text:
    CITY OF NEW ORLEANS v. NATIONAL POLYFAB CORPORATION.
    No. 13119.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Evelyn F. Pugh, Deputy City Atty., New Orleans, for plaintiff-appellee.
    A.J. Graffagnino, Graffagnino, Perez & Roberts, Metairie, for defendant-appellant.
    Before GULOTTA, KLEES and AUGUSTINE, JJ.
   KLEES, Judge.

This matter is on appeal from a judgment of the Civil District Court for the Parish of Orleans enjoining the defendant, National Polyfab Corporation, from using a steel building constructed in June, 1978 as an extension of its non-conforming business use, and ordering the defendant to remove a new 5000 gallon fuel tank installed on the premises at the same non-conforming business location.

Defendant contends that, 1) the trial court’s order to remove the new 5000 gallon fuel tank was too harsh a remedy; and 2) that there was an insufficient showing of irreparable harm to justify enjoining the defendant’s use of the metal building.

We find no merit in defendant’s contention and accordingly affirm.

The defendant, National Polyfab Corporation, is in the steel fabrication business. The business is located at 2711 Spain Street in New Orleans, and the present owners have operated it since 1975. The defendant’s property had been zoned “J”, or light commercial, prior to 1970. But in 1970, the City of New Orleans adopted a comprehensive zoning ordinance which changed the designation of the property to RD-2, which is a two-family residential district. When the ordinance was passed, it provided that the new zoning changes would not apply to any business operating legally prior to the effective date of the ordinance. Since defendant met .this requirement, it was classified as a legal non-conforming business.

In June of 1978, the defendant erected a steel building in its rear yeard at 2711 Spain Street. No building permits were applied for or secured for the construction of the building, and after an inspection by the Department of Safety and Permits, the defendant was notified that it was in violation of the Comprehensive Zoning Ordinance for the City of New Orleans. The defendant did not take steps to remedy the violations, and as a result this suit was instituted.

Subsequently, in July of 1979, defendant applied to the Department of Safety and Permits for a building permit for the installation of two fuel tanks. The application stated that these tanks were to replace bad tanks which were already in the ground. The application was approved and the permit was issued. The Department of Safety and Permits later discovered that only one tank existed at the time of application.

The City of New Orleans asserted that the defendant had unlawfully expanded or extended its non-conforming use by the above additions to its property, and that these additions are clear violations of the Comprehensive Zoning Ordinance, and sought to enjoin the use of the steel building and removal of the new additional fuel tank.

Article 12, Section 5 of Ordinance No. 4264 M.C.S., the Comprehensive Zoning Ordinance for the City of New Orleans, provides in pertinent part:

“A building or land which does not conform to the use regulations of the district in which it is located (non-conforming by use), shall not be extended or enlarged by the attachment of signs to the building, or by the placement of signs to display materials on land outside of the building, or by the attachment of racks, balconies, or other projections from the building, or in any other manner, (emphasis added) except when required by law or ordinance.”

The addition of the steel building and the addition of an extra gasoline tank by defendant are clearly extensions of a non-conforming use, and such extensions are prohibited by the above ordinance. It is elementary that a municipality has the right to enjoin violations of a zoning ordinance. City of New Orleans v. Langenstein, 91 So.2d 114 (La.App.Orl.1956). Therefore, the City of New Orleans had the right to seek the permanent injunction against defendant.

The defendant argues that a permanent injunction is inappropriate because there is no showing of irreparable harm or injury in this case. However, a showing of irreparable injury is a prerequisite to in-junctive relief only where the actions to be enjoined are lawful. Salter v. B.W.S. Corporation, Inc., 290 So.2d 821 (La.1974). Whalen v. Brinkman, 258 So.2d 145 (La.App. 1st Cir.1972), Bossier v. Lovell, 410 So.2d 821 (La.App. 3rd Cir.1982). Since the violations of the Comprehensive Zoning Ordinance by the defendant are unlawful, there is no need for the City of New Orleans to show irreparable harm.

