author: GARRISON, Judge. KLEES, Judge,

text:
    Daniel E. COATES v. FAIRGROUNDS CORPORATION and Irwin Magri, Jr. (Consolidated with No. 13313, Laurence Solow vs. Fairgrounds Corporation and Irwin Magri, Jr.).
    No. 13312.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1982.
    Rehearing Denied Jan. 14, 1983.
    Sapir & Krasnoff, Sanford Krasnoff, New Orleans, for defendant-appellant, Irvin L. Magri, Jr.
    Broadhurst, Brook, Mangham, Hardy & Reed, William C. Broadhurst and Charles R. Minyard, Lafayette, Louie J. Roussel, III, and Baldwin & Haspel, H. Sloan McCloskey, New Orleans, for defendants-appellants.
    Garon, Brener & McNeely, Milton E. Brener, New Orleans, for plaintiffs-appel-lees.
    Before GARRISON, KLEES and WILLIAMS, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court rendered November 20, 1981 granting a permanent injunction in favor of plaintiffs Daniel Coates and Laurence So-low and against the Fairgrounds, enjoining it from denying entry into the Fairgrounds to plaintiffs and from harassing or interfering with plaintiffs while they are at the track. The November 20 judgment was consolidated on appeal with their contempt convictions rendered April 20, 1981. From both judgments, which we reverse in part and affirm in part, defendants appeal.

On February 22, 1981, Daniel Coates entered the Racing Secretary’s Office at the New Orleans Fairgrounds to pick up an “overnight sheet.” Coates had routinely entered the Racing Secretary’s Office for the same purpose daily for a number of years. On February 22, however, a Fairgrounds Security Officer ordered Coates out of the office, informing him that the area was restricted to people licensed by the Louisiana State Racing Commission.

On March 5, 1981, Security Chief Irwin Magri, Jr. informed Coates that he was permanently barred from the Fairgrounds due to his unauthorized presence in the Racing Secretary’s Office.

On March 6, 1981, Coates filed suit for a permanent injunction and a temporary restraining order was issued that day. Later that day Coates was again ejected from the track despite the fact that Coates indicated that he had a certified copy of the temporary restraining order issued in his favor. On March 7, Coates was again ordered from the Fairgrounds and again exhibited the temporary restraining order. On this occasion, however, Daniel Coates was forcibly detained in the Security Office for several hours and denied access to his attorney; he was “arrested” for trespassing and transferred to Central Lockup.

On March 8, 1981, Laurence Solow, while in attendance at the Fairgrounds, was informed by Fairgrounds Security that he was permanently barred from the Fairgrounds. No reasons were given for the ejection. On March 10, 1981, Laurence So-low filed a petition for injunctive relief and damages and a temporary restraining order was issued in his favor.

On April 22,1981, the trial judge, providing 26 pages of written reasons for judgment, issued a preliminary injunction in favor of Daniel Coates and held Louie J. Roussell, II, Irwin J. Magri, Jr., Irwin J. Magri, Sr., R.J. Law and the Fairgrounds Corporation in civil contempt, assessing various fines.

The Solow suit and the Coates suit were consolidated for trial and on November 20, 1981, after due hearing, a permanent injunction was issued in favor of Solow and Coates.

On appeal the Fairgrounds argues:

1. The trial judge erred in failing to find that the race track proprietors have the power to exclude or eject; and
2. the trial judge erred in finding the defendants guilty of contempt.

I Contempt

Addressing the secondary issue first, we note that counsel for the Fairgrounds argues that it failed to adhere to the court’s temporary restraining order because of a mistake of law. The Fairgrounds was erroneously under the impression that the temporary restraining order was not binding upon it until service of process was made.

Article 3605 of the Code of Civil Procedure provides as follows:

“An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.” (emphasis supplied)

The “party restrained” was the Fairgrounds Corporation. Whether various individuals in its employ had or did not have personal knowledge is of no moment as the word “they” in line 11 refers to “parties” in line 7. [See quotation from Article 3605.]

In Crucia v. Behrman, 147 La. 144, 84 So. 525 (La., 1920), the Supreme Court examined a case in which the police chief (at that time titled “Inspector of Police”) was orally informed of the existence of an injunction but chose to ignore it, citing as his defense the potential loss of effectiveness of his department should he pay heed to the contentions of attorneys representing those accused of crimes by his department. The Court stated:

“However, in the instant case the existence of the writ ... was a matter of public record, which could easily have been verified by applying either to the civil district court or by communicating with the counsel for the city.” (84 So. at 527)

In the instant appeal, various Fairgrounds employees were shown certified copies of the temporary restraining order. At this point, the burden shifted to the Fairgrounds to verify the existence of the temporary restraining order.

This sanction may be more severe than that which we would have imposed had we been at the trial court level. Under the clear abuse of discretion standard, however, it is not within our powers as mandated by the Louisiana Supreme Court to overrule the trial judge’s considerable discretion in this matter.

II Ejection

The actions complained of occurred February through April, 1981. During the 1981 Legislative Session, House Bill No. 1095 was introduced by Representative Pepe Bru-neau. The bill passed both houses and was approved by Governor Treen on July 28, 1981. It is Act No. 779 and was effective as of September 11, 1981. The permanent injunction was issued November 20, 1981, after the effective date of Act 779. In part, the act provided guidelines for ejection as follows:

“... Such categories shall include, but shall not be limited to, categories of persons:
“(1) Who are not of age.
“(2) Who have been convicted of a felony under the laws of the United States, this state or any other state or country, or any crime or offense involving moral turpitude.
“(3) Who are career or professional offenders as defined by regulations of the commission.
“(4) Who are of notorious or unsavory reputation or whose presence, in the opinion of the commission, would be inimical to the state of Louisiana and its citizens or to the track, meeting, race, or licensed establishment, or to both.
“(5) Who have had a license or permit refused, suspended or withdrawn under R.S. 4:152.
“No person may be excluded or ejected on account of race, color, creed, national origin, ancestry, or gender.” R.S. 4:193

Under the prior statutes, only the stewards had the power to eject:

“A. In the matters pertaining to racing, the orders of the stewards supersede the orders of the officers and directors of the association and the stewards shall have supervision of the daily conduct of racing. The stewards have full authority to investigate, inspect, search and inquire into all matters under their supervision.
:}s sfc * sfs
“C. The stewards have general supervision over all personnel directly connected with racing and shall have access to all stands, weighing rooms, enclosures, etc., used for the purpose of racing and have the authority to determine all questions concerning entries and racing.
“D. The stewards shall order ejected from the grounds of the association any improper or objectionable persons.” R.S. 4:172

R.S. 4:172 has not been amended by Act 779. Additionally, the new statutory scheme still provides that the power to eject is placed solely in the stewards. The stewards, however, have the power of general supervision, including the power to assign and delegate routine duties. Likewise, R.S. 4:195 imposes a duty to eject on “... any owner, official, supervisor, or employee of a race track, association, or a licensed establishment ... . ” pursuant to the stewards’ order.

In the instant appeal, Coates and Solow were ejected pursuant to an ongoing steward’s investigation of the Fairgrounds. The Fairgrounds personnel, accordingly, must be presumed to have been carrying out the stewards’ orders in this regard.

In examining the testimony and evidence presented relative to Daniel Coates and Laurence Solow, we find that they are clearly subject to ejection under the standards of R.S. 4:193 and R.S. 4:172(D). The evidence is of such an overwhelming nature that we find the trial judge clearly erroneous in his factual determination.

We specifically do not rule on the issue of whether the Fairgrounds is a public corporation, quasi-public corporation or private corporation, nor on the issue of state action versus private action inasmuch as we are not required to address those issues in the light of the prior results herein.

We specifically find that under R.S. 4:172(D) and 195 the stewards have the power to eject and that all Fairgrounds personnel are bound to enforce the orders of the stewards. We specifically find that the trial judge erred in granting the permanent injunction in favor of plaintiffs.

For the reasons discussed IT IS ORDERED, ADJUDGED AND DECREED that the permanent injunction rendered on November 20, 1981 be and hereby is dissolved.

REVERSED IN PART, AFFIRMED IN PART.

KLEES, J., concurs with written reasons.

KLEES, Judge,

concurs with written reasons.

I concur with the majority opinion in this case insofar as it reverses the judgment of the trial court relating to the permanent injunction rendered on November 20, 1981.

As to the imposition of a fine against two individuals of $1,000.00 each which would appear to be excessive under LSA-R.S. 13:461, the record discloses that each of those individuals were found in contempt for two separate occurrences.

Thus I find no abuse of the trial courts’ discretion in its imposition of the fines.

      . An “overnight sheet” is a document which refers to the condition of various horses scheduled to race.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Laurence SOLOW v. FAIRGROUNDS CORPORATION and Irwin Magri, Jr. (Consolidated with No. 13312, Daniel E. Coates vs. Fairgrounds Corporation and Irwin Magri, Jr.).
    No. 13313.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 1982.
    Rehearing Denied Jan. 14, 1983.
    Sapir & Krasnoff, Sanford Krasnoff, New Orleans, for defendant-appellant, Irvin L. Magri, Jr.
    Broadhurst, Brook, Mangham, Hardy & Reed, William C. Broadhurst and Charles R. Minyard, Lafayette, Louie J. Roussel, III, and Baldwin & Haspel, H. Sloan McCloskey, New Orleans, for defendants-appellants.
    Garon, Brener & McNeely, Milton E. Brener, New Orleans, for plaintiffs-appel-lees.

      Before GARRISON, KLEES and WILLIAMS, JJ.
   GARRISON, Judge.

For the reasons assigned in No. 13312, Daniel E. Coates vs. Fairgrounds Corporation and Irwin Magri, Jr., the judgment of the trial court is reversed in part and affirmed in part.

REVERSED IN PART, AFFIRMED IN PART.

KLEES, J., concurs.


author: REDMANN, Chief Judge.

text:
    Beverly Ann Samuelson Katz, Wife of Norman Edward KATZ v. Norman Edward KATZ.
    No. 12863.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.

      A.D. Freeman and Charlotte A. Hayes, Satterlee, Mestayer & Freeman, New Orleans, for plaintiff.
    Maury A. Herman and Matthew P. Chenevert, Herman, Herman, & Katz, New Orleans, for defendant.
    Before REDMANN, C.J., and LOBRANO and WARD, JJ.
   REDMANN, Chief Judge.

Ex-spouses both seek reversal in part of a trial court judgment that (1) dismissed the ex-wife’s demand against the husband for mismanagement of the community-owned furniture store and (2) held that a certain undivided interest in property that the ex-husband acquired indirectly from his mother’s succession by “sale” from a coheir September 23,1975 belonged to the community. We affirm the first and reverse the second part of the judgment.

The Demand for Mismanagement

The ex-wife sought a judgment declaring the ex-husband indebted to the community, and thus to her, because of his mismanagement of the community’s furniture store. (The store actually operated in corporate form, a circumstance we ignore as the parties have.) We conclude that a wife has no action against her husband for mismanagement of a community-owned business unless the husband’s mismanagement amounts to “fraud, to injure his wife.” La. C.C. 2404. (All community property article citations are to those articles prior to their revision by La. Acts 1979 No. 709).

Under former C.C. 2425 a wife might petition for separation of property during the marriage

whenever her dowry is in danger, owing to the mismanagement of her husband, or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims.

The several articles in the chapter on separation of property during marriage, arts. 2425-2437, do not give the wife any other remedy for mismanagement. Specifically, there is no hint in those articles that the wife might charge to the husband’s separate estate any loss to the community resulting from his mismanagement.

Former C.C. 2405-2423, governing the division of the community upon dissolution of the marriage, equally afford no support to a claim that the husband’s separate estate should be liable to the community for his mismanagement of the community’s assets.

The only article that we find that would support a wife’s claim against the husband for improper handling of community property is former art. 2404.

Under C.C. 2404, the only circumstance under which a wife had a claim against the husband for mishandling community assets was the case of disposition “by fraud, to injure his wife .... ” This article envisions a disposition of property “conceived with the intent to reduce the wife’s community interest .... ” Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12, 20 (1956).

There is no evidence of any fraud in this record, and no evidence of a disposition of property intentionally designed to injure the wife by reducing her community interest.

The judgment rejecting the wife’s demand for mismanagement is therefore affirmed.

Character of the Disputed Property

The disputed property came from the ex-husband’s mother’s succession. The mother left her estate (save special legacies) to her three children, Ellen, Albert and Norman. Albert did not wish to remain a co-owner in indivisión, and by a document titled a sale he ceded virtually all of his interest to the other two for a recited price of $120,000. That document, however, specified a division of certain insurance policies owned by the mother (% to each child and % to the father, to be represented by new, separate policies) but noted that the maximum loan value was being obtained from those policies, with each of the three children to “receive his proportionate share of same, except that the sum to be received by Albert Katz shall be included in the $120,000 paid to him this date.” From that document and other documentary evidence and testimony, it is fair to conclude that the original plan of the three children was that Albert’s entire share of his mother’s succession was to consist of the maximum loan value (to be obtained by the succession from the insurers) of the four insurance policies (on their father’s life) that were 100% owned by the mother, plus an actual division of those policies such that Albert would receive a separate policy for two ninths of their total face value (subject to two ninths of the loan being made), plus sufficient cash from Ellen and Norman to make Albert’s total cash receipts $120,000. The fact is that the parties did not await receipt from the insurers of the proceeds of the loan, nor did they merely confirm to Albert the undivided ownership of the right to receive the loan proceeds (they had initiated the loan requests in the name of the succession). Instead Ellen and Norman borrowed (with their father as guarantor) the whole $120,-000 rather than just the $76,000 that they intended to provide in addition to the $44,-000 loans on the insurance policies.

It may also be observed that a partition would have been accomplished by the remaining coheirs’ ceding to Albert the loan value of the decedent’s separately-owned insurance policies plus a divided policy for two-ninths of their value (plus a compensating balance of cash to make Albert’s share equal in value to each other co-heir’s), in exchange for Albert’s “giving up his right in the thing[s] which he abandons,” C.C. 1382, to the other co-heirs (those things being the remaining assets of the succession). Notwithstanding that only one coheir’s indivisión would be thus terminated, the result is a partition, from which the other co-heirs are held to have inherited (still in indivisión) the property they take, as Aubry & Rau, Droit Civil Frangais, Intestate Successions, § 625, n. 6 (La.Law Inst. tran. 1971), explain:

[T]he divided and definitive attribution to one of the co-heirs, in order to satisfy his rights as such, of one or more things belonging to the succession is equivalent, in these conditions, to a partition, although the other coheirs will still remain undivided co-owners ... The retroactive effect of [C.N.] Art. 833 is produced, then, not only concerning the property attributed to the co-heir to whom an allotment has been made ... but also concerning the property remaining in indivi-sión between the others. [Citing several decisions.]

The Projet of the Civil Code of 1825, p. 169, commenting on the suppression of conflicting language in Digest 1808, p. 186, art. 162, observes: “The act of partition ought not to be considered an act by which property is acquired, but an act which determines the things which each heir inherits” (citing Pothier, Successions, ch. 4, art. 5 § 1). The same Projet, p. 202, dropped the wording, but not the principle, of Digest 1808, p. 206, art. 249, that explained why a mortgage created by one co-heir would affect not his initial theoretical undivided interests but only the share that that co-heir ultimately received from a partition. (That principle exists today in C.C. 1338). The Projet comment on the words “undetermined right” of each coheir shows that those words were used “because the heir to whose lot such property falls, is considered as having been seized of the whole of it, ever since the opening of the succession” (by death, C.C. 934). Thus “An act of partition is not ‘translative’ of, but merely ‘declaratory’ of, property.” Kernan v. Baham, 45 La.Ann. 799, 13 So. 155, 160 (1893). Kernan quotes Dalloz, Dictionaire de Jurisprudence, as explaining that each co-heir is deemed to have succeeded alone immediately to the effects comprised within his lot in kind or acquired by him through licitation, and never to have been a proprietor of the other objects of the succession. See also, Aubry & Rau, § 625, n. 1. Our view is that the voluntary partition among the co-heirs is not different from the judicial partition in kind or by licitation, in respect to the nature of the juridical act converting theoretical undivided interests into separate ownerships; like the other partitions, the voluntary partition is not translative of property but merely declarative of property-

Nor does the payment by a co-heir of a compensating balance to equalize the co-heirs’ shares in a voluntary partition alter the character of the partition, nor change the nature of the property from separate to community; Ortego v. Morein, 212 La. 774, 33 So.2d 516 (1948). La.C.C. 1366 expressly provides that when a judicial partition in kind results in lots of unequal value “such inequality is compensated by a return of money, which the co-heir, having a lot of more value than the other, pays to his co-heirs.” The Code can therefore not be interpreted to prevent a voluntary partition that includes a compensating balance, for art. 1322 declares that a partition among heirs all of age and present “may be made in such form and by such act as the parties interested agree upon.” Or-tego expressly held that a voluntary partition-sale with a compensating balance resulted in inherited separate property to the “purchaser.”

Notwithstanding, therefore, the form of sale (with the recitals aforesaid) that the parties used, we conclude that the substance of the transaction was the permissible partition described above. That being its substance, C.C. 1322 allows it to be embodied in whatever form the parties agree upon.

Our ultimate conclusion is that Ellen and Norman, through that partition in “sale” form, must be deemed to have acquired their interests by immediate succession from their mother, and Norman’s interests are therefore classified by C.C. 2334 (prior to its amendment by Acts 1979 No. 709) as separate rather than community property.

Having thus concluded that the “sale” in question is in law a voluntary partition resulting in separate property to the ex-husband, we do not consider the effect of the ex-wife’s having intervened in that act “to acknowledge the paraphernality of the funds so utilized and that the above-described property is the separate and paraphernal property of her said husband.”

The judgment appealed from is affirmed insofar as it rejected the ex-wife’s claim for mismanagement of the community and it is reversed insofar as it declared community property the ex-husband’s interests resulting from the “sale” dated September 23, 1975. Costs are to be divided equally.

      . “Each co-heir is considered to have succeeded alone and instantly to all the effects included in his lot, or fallen to him upon licitation, and never to have had the ownership of the other effects of the succession.”

      . “When the lots are of unequal value, such inequality is compensated by means of a return of money, which the coheir, having a lot of more value than the other, pays to his coheirs.”


text:
    Denise LOMBARD v. WINN DIXIE, INC.
    No. 13300.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.
    Arthel J. Scheuermann, Scheuermann & Jones, New Orleans, for plaintiff-appellant.
    Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and BARRY and BYRNES, JJ.
   REDMANN, Chief Judge.

Plaintiff appeals from the dismissal of her action for damages from striking a pullout shelf for paper bags at a check-out counter in a supermarket.

Upon entering the supermarket plaintiff (with her sister) went to read the supermarket’s newspaper advertisement which was posted on a wall which formed one side of the lane through the first check-out counter. That first counter itself extends into the main aisle along the front of the supermarket much more than do the other counters, affording less space between the end of that counter and the front wall. Moreover, within that reduced space there appear to be other intrusions, including a pay telephone on the same wall as the newspaper ad and about a foot away from the end of the counter (not from the pull-out shelf). The newspaper ad was located several feet within the first counter’s lane. Plaintiff thus entered that lane to look at the ad. After doing so, plaintiff exited the lane the same way she had entered, intending to turn so as to pass along the exits of all the other lanes, get a grocery cart, and enter the merchandise section of the supermarket. On making her turn into the main aisle while exiting the lane she struck her knee on a movable, “pull-out” shelf used for bagging when the lane is in operation. (The lane was not in operation at the time.) The shelf protruded 12 to 16 inches from the counter and was two to two-and-a-half feet high, perhaps a foot lower than the counter itself and thus somewhat obscured by the counter to the view of one inside the lane.

We conclude that, just as a supermarket is obliged to provide premises free of “substances or objects” that a self-service shopper, distracted by attention-drawing displays of goods, might understandably not notice, Gonzales v. Winn-Dixie La. Inc., 326 So.2d 486, 488 (La.1976), the supermarket also is obliged to provide obstacle-free access to and egress from an aisle to which it invites its patrons to peruse its newspaper advertisements.

The trial judge’s expressly uncertain view was that plaintiff was contributorily negligent because she should have seen the protruding shelf when she entered the lane. (He viewed the shelf as “almost a trap” and, if comparative negligence had been in force at the time, would have assessed only 10% of the fault to plaintiff.)

Without consideration of the exculpatory doctrine of momentary forgetfulness, plaintiff might have been considered contributo-rily negligent. But, under a duty-risk analysis, the possibility of such contributory negligence cannot be both the reason a duty is imposed upon the storekeeper and an excuse for the storekeeper’s breach of that duty; Oliver v. Capitano, 405 So.2d 1102 (La.App. 4 Cir.1981), writ refused 407 So.2d 731 and 734. The theory of Oliver and its forebears may not apply to victim negligence if comparative negligence applies, or if the plaintiff’s duty and breach are comparable to the defendant’s, see discussion in Jenkins v. St. Paul Fire & M. Ins. Co., 422 So.2d 1109 (La.1982), reh’g granted, but we deem it applicable here.

We therefore reverse the trial judge’s ruling on liability.

We award $1,000 for the contusions and abrasions to the knee with some bleeding and residual scarring and discoloration (shown on a photographic transparency in evidence) and accompanying pain and suffering but no residual impairment. Medical was $235.88.

Reversed; judgment for plaintiff for $1,235.88 with interest from judicial demand and all costs.


text:
    Suzanne M. HUGHES, Individually and on Behalf of her minor son, Shawn W. HUGHES v. BUCCANEER WASH AND DRY CLEANING CENTER, Fedders Corporation and State Farm Fire and Casualty Company.
    No. CA 0031.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.

      Robert F. Shearman, Badeaux, Discon, Cumberland & Barbier, New Orleans, for plaintiff.
    Joseph R. Ward, Jr., New Orleans, for defendants-appellants.
    Bruce S. Johnston, Law Offices of Robert E. Birtel, Metairie, for defendants-appel-lees.
    Before REDMANN, C.J., and BARRY and BYRNES, JJ.
   REDMANN, Chief Judge.

Defendant Buccaneer Wash and Dry and its insurer appeal from a judgment for damages to a child injured by a washing machine at Buccaneer’s place of business. The child’s mother appeals the dismissal of the machine’s manufacturer and its insurer. Liability and quantum are at issue. We affirm.

From the severity of the breaking of the infant’s arm, it is a permissible inference that, rather than merely having fell, he opened defendant Buccaneer’s washing machine and stuck his arm inside while it was spinning fast enough to cause his injury. Compare Shapiro v. City Stores Co., 391 So.2d 2 (La.App. 4 Cir.1980).

A washing machine that allows a child only three years 11 months old to open it while it is spinning fast enough to completely break his arm is unreasonably dangerous for normal and expected use in a “wash and dry clean center” where young children will be present while their parents utilize the facilities. Marquez v. City Stores Co., 371 So.2d 810 (La.1979). The presence of a mechanical horse for the amusement of youngsters shows Buccaneer expected and approved of their presence.

Because of the age (12 years) of the machine and Buccaneer’s maintenance of it, we cannot say the trial judge erred in his conclusion that the failure of the door-lock mechanism was not attributable to a defect that existed at the time of the manufacture, as required by Weber v. Fidelity & Casualty Ins. Co., 259 La. 599, 250 So.2d 754 (1971).

But defendant is strictly liable under C.C. 2317, Loescher v. Parr, 324 So.2d 441 (La.1975), as the guardian of a defective thing that causes damage. Regardless of the applicability or not of contributory negligence, the infant could not be contributorily negligent, and his mother’s concurrent negligence (if any) could not be imputed to the infant.

If the mother’s negligence contributed to the accident, however, it is arguable that her recovery of medical expenses might be affected. But, in the first place, a self-service store customer must be expected to exercise diminished care by reason of the necessities of self-service, Harvey v. T.G. & Y Stores, Inc., 327 So.2d 482 (La. App. 1 Cir.1976). More important, in our view, on a duty-risk analysis, the mother’s understandable slight inattention was not a legal cause of the accident. The mother owed no duty to the child, much less to Buccaneer, to anticipate that the washing machine was so dangerously defective and therefore to keep the child literally in hand at all moments while trying to remove her washed clothes from the several washing machines she used. See also Shapiro, above.

Finally, Buccaneer and its insurer question quantum of $45,000. The child’s arm suffered multiple breaks which impinged on nerves, requiring surgery and permanent pins in the elbow. The arm is bowed and scarred; the bowing will probably straighten but might worsen and require more surgery. Original treatment required a body cast for months and then an arm cast. If $45,000 is towards the higher rather than the lower limit of the trial judge’s “much discretion,” C.C. 1934(3), we cannot say it exceeds it.

Affirmed.


author: KLEES, Judge.

text:
    James R. PICTON v. SEWERAGE AND WATER BOARD.
    No. 13122.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.

      John A. Gordon, Sp. Counsel, Vincent T. LoCoco, Gen. Counsel, Gerard M. Victor, Sr. Counsel, Sewerage and Water Bd. of New Orleans, New Orleans, for defendant-appel-lee.
    James R. Picton, in pro. per.
    Before KLEES, GULOTTA and AUGUSTINE, JJ.
   KLEES, Judge.

Appellant, James Picton, was terminated as a plumbing inspector for the New Orleans Sewerage and Water Board. He was notified by letter from the appointing authority stating that his dismissal was based upon his “entire work record”. This record included allegations that Mr. Picton issued “false and improper” inspection reports. A Hearing Examiner recommended termination which was affirmed by the Civil Service Commission of New Orleans.

Mr. Picton appealed the decision of the Commission to this court, Picton v. Sewerage and Water Board, 385 So.2d 1259 (La. App. 4th Cir.1980), cert, denied 393 So.2d 742 (La.1980), which vacated the original decree and remanded the case to the Civil Service Commission for an evidentiary hearing to determine if Mr. Picton received written notice of his right to reply to his dismissal in accord with the rules of the Civil Service Commission. This court also remanded to allow Mr. Picton “to present evidence, if there be any, to prove impure motives or discrimination as the basis for his dismissal.”

On remand the Civil Service Commission reinstated its former decision and affirmed the dismissal of the appellant. Mr. Picton, in proper person, now appeals the latest decision of the Commission contending that the appointing authority had insufficient cause to dismiss him.

Civil Service Commission decisions are reviewable in the appellate courts on both law and fact. Art. 10, § 12, La. Const. (1974). Most cases hold that the usual guideline for appellate review, i.e., the manifest error rule, applies. Gallardo v. Department of Fire, 399 So.2d 626 (La.App. 4th Cir.1981). Flanagan v. Department of Civil Service of the City of New Orleans, 391 So.2d 958 (La.App. 4th Cir.1980). This was clearly the standard prior to the use of a Referee (Hearing Examiner) to conduct the hearing. The scope of appellate review was determined to be the same as in other civil matters. Michel v. Department of Public Safety, Alcoholic Beverage Control Board, 341 So.2d 1161 (La.App. 1st Cir. 1976), writ refused 343 So.2d 1078 (La.1977).

Two recent cases have held that the manifest error rule, as set forth in Canter v. Koehring, 283 So.2d 716 (La.1973) and as clarified in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), is not applicable to Civil Service Commission proceedings before a Hearing Examiner. McGee v. Sewerage and Water Board of New Orleans, 396 So.2d 430 (La.App. 4th Cir.1981). Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980). The Court in Merchant stated at p. 588:

“The great weight accorded conclusions and determinations made by the trier of fact under Canter and Arceneaux is based on the advantage derived from personal observation of the witnesses, their demeanor on the stand, and the manner in which they responded to examination. Here, the Commission enjoyed no such advantage. Under these circumstances, the standard of review by an appellate court is not unlike that of judicial review in other administrative matters, that is, whether the conclusion reached by the Commission is arbitrary or capricious or manifestly wrong."

The court then made an independent review of the record to determine whether the conclusion of the Commission was arbitrary or capricious.

Using either of the above two standards, a careful review of the record indicates that the Commission did not err in ruling that the appointing authority had sufficient cause to dismiss the appellant. Even if this court adopts the less restrictive standard of review, it cannot reverse the Commission unless the decision was arbitrary or capricious.

In the original hearing of this case, the Civil Service Commission concluded:

“As indicated by Mr. Brehm in the conclusion of the letter, he terminated Mr. Picton on the basis of ‘your entire work record’. The only evidence in the record regarding many of the allegations in the letter consist of documents which reflect the action taken by the Appointing Authority. With respect to these (except the incident of January 31,1977 involving an inspection at 928-30 Second Street, and September 14, 1977, 838 Nashville Avenue), Mr. Picton admitted to all of the ‘factual matters’ contained in these various paragraphs but maintained that he was ‘innocent’ of the ‘charges’. He, however, also admitted that he did not appeal any of these except for the matter before the Appellate Board of the Sewerage and Water Board which sustained the rating of unsatisfactory. Thus, most of this lengthy transcript was directed toward the question of the alleged falsification of inspection reports on the three above referred to addresses.
Insofar as the allegations regarding the falsification of reports are concerned, it first should be noted that the dismissal letter of September 23, 1977 did not describe with any specificity the falsification of the reports other than the date of the report and the address of the location inspected. (Footnote: Although the issue was not raised at the hearing, the Commission believes this was sufficient notice as required by law.)
Accordingly, the specific acts of falsification must be gleaned from the testimony on behalf of the Appointing Authority. This task becomes particularly difficult because of the very technical language and concepts being discussed by the witnesses, most of whom are licensed plumbers. Nevertheless, the Commission believes that the Appointing Authority had through its witnesses established the specific falsification of records sufficiently to meet its burden of proof. On the question of the job on Second Street, the City was able to prove two matters which constituted the falsification. The first, that it was clear that a four inch stack was not checked by Mr. Picton and more significantly that on this particular inspection he simply took the plumber’s word for the exceptions involved (deficiencies) as opposed to personally verifying these facts for himself. Regarding the South Prieur Street job, the City was able to prove that Mr. Picton falsified the record with regard to his report on the “clean-out box”, indicating that it was within the six inch requirement when in fact a subsequent check by Mr. Lawrence of the Department clearly established that it was at least twelve inches in the ground and could not be viewed with the naked eye. On the other hand, the City was not able to establish that there was any falsification on the Nashville Avenue site as the plumber involved sufficiently corroborated Mr. Picton’s explanation of that inspection.
Thus, viewing this entire record as a whole and considering that Mr. Picton was dismissed on the basis of his entire record, it is the Commission’s view that the City has sufficiently carried its burden of proof and has established sufficient cause for a dismissal of this employee. Accordingly, the appeal is hereby dismissed.”

We cannot agree with the portion of the conclusion reached by the Commission regarding Mr. Picton’s dismissal on the basis of his entire work record. The Appointing Authority in fact did not attempt to prove each and every derogatory incident in Mr. Picton’s work record. Without that proof, the Commission was in error to consider allegations regarding his work record. Nevertheless, as to the most recent incidents, we must agree with the Commission’s findings that the Appointing Authority had, through its witnesses, established the specific falsification of records sufficiently to meet its burden of proof. The proof of these matters is sufficient in themselves to justify Mr. Picton’s termination.

It is well settled that a pattern of conduct which is detrimental to the continued efficient operation of a public office can be grounds for dismissal. Legett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962). In this case, falsification of inspection reports by the very person who is to make certain that work is to be done in the proper manner, cannot be condoned.

This case was remanded back to the Commission for a determination of two specific issues.

Notice of the Right to Appeal:

The appellant claims that his notice of termination was insufficient as it did not conform to Rule IX, Section 1.2 of the Civil Service Commission Rules. The rules, on their face, require notification of the right to appeal.

In this case, the appellant immediately appealed the decision of the Commission before the Civil Service Department was formally advised of his dismissal. Since the appellant had already lodged a valid appeal in the matter, the Commission did not send him a notice of his right to appeal. Mr. Picton was obviously aware of his right to appeal and exercised it timely. We find he was not prejudiced by the lack of notification, and note the recent Supreme Court ruling on this very rule in Sanders v. Department of Health and Human Resources, 388 So.2d 768 (La.1980), wherein the court found that the rule providing for notification to the Director was merely directory.

Affirmative Defense:

The appellant claims that he was fired from his job because he had knowledge that one of his supervisors had been taking money for favors in the course of inspections. Such an allegation could be considered an “affirmative defense”. If it is considered as such, the burden is on the appellant to establish it.

The Commission stated at page 5 of its decision:

“... there is almost no proof at all, certainly no believable proof that_ (our deletion) took anything of value from any person. More to the point of this appeal, there is absolutely no proof at all that this had anything to do with the appellant’s termination.”

This statement by the Commission is an accurate evaluation of the evidence.

The only evidence that appellant’s supervisor took anything came from one Harry Hill who testified that he had given the supervisor money for favors on different occasions. However, Mr. Hill was effectively impeached by reference to the records involving the inspections supposedly involved in the payoffs. The Commission found that Hill’s testimony was completely and wholly unworthy of belief. After reviewing Hill’s testimony we can find no error in the Commission’s findings.

For the reasons set forth above, the decision appealed from is affirmed.

AFFIRMED.


author: BYRNES, Judge.

text:
    Jackie STEVENSON v. NEW ORLEANS PUBLIC SERVICE and Brenda Gray.
    No. 13090.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.
    Bruno, Bruno & Blouin, Frank S. Bruno, New Orleans, for plaintiff-appellant.
    James Maher, III, New Orleans, for defendant-appellee.
    Salvadore Anzelmo, City Atty., George R. Simno, III, Deputy City Atty., Yada T. Ma-gee, Asst. City Atty., New Orleans, for defendant-appellee.
    Before BARRY, BYRNES and CIACCIO, JJ.
   BYRNES, Judge.

This appeal arises out of an intersectional collision between a New Orleans Public Service Bus (NOPSI) traveling lake bound on Desire Street in New Orleans and a car driven by Brenda Gray. Gray was traveling on Johnson Street and proceeded across its intersection with Desire Street. Her car was struck by a NOPSI bus. The intersection of Desire and Johnson is an uncontrolled intersection. Jackie Stevenson, appellant, was one of a number of passengers on the bus who were injured. Seven suits arose from this collision, all of which were consolidated for trial. The morning of the trial appellant added the City of New Orleans as defendant alleging that they were negligent in not placing a stop sign or other traffic control at the intersection of Johnson and Desire Streets. Additionally, on the morning of the trial, six of the seven lawsuits were compromised and settled with funds tendered into the registry of the court by United States Fidelity & Guaranty Insurance Co. (USF & G), the insurer of Brenda Gray. Jackie Stevenson did not participate in this distribution of funds, choosing instead to go against NOPSI and the City of New Orleans. The trial was bifurcated, with the issue of the negligence of NOPSI presented to the jury and the issue of the City of New Orleans’ negligence determined by the judge. The jury returned a verdict in favor of NOPSI and against Jackie Stevenson. Before the trial judge ruled on the negligence of the City of New Orleans, the City filed an exception of prescription inasmuch as they had been added as defendant well after the prescriptive period had run. The judge upheld the City’s exception of prescription and therefore did not rule on the City’s negligence. From these adverse judgments plaintiff appeals, alleging five specifications of error.

Appellant’s original petition was filed on December 13,1979, naming NOPSI & Brenda Gray as defendants. NOPSI was served and filed an answer. There is no return indicating that Brenda Gray was ever served with the petition. Appellant’s attorney moved on April 8, 1980 to set trial for May 8, 1980. Trial was then continued on the motion of NOPSI. On June 27, 1980 some two and one-half months after appellant’s motion to set trial was filed, an amended petition was filed adding USF & G as a defendant inasmuch as it was alleged that USF & G had a policy of insurance on Brenda Gray at the time of the accident. USF & G answered the supplemental and amending Petition on July 29, 1980. They did not answer on behalf of Brenda Gray. On the motion of USF & G a pre-trial conference was set for September 29, 1980. At this conference trial was set for January 21, 1981. Appellant’s attorney was listed on the roster of attorneys notified of this pre-trial conference and since there was no indication to the contrary in the record , it can be assumed that he did in fact attend or had a representative attend at the pre-trial. This attendance is further evidenced by the fact that the attorney for appellant filed a list of witnesses to be called pursuant to the jury trial order issued at the pre-trial hearing.

A motion to place funds into the registry of the court and motion to dismiss was then filed by USF & G on January 13, 1980. It reads in part:

“Pursuant to the order of the Court given at the pre-trial conference, United States Fidelity & Guaranty Co., through undersigned counsel, with respect represents that:
A. There is in existence a policy of insurance between Brenda Gray and USF&G, which policy has limits of $5,000.00 per person and $10,000.00 per accident:...”

A certificate of service indicates that counsel for appellant was mailed this motion on the same day it was signed. Therefore the record indicates that appellant’s counsel was well aware of this motion and indeed evidence in the record leads this court to conclude that he was indeed present when it was discussed at the pretrial conference.

The above procedural history is germane to our disposition of appellant’s first specification of error, that the trial court’s ex parte dismissal of defendant USF & G and Brenda Gray on January 12, 1981 upon the deposit of funds into the registry of the court is null and void because proper procedural requirements were not followed.

The case at bar involves seven consolidated actions. USF & G, insurer of Brenda Gray, upon “order of court given at pre-trial” admitted coverage and deposited the limits of its policy coverage into the registry of the court. An order of dismissal was signed dismissing both Gray and USF & G. This was nothing more than a court sanctioned settlement which commenced with the deposit of funds into the registry and concluded with the distribution of funds to all plaintiffs, save Stevenson, on the morning of the trial.

We find no merit in appellant’s contention that even if the dismissal of USF & G was proper the dismissal of Brenda Gray was improper. Counsel for appellant was fully aware of the dismissal of Brenda Gray and in fact had acquiesced to said dismissal. This is made abundantly clear upon a review of the transcript. Out of presence of the jury, after the settlements to the various other plaintiffs were reached, but before trial commenced, the following colloquy took place in the chambers:

THE COURT:

“... Brenda Gray was never served and (sic) answered the lawsuit. USF&G, her insurer, deposited in the registry of the court $11,662 representing the total amount of their liability under their policy. The Court dismissed USF&G as a defendant....
Mr. Bruno has objected to Mr. Maher’s —who represents NOPSI — trial tactic of referring to Brenda Gray as a negligent defendant by virtue of the deposit and the settlement of all the claims out of that fund.
This Court now rules and has explained to counsel that a deposit in the registry of the court is equal to or synonymous to a settlement made prior to the trial and treats it as such following the [dicta] and the language in Wexler vs. Allstate, the 4th Circuit case, and has issued an in limine order against NOPSI prohibiting them to make any reference to the deposit or prior settlements and the fact that Mrs. Brenda Gray confessed any negligence ....

Further conversations between the court and various counsel again shows this acquiescence.

“MR. MAHER:

... The second point is that I feel that I have a right to let the jury known that the defendant, Brenda Gray, is a defendant to the lawsuit. Since Mr. Bruno decided to dismiss her this morning, I would have to object to that and I feel I do have a right to let the jury know that Brenda Gray as a named defendant. And I also would object to not letting the jury know that there is insurance; that there was an insurance policy.
My third objection would be by not being able to tell the jury that by depositing the amount of the policy into the court, that USF&G has admitted liability or has said that Brenda Gray was at fault for this accident.

THE COURT:

It’s exactly those reasons that this Court denies to Mr. Maher and his client the right to do that.
There is a judgment in the record signed by me dismissing Brenda Gray and USF&G from the lawsuit. Am I correct or incorrect:

MR. BRUNO:

January 12, 1980.” [Emphasis ours]

After the jury was seated, the Judge again stated:

“... Now, Brenda Gray is not in this lawsuit, so I can’t introduce Brenda Gray to you. And you will decide eventually whether or not Brenda Gray was a cause, the only cause, or one of the causes when I give you law instructions as to how this accident happened, but Brenda Gray is not a party to the lawsuit... ” [Emphasis ours]

It is clear to this Court that appellant chose, for tactical reasons, to dismiss her claim against Brenda Gray and to proceed only against NOPSI and the City of New Orleans. This tactic unfortunately did not work and equity dictates that she not now be allowed another day in court solely on this pretext.

The next issue raised by appellant is the maintaining of the City of New Orleans’ peremptory exception of prescription. This exception was raised after the trial but before the trial judge rendered judgment on the issue of the City’s negligence. The City was not added as defendant until the morning of the trial, May 12, 1981, well beyond the one year prescriptive period. The trial court ruled that the only two defendant’s were the City and NOPSI (Gray having been dismissed earlier) and that since the jury had returned a verdict in favor of NOPSI, there could be no solidary liability between the two. Therefore, in the absence of this solidary liability, prescription would not have been interrupted as to the City by the timely filing of suit against Brenda Gray and NOPSI. The judge was correct in maintaining the City’s exception of prescription.

Appellant’s next specification of error alleges that the trial judge’s instructions to the jury did not properly inform the jury of the applicable law. Specifically appellant objects to the fact that there was a failure to give instructions concerning preemption of an intersection and last clear chance. The trial judge’s instructions consisted of the law pertaining to directional right of way. Appellant did not object to anything given in the jury charge and therefore he may not raise on appeal any questions as to the jury charge given. La. C.C.P. 1793. As to the failure of the trial judge in not giving the law of pre-emption or last clear chance, a careful reading of the record indicates to this court that the trial judge was correct in denying these charges inasmuch as they were clearly not applicable to the facts of this case. Accordingly, we find no merit to the contention that there was error in the jury charge given.

Appellant’s final contention is that the verdict of the jury insofar as NOP-SI’s negligence was against the weight of law and evidence. Great deference must be given to the jury’s findings of fact and they will not be disturbed absent a clear showing of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). The record amply supports the jury’s finding in favor of NOP-SI and therefore we see no reason to change it.

We therefore affirm the trial court’s ruling. All costs of these proceedings are to be borne by appellant.

AFFIRMED.

      . The motion for pre-trial conference stated that any attorney who is unable to attend must notify the court. No notification that appellant’s attorney would not attend is in the record.


author: CIACCIO, Judge.

text:
    Virginia ALLEN and Lynell Ellis v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 13298.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.

      Steven M. Koenig of Heisler & Wysocki, New Orleans, for appellees.
    Bradford H. Walker of O’Keefe, O’Keefe & Berrigan, New Orleans, for appellant.
    Before GULOTTA, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Plaintiff-appellee, Virginia Allen, rents an apartment in a building owned and operated by the Housing Authority of New Orleans, defendant-appellant. The other plaintiff, Lynell Ellis, is a friend of Ms. Allen. Plaintiffs filed an action to recover for personal injuries alleged to have been caused by defendant’s negligence in failing to properly maintain the premises. The trial judge found in favor of plaintiffs and awarded damages. We reverse.

Ms. Allen’s apartment has three doorways, viz., a front door, a kitchen door, and a fire door. The fire door could not be opened from the outside and was for emergency exits only. The front door and the kitchen door served the normal ingress and egress activity of the apartment.

The front door of the apartment had been damaged or in disrepair for much of Ms. Allen’s tenancy. Housing Authority service records dating from October, 1976, when Ms. Allen was a new tenant, were introduced at trial. These records established a stream of service requests and corresponding services performed regarding the front door. At the time of the incident which gave rise to this suit, the front door could not be opened. Ms. Allen, therefore, was required to use the kitchen door whenever entering or leaving the apartment.

The kitchen door had two locks. One lock was connected to the door knob. The other lock was a dead bolt operated by a key from outside and by a manual switch from inside. Ms. Allen had a key to the door knob lock, but did not have a key to the dead bolt.

On the evening of September 30, 1980, Ms. Allen found herself locked out of her apartment. She and Mr. Ellis fell from the second story ledge of her apartment building while attempting to gain access to her apartment. The injuries for which plaintiffs sue were sustained in this fall.

Prior to the accident, plaintiffs were sitting outside the apartment building chatting with friends. At intervals of approximately fifteen minutes Ms. Allen would leave the group to go to her apartment to tend to some beans she had left cooking on the stove and to check on her three children. The children were ages five, six and eleven.

Since the front door was inoperative Ms. Allen was using the kitchen door entrance to her apartment. Around 10:00 p.m., when she went to check on the beans and the children, Ms. Allen found the kitchen door locked with the dead bolt for which she did not have a key.

Ms. Allen knocked on the door, then telephoned her apartment, but received no response. She also telephoned the project “Hotline” which proved to be equally fruitless.

Ms. Allen sought Mr. Ellis’ assistance. They both climbed onto a second story concrete ledge of the apartment building. The ledge was approximately three feet wide with no railing or barricade of any type. Ms. Allen then stood on Mr. Ellis’ shoulders in an attempt to reach a window of her apartment located on the third floor. Ms. Allen lost her grip on the window sill and fell, knocking Mr. Ellis down to the ground with her.

Plaintiffs argue that the “proximate cause” of their injuries was the Housing Authority’s failure to properly repair the front door and to give Ms. Allen a key to the dead bolt on the kitchen door. In their brief, plaintiffs contend the lessor is responsible for plaintiffs’ injuries because of the lessor’s failure to fix the front door and provide a key to, or remove the dead bolt from, the kitchen door.

The trial court found that the Housing Authority was at fault for not repairing the front door and for not providing a key to the dead bolt lock on the kitchen door. The Housing Authority’s failure, the court found, was a cause of the accident. The court then found Ms. Allen thirty-five (35%) percent comparatively negligent and Mr. Ellis free from any negligence. The court rendered judgment accordingly.

The trial court apparently reasoned that solely because the Housing Authority’s failure to fix the door and provide a key was a logically antecedent cause of plaintiffs’ fall, the Housing Authority was to be burdened with liability offset only by any comparative negligence on the part of the plaintiffs. Neither this approach by the trial court nor the “proximate cause” approach espoused by plaintiffs operates as the proper analysis required in this ease. In order to determine whether liability exists under the facts of a particular case, the Louisiana Supreme Court has adopted a duty-risk approach. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself Systems v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

The first inquiry in making a determination of liability is whether defendant’s alleged wrongful conduct was a cause-in-fact of plaintiffs’ injuries. Shelton v. Aetna Casualty and Surety Company, supra; Jones v. Robbins, 289 So.2d 104 (La.1973); Hill v. Lundin and Associates, Inc., supra; Dixie Drive It Yourself Systems v. American Beverage Company, supra, Charpentier v. St. Martin Parish School Board, 411 So.2d 717 (La.App. 3rd Cir.1982). In resolving this question we make no inquiry as to whether the act or acts were unlawful or negligent, nor is it proper at this point to refer to the duty-risk approach policy considerations. We determine only whether the acts of the defendant were a substantial factor without which the accident would not have occurred, i.e., whether they had some direct relationship to the accident. Shelton v. Aetna Casualty and Surety Company, supra; Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Charpentier v. St. Martin Parish School Board, supra; Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1st Cir.1981).

Every act leading up to an accident cannot be said to be a eause-in-fact. However, when the antecedent acts bring the court, after careful scrutiny of all the facts and circumstances, to a conclusion that more probably than not they were necessary ingredients of the accident, they constitute cause-in-fact. Laird v. Travelers Insurance Company, supra. If the front door of Ms. Allen’s apartment had not been inoperative and/or if Ms. Allen would have had a key to the dead bolt on the kitchen door, the accident, more probably than not, would not have occurred. Defendant’s failure, therefore, was a cause-in-fact of the accident.

The next step in the analysis was outlined by the Louisiana Supreme Court in Shelton v. Aetna Casualty and Surety Company, supra, as follows:

“A finding that defendant’s conduct was the cause in fact of plaintiff’s injury, however, does not establish liability. In addition, we are required to ascertain whether the landowner breached a legal duty imposed to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Hill v. Lundin & Associates, Inc., supra; Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (1971); Page v. Green, 306 So.2d 847 (La. App. 2d Cir.1975). In making this determination the following inquiries must be made: (1) What, if any, duty was owed by the landowner to the plaintiff? (2) Was there a breach of this duty? (3) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Jones v. Robbins, supra; Hill v. Lundin & Associates, Inc., supra; Thomas v. Hanover Insurance Co., 321 So.2d 30 (La.App. 3d Cir.1975).”

The Housing Authority, as the owner and operator of the apartment building, owned many varied duties to Ms. Allen and her guest. The particular duty relied upon by plaintiffs to support their claim of liability is an alleged duty to repair the front door and to provide a key to the dead bolt on the kitchen door. The Housing Authority, in its brief, concedes that it had the responsibility, i.e. the duty, of maintaining an operative front door. The existence of this particular duty, therefore, is not at issue.

In orally providing its reasons for judgment the trial court implied that the Housing Authority also had a duty to provide Ms. Allen with a key to the dead bolt. The only evidence that Ms. Allen had ever requested a key was her own testimony. The trial judge apparently believed this testimony. Plaintiffs, however, made no showing that the Housing Authority had a duty to provide a key. Nevertheless, for the purposes of this opinion, the trial court’s implied finding of a duty will not be disturbed.

Operating on a finding that the Housing Authority had a duty to repair the front door and provide a key to the kitchen door dead bolt, the next inquiry is whether this duty was breached. Housing Authority records corroborated Ms. Allen’s testimony at trial that the front door had remained unrepaired and inoperative for some time prior to the accident. Other witnesses also testified to this fact. Uncontradicted testimony also established that Ms. Allen did not have a key to the dead bolt. These factual findings establish that the Housing Authority breached its duty.

The next step of the analysis requires a determination of whether the defendant’s duty was designed to protect these plaintiffs from this particular type of harm. There can be no argument that the Housing Authority’s duty concerning repair and maintenance of the apartment building was for the protection of tenants, e.g. Ms. Allen, and their guests, e.g. Mr. Ellis. The critical question is whether this duty operated to protect against the particular harm suffered by these plaintiffs. We find that it did not. We, therefore, cannot find defendant liable for plaintiffs’ injuries.

While the Housing Authority’s duty to repair the front door and provide a key to the dead bolt operated to protect plaintiffs from certain harms, falling from a second story ledge while attempting to climb through a third story window was not one of them.

An extension of the lessor’s duty to repair and to maintain is to protect tenants and their guests from any unreasonably dangerous condition on the premises and to either correct the condition or warn of its existence. While the Housing Authority’s failure to repair the front door or provide a key to the dead bolt may have been unreasonable, we find that under the facts of this case the condition created by the failure was not unreasonably dangerous. In this sense the Housing Authority did not breach its duty. The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Shelton v. Aetna Casualty Company, supra.

. In conclusion, we find that defendant’s failure to fix the door and to provide a key to the dead bolt, was a logically antecedent cause without which plaintiffs probably would not have been harmed, i.e., a cause-in-fact. For the purposes of this case only, we also find that defendant had a duty to repair the front door and provide a key to the dead bolt. Defendant breached this duty. Although this duty was designed to protect these plaintiffs, it was not designed to protect them from the type of harm suffered. Defendant, therefore, will not be held liable.

For these reasons we find the defendant, Housing Authority, non-negligent and relieved of liability for the injuries sustained when plaintiffs fell. Accordingly, we reverse the judgment of the trial court and enter judgment in favor of the Housing Authority of New Orleans dismissing plaintiffs’ suit. Costs are to be paid by plaintiffs-appellees.

REVERSED.


text:
    Dr. & Mrs. David E. SIMMONS v. Dr. & Mrs. Billups P. PERCY.
    No. 13330.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.

      Charles F. Barbera, Metairie, for defendants-appellants.
    Robert M. Johnston, New Orleans, for plaintiffs-appellees.
    Before GULOTTA, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

Plaintiffs, the purchasers of a house located at 1236 First Street in New Orleans, filed an action in quanti minoris, against the sellers to recover damages for alleged defects in the residence. After a trial on the merits, the district court awarded judgment in favor of the plaintiff in the sum of $4,840.00. The defendants appeal only from that portion of the judgment which awarded the plaintiffs $4,260.00 for replacement of the roof. We amend the judgment of the district court and affirm.

The sole issue on appeal is the correctness of the amount of the trial court’s award for the roof replacement.

The suit arises out of the following facts:

On December 6, 1977 Dr. and Mrs. David E. Simmons entered into an agreement to purchase a house owned by Dr. and Mrs. Billups P. Percy located in the Garden District of New Orleans, at 1236 First Street. The 130 year old house was a three story Greek Revival structure on a pier foundation. The buyers visited the house on two occasions, prior to the purchase. The parties agreed to pay $264,000 as the purchase price of the property. The standard purchase agreement signed by the parties contained several handwritten provisions including the following statement: “Roof to be repaired by seller guaranteed for one year.” Pursuant to this stipulation, the sellers secured the roofing services of William Twickler & Sons, who made an inspection of the roof at 1236 First Street. After completion of the job, Mrs. Percy received an inspection certificate which read as follows: “On inspection of this residence’s roof, we found in our opinion that the asbestos shingle roof needed repairs and repairs in Feb. ’78 have been completed as found necessary.” The certificate was dated March 10, 1978 and signed H. Twickler.

On March 16, 1978 the parties executed the act of sale for the First Street property. Mrs. Simmons inquired, at that time, as to whether the roofing provision of the purchase agreement had been fulfilled. In response to this inquiry Mrs. Percy presented her with the roofing certificate.

Prior to moving into the First Street residence, Dr. and Mrs. Simmons undertook to have the kitchen remodeled and to have a substantial amount of renovation performed on the third floor of the house. About six weeks after the sale, Dr. Simmons was inspecting the attic of the house on a rainy day and he noticed water pouring into the attic from a very large leak in the roof. Dr. and Mrs. Simmons then notified the sellers of the condition. The problem was not rectified between the parties. Dr. Simmons employed Usner Brothers, Inc., a roofer contractor who replaced the roof of the residence at a cost of $7,350.00 and performed additional work which resulted in a total bill for roofing and sheet metal work of $8,520.00.

The purchasers filed suit against the sellers, seeking a reduction in the purchase price of their home due to alleged redhibi-tory vices in the roof, air condition and heating systems, flooring and foundation. The trial court found that the problems with the foundation did not qualify as red-hibitory defects and that the plaintiffs failed to prove their claim regarding the air condition and heating systems. The court awarded judgment for the plaintiffs in the amount of $4,260.00 for the defective roof and $580.00 for the cost of repairing the water damaged floor under the carpeting. With regard to this award, the trial court reasoned as follows:

The roof presents a different problem. The vendors bound themselves to a clause requiring “Roof to be repaired by seller, guaranteed for one year.” The default here did not involve the one year guarantee of the repairs, if this was the meaning of the words. Rather it was a failure to do the repair plainly required by the contract. Since the substantial leaks were discovered by plaintiffs within a few months of the acquisition, I must infer they were present at the time of the sale, and never repaired by the vendors.
But of course, plaintiffs did not bargain for a new roof, only a “repaired” one. Mr. Usner convincingly explained that no one could tell whether the roof could be successfully patched without removing the shingles and inspecting the felt. As a practical consequence, the only feasible method of repair was replacement.
As indicated in Prat v. Heymann, [410 So.2d 343] # 12166, Feb. 9, 1982, 4th CCA, quoting Ashley v. V.W. of America, 380 So.2d 702 (4th CCA, 1980), the amount of any reduction should be the difference between the sale price and the fair value as of the time of the sale, if the defects had been known. Ultimately, say these cases, the amount of the reduction is within the court’s discretion.
The fairest resolution in this case would be to divide the replacement expense between the parties. Accordingly, the sale price should be reduced by one-half of the practical cost to cure, or $4,260.00.
******
The $580.00 cost of repairing the water damaged floor under the carpeting must plainly be included in the reduction of the price.
Judgment will be rendered accordingly.
******

Appellants contend that the award is excessive and results in an unjust enrichment to the appellee. They reason that the parties bargained for a repaired roof with a one year guarantee and they got a new roof with a twenty-five year guarantee. Therefore, they postulate that the cost of the roof ($7,350.00) should be divided by the number of years in the warranty (25 yrs), hence the plaintiffs should have been awarded the sum of $294.00. We do not agree with this reasoning.

The purchaser has the burden of proving the amount of reduction, with reasonable certainty. Ashley v. Volkswagen of America, Inc., 380 So.2d 702 (La.App., 4th Cir., 1980). The trial judge is afforded much discretion in determining the amount of the reduction in purchase price. Prat v. Heymann, 410 So.2d 343 (La.App., 4th Cir., 1982); Verlander v. Hoffer, 351 So.2d 229 (La.App., 4th Cir., 1977); writ den. 353 So.2d 1037. In an action for quanti minoris the measure of damages is the difference between the sales price and the fair value of the object as of the time of the sale, if the defect had been known. Prat v. Heymann, supra; Slagle v. Morgan, 410 So.2d 371 (La.App., 4th Cir., 1982); Ashley v. Volkswagen of America, Inc., supra. That is, the amount of recovery is the amount needed to convert an unsound structure into a sound one. Verlander v. Hoffer, supra. Some factors to be considered in making this determination are the expert opinion testimony, costs of repairs and any other facts bearing upon the price to which informed parties would agree. Prat v. Hey-mann, supra; Ashley v. Volkswagen of America, Inc., supra. Ultimately the court must ascertain what the parties actually bargained for and attempt to do justice to all parties without unjustly enriching one party at the expense of the other. See: Prat v. Heymann, supra; Verlander v. Hoffer, supra.

In the instant case, the plaintiffs purchased an old house with a roof which was at least twenty (20) years old and which had experienced some deterioration. The parties agreed that the “roof [was] to be repaired by sellers guaranteed for one year.” The trial judge found that the roof had not been repaired and “the only feasible method of repair was replacement.” The record clearly supports the finding that the roof had not been repaired. Dr. Simmons and his wife testified that within six weeks of the act of sale leaks were discovered in the roof of their residence. Dr. Percy and his wife acknowledged being told about the problem with the leaks and contacting their roofer about the leaks. The roofer, William Twickler, testified that if he knew of leaks at the time of his inspection he would have repaired them, but he could not remember whether anyone told him about any leaks nor the extent of the work he did on the house. The plaintiff’s roofer, Charles Usner, testified that he did find several leaks in the roof.

Likewise, the evidence supports a finding that the only feasible method of repairing the roof was replacement. Dr. Simmons testified that his roofer could not repair the roof because the felt underneath was bad. Although the plaintiff's roofer, Charles Us-ner, testified that he was not called upon to repair the roof, but rather to replace it, he admitted that the roof had several leaks and that sometimes leaks cannot be stopped. He also stated that if repairs were possible he would only guarantee those specific areas of repair. He further testified that the only way to tell whether the leaks could be repaired would be to lift the shingles and inspect the tarpaper for cracking and a dried, porous condition. However, the witness concluded that it was his expert opinion that the work done on the roof had to be done.

The replacement of the roof provided the parties with the one year guarantee for which they bargained. However, it also provided them with a new roof for which they did not bargain. Since the house was purchased with an old roof some deterioration could be anticipated, and to allow full recovery for a new roof would constitute unjust enrichment. Slagle v. Morgan, supra; Verlander v. Hoffer, supra. Accordingly, the trial judge, in an attempt to arrive at a figure which would fairly represent the amount of the reduction, after considering all the relevant factors, chose to award one-half of the amount expended for the replacement of the roof. This computation was within the sound discretion of the trial judge and we find no manifest error with this approach. However, the trial judge used the wrong figure for the amount which reflected the replacement value. He erroneously used the sum of $8,520, which was the amount of replacement of the roof plus additional roofing and sheet metal work. The proper figure for the replacement of the roof was $7,350.00 (See: Exhibits P4, D-l). Therefore, the proper award to the plaintiff for reduction of the purchase price due to the defective roof shall be $3,675.00, that is, one half of $7,350.00.

For the reasons assigned, the judgment of the district court is amended to award the sum of $4,255.00 to Dr. and Mrs. David E. Simmons and against Dr. and Mrs. Bill-ups P. Percy with interest from judicial demand and for all costs. In all other respects the judgment is affirmed, at defendant’s cost.

AMENDED AND AFFIRMED.

      . The sum of $4,840.00 consists of $580 cost of repairing the water damaged floor and $4,260.00, which is one-half of the cost of repairing the defects in the roof.

      . The original asking price was reduced from $265,000 in order to compensate for an inoperative heating and/or cooling system in the residence.

      . This provision appeared at lines 3-4 of the purchase agreement. Exhibit PI.

      . The testimony is in conflict as to what transpired after the discovery of the leak. Dr. Simmons contends that he notified the sellers of the leak and he was told that they had fulfilled their agreement. He stated that he then called Mr. Twickler who refused to come see about the problem. Dr. Percy testified that his wife received a call from the purchasers about the roof. He vaguly remembered calling Mr. Twickler, who went to see about the roof and reported to Dr. Percy that there had been much ado about nothing.

      .The additional work consisted of the installation of roofing and gutters, with screens, on the garage at a cost of $825.00; screening of the remaining gutters, cementing loose bricks on the chimney and replacing cracked weatherboards on the rear gable at a cost of $345.00.

      . The appellants note that the trial judge used the sum of $8,520.00 which was the cost of the roof replacement, plus other work. Rather they contend that the proper figure to be used was $7,350.00, the cost of the roof replacement alone.

      . The roofing contract (Exhibit D-l) provides: “Our work is guaranteed for (1) year against defective workmanship and materials. Manufacturer will furnish you with a 25-year warranty on the new roofing shingles.”


text:
    Lynn B. DEAN v. Hillary NUNEZ.
    No. CA 0005.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.
    Roy A. Raspanti, New Orleans, for appellant.
    Daniel L. Dysart, Chalmette, for appellee.
    Before GULOTTA, CIACCIO and WARD, JJ.
   CIACCIO, Judge.

This is an appeal from a judgment dismissing plaintiff’s suit for personal injuries and other losses suffered as a result of a fight with defendant. We reverse, render judgment and award damages in favor of plaintiff.

The facts, as found by the trial court, are as follows:

“The incident arose between plaintiff, Lynn B. Dean, and the defendant, Hillary J. Nunez, both of whom are members of the St. Bernard Parish School Board and occurred at a meeting on the night of Feb. 9, 1981 at the school board office in Chalmette, La.
The meeting was called to formulate questions to propound to the several candidates who had applied for the position of superintendant of Public Schools, Parish of St. Bernard. After the normal opening ceremonies, a motion was made, seconded and carried by a 10 to 1 vote that the Board retire into executive session. The plaintiff, Lynn B. Dean, cast the only negative vote.
The plaintiff, Mr. Dean, had a tape recorder and had taped the initial opening proceedings and the vote to go into executive session. Mr. Dean intended to and did record the entire proceedings of the executive session. Upon opening the executive session, the matter concerning the tape recorder was discussed and most, if not all of the members, requested Mr. Dean not to use the tape recorder.
Mr. Dean insisted that he had a right, indeed a constitutional right, to use his tape recorder and that there was nothing in the School Board procedural manual that prevented him from doing so nor was there any law on the books that prevented him from doing so. The slightly heated controversy calmed down when the Chairman, Mr. John R. Lane, stated that since he had not been able to be guided by any legal opinion or statutory authority, that he felt that he had to allow Mr. Dean the prerogative of using the tape recorder.
However, he did call the School Board’s legal advisor, Mr. Sal Cusimano, Assistant District Attorney for the Parish of St. Bernard, into the room for the purpose of giving his opinion. It is unclear as to whether Mr. Cusimano ever gave an opinion as he did not testify.
Some of the members then proceeded to discuss the matters for which the meeting was called but Mr. Nunez stated that the question of the tape recorder had not been resolved and that he would like it resolved before the Board proceeded further. The argument began anew and the essential facts are:
1.That Mr. Nunez insisted that the tape recorder be turned off.
2. Mr. Dean insisted upon his constitutional rights.
3. Mr. Nunez stated that he would throw the tape recorder against the wall.
4. Mr. Dean said that if Mr. Nunez had $75.00 he could come throw it against the wall and then later — •
5. Mr. Nunez stated that he would throw the tape recorder in a bucket of water.
6. Mr. Dean stated that if Mr. Nunez tried to do that, he would be in trouble.
7. There was some declaration by Mr. Dean that a law suit should be had to determine the issue.
8. Mr. Nunez said, “I will turn the bastard off”.
9. Mr. Nunez got up from his chair and walked to the chair or position of Mr. Dean. (The question of the quickness or speed of his gait engendered much testimony but the Court resolved the issue by concluding that Mr. Nunez walked to Mr. Dean’s chair).
10. Upon seeing Mr. Nunez arise from his chair, Mr. Dean also arose.
11. Upon arriving at Mr. Dean’s chair, Mr. Nunez reached towards the tape recorder.
12. Mr. Dean thrust out his right arm and contacted Mr. Nunez somewhere in the upper torso at the neck line or slightly below, whereupon Mr. Nunez swung and hit Mr. Dean who fell backwards and onto the floor.

... Mr. Dean suffered a minor fracture of the nasal bone, small lacerations of the lower portion of his nose, small abrasions of the cheek and above the right eye brow, discoloration and swelling of the face with a slight chest injury which was caused when Mr. Dean fell across the chair. His period of greatest pain lasted for one week and diminished within three weeks except for some possible re-occurring chest pain which lasted for about 6 weeks.

The plaintiff-appellant contends that the trial court erred (1) in holding that plaintiff provoked the incident resulting in his injuries, (2) in holding that defendant struck plaintiff in self-defense, and (3) in assessing the damages at only $500.00 for physical pain and suffering and in assessing no damages for humiliation and embarrassment.

In battery cases the plaintiff has the same burden of proof that the plaintiff has in any tort or damage suit. Freeman v. Lee and Leon Oil Co., Inc., 409 So.2d 408 (La.App. 4th Cir.1982); Knuckles v. Beaugh, 392 So.2d 710 (La.App. 3rd Cir. 1980). After the plaintiff meets this burden it becomes incumbent upon the defendant to prove justification or provocation for the battery and this is to be determined in light of the circumstances and facts of each individual case. Freeman v. Lee and Leon Oil Co., Inc., supra; Ogden v. Smith, 344 So.2d 1099 (La.App. 3rd Cir.1977).

The evidence clearly established and the trial court found that Mr. Nunez punched Mr. Dean. We must next determine whether there exists any justification for this battery. The trial court found that Mr. Nunez was provoked and acted in self-defense. We disagree.

Mere words, no matter how calculated they were used to excite or irritate, cannot justify a battery. Morneau v. American Oil Company, 272 So.2d 313 (La.1973) reiterating the holding in Richardson v. Zuntz, 26 La.Ann 313 (1874). Prior to Mr. Nunez leaving his seat only words had passed between the parties. When Mr. Nunez left his seat and approached Mr. Dean, he disturbed the status quo and physically became the aggressor. Even if his initial intention was only to turn off the tape recorder, Mr. Nunez had no justification for committing such a trespass on plaintiff’s property.

Mr. Dean, on the other hand, was confronted with the approaching, angry Mr. Nunez threatening to at least turn the tape recorder off and having previously threatened to do serious damage to the tape recorder. Everyone has the right to defend his person or his property, so long as he uses only as great a defensive force as is necessary for that purpose. Bond v. Toriello, 260 So.2d 727 (La.App. 4th Cir.1972); Smith v. Foucha, 172 So.2d 318 (La.App. 4th Cir. 1965). Mr. Dean chose to place himself between Mr. Nunez and the tape recorder. When Mr. Nunez was close enough to reach for the recorder and attempted to reach the recorder, Mr. Dean attempted to push him away and block his access to the recorder.

Mr. Nunez was leaning against Mr. Dean; this was a battery. Mr. Dean’s push was not of excessive force and was not sufficient to justify Mr. Nunez in believing that he was about to receive bodily harm. Mr. Nunez remained the aggressor. Mr. Dean’s push was justified in defense of both his person and his property.

Mr. Nunez responded by punching Mr. Dean causing the injuries found by the trial court as noted above. The only provocation for the punch were Mr. Dean’s argumentative words, defiant behavior and the push. We have discussed the rule that the words could not justify the punch. Neither can defiant behavior justify a battery. See: Smith v. Bankston, 75 So.2d 880 (La.App. 1st Cir.1954). The only justification arising from the push would be an act of self-defense.

In Wright v. Green, 256 So.2d 780 (La. App. 2d Cir.1972), the court found that in the tension filled atmosphere following an automobile accident any pushing motion by plaintiff (if it occurred) did not justify defendant in believing he was about to receive bodily harm. And “[although his [plaintiff’s] manner of speaking to Green [defendant] may have been sarcastic and not in the best of taste, we do not believe it was sufficient to justify physical retaliation by Green.” In a similar fashion, the words and actions of Mr. Dean did not justify physical retaliation by Mr. Nunez. Mr. Nunez was not in danger of receiving bodily harm, therefore, his actions cannot be justified as self-defense.

The trial court relied on the case of Harrell v. Mayer, 306 So.2d 340 (La.App. 3rd Cir.1975), in concluding that Mr. Nunez acted in self-defense. In Harrell v. Mayer, plaintiff was angry and greatly agitated, he advanced toward the defendant, cursed the defendant and raised his arms as if to make physical contact. Defendant punched the plaintiff. Here, Mr. Dean did not advance toward Mr. Nunez, but vice versa. The physical contact made by Dean was not meant to harm, but only to keep Mr. Nunez away from the tape recorder. Harrell v. Mayer is not applicable to this case.

The trial court also made much of Mr. Dean’s irritating, contrary, defiant behavior. Neither words nor lawful defiant behavior, alone or in conjunction, can justify a battery. The Constitutions and laws of the United States and of the State of Louisiana protect and guarantee an individual’s right of lawful dissent. In this country a person may express unpopular and contrary ideas and may exhibit lawfully defiant behavior without fear of physical retaliation. Our system of justice under law commands the use of judicial process rather than force for the settling of disputes. Morneau v. American Oil Company, supra.

Because defendant’s punching of plaintiff cannot be justified either by provocation or self-defense, we hold defendant liable for plaintiff’s injuries.

On the night of the altercation Mr. Dean went to the emergency room at DeLa Ronde Hospital and received emergency treatment. The next day he sought examination and treatment by Dr. Ellis and again saw Dr. Ellis on one other occasion. Mr. Dean’s medical expenses totalled one hundred two ($102.00) dollars. Plaintiff’s petition also prayed for compensation for pain and suffering.

Plaintiff received a punch in the nose of such severity as to knock him to the floor and render him unconscious or at least temporarily dazed. Trial testimony and photographic evidence revealed that Mr. Dean suffered a minor fracture of the nasal bone, small lacerations of the lower portion of his nose, a large ugly abrasion on his right cheek from his nose to his jaw, an abrasion above his right eyebrow, discoloration and swelling of his face and eyes, his right eye was blackened, and a chest injury which apparently was caused when Mr. Dean fell across the chair. Mr. Dean bled profusely as a result of these injuries.

As a duly elected member of a local school board Mr. Dean was conscientiously attempting to perform his duties within his legal rights as he understood them to be. Mr. Dean correctly asserted that judicial process represented the proper course for resolving the controversy. There was no legal justification for Mr. Nunez’s resort to physical force against another elected official who was expressing contrary ideas. The incident caused Mr. Dean to suffer humiliation and embarrassment in the presence of his fellow board members, and his lingering facial injuries caused him to suffer humiliation and embarrassment for several weeks thereafter.

We find that plaintiff is entitled to an award of two thousand five hundred ($2,500.00) dollars as compensation for his injuries, pain and suffering, humiliation and embarrassment.

For the reasons expressed herein, we reverse the judgment of the trial court and render judgment in favor of plaintiff, Lynn B. Dean, and against defendant, Hillary J. Nunez, in the full sum of two thousand six hundred two ($2,602.00) dollars together with legal interest on such sum from the date of judicial demand until paid. Costs are assessed against appellee.

REVERSED AND RENDERED.


author: WARD, Judge.

text:
    Leonard MYRES v. ORLEANS PARISH SCHOOL BOARD.
    No. 13291.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 1, 1982.
    Rehearing Denied Jan. 14, 1983.
    Leonard S. Myres, in pro per.
    Charles T. Williams, New Orleans, for plaintiff-appellant.
    Franklin V. Endom, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, WARD and CIAC-CIO, JJ.
   WARD, Judge.

Leonard Myres is a school teacher who was employed by the Orleans Parish School Board until his dismissal during his first year of employment as a classroom instructor. Myres brought suit in Orleans Parish Civil District Court, seeking damages for breach of his employment contract and reinstatement with back pay, alleging that he was wrongfully discharged. After trial on the merits, the Trial Judge rendered judgment in favor of the defendant, Orleans Parish School Board. Myres appeals, contending that the Trial Judge erred in finding that the School Board acted within its discretion and that they relied on valid reasons for his discharge. We affirm the judgment of the Trial Court.

On April 6, 1981, after less than one year as a probationary teacher, Myres was discharged pursuant to the authority granted to the Orleans Parish School Board in LSA-R.S. 17:461 which provides:

All teachers shall serve a probationary term of three years reckoned from the date of appointment in the parish of Orleans, during which term the Orleans Parish school board may dismiss or discharge any such probationary teacher upon the recommendation of the superintendent of public schools for the Parish of Orleans, accompanied by the written reasons therefor.

Myres’ discharge arose from an incident which occurred on February 2,1981. Myres observed two students, a girl and a boy, fighting in the hallway of Cohen High School where Myres was assigned. The girl fled but Myres grabbed the boy and attempted to escort him to the principal’s office for discipline. Carl Brown, another male student, interfered, breaking Myres’ hold on the boy and allowing him to run from the building. Myres chased the boy without success and then returned to confront Carl Brown. Upon being questioned by Myres, Brown and a group of twelve to fifteen male students who had gathered became hostile. Myres described the incident that followed in his testimony at trial:

Well, what happened was, that when I told Carl Brown that I was going to take him to the office, he assumed the position that I was not going to take him to the office. . So what — what happened was that I realized that I was in a situation where it was either going to be — I was going to either have to fight or something or grab him or something. So I realized that I had a starter pistol in my back pocket. So he was standing around with a group of his young friends blocking the door. So what I did, as I went to my back pocket, I pulled it out. I banished [sic] it like this (indicating). I froze everybody that was standing there. And when I froze them, then, I put it back in my pocket. And I escorted Carl Brown to the office.

Shortly after the incident, the principal of Cohen High School conducted an investigation, and in a report to the District Superintendent, the principal gave his conclusions:

1. Mr. Myres’ action in attempting to stop disruption is commendable.
2. Mr. Myres’ decision to be in possession of a gun on our campus is repugnant and unnecessary.
3. Mr. Myres’ decision to use a gun in handling students is unpardonable and indicative of very poor judgment in a crisis, which could have resulted in disastrous consequences to himself, students, and the School District....

Consequently, the District Superintendent held a hearing which was attended by Myres, and after the hearing, the District Supervisor wrote a letter to the Superintendent for Human Resources Management, recommending Myres’ discharge.

Another administrative hearing was held by the Assistant Superintendent for Human Resources who recommended the dismissal of Myres. The Superintendent of the Schools concurred, and his recommendation was forwarded to the School Board:

Mr. Myres’ termination is being recommended because he demonstrated his incompetence and a gross lack of good judgment on February 2, 1981, while employed as a teacher at Walter L. Cohen Senior High School. On that day, Mr. Myres brandished a pistol to quell a confrontation he was then having with several students in the school building.
The foregoing recommendation has been preceded by a thorough investigation into the matter by the school principal, a conference before the District Superintendent and an administrative hearing before the Superintendent’s designee on March 5, 1981.

The School Board accepted the recommendation and, at its April 6, 1981, meeting, voted to discharge Myres.

The procedure through which Myres was discharged goes beyond that prescribed by LSA-R.S. 17:461, supra, for termination of non-tenured teachers and far beyond what has been required by the courts. It has often been held that a probationary teacher is not entitled to notice or hearing prior to termination. See Booker v. Richland Parish School Board, 393 So.2d 785 (La.App. 2d Cir.1981); Hayward v. Rapides Parish School Board, 374 So.2d 1281 (La.App. 3d Cir.1979) writ denied 376 So.2d 1267 (La.1979); Foreman v. Vermillion Parish School Board, 353 So.2d 471 (La.App. 3d Cir.1977) writ denied 355 So.2d 257 (La.1978); Castille v. Evangeline Parish School Board, 304 So.2d 701 (La.App. 3d Cir.1974), writ denied 309 So.2d 342 (La.1975).

LSA-R.S. 17:461 gives the School Board discretion to dismiss a teacher upon recommendation of the Superintendent, accompanied by written reasons. This statute reflects a legislative intent to provide a large measure of discretion to the School Board in the discharge of a probationary employee. Moreover, as the First Circuit Court of Appeal observed in Chantlin v. Acadia Parish School Board, 100 So.2d 908 (La.App. 1st Cir.1958), the administration of the school system is entrusted by the constitution and the legislature to the parish school boards and not to the courts.

Nonetheless, we believe that due process requires judicial review to insure that the great discretion given to the School Board is not abused. But that review is limited, and where there is a rational basis, which is supported by substantial evidence, for the School Board’s discretionary determination, the courts cannot and should not substitute their judgment for that of the School Board. Chantlin v. Acadia Parish School Board, supra; Celestine v. Lafayette Parish School Board, 284 So.2d 650 (La.App. 3d Cir.1973).

Further, we believe that after a judicial determination in the Trial Court, the scope of appellate review is limited to the question of whether the Trial Judge’s determination is manifestly erroneous. Is it supported by the record?

In this case, the evidence introduced in trial supports the Trial Judge’s determination that the School Board did not abuse its discretion. Myres admitted that he brandished a starter pistol in an attempt to gain control of a group of hostile students. The superintendent recommended Myres’ discharge because, like the principal and the supervisor, he considered Myres’ display of the gun indicative of poor judgment in a crisis. The purpose of granting the school board discretion in the dismissal of probationary employees is to allow the board to terminate the employment of personnel whose conduct indicates that they are not well-suited for handling the pressures or responsibilities encountered by an educator.

In conclusion, the District Court found that the School Board did not abuse its discretion, and we believe, as the Trial Judge believed, that there was substantial evidence supporting a rational basis for the decision to terminate a probationary teacher.

For the foregoing reasons, we affirm the judgment of the District Court. All cost of trial and the appeal are to be paid by Leonard Myres.