined from the facts and circumstances of the case. The court then went on to address the law applicable to proving damages. Notably, the court did not address or explain the differences between direct and circumstantial evidence.
In a negligence action, the plaintiff typically meets his burden of proving his case by a preponderance of the evidence when the direct and circumstantial evidence, taken together, establishes the fact to be proved is more probable than not. Wood v. Spillers, 37,087 (La.App. 2d Cir.4/9/03), 843 So.2d 555, writ denied, 2003-1473 (La. 9/26/03), 854 So.2d 366. A fact established by direct evidence is one which has been testified to by witnesses as having come under the cognizance of their senses. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La. 1989). Circumstantial evidence is evidence of one fact or a set of facts from which evidence of the fact to be determined may reasonably be inferred. Cangelosi supra.
The doctrine of res ipsa loquitur applies in cases where the plaintiff uses circumstantial evidence alone to prove negligence by the defendant. Cangelosi, supra. The doctrine, meaning "the thing speaks for itself," permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury. Id. As explained in Cangelosi supra, the doctrine applies when three criteria are met. First, the injury is the kind which ordinarily does not occur in the absence of negligence. While the plaintiff does not have to eliminate all other possible causes, he must present evidence indicating at least a probability that the accident would not have occurred absent negligence. Second, the evidence must sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person. The circumstances must warrant an inference of negligence. Third, the negligence of the defendant must fall within the scope of his duty to the plaintiff. This may, but not necessarily, be proved in instances where the defendant had exclusive control of the thing that caused the injury.
In deciding whether to instruct the jury on res ipsa loquitur, the trial court employs a standard similar to that for directed verdicts. Id. The trial court determines whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict. If reasonable minds could reach different conclusions as to whether the defendant's negligence caused the plaintiffs injury, then the trial court must instruct the jury on res ipsa loquitur. Cangelosi, supra; Smith v. Bundrick, 27,552 (La.App. 2d Cir.11/3/95), 663 So.2d 554. The jury then decides whether to infer negligence on the part of the defendant from the circumstances of the case.
From our review of the record, we find that the trial court erred in not instructing the jury on res ipsa loquitur at the close of the case. The trial testimony included Mrs. Linnear's account of how the accident happened, her assertion that she fell in a sinkhole, and testimony that no such accidents had ever happened in their yard before CenterPoint dug the trench and that none have happened since CenterPoint returned to restore the property to its pre-repair condition. The trial testimony also included the description of how CenterPoint's crew refilled the trench, compacted the soil, and left the yard in good condition. The testimony was such that reasonable minds could reach different conclusions as to whether Center-Point's negligence caused Mrs. Linnear's injury. The trial court recognized as much in denying CenterPoint's motion for involuntary dismissal at the close of the plaintiffs' case after all witnesses had testified, except for Salter, who was called back on direct for CenterPoint. Moreover, we find that the failure to instruct the jury on res ipsa loquitur precluded the jury from rendering a verdict based on the law and the facts. This case turned on circumstantial evidence, but the jury was not even instructed on that aspect of the law. The jury should have been given instruction on circumstantial evidence and res ipsa loquitur to be allowed to evaluate the evidence and determine whether the circumstances warranted the inference that the defendant's negligence caused the plaintiffs injury. Thus, we find that the res ipsa loquitur instruction should have been included by the trial court. Having recognized the error of law, we are charged to conduct a de novo review of this complete record and render judgment.
De Novo Review
To determine whether liability exists under the particular facts of a case, we employ the duty-risk analysis. The plaintiff must prove that the defendant owed a duty of care to the plaintiff, that the defendant breached the duty, that the defendant's conduct was a cause-in-fact of the harm to the plaintiff, and that the risk of harm was within the scope of protection afforded by the duty breached by the defendant. Duncan v. Kansas City Southern Railway Co., 00-0066 (La. 10/30/00), 773 So.2d 670, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). All inquiries must be affirmatively answered for the plaintiff to establish negligence and recover damages. Id. The record shows that the plaintiffs met their burden of proving negligence and damages.
The trial testimony included Mrs. Linnear's account of how the accident occurred. She recalled that the trenched area was just dirt after CenterPoint completed its work, but she thought it looked safe to walk in the area. She testified that when she stepped back from her vehicle to walk around the open door, she stepped in the area of the trench and sank straight down into the ground in a "sinkhole" up to her knee. She fell forward, injuring her lower back and dirtying her clothing. Through her testimony, she conveyed that though it had rained in the early morning when her husband left for work, the ground was wet but not really muddy.
Mr. Linnear testified that there had been grass in the area where CenterPoint dug the trench alongside the driveway and that they used the area as a walk path to and from their vehicles. On the morning of the accident, there were "signs of rain" when he left for work, and he recalled that it had rained during the night. He learned of his wife's accident when she called him during mid-morning. He returned home around lunchtime and brought a camera to photograph the area where she fell. Both he and his wife testified that it rained more after the accident. Mr. Linnear testified that he had not noticed any holes in the ground prior to the accident. The area had appeared stable with the ground being neither loose nor soft. He testified that he had likely walked in the area on his way to his vehicle that morning. He denied that the area where Mrs. Linnear fell had been muddy, even though he admitted that her shoes were muddy when he saw her later that day.
Herbert Burkins and Thomas Salter worked on the CenterPoint crew and testified at trial about the work done at the Linnears' residence. There were some differences in their testimony as to whether they worked in the morning or afternoon, whether the gas meter was moved, and whether the trench was to the left or right of a flower bed. They also differed as to the number and location of the gas leaks found. However, these issues are not pertinent to a determination of whether any negligence occurred.
Burkins and Salter gave similar testimony as to the method used to fill and compact the trench. Burkins, the crew leader, testified that the new gas line was placed about 4 inches from the old one. The trench, which was 18 inches deep, was back-filled by adding up to 4 inches of dirt at a time and using body weight to walk down each addition until the trench was filled. The crew then took turns using a 30-pound steel tamper to tamp down and harden the ground. He also recalled running a backhoe over some areas to further harden the ground. Burkins did a visual check of the area and inserted a screwdriver into the ground to check the compaction. He testified that they did not add extra dirt or replace sod.
Salter gave similar testimony to that of Burkins as to the method used to refill and compact the trench. He recalled that most of the area trenched had grass, except for the area alongside the driveway. He testified that the trench was sturdy and uniform. He noticed no signs of sink-holes. Salter said they put 2 to 3 inches of dirt at a time in the trench and walked it down, repeating until the trench was full. They used the steel tamper to tamp both crosswise and lengthwise, and they ran machinery over some areas to further harden the ground. Even though they did not replace any sod, he thought the yard was in good condition when they completed the job. Salter testified that he saw no holes and that there was no need for additional dirt in the yard. Salter also testified that he had worked hundreds of such jobs and that all were done the same way. Salter returned for the post-accident "dress-up" of the Linnears' property. He stated that they only distributed about half of a wheel-barrow of dirt throughout the area and placed sod as requested. He did not recall filling any holes or footprints in the ground. He stated that dirt was raked in the area of the accident to make it even with the driveway.
Photographs taken by Mr. Linnear after the accident were introduced into evidence. The photographs depict a sunken footprint in the ground. While the photographs show what is clearly more than a mere surface impression, they do not depict the exact depth to which Mrs. Linnear's foot sank in the ground. A waterhose is shown in some of the photographs, but there was no testimony as to when or if it had been used prior to the accident.
The accident occurred on July 16, 2002, only days from when CenterPoint dug an 18-inch deep trench in the Linnears' yard for a new gas line. CenterPoint crew members, Burkins and Salter, testified as to how they refilled the trench, compacted the soil, and believed the yard to be in good shape. However, the Linnears testified that no such accidents had ever occurred in their yard before the work, and they testified that no more occurred after CenterPoint returned post-accident to add dirt and sod to the trenched area. While the fact that an accident occurred does not alone give rise to a presumption of the defendant's negligence, the coincidence of Mrs. Linnear's foot sinking in the very area that had been dug and refilled by CenterPoint just days before cannot be ignored. Even though there was some evidence of rainfall prior to the accident, both Linnears testified that the rain had fallen in the early morning hours. The accident happened sometime around mid-morning, some hours after the Linnears claimed it had rained. The Linnears also both testified that it had rained more after the accident, and this accounts for the muddy appearance of the area in the photographs taken after Mr. Linnear returned from work at lunchtime. The Linnears' testimony was uncontradicted.
While no evidence directly establishes that CenterPoint's crew was negligent, the facts and circumstances of this case are such that negligence of the defendant may readily be inferred under the doctrine of res ipsa loquitur. Mrs. Linnear seriously injured her lower back when her foot sank into the ground in an area of her yard where a trench had recently been dug and refilled by CenterPoint. There were no holes in the ground prior to the accident, and one's foot does not normally sink deeply into the ground even at times of rainfall. The fact that the Linnears had used the area where the accident occurred as a walkpath over the years without accident suggests that this particular incident cannot be attributed to a mere slip and fall in the mud as suggested by the trial court in denying the motions for JNOV and new trial. There was no evidence that Mrs. Linnear did anything to cause herself to fall, nor was there any other likely cause as the evidence was that it was not raining at the time of the accident and had not rained since the early morning. Finally, CenterPoint had a duty to refill the trench and compact the ground so as to harden the area for protection of the new gas line and for the safe use of the area by the homeowners. The duty would require CenterPoint to insure that the refilled trench would remain solid and compacted in the normal event of rainfall. Under the circumstances of this case, it is obvious that CenterPoint breached its duty and that the breach caused injury to Mrs. Linnear when she stepped back and sank down into the area that had been refilled by CenterPoint.
Because the evidence in this case is sufficient to conclude more probably than not that CenterPoint was negligent and caused Mrs. Linnear's injury, we must reverse the jury verdict and render judgment in favor of the Linnears. Having a complete record before us for review, we will now assess damages.
Damages
The Linnears seek both general and special damages resulting from the injury to Mrs. Linnear caused by CenterPoint's negligence. General damages are those which cannot be fixed with pecuniary exactitude. Duncan v. Kansas City Southern Railway Co., supra. Special damages are those which have a ready market value and can be determined with relative certainty, such as medical expenses. Moody v. Blanchard Place Apartments, 34,587 (La.App. 2d Cir.6/20/01), 793 So.2d 281, writ denied, 01-2582 (La. 12/14/01), 804 So.2d 647. In making an initial award of damages, we set the award in an amount determined to be just compensation for the damages shown by the record. Maranto v. Goodyear Tire Rubber Co., 25,114 (La.App. 2d Cir.5/10/95), 661 So.2d 503.
Mrs. Linnear seeks general damages for past and future pain and suffering, loss of enjoyment of life, and mental anguish. She also seeks damages for loss of earning capacity and for past and future medical expenses. Additionally, Mr. Linnear seeks loss of consortium damages, with a specific claim for loss of household services.
Mrs. Linnear testified that she felt a sharp pain in her back when her leg went down into the ground. She called her general care physician, Dr. May, that day but was not able to get an appointment until the following Tuesday. Despite conservative treatment, Mrs. Linnear continued to have worsening back pain. Dr. May ordered an MRI and referred her to Dr. Marcos Ramos, a neurosurgeon, in September 2002. She was diagnosed with a herniated disc at the right L5-S1. Dr. Ramos believed that it was caused by the accident as described by Mrs. Linnear. He informed her that she had two options — either live in pain or undergo surgery. Mrs. Linnear did opt for surgery, which took place on December 5, 2003. In the interim, Mrs. Linnear contended with cervical cancer and other health problems unrelated to the accident. Dr. Ramos performed a total lumbar laminectomy and a microdiscectomy to remove the damaged disc which had been pinching a nerve.
Following surgery, Mrs. Linnear had some improvement, but by February 2004, she began to have some regression. Over the months, she continued to have pain in her lower back and hip radiating down her right leg. Dr. Ramos treated her with medications, such as Bextra for a limited time due to a pre-existing heart condition and Motrin. He finally referred her to a pain management specialist to address the chronic pain. An MRI reviewed by Dr. Ramos in May 2005, showed a bulging disc at L5-S1, which Dr. Ramos described as scar tissue resulting from routine postoperative changes. Dr. Ramos explained that the bulging disc was likely contributing to Mrs. Linnear's pain, but he did not recommend any treatment.
At trial, Dr. Ramos testified that Mrs. Linnear had reached maximum medical improvement, but he noted that other health conditions also prevent her from being more active than she is. He testified that she would likely need to be seen every ten to twelve weeks for life. The charge for an office visit was stated to be $80. The record shows total charges for Dr. Ramos' past medical services to be $7,447.
In December 2004, Mrs. Linnear began treatment with Dr. Sudar Tanga, an anesthesiologist specializing in pain management. According to Dr. Tanga, Mrs. Linnear was experiencing persistent lower back pain. Over the course of his treatment, he tried various long-acting pain medications, including Methadone, OxyContin, MSContin, Kadian, and a Duragesic patch. Mrs. Linnear was unable to tolerate any of the drugs due to side effects. Dr. Tanga also recommended weight loss as the most important means of helping lower back pain and becoming more active. Dr. Tanga finally recommended an intrathecal trial to determine the proper medication for internal administration through an implanted pump. He explained that the pump administers small drops of medication every twenty-four hours with the benefits of reducing the adverse side effects of the medication by three hundred percent and being less expensive over time than taking oral medications. His past successes using the pump with patients led him to believe that he could find a medication appropriate for Mrs. Linnear. However, Mrs. Linnear was not in favor of having a pump implanted and having no control over the medication being administered. She consulted with Dr. Ramos, who suggested that she get a second opinion and referred her to another pain management specialist. An appointment was pending at the time of trial. The record established the charges for Dr. Tanga's services to be $3,310.
Mrs. Linnear, who was 51 at the time of the accident, testified that she was in good health prior to the accident. She was exercising at a gym three times a week. She was an active homemaker who had not worked outside the home since 1993, when she quit her job as a nurse's aide. She was also active in her church, where she guided two praise dance groups of children and teenagers. She enjoyed visiting friends and family, traveling with her husband, and taking care of her grandchildren. She and her husband shared a close relationship with frequent physical intimacy, but she reports that she can no longer satisfy all his needs. With the onset of chronic pain, she is no longer able to do the housework, work with her church dance groups, travel, or socialize as she used to with family and friends. She cannot sit for long periods of time. She admitted that some days are good, but her condition changes day to day. The chronic pain has caused her stress and periods of depression.
There is no mechanical rule for determining general damages; rather, the facts and circumstances of each case must be considered. Maranto v. Goodyear Tire Rubber Co., supra. Severity and duration are factors to be considered in determining an award for pain and suffering. Id. An award for loss of enjoyment of life requires showing that the plaintiff's lifestyle was detrimentally altered or that the plaintiff had to give up activities because of the injury. Day v. Ouachita Parish School Board, 35,831 (La.App. 2d Cir.8/18/02), 823 So.2d 1039, writ denied, 02-2532 (La. 12/19/02), 833 So.2d 343.
The record establishes that Mrs. Linnear has suffered back pain since the accident occurred and that she has continued to suffer pain even after having surgery. The pain will have to be managed over her lifetime with medication to ease her discomfort. An orthopaedic surgeon, Dr. Robert Holladay, has assessed Mrs. Linnear with a twelve percent whole body impairment. The chronic pain has adversely impacted her life by affecting her ability to take care of her home. She can no longer socialize with family and friends or actively participate in her church activities as she did before the accident. The injury has also caused the loss of some physical intimacy with her husband. Medical evidence shows that Mrs. Linnear suffers from other health ailments, particularly related to her heart, that may impact her activity level. These are not related to the accident. Considering all of the facts of this case relative to Mrs. Linnear's claim for general damages for pain and suffering, mental anguish, and loss of enjoyment of life, we award total damages of $150,000.
The record establishes that Mrs. Linnear incurred the following medical expenses related to the treatment of her lower back injury, including the surgery performed by Dr. Ramos:
Dr. Marcos Ramos $ 7,447
Willis Knighton Medical Center $15,975.74
Shreveport Anesthesia Services $ 1,300
Dr. Sudar Tanga $ 3,310
Thus, we award $28,032.74 in past medical expenses.
While the cost or extent of future medical treatment cannot be precisely measured, the plaintiff must still establish future medical expenses with some degree of certainty through medical testimony that such expenses are indicated and their probable cost. Sepulvado v. Turner, 37,912 (La.App. 2d Cir. 12/10/03), 862 So.2d 457. The record establishes that Mrs. Linnear will incur future medical expenses for treatment of her back injury and chronic pain. Dr. Ramos testified that she will likely be followed by his office on a basis of ten to twelve times a year at a cost of $80 per visit. Dr. Melvin Harju, accepted by the court as an expert economist, determined the present value of such treatment for Mrs. Linnear's expected life span to be $9,481. A prescription profile introduced into evidence shows that Dr. Ramos prescribes Motrin and Skelaxin for Mrs. Linnear. Dr. Harju calculated the present value of these medications over Mrs. Linnear's lifetime to be $4,496 and $5,930 respectively. However, while the record, particularly the testimony of Dr. Ramos, indicates that Mrs. Linnear will likely need pain medications for life, it-does not establish what those medications will be. At the time of trial, Mrs. Linnear was planning to consult with another pain management specialist, and the option of the pain pump was still available. Keeping in mind that an award of future medical expenses cannot be made with exactness, we believe that the record supports an award of $20,000 to compensate Mrs. Linnear for the future costs of treatment related to her back injury and chronic pain.
Much testimony was presented in an effort to prove entitlement to damages for loss of earning capacity. However, we find that the record does not support such an award. At the time of the accident, Mrs. Linnear was a homemaker. She voluntarily left the workforce in 1993. She explained that she was unhappy with her job and that her husband told her she could stay home since their children were grown. At trial, she expressed no real interest in returning to work. She made vague references to selling Mary Kay cosmetics or making candy with a friend as possible jobs of interest. Nothing in the record establishes that Mrs. Linnear's limitations from her injury would prevent her from pursuing either activity should she decide to do so. For these reasons, we reject Mrs. Linnear's claim for damages for loss of earning capacity.
Lastly, we turn to the claim for loss of consortium by Mr. Linnear. Damages for loss of consortium are based on loss of love and affection, loss of society and companionship, impairment of sexual relations, loss of performance of material services, loss of financial support, loss of aid and assistance, and loss of fidelity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La.App. 2d Cir.12/19/01), 803 So.2d 1039, writ denied, 02-0493 (La. 4/26/02), 814 So.2d 558; Maranto, supra. Considering these factors, the record does not show a loss of financial support as Mrs. Linnear was not working at the time of the accident nor in the years prior to it. The record does show the Linnears to have a close and loving relationship that has with-stood the challenges of Mrs. Linnear's injury and chronic pain. However, both spouses testified that their sexual relationship has been greatly curtailed by Mrs. Linnear's injury. Both also testified that Mrs. Linnear is no longer as active. The chronic pain prevents her from socializing and traveling as before the accident and impacts the society and companionship shared with her husband. She can no longer perform household chores. Instead, Mr. Linnear spends four to five hours each week on household work that his wife cannot do. Mr. Linnear testified that it is emotionally taxing to see his wife in pain all of the time. The record also shows that Mr. Linnear was his wife's primary caretaker after her surgery. He took a leave of absence from work of twenty days to care for his wife in her recovery.
We note that Mr. Linnear's claim for loss of consortium also included a specific request for loss of household services. Our law allows recovery of reasonable housekeeping expenses necessitated by the incapacity of an injured spouse. Brandao, supra; Maranto, supra. An award for loss of household services was found appropriate in Maranto, supra, where Mrs. Maranto's injury prevented her from providing household services, so her children and husband performed the household and yard work. The trial court's award was reduced on appeal, because Mrs. Maranto was able to do some of the work. In this matter, the record establishes that Mr. Linnear performs four to five hours of household work a week that Mrs. Linnear can no longer do. Dr. Harju, the economist, made a number of calculations based on an hourly wage of $6.52 for maid or housekeeping services. However, an award for such services must take into account that Mrs. Linnear's ability to function may vary from day to day and that health factors other than her back injury may play a future part in how much assistance is needed with household chores.
We find that Mrs. Linnear's injury has adversely impacted both the spousal relationship and their marital lifestyle. Moreover, it has burdened Mr. Linnear with household chores previously seen to by his wife. The duration of these adverse consequences appears indefinite due to the chronic nature of Mrs. Linnear's injury and pain. Considering all the factors mentioned above, we award total damages of $75,000 for loss of consortium and loss of household services in this matter.
CONCLUSION
In accordance with the aforementioned reasons, we hereby reverse the trial court's judgment, render judgment in favor of the plaintiffs, and award damages as follows:
General Damages $150,000
Past Medical Expenses $ 28,032.74
Future Medical Expenses $ 20,000
Loss of Consortium/Household $ 75,000
Costs of this appeal are assessed against the defendant.
REVERSED AND RENDERED.
APPLICATION FOR REHEARING
Before STEWART, MOORE, LOLLEY, GALLAGHER, ad hoc, and GONZALES, ad hoc, JJ.
Rehearing denied.
GALLAGHER, J., ad hoc, and GONZALES, J., ad hoc, dissent from the denial of application for rehearing and assign reasons.
DISSENT FROM THE DENIAL OF REHEARING
With all due deference to the opinion of the majority, we respectfully dissent from the denial of rehearing for the reasons that follow.
The majority opinion makes a monumental change in Louisiana tort law by applying the concept of res ipsa loquitur to an ordinary negligence case. The practical effect of the methodology employed in the majority opinion would be to require a trial court to give a res ipsa loquitur charge any time jurors could have a reasonable disagreement as to any fact issue. We submit that this ruling is based on a misinterpretation of Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La. 1989) (on rehearing).
Unless otherwise noted, any reference herein is to the supreme court's rehearing opinion.
The majority opinion in this case correctly cites Cangelosi for the proposition that res ipsa loquitur is applicable only when three criteria are met: (1) the injury is the kind that ordinarily does not occur in the absence of the defendant's negligence; (2) the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or a third person; and (3) the negligence of the defendant falls within the scope of the defendant's duty to the plaintiff, such as where the defendant had exclusive control of the thing that caused the injury. The majority goes on to quote Cangelosi in its statement of the test to be applied by a trial court when deciding whether to give a jury instruction on res ipsa, loquitur: In deciding whether to instruct the jury on res ipsa loquitur, the trial court employs a standard similar to that for directed verdicts. The trial court determines whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable persons could not arrive at a contrary verdict. If reasonable minds could reach different conclusions as to whether the defendant's negligence caused the plaintiff's injury, then the trial court must instruct the jury on res ipsa loquitur. The jury then decides whether to infer negligence on the part of the defendant from the circumstances of the case.
However, because the majority opinion failed to examine the relationship between the three res ipsa loquitur criteria vis-à-vis the test applied by a trial court in determining whether to instruct a jury on res ipsa loquitur, the majority incorrectly applied these principles in the instant case.
The Supreme Court, in Cangelosi discussed res ipsa loquitur as follows:
In an action to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows that the fact or causation sought to be proved is more probable than not. Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621 (1972). Thus, the plaintiff in this type of action must produce evidence from which the factfinder can reasonably conclude that his injuries, more probably than not, were caused by the negligence of the particular defendant. The plaintiff, however, does not have to conclusively exclude all other possible explanations for his injuries, because the standard is not proof beyond a reasonable doubt. Restatement (Second) of Torts § 328D (1965); W. Prosser W. Keeton, The Law of Torts § 39, at 248 (5th ed.1984); Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963); Boudreaux v. American Insurance Co., supra. Placing the burden of proof on the plaintiff requires him ultimately to persuade the factfinder concerning the defendant's negligence, and if the factfinder is undecided after all the evidence has been presented, the plaintiff loses because of the failure of his evidence. Malone, Res Ipsa Loquitur and Proof By Inference, 4 La.L.Rev. 70, 88 (1941).
As previously noted, the proof may be by direct or circumstantial evidence. See Jordan v. Travelers Insurance Co., supra. A fact established by direct evidence is one which has been testified to by witnesses as having come under the cognizance of their senses. J. Wigmore, Evidence § 25, at 954 (1983). Circumstantial evidence, on the other hand, is "evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred".FN5 W. Prosser W. Keeton, supra, § 39, at 242.
FN5. Circumstantial evidence was described in J. Lee B. Lindahl, Modern Tort Law § 15.42, at 546 (rev. ed.1989), as follows:
Circumstantial evidence allows the court or the jury to reason from circumstances known and proved to establish a disputed fact by inference. Circumstantial evidence does not directly prove the existence of a fact, but gives rise to a logical inference that such a fact does exist.
It has been observed that circumstantial evidence consists of a number of disconnected and independent facts from several witnesses and sources, which converge toward the fact in issue as a common center. Circumstantial evidence has substance because the factfinder, court or jury, may make reasonable inferences from certain proof. Circumstantial evidence is nothing more than one or more inferences, which may be said to reasonably arise from a series of proven facts. . . .
Use of circumstantial evidence and the deductions and inferences arising therefrom is a common process for establishing liability in negligence cases. Malone, supra, at 71. However, the inferences drawn from the circumstantial evidence must cover all the necessary elements of negligence, and the plaintiff must still sustain the burden of proving that his injuries were more likely than not the result of the defendant's negligence. W. Prosser W. Keeton, supra, § 39, at 243.
Negligence on the part of the defendant may be proved by circumstantial evidence alone when that evidence establishes, more probably than not, that the injury was of a kind which ordinarily does not occur in the absence of negligence, that the conduct of the plaintiff or of a third person was sufficiently eliminated by the evidence as a more probable cause of the injury, and that the indicated negligence was within the scope of the defendant's duty to the plaintiff. Restatement, supra, § 328D. Although the fact that an accident has occurred does not alone raise a presumption of the defendant's negligence, the doctrine of res ipsa loquitur (the thing speaks for itself) permits the inference of negligence on the part of the defendant from the circumstances surrounding the injury.FN6 S. Speiser, Res Ipsa Loquitur § 1:1 (1972). The doctrine of res ipsa loquitur involves the simple matter of a plaintiffs using circumstantial evidence to meet the burden of proof by a preponderance of the evidence.FN7 McCormick on Evidence § 342, at 966-67 (E. Cleary 3d ed.1984). The doctrine merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. J. Lee B. Lindahl, supra, § 1522 n. 4. The doctrine permits, but does not require, the trier of fact to infer negligence from the circumstances of the event.FN8 McCormick on Evidence, supra, § 342, at 967; Boudreaux v. American Insurance Co., supra; Larkin v. State Farm Mutual Automobile Insurance Co., supra.
FN6. The phrase res ipsa loquitur was first mentioned in the 1863 English case, Byrne v. Boodle, 2 H. C. 722, 159 Eng.Rep. 299 (1863), where a barrel of flour rolled out of a warehouse window onto a pedestrian. There was no direct evidence that the barrel fell because of any negligence on the part of the warehouse owner. However, the phrase was presented to the jury to explain that, even without direct evidence, the conclusion could be drawn that the accident was the owner's fault. Restatement, supra, 328D, comment a; W. Prosser W. Keeton, supra, § 39, at 243; J. Lee B. Lindahl, supra, § 15:19.
FN7. In a negligence case there is frequently no direct evidence available to the plaintiff as to the cause of the injury. This lack of direct evidence to prove the defendant's negligence "actually furnishes the occasion and necessity for invoking the rule in its strict and distinctive sense". Larkin v. State Farm Mutual Automobile Insurance Co., 233 La. 544, 97 So.2d 389 (1957). In such a case the plaintiff must present evidence of circumstances surrounding the incident which raises inferences from which the factfinder may reasonably conclude that the defendant caused the plaintiffs injuries.
FN8. Application of the doctrine creates a permissive inference (which the jury may draw or refuse to draw) rather than a presumption (which requires a directed verdict for the plaintiff if the defendant offers no evidence to rebut it). Restatement, supra, § 328D, comment m.
In order to utilize the doctrine of res ipsa loquitur the plaintiff must establish a foundation of facts on which the doctrine may be applied. S. Speiser, supra, § 2:1, at 30. The injury must be of the type which does not ordinarily occur in the absence of negligence. Restatement, supra, § 328D(1)(a). In other words, "the event must be such that in light of ordinary experience it gives rise to an inference that someone must have been negligent". W. Prosser W. Keeton, supra, § 39, at 244. The basis on which this conclusion is drawn is usually knowledge common to the community as a whole, although in cases such as medical malpractice expert testimony may be used to establish this principle. Id. at 247; Restatement, supra, § 328D, comment d. The plaintiff does not have to eliminate all other possible causes or inferences, but must present evidence which indicates at least a probability that the injury would not have occurred without negligence. W. Prosser W. Keeton, supra, § 39, at 248; S. Speiser, supra, § 2:4.
The facts established by plaintiff must also reasonably permit the jury to discount other possible causes and to conclude it was more likely than not that the defendant's negligence caused the injury. Restatement, supra, § 328D(1)(b); S. Speiser, supra, § 2:5. Again, the plaintiff does not have to eliminate completely all other possible causes, but should sufficiently exclude the inference of his own responsibility or the responsibility of others besides the defendant in causing the accident.FN9 The inference of negligence points to the defendant when the conduct of others is eliminated as a more probable cause. Restatement, supra, § 328D, comment I; W. Prosser W. Keeton, supra, § 39, at 254. The plaintiff must show not only that an accident occurred or that the accident was caused by the negligence of Someone, but also that the circumstances warrant an inference of defendant's negligence.
FN9. Of course, with the advent of comparative fault, the effect of any negligence on the plaintiffs part is simply to reduce recovery and not to relieve the defendant of liability.
The plaintiff must also establish that the defendant's negligence indicated by the evidence falls within the scope of his duty to the plaintiff. Restatement, supra, § 328D(1)(c). This is often, but not necessarily, proved by a showing that the defendant was in exclusive control of the injury-causing instrumentality.
Use of the doctrine of res ipsa loquitur in a negligence case, as in any case involving circumstantial evidence, does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery. J. Wigmore, supra, § 2509. When all the evidence is in, the question for the jury is whether the preponderance of the evidence is with the plaintiff. Larkin v. State Farm Mutual Automobile Insurance Co., supra; Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 (1913).
The doctrine of res ipsa loquitur is applied after all of the evidence has been presented. King v. King, 253 La. 270, 217 So.2d 395 (1968). The trial judge initially determines whether the jury could reasonably infer from the circumstances that the plaintiffs injury was caused by the negligence of the defendant. If the judge determines that reasonable minds could reach different conclusions, it is the function of the judge to instruct the jury on the doctrine, and it is the function of the jury to decide whether to draw the inferences or not. FN10 Restatement, supra, § 328D(2), comment 1; W. Prosser W. Keeton, supra, § 39, at 243.
FN10. Restatement, supra, § 328D(3), states that "[i]t is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached". Once the judge submits the case to the jury, that body determines whether the inference of negligence should be accepted or rejected. It is at this time that the plaintiffs burden of proof comes into play. Malone, supra, at 88. If the jury accepts the inferences arising from the circumstances surrounding the injury as making it more likely than not that the cause of the accident was the defendant's negligence, then the plaintiff has satisfied his burden of proof. If the inferences accepted by the jury do not support such a conclusion, or if the jury is undecided, the plaintiff loses.
Thus, the standard to be applied by the trial judge in deciding whether to instruct the jury on res ipsa loquitur is the same standard used in deciding whether to grant a directed verdict, namely, whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable men could not arrive at a contrary verdict. Breithaupt v. Sellers, 390 So.2d 870 (La. 1980); 9 C. Wright A. Miller, Federal Practice and Procedure, § 2524, at 545 (1971). If reasonable minds could reach different conclusions on whether the defendant's negligence caused the plaintiffs injury, then the judge must present the issue to the jury and instruct the jury on the doctrine of res ipsa loquitur.
Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d at 664-67.
It is obvious from the supreme court's discussion of res ipsa loquitur that the analysis required to assess the applicability of the doctrine is sequential. First, the court determines whether the facts of the case under consideration warrant application of the doctrine by concluding: (1) the injury is the kind that ordinarily does not occur in the absence of the defendant's negligence; (2) the evidence sufficiently eliminates other more probable causes of the injury, such as the conduct of the plaintiff or a third person; and (3) the negligence of the defendant falls within the scope of the defendant's duty to the plaintiff, such as where the defendant had exclusive control of the thing that caused the injury. Then, and only then, can a decision be made as to whether the jury should be instructed on the doctrine, by considering: whether "the jury could reasonably infer from the circumstances that the plaintiffs injury was caused by the negligence of the defendant[;] . . . [i]f the judge determines that reasonable minds could reach different conclusions, it is the function of the judge to instruct the jury on the doctrine, and it is the function of the jury to decide whether to draw the inferences or not."
The jurisprudence has generally inferred, by applying this sequential approach, that a determination of whether res ipsa, loquitur is applicable should be made before considering whether a jury instruction on the doctrine is warranted. The Third Circuit has stated:
Before a res ipsa loquitur instruction is given, the plaintiff must establish that the doctrine is applicable. [Plaintiffs] contend they have met the perquisites [sic] of a res ipsa, loquitur instruction. . . . As a prerequisite to invoking the res ipsa loquitur doctrine, [plaintiffs] had to not only present evidence that it was more probable than not that the complained of injury would not have occurred in the absence of negligence on the part of [defendant], but also sufficiently excluded their own negligence as well as that of third parties.
Williamson v. St. Francis Cabrini Hosp. of Alexandria, 99-1741 (La.App. 3 Cir. 5/10/00), 763 So.2d 50, 54-56, writ denied, 2000-2149 (La. 10/6/00), 771 So.2d 83. See e.g. Perkins v. Wurster Oil Corp., 2004-692 (La.App. 3 Cir. 11/10/04), 886 So.2d 1229, writ denied, 2004-3011 (La. 2/18/05), 896 So.2d 35; Bradbury v. Thomas, 98-1678 (La.App. 1 Cir. 9/24/99), 757 So.2d 666; Denton v. Critikon, Inc., 95 1602 (La.App. 1 Cir. 5/10/96), 674 So.2d 1169; Seals v. Gosey, 565 So.2d 1003 (La.App. 1 Cir.), writ denied, 569 So.2d 983 (La. 1990); Lucas v. St. Frances Cabrini Hosp., 562 So.2d 999 (La.App. 3 Cir.), writs denied, 567 So.2d 101, 103 (La. 1990); Oswald v. Rapides Iberia Management Enterprises, Inc., 452 So.2d 1258 (La.App. 2 Cir.), writ denied, 457 So.2d 14 (La. 1984).
In the instant case, the predicate analysis does not result in a conclusion that res ipsa loquitur can be applied (i.e. all 3 res ipsa loquitur factors are not present); therefore, the second line of inquiry can never be reached in this case (i.e. whether the jury should be instructed on the doctrine). Not only can the injury in the present case occur in the absence of the defendant's negligence, but the evidence does not sufficiently eliminate other more probable causes of the injury, such as the conduct of the plaintiff or a third person.
There are many reasons one can fall while walking across the yard of a residence other than negligence; thus, the doctrine of res ipsa loquitur is typically not available in such a case. See Crucia v. State Farm Ins. Co., 98-1929 (La.App. 1 Cir. 9/24/99), 754 So.2d 270. Plaintiff simply failed to show that negligence on the part of the defendant was the most plausible explanation for the accident that occurred in this case. See Harper v. Advantage Gaming Co., 38,837 (La.App. 2 Cir. 8/18/04), 880 So.2d 948; Martinez v. Schumpert Medical Center, 27,653 (La.App. 2 Cir. 5/10/95), 655 So.2d 649. Nor do the circumstances warrant an inference that more probably than not the accident was caused by the defendant's negligence; the plaintiffs own conduct or that the accident was due to some other cause was not eliminated as a probable cause. See Taylor v. CNA Ins. Group, 300 So.2d 479 (La. 1974); Restatement (Second) of Torts, § 328D; Restatement (Third) of Torts: Liab. Physical Harm § 17. Moreover, there was direct evidence in this case on virtually every point in contention. Res ipsa loquitur is, of course, irrelevant when a body of direct evidence is available explaining the activity leading to the injury. McCann v. Baton Rouge General Hospital, 276 So.2d 259, 261 (La. 1973). See also Lawson v. Mitsubishi Motor Sales of America, Inc., 2005-0257 (La. 9/6/06), 938 So.2d 35, 49; William E. Crawford, Tort Law, in 12 Louisiana Civil Law Treatise § 6.4, citing Walker v. Union Oil Mill, Inc., 369 So.2d 1043, 1048 (La. 1979).
"Application of the doctrine is defeated if an inference that the accident was due to a cause other than defendant's negligence could be drawn as reasonably as one that it was due to his negligence." Salvant v. State, 2005-2126 (La. 7/6/06), 935 So.2d 646, 659.
No published case in Louisiana has applied res ipsa loquitur in an ordinary slip or trip and fall case. See Crucia v. State Farm Ins. Co., supra (a contractor fell in a sand/gravel area while walking across the yard of a client's residence); Zeno v. Grady Crawford Const. Co., 94-0858 (La.App. 1 Cir. 3/3/95), 652 So.2d 590, 593, writ denied, 95-0857 (La. 5/19/95), 654 So.2d 695 (plaintiff stepped into a hole on the side of a roadway in an area where a utility company had a right of way); Morgan v. City of New Orleans, 94-0874 (La.App. 4 Cir. 12/15/94), 647 So.2d 1308 (a pedestrian tripped on a broken sidewalk); Sumner v. Foremost Ins. Co., 417 So.2d 1327 (La.App. 3 Cir.1982) (plaintiff tripped on her parents' trailer steps); Stablier v. City of Baton Rouge, 393 So.2d 148 (La.App. 1 Cir.1980) (plaintiff's lawnmower fell into a "chasm" caused by collapse of city drain in his own yard); Jones v. City of Baton Rouge-East Baton Rouge Parish, 388 So.2d 737 (La. 1980) (plaintiff tripped on a catchbasin adjacent to a road); Larkin v. U.S. Fidelity Guaranty Co., 258 So.2d 132 (La.App. 2 Cir.1972) (plaintiff tripped over a gas company's valve cover box); Goudeau v. Indemnity Ins. Co. of North America, 200 So. 493 (La.App. 1 Cir.1941) (plaintiff fell on a deck at a public swimming pool); DeGruy v. Aiken, 43 La.Ann. 798, 9 So. 747 (La. 1891) (plaintiff fell through a hole/missing plank in a wharf/dock).
Not included within the usage of "ordinary" slip or trip and fall cases are business premises liability cases (such as merchant or health care premises cases), which are governed by special laws and apply a heightened standard of care.
This dissent submits that this is not the type case that should change the status quo of the jurisprudence. It is not a circumstantial evidence case; plaintiff saw and testified to every aspect of her accident, and defendant's representatives testified as to all actions taken by the defendant/employees in connection with their work on the plaintiffs property. Nor is this a case where the mechanism of the plaintiffs injury is unknown (as in a medical malpractice case where a plaintiff wakes from surgery with an injury that cannot be explained). Plaintiff herein fell either because of her carelessness or the condition of the premises or because of the defendant's substandard work; direct evidence as to each alternative cause was presented by the parties. Furthermore, this is not a case where direct evidence of the defendant's negligence was unavailable. The accident site was within plaintiffs own yard, and she could have secured any necessary expert examination of the site for evaluation of any allegedly improper, unsafe, or hazardous conditions that may have been caused by defendant's work thereon. Plaintiff failed to obtain such evidence. A plaintiffs failure to obtain available direct evidence does not entitle him/her to the application of res ipsa loquitur. See Trent v. PPG Industries, Inc., 2005-989 (La.App. 3 Cir. 5/10/06), 930 So.2d 324. At the time the instant accident occurred or immediately prior thereto, the defendant did not have active or constructive control over the accident site or any superior access to information relating to its cause.
This case is a relatively simple slip and fall incident. The fundamental problem is that when a person slips and falls in his own yard, there is no inference of negligence by anyone. People often fall on their own property. In this case, the parties agreed on nearly all the facts. There was no dispute that the plaintiff fell and was injured. Likewise, all agreed that the defendant had recently executed repair work on a gas pipeline at the site by digging a four-inch-wide by eighteen-inch-deep trench within two to three feet of the driveway where plaintiff parked her vehicle and subsequently fell. The defendant asserted that the soil was replaced and properly compacted.
The only evidence of how the accident happened came from the direct testimony of the plaintiff. She did not claim she saw the construction work or how it was carried out. Her statement was that the soil was very soft. She readily admitted it had rained on the day of the accident, and at two points in her direct testimony, she stated that there was mud in the area where she fell. The only real dispute is a difference of degree. Plaintiff contends that the soil was so soft that she sank all the way up to her knee. The defendant contends that the soil was properly compacted and was in reasonable condition given the fact that it had rained. There is hardly any circumstantial evidence in this case. Plaintiff's husband observed the site shortly after his wife's fall and noticed a footprint. The footprint and the rain are the only items of circumstantial evidence in the case. He took a photograph of the footprint, which was offered in evidence as corroboration of his direct observation. The photograph of the footprint undermines, rather than substantiates, the plaintiff's claim to have sunk all the way up to her knee. It shows only a nominal depression of a footprint in a wet muddy setting. (See Appendix "A" hereto.) The entire issue of causation turns on the question of the consistency of the mud. The resolution of that issue is one entirely of credibility. Did the plaintiff simply slip on wet mud or did she sink to her knee on very soft mud? If the soil was unduly soft, then the workmanship related to defendant's compaction of the soil was called into question. The determination of this issue revolves on whether plaintiffs testimony can be believed and the photograph showing a slight indentation of her footprint in the soil can be disregarded, or whether the testimony of the workmen is more credible.
The plaintiff uses the words "sink hole" to describe the condition of the mud. Sink holes usually manifest themselves without pressure from outside forces. She may have meant that there was a soft spot. Whatever the proper terminology, the softness of the mud was the disputed issue.
The doctrine of res ipsa loquitur is a rule of evidence, the applicability of which is to be determined in each case at the conclusion of the trial. When the doctrine of res ipsa loquitur is applicable to a case, the accident that has caused plaintiffs damages makes out a prima facie case of negligence by the defendant, and the burden is then on the defendant to show absence of negligence on its part. The res ipsa loquitur doctrine is a qualification of the genera] rule that negligence is not to be presumed but must always be affirmatively proved, and therefore should be sparingly applied, and only in exceptional cases where the demands of justice make that application essential. Res ipsa loquitur has no application where all the facts and circumstances appear in evidence. Nothing is then left to inference and necessity for the doctrine does not exist. Being a rule of necessity, it must be invoked only where evidence is absent and not readily available. It is not to be invoked when the evidence is available, and certainly not when it is actually presented. Nor has it any application where the cause of the accident is known and is not in question. Day v. National U.S. Radiator Corp., 241 La. 288, 128 So.2d 660, 665 (1961).
Slip and fall accidents are not the "exceptional cases" referred to in Day. As explained in Restatement (Second) of Torts § 328D (1965), comment (c):
The fact that a tire blows out, or that a man falls down stairs is not, in the absence of anything more, enough to permit the conclusion that there was negligence in inspecting the tire, or in the construction of the stairs, because it is common human experience that such events all too frequently occur without such negligence. On the other hand there are many events, such as those of objects falling from the defendant's premises, the fall of an elevator, the escape of gas or water from mains or of electricity from wires or appliances, the derailment of trains or the explosion of boilers, where the conclusion is at least permissible that such things do not usually happen unless someone has been negligent. To such events res ipsa loquitur may apply.
It is further stated in Fireman's Fund Ins. Co. v. U.S. Fidelity Guaranty Co., 276 So.2d 754, 757 (La.App. 3 Cir.1973), quoting Studies in Louisiana Torts by Wex S. Malone and Leah Guerry (1970), at p. 253:
The first accepted requirement for application of res ipsa loquitur is that the accident must be one which common knowledge indicates does not ordinarily occur in the absence of negligence. This requirement, which assumes that [the] trier of fact has such common or ordinary knowledge of everyday events, is consistent with the fundamental principle of circumstantial evidence that there must be sufficient basis in fact to conclude that one probability is more reasonable than another. Hence res ipsa loquitur is usually applied to cases in which past experience of ordinary events forms a fund of common knowledge from which the court draws to conclude that negligence was more probably present than not.
See also Boudreaux v. American Ins. Co., 264 So.2d at 628.
Common knowledge and experience would include reliable news events one watches on television. Recently, the national media showed a slip and fall at the end of a marathon race. The winning runner slipped as he crossed the finish line. He fell on his back and seriously injured his head. It's hard to imagine a person with better legs, balance, and shoes than a man who has just won a twenty-six mile race. The surface was an ordinary city street used by many runners. There are millions of vicarious (TV) witnesses, but no hint of negligence. If this man can fall under these circumstances, it is clear that just about anyone can fall. The concept that just because someone has sustained an injury does not mean that someone is negligent, is based on common sense and everyday experience.
It is this common or ordinary knowledge of everyday events which tells the jury, in the instant case, that wet mud is slippery and that people can often fall when they step on it; therefore, such a fall may occur in the absence of negligence. Both possible causes of the fall, put forth in this case, were described to the jury. Which cause is applicable is simply a question of what testimony they believe. There is nothing to infer. There is no doubt that counsel for the plaintiff recognized the conflict in the evidence he presented and sought to boost his client's credibility with a jury charge that would tell them to infer negligence on the part of the defendant. But what circumstance? The softness of the mud vel non is not based on circumstantial evidence but rather on two opposing direct testimonial claims. The only truly circumstantial evidence, the footprint, does not support the plaintiffs claim. Without resorting to res ipsa loquitur, the court could have instructed the jury as to the ordinary circumstantial evidence rule which could, and probably did, help them decide that the plaintiff had exaggerated her claim to help her case. Since there is usually no bias or interest associated with circumstantial evidence (such as fingerprints, DNA, blood types), it is often more reliable evidence than direct testimony. Here the circumstantial evidence refuted the claim of very soft mud and supported the defendant's claim of ordinary mud associated with rain on a construction site.
We note that plaintiff's counsel, on cross examination of a defendant workman, went to great lengths to try to establish that his foot was too big to fit in the trench and compact the soil, in an attempt to show that they did not do this. Out of the other side of his mouth, plaintiff's counsel asks the jury to believe that Mrs. Linnear, who was described as being large in stature, stepped into this four-inch trench completely filled with dirt and sank up to her knee. For this to have happened, Mrs. Linnear would have had to strike a trenched area with her foot exactly parallel to the line of the trench. The work-men testified that the soil was very hard. These hard sides to the trench existed at the time of her claimed fall and should have served as a stabilizing factor.
The accident site in this case, and all the evidence connected thereto, was in the complete control of the plaintiff. She faults the defendant for not producing experts. By the time the defendant knew of a possible legal action, the soil had been returned to it natural state by the sun, rain, and heat. There is no evidence that when the defendant tried to accommodate the plaintiff by upgrading the job site conditions they were told of a possible lawsuit. The plaintiff did not know the extent of her injuries until much later. If she believed the degree of softness of the soil was an important issue, she could have easily had other witnesses test, feel, or observe it. Her husband did not even do so; he just took a picture.
Each side who gave direct testimony on the causation issue had an interest in the case. The jury had the opportunity to observe their testimony, their demeanor, and their manner of testifying. It is obvious from their verdict, they did not accept the plaintiffs description of the condition of the soil.
The res ipsa loquitur charge requested by the plaintiff (Requested Jury Instruction No. 20) read as follows:
Res ipsa loquitur is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not caused the injury. Spott v. Otis Elevator Co., 601 So.2d 1355 (La. 1992).
Plaintiff's counsel made no argument and gave no reason to the trial court as to why res ipsa loquitur should be found applicable; the requested charge was denied.
At this point it should be noted that we agree with the argument posed on appeal by the defendant; i.e., that since plaintiff failed to state the grounds for their objection to the trial court's failure to give the requested res ipsa loquitur instruction, appellate relief on this basis is not available. A ruling in defendant's favor on this point would render moot consideration of the entire issue of res ipsa loquitur. Louisiana Code of Civil Procedure Article 1793 creates a mandatory rule for preserving an objection to a trial court's ruling regarding requested jury instructions. In order to preserve the right to appeal a trial court's refusal to give a requested instruction or its giving of an erroneous instruction, a party must not only make a timely objection, but must state the grounds of his objection. Merely making an objection, without assigning any reasons therefor, is insufficient. Where the objecting counsel fails to state the basis of his objection as required by La. C.C.P. art. 1793, or merely makes a blanket objection, any right to complain on appeal of the trial court's refusal to give the proposed jury charge(s) is forfeited. Osborne v. Ladner, 96-0863 (La.App. 1 Cir. 2/14/97), 691 So.2d 1245, 1252; Martin v. Francis, 600 So.2d 1382, 1387 (La.App. 1 Cir.1992). See also Sanders v. Bain, 31,362 (La.App. 2 Cir. 12/9/98), 722 So.2d 386, 388; Anderson v. Fowler Trucking, Inc., 506 So.2d 1319, 1324 (La.App. 2 Cir.), writ denied, 512 So.2d 434 (La. 1987); Watts v. Aetna Casualty and Surety Company, 309 So.2d 402 (La.App. 2 Cir.), writ denied, 213 So.2d 601 (La. 1975).
However, since the majority opinion found no merit in the defendant's argument that the res ipsa loquitur issue was not properly preserved for appellate review, this dissent must likewise address the res ipsa loquitur issue.
As noted above the requested jury charge cites the Spott case. The Supreme Court in Spott stated:
Res ipsa is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not, caused the injury. Spott argues that the elevator's falling a few feet and stopping constitutes such an unusual occurrence that the inference should be raised. The court of appeal held the doctrine was not applicable because the plaintiff failed to prove the negligence of the defendants, more probably than not, caused the accident.
Res ipsa loquitur, as "a qualification of the general rule that negligence is not to be presumed," must be sparingly applied. Generally, it obtains when three requirements are met: 1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on defendant's part. The second requirement, that the defendant have exclusive control over the thing, has not, in our jurisprudence, been strictly applied. Indeed, it is satisfied if the circumstances indicate that it is more probable than not that the defendant caused the accident and other plausible explanations do not appear to be the probable cause of the accident. The plaintiff, of course, bears the initial burden of proof.
Spott v. Otis Elevator Co., 601 So.2d at 1362 (citations omitted).
The judge gave, without objection, a charge (presumably at the request of the defense) that the mere fact that an accident had occurred did not mean that anyone was necessarily negligent. This is tantamount to stating that negligence is not presumed. Such a charge is diametrically opposed to one which says " res ipsa loquitur is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant. ." To tell a jury that negligence is not presumed and at the same time tell them that negligence can be inferred is a contradiction which can only confuse a jury. It is also the choice of charges outlined in the medical malpractice act that was at issue in Cangelosi. The statute requires the judge in such a case to give one of these charges, and it is the issue that the Cangelosi court was addressing, as noted above.
At issue in Cangelosi was the application of La. R.S. 9:2794(C), which provided:
In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist or chiropractic physician. The jury shall be further instructed that injury alone does not raise a presumption of the physician's, dentist's or chiropractic physician's negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.
As quoted hereinabove, the supreme court in Cangelosi gave the following test for use by a trial court in deciding whether the instruct a jury on rest ipsa:
The doctrine of res ipsa loquitur is applied after all of the evidence has been presented. King v. King, 253 La. 270, 217 So.2d 395 (1968). The trial judge initially determines whether the jury could reasonably infer from the circumstances that the plaintiff's injury was caused by the negligence of the defendant. If the judge determines that reasonable minds could reach different conclusions, it is the function of the judge to instruct the jury on the doctrine, and it is the function of the jury to decide whether to draw the inferences or not. Restatement, supra, § 328D(2), comment 1; W. Prosser W. Keeton, supra, § 39, at 243.
Thus, the standard to be applied by the trial judge in deciding whether to instruct the jury on res ipsa loquitur is the same standard used in deciding whether to grant a directed verdict, namely, whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable men could not arrive at a contrary verdict. Breithaupt v. Sellers, 390 So.2d 870 (La. 1980); 9 C. Wright A. Miller, Federal Practice and Procedure, § 2524, at 545 (1971). If reasonable minds could reach different conclusions on whether the defendant's negligence caused the plaintiff's injury, then the judge must present the issue to the jury and instruct the jury on the doctrine of res ipsa loquitur.
Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d at 666-67 (footnote omitted). Because the quoted language, confected by the Cangelosi court, is not true to the source, the somewhat distorted depiction that resulted has produced difficulties in application for the lower courts, as evidenced by the majority opinion in the instant case. Although Cangelosi cites the Restatement (Second) of Torts as its authority for the jury instruction test, the Restatement in fact provides:
§ 328D. Res Ipsa Loquitur
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
Comment (1) to this section provides:
Comment on Subsections (2) and (3):
1. The rules stated in Subsections (2) and (3) are, respectively, special applications of the rules stated in § 328B(a) and 328C(a). They are stated in this Section in order to make it entirely clear that it is the function of the court to determine, in the first instance, whether the jury can reasonably draw the inference, or whether it must necessarily be drawn, and that where different conclusions may reasonably be reached it is the function of the jury to decide whether the inference is to be drawn or not.
It is obvious that this section of the Restatement, along with the comment, only addresses when a judge should tell the jury they can versus when they must draw the inference. The reference in this authority to "different conclusions [that] may reasonably be reached" is directed only to the jury and not to the judge. The Restatement does not suggest what test the judge employs in deciding which instruction to give.
Such an explanation has been made by courts in other states, such as appears in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1075-76 (Pa. 2006):
As noted, [ Restatement (Second) of Torts] § 328D(2) provides that "It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.". . . . Further, § 328D(3) provides that "[i]t is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached." . . . Therefore, it is apparent that the Restatement contemplates that there will be circumstances such that the inference of negligence must be drawn, and in those circumstances, where there are no material facts in dispute and different conclusions may not reasonably be reached, the court may direct the jury to find for the plaintiff. We believe that this is such a case, and, pursuant to § 328D(2) and (3), the evidence demonstrates that the inference of negligence must be drawn, and different conclusions may not reasonably be reached. Restatement (Second) of Torts, § 328D cmt. L (providing that § 328D(2) and (3) are intended to "make it entirely clear that it is the function of the court to determine, in the first instance, whether the jury can reasonably draw the inference, or whether it must necessarily be drawn, and that where different conclusions may reasonably be reached it is the function of the jury to decide whether the inference is to be drawn or not.").
We believe the section of the Restatement and comment thereto, quoted by the Cangelosi court, should be interpreted as follows:
1. When there is overwhelming evidence that res ipso loquitur applies, based on the facts presented and the jurisprudence noted above, the judge tells the jury that they "must" make the inference.
This is a good rule and should apply where there truly is a res ipsa loquitur case. In fact this is why the rule was created. In the normal res ipsa loquitur setting, such as a medical malpractice claim where all the events and evidence are in the control of the defendant, this is what should happen. Telling the jury they must infer the negligence of the defendant is not as strong as "must find" or "must conclude," but it is the strong help that the doctrine was intended to give. Going further might invade the province of the jury.
2. When the plaintiff has presented a preponderance of evidence that res ipsa loquitur applies, the judge tells the jury they "may" make the inference.
Of course there is a third possibility, and that is when the judge determines that the plaintiff has not shown by a preponderance of evidence, using the jurisprudence and factors noted above, that res ipsa loquitur applies, then he should not mention the inference at all before the jury because it would not be the law applicable to the case.
The Cangelosi opinion addresses for the first time in our jurisprudence, the standard the trial judge should utilize in determining the applicability of the res ipsa loquitur charge in a malpractice case. Justice Lemmon's opinion clearly states that "the standard to be applied by the trial judge in deciding whether to instruct the jury on res ipsa, loquitur is the same standard used in deciding whether to grant a directed verdict, namely, whether the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable men could not arrive at a contrary verdict." However, Justice Lemmon cites no direct authority for applying this standard. The authorities he cites: Breithaupt v. Sellers, 390 So.2d 870 (La. 1980); 9 C. Wright A. Miller, Federal Practice and Procedure, § 2524, at 545 (1971).
These authorities deal only with what is the test for a directed verdict and do not have anything to do with res ipsa loquitur or the standard a trial judge should use in deciding when to give the res ipsa loquitur charge. This high standard appears to be created for the first time here and, as pointed out below is subscribed to only by Justice Lemmon. The Breithaupt case is the famous "hunter orange" case where the court discusses the then new directed verdict law, gives a definition, and reverses the lower court which granted it. There is no reference to res ipsa loquitur in the case. The section in Wright A. Miller is only a discussion and definition of the comparable federal provisions on directed verdict.
Under this directed verdict test, a defendant seeking to prevent the applicability of the principles of res ipsa loquitur, and thus the jury charge, would have to prove by overwhelming evidence that res ipsa loquitur is not applicable to the case, despite the fact that the plaintiff has the burden of proving the applicability of the res ipsa loquitur doctrine. In any negligence case, where the doctrine is advanced, a plaintiff would merely have to present by their direct evidence (in every slip and fall case there is at least one eye witness, the person who falls), or by expert testimony, that the conduct of the defendant was the cause of the injury. Thus if reasonable men could differ (the other side of the directed verdict test) on the issue of causation it would result in an automatic jury charge on res ipsa loquitur, mandating an inference of negligence on the defendant. A trial judge will always have to decide when to apply res ipsa loquitur, either as the factfinder (when there is no jury) or on a request for directed verdict, or on the request for jury instructions. As long as reasonable minds can differ on any material fact, res ipsa loquitur will be an issue in every case.
It should be noted that this reasoning in the Cangelosi opinion authored by Justice Lemmon is not subscribed to by any other Justice. Justices Marcus and Watson concur and assign different reasons. Justice Cole concurs only in the result. Justices Dixon, Dennis, and Calogero all expressed different views of the meaning of the statute, in two dissents and one concurrence to the original opinion of the court. Basically, this language about the standard a trial judge should use in deciding whether to give a res ipsa loquitur charge in a medical malpractice case is a single-Justice opinion. We find it quite surprising in light of the fact that several Justices express different reasoning in the Cangelosi case that this reasoning should be taken as a controlling principle of law. This test lends itself to the possibility that another court could take this statement in isolation and completely ignore all the other jurisprudence on the applicability of res ipsa loquitur (and the considerable difference of opinion by the other Justices in the case) and thus sow utter confusion in the minds of trial judges. In the words of Justice Marcus's concurring opinion: "The high standard imposed on the judge by the majority negates this provision [La. R.S. 9:2794(C)] and will make the exception the rule." Cangelosi 564 So.2d at 669 (concurring opinion).
If the two statements from the Cangelosi case represent a controlling legal principle and one can ignore the rest of the opinion and the vast jurisprudence and authorities, the opinions of the other justices in Cangelosi and the fact that the Supreme Court has not followed Justice Lemmon's words on the test for giving the res ipsa loquitur jury instruction, it would be applicable in all cases and the majority opinion should be the law of this state. The following footnote by Justice Lemmon suggests that it would apply in all cases:
The standard to be used by the trial judge in determining whether it is permissible for the jury to infer negligence by the defendant under the doctrine of res ipsa loquitur in medical malpractice cases (and thus whether to instruct the jury on the doctrine) is the same standard used in other negligence cases. The trial judge must instruct the jurors on the doctrine of res ipsa loquitur unless the overall evidence, both direct and circumstantial, point so overwhelmingly in favor of the health care provider that no rational juror could find in favor of the plaintiff. If reasonable minds could reach different conclusions on the evidence, then the trial judge must give the res ipsa loquitur instruction. [ Cangelosi, 564 So.2d at 667 n. 12.]
In other words, a trial judge would be required to give a res ipsa loquitur charge in every negligence case, unless he or she grants a directed verdict for the defense.
This exact issue was not before the trial judge in the instant case. He did not say nor was he asked what test he would employ in deciding to give or not give the charge. He simply denied the requested charge. No argument was made by either side as to why the res ipsa loquitur doctrine should apply and the authority cited by plaintiff did not support its application (all as noted before). More importantly, no one suggested the test the judge should use in deciding to give the charge were he to do so. This is why it is so important that lawyers requesting or resisting a charge should be required to give legal support for their positions. It is equally important for trial judges to give at least some reason for their actions or inactions.
In many cases, if the defendant presents overwhelming evidence that the case is not one subject to the res ipsa loquitur doctrine and thus reasonable men could not differ. then he would likely have enough evidence to sustain a directed verdict on the whole case.
This is exactly what the majority opinion has done. Mrs. Linnear asked the court to instruct the jury on the res ipsa inference in her claim that the soft mud Caused her injury. Indeed, she asks for more than that. Applying the substantial factor test to the issue of causation, it is clear that the work of the defendant combined with the rain was a substantial factor in Mrs. Linnear's injury even if her own inattention to the hazards were to be considered as well. By asking the court to infer negligence on her claim that her leg sunk all the way up to her knee, she is also asking for an inference in the breach of the standard of care.
The causation and breach of duty issues in this case are very similar to those presented in Cangelosi The factual setting however is significantly different on the control of evidence issue and the malpractice setting. Also significantly different is the Hobson's choice mandated by the malpractice statute on jury charges. A more important difference in the cases is the issue of credibility. In Cangelosi, there were no significant direct evidence contradictions between the parties. Nearly all the witnesses were credible; the only difference was the opinions of the experts. In the instant case, the call on credibility controls the entire matter. By deciding to believe or not believe the plaintiff or defense witnesses on the issue of the softness of the soil, one effectively decides the critical issues of causation and breach. By giving the res ipsa loquitur charge of an inference, the plaintiff is asking the court to side with her on her credibility. Credibility issues have always been and should be a jury function. In every case, the judge has to decide the applicable of the law to the case for the purpose of jury instructions. By deciding the credibility call and giving the instruction the majority says Cangelosi requires, the judge is effectively taking the case from the jury and telling them what to do. It would amount to an inappropriate comment on the evidence unless there is a truly res ipsa loquitur setting.
If the directed verdict is the test for the res ipsa loquitur charge under the statute on that side, it should also be the test for the other part of the statute on the issue of no presumption of negligence. In Cangelosi there was certainly no overwhelming evidence that injury alone means negligence and thus reasonable minds could differ on that issue and the court would likewise be required to give that conflicting charge. The statute clearly indicates giving one charge or the other when it uses the word "unless." Why should the directed verdict standard apply only to the res ipsa side of the equation? In most cases, there seldom is overwhelming evidence on either of these issues and under the reasoning of this rule, judges would be required to give conflicting instructions in almost every case.
What is sauce for the goose is sauce for the gander may not be a legal principle but it certainly stands for the idea of fairness and equal justice under the law.
We believe the confusion occasioned by these two paragraphs in Cangelosi present a compelling ground for reconsideration by the supreme court. We note with interest that in the four Louisiana Supreme Court cases that have been decided since Cangelosi which discussed the doctrine of res ipsa loquitur, none have reiterated the jury instruction test announced in Cangelosi, See Lawson v. Mitsubishi Motor Sales of America, Inc., 2005-0257 (La. 9/6/06), 938 So.2d 35; Salvant v. State, supra; Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 2004-1058 (La. 12/1/04), 893 So.2d 1; Spott v. Otis Elevator Co., supra.
The application of this directed verdict test, on appeal of this case, illustrates the problem in using such an analysis. Having found legal error in the trial court's failure to give the res ipsa loquitur charge, the majority herein was able to completely retry the case. The majority opinion accepts without question the testimony of the plaintiff despite the conflict with her own photographic evidence, and totally rejects as unbelievable the testimony of the defendant. Further, the majority opinion is internally inconsistent when it states that res ipsa loquitur applies in what is called only a circumstantial evidence case, when the opinion goes on to recite the substantial amount of direct evidence presented. This appeal involves simply a manifest error review, and this appellate court should not impose its credibility evaluation in place of the jury's credibility call. Appeals should not be a retrial of a jury's decisions on credibility. There is good reason for the manifest error rule, and it is the one that should apply in this case. The majority position opens the door to an unprecedented flood of appellant litigation. Indeed the plaintiff was seriously injured and is entitled to a great deal of compassion and sympathy; however, the established jurisprudence of this state should not be turned on its head to reach a desirable result.
The majority opinion merely recites the prerequisites for application of the doctrine of res ipsa loquitur, without an analysis of the specific facts of this case relevant to satisfying those criteria (or rather, under the facts of this case, failing to meet those criteria), and instead by-passes this threshold inquiry to address whether a res ipsa loquitur jury instruction was warranted. Skipping over the determination of whether this is the type of case in which res ipsa loquitur can be applied in favor of the jury instruction test (i.e., if reasonable minds could reach different conclusions as to whether the defendant's negligence caused the plaintiffs injury, then the trial court must instruct the jury on res ipsa loquitur) will result in a "false positive" in almost every instance. The majority approach essentially holds that whenever there is a question of fact as to whether a defendant is at fault, the jury must be instructed on res ipsa loquitur, which would encompass every jury trial held in negligence cases. As stated herein, we do not believe this approach, though seemingly authorized by the Supreme Court in Cangelosi, is correct.
For these reasons, we submit that the majority opinion mistakenly found res ipsa loquitur applicable in this case.
Exhibit