The City of New Orleans has the right to seek the demolition or removal of structures erected or installed in violation of the Comprehensive Zoning Ordinance. Boyd v. Donelon, 193 So.2d 291 (La.App. 4th Cir.1966), writ refused, 195 So.2d 643. The applicable provision of the Zoning Ordinance is found in Article 15, Section 2.13(1), which reads in pertinent part:

“In case any building or structed is erected, structurally altered, extended, moved or maintained, or any building, structure or land is used in violation of this Ordinance, any proper City official or their duly authorized representatives, in addition to other remedies, may institute any appropriate actions or proceedings or prevent such unlawful erection, structural alteration, extension, moving, maintenance, use, or other violations, to restrain, correct or abate violation (emphasis added), to prevent the occupancy of such buildings, structure, or land or to prevent any illegal act, conduct, business, or use in or about such premises.”

This statute specifically authorizes a proceeding to abate a violation.

In Boyd, supra, this court interpreted a very similar provision of the Jefferson Parish Zoning Ordinance and found that the phrase “abate violation” included the right to seek removal and/or demolition of the unlawful extension. Since the New Orleans ordinance likewise contains the phrase “abate violation”, under the Boyd decision, the district court clearly had the authority to order the abatement or removal of the extra fuel tank.

Defendant argues that the City of New Orleans should be stopped from seeking removal of the tank because the City issued a permit to allow the installation of the tanks. The fact that the permit was issued by the City is irrelevant. There is no statutory law or other authority which gives to any city official or to any city board or department the arbitrary right to waive in favor of any land proprietor the city’s right to enforce a compliance with the provisions of the Comprehensive Zoning Ordinance, City of New Orleans v. Langenstein, 111 So.2d 363 (La.App.Orl.1959).

For the reasons assigned, the judgment appealed from is affirmed. All costs of this appeal are assessed against Defendant-Appellant.

AFFIRMED.


source: Caselaw Access Project

author: KLEES, Judge. REDMANN, Chief Judge,

license: Public Domain

text:
    Alemitta PHILLIPS v. SKATE COUNTRY EAST.
    No. 12981.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Writ Denied Dec. 10, 1982.

      Owen J. Bradley, Michael R. Guidry, New Orleans, for appellant.
    Charles W. Schmidt, III, Christovich & Kearney, New Orleans, for appellee.
    Before REDMANN, SCHOTT, BARRY, KLEES and CIACCIO, JJ.
   KLEES, Judge.

On September 23, 1978, the plaintiff attended a birthday party at the Skate Country East Skating rink. The testimony revealed that while the plaintiff was skating around the rink there were two young boys who were skating very fast and weaving in and out of the traffic. These young boys passed the plaintiff several times and finally passed her again around her right side. While doing so the two boys collided in front of the plaintiff, whereupon she tripped over them and fractured her leg.

At the time of the accident the defendant had two employees working the floor as floor guards. One a middle aged gentleman, by the name of John Sammartino also had as one of his duties that of operating the music system. The other floorguard was sixteen year old Billy Ebersole.

Included in the evidence presented during the trial was a manual which described the duties and function of a floor guard. Robert Snellstrom, the manager of the skating rink, testified that these duties were designed to insure the safety and well being of the skaters and they included the prevention of fast skating, weaving in and out of traffic, and skating in the center circle; an area for the floor guards to skate in so they can quickly and easily get from one end of the floor to the other. Their duties also included informing the patrons of the rules regarding safe conduct. The defense witnesses stated that they did inform the patrons of these rules over the public address system and the plaintiff and her witnesses indicated the opposite. There was also a dispute with regard to the number of skaters on the floor at the time of the accident with the plaintiff and her witnesses indicating 100 people and the defense witnesses stating that there were only 50 people on the floor.

There were two signs in the rink which read “Skate at Your Own.Risk”. Counsel for the plaintiff objected to the introduction of this evidence and the objection was overruled. He also sought to question the defense witnesses as to the meaning of the sign and he was precluded from exercising this line of questioning. Finally, he offered a jury instruction to explain that such a sign does not absolve the owner from his duty to maintain a safe place but the trial judge refused to give the jury this charge.

After a trial on the merits the jury returned with a verdict in favor of the defendant dismissing plaintiff’s suit. The plaintiff has appealed and asserted five assignments of error.

The plaintiff’s claim that it was reversible error not to give the jury the plaintiff’s requested charges number three and five or some reasonable equivalent has merit.

Charge number three reads as follows:

“The defendant’s contention is that Mrs. Phillips voluntarily ‘assumed the risk’ of injury to herself when she chose to skate. When a person voluntarily uses recreation facilities, the person only assumes foreseeable risks; that is, ordinary risks associated with that particular activity. Hyland v. Durr, 212 So.2d 158.
Under the law Mrs. Phillips is not required to anticipate extraordinary unfor-seeable risks.”

Charge number five reads as follows:

“While a person who operates a place of amusement is not an insurer of his patrons, he has the duty to make his premises reasonably safe and this is more than a duty to warn patrons of danger. Gilliam v. Serrano, 162 So.2d 32.
The mere posting of a sign disclaiming responsibility for accidents, such as ‘skate at your own risk’ does not absolve the owner from his duty to maintain a safe place.”

Requested Charge Number Three

The general charge on assumption of risk given by the trial judge states that for the jury to conclude that plaintiff assumed the risk of her own injury they must find that plaintiff fully understood the danger which was involved and that plaintiff voluntarily exposed herself to that danger. In Hyland v. Durr, 212 So.2d 158 (La.App. 4th Cir. 1968) we said the following:

“It is well settled that the owner or operator of a place of public amusement is not an insurer of the safety of its patrons but is liable for injuries received by them only if guilty of negligence. It is equally well settled that one who participates in a sport assumes the ordinary risks attended upon such participation.” (emphasis added)

This was essentially the content of plaintiff’s requested Charge No. 3, and in this court’s opinion goes beyond the general charge given by the court on the subject of assumption of risk. If the jury had been told that Plaintiff only assumed the ordinary risks attendant upon skating at defendant’s facility, they could, and probably would have arrived at the conclusion that defendant was not exonerated by assumption of the risk from liability for the danger created by skaters who were speeding around, and the negligence of the operators in failing to enforce their own rules.

Requested Charge Number Five

The plaintiff contends that failure to give the jury this charge allowed the jury to be misled into concluding that the “skate at your own risk” sign completely absolved the defendant of any and all liability with regard to any injury sustained by a patron while skating, i.e., in other words, that a skating patron assumes any risk of injury.

It is obvious that from these instructions the plaintiff was attempting to inform the jury that disclaimers such as “skate at your own risk” cannot relieve one from future acts of negligence. That was the issue in Diamond Crystal Salt Company v. Thielman, 395 F.2d 62 (Court of Appeal, 5th Cir. 1968).

In that case the Theilmans were non-paying visitors of an underground salt mine who were required to execute separate releases before taking the tour. The release read in pertinent part as follows:

“In consideration of Diamond Crystal Salt Co., consenting to my inspection of its furnishing me with a guide for the purpose of making such tour of inspection, the undersigned hereby assumes all risks of accident incident to such tour, and hereby releases and discharges the company and its employees, and all persons for whom the company may be legally responsible from all claims, liabilities or demands for or on account of personal injuries or other damages sustained while in the plant or on the property of the company and caused by the negligence of said company or any of its employees, or any person for whom the company may be legally responsible.”

While on the tour a “fault” in a 90 foot ceiling collapsed and fell killing Mr. Theil-man and seriously injured Mrs. Theilman.

The Court, after extensively researching the issue, found that there had only been two other Louisiana cases dealing with the issue and involving personal injuries and in those cases the Court upheld the exculpatory provisions dealing with assumption of the risk. The two cases were Forsythe v. Jefferson Downs, Inc., 152 So.2d 369 (La.App. 4th Cir.1962), writ refused 244 La. 895, 154 So.2d 767 (1963) and Celestin v. Employers Mutual Liability Ins. Co. of Wisconsin, 387 F.2d 539 (5th Cir.1968).

However, the court distinguished those two cases from the fact situation in Diamond Crystal Salt Company, supra, by finding that those two cases concerned factual situations where either the dangerous situation was both obvious and known to both parties or where the instrumentality causing harm was in the exclusive possession and control of the person injured. The Court then went on to conclude that the danger of a collapse in the “fault” injuring the Theilmans was not obvious, and even if it had been observed it would not have been appreciated by a person of ordinary understanding so as to result in assumption of the risk. The Court also found that the cause of the injury was in the exclusive control of the mine operators and only they had knowledge of the danger.

In the present case the “skate at your own risk” sign is far less detailed than the release in Diamond, supra, and Forsythe, supra. In addition, the only dangers which were obvious to the plaintiff were those such as her falling due to her losing her balance and falling over another skater who might lose his or her balance.

In spite of the fact that the plaintiff did see the two young boys speeding around the rink, it would be reasonable for her to conclude these children would be stopped from exercising such behavior on the skating rink by the floor guards whose duty it was to prevent such behavior. The danger of these two young boys causing injury to a patron by speeding and weaving in and out of the traffic was within the control of the floor guards whose duty it was to prevent such practices. We conclude that the danger to plaintiff was neither obvious nor apparent and as such she could not have assumed this risk. Accordingly, the sign did not relieve the owner of the skating rink of negligence and the jury should have been instructed with the charge presented by the plaintiff.

Although the general instructions given by the court did describe what was necessary to find that someone has assumed a risk, it appears that the jury could not understand exactly what risks were assumed. From the nature of the “skate at your own risk” sign, it is reasonable that any risk of injury, no matter what the cause was or whose fault it was, was assumed by the customer. In fact, when testimony regarding the sign was objected to by plaintiffs counsel the court overruled the objection and allowed the defendant to proclaim that “the sign speaks for itself”.

“If instructions concerning negligence and liability are confusing or misleading, or omit an applicable essential legal principal, such instructions constitute reversible error.” Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Miller v. Fogleman Truck Lines, Inc., 398 So.2d 634 (La.1981).

In the present case the failure to instruct the jury that the “skate at your own risk” sign did not relieve the defendant of any negligence constituted an omission of an essential legal principle and thereby misled the jury. Accordingly, the jury’s verdict is subject to reversal.

However, it would appear that if the jury was misled and/or an applicable essential principle of law was omitted, these facts, in and of themselves, would allow for reversal of the verdict only if that verdict, based upon the facts of the case, is clearly wrong.

“A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of the law is clearly erroneous. Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4th Cir.1976). In the absence of manifest error, the appellate court is not to disturb the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based on its reasonable evaluation of credibility; Harris v. State through Huey P. Long Memorial Hospital, 378 So.2d 383 (La.1979); the record does not reveal that the finding is clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).”

As indicated above the plaintiff only assumed the ordinary risks of her recreational activity. We conclude that the refusal of plaintiffs jury instructions numbers three and five was clearly erroneous.

In Broussard v. Texas Industries, Inc., 416 So.2d 1349 (La.App. 3rd Cir.1982), the court discussed the standard for granting a new trial at pp. 1351:

“The standard for granting a new trial in such cases was considered by the Louisiana Supreme Court in Gonzales v. Xerox Corporation, supra, and again in Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707 (La.1980). These cases hold that if the record is complete and an appellate court has all the facts before it, an erroneous jury instruction does not warrant a remand. See also Boyette v. Auger Timber Co., 403 So.2d 800 (La.App. 2nd Cir.1981).
[2] The rule of Gonzales results in depriving a litigant of a jury trial on a jury issue. This is clear as is noted in the dissents in Gonzales and Ragas. The rule results in the anomaly that, while we as the intermediate appellate court hold that the trial court erred in depriving appellants of a jury consideration of serious issues of fact, we are at the same time mandated to go ahead and decide that issue on the record under our own constitutionally granted authority to review lower court findings of fact. The rule is grounded on judicial economy and expediency.
[3] It is not every trial court error which may be corrected on appellate review. The Supreme Court in Ragas, in commenting on Gonzales, said:
‘Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise complete, the appellate court should, if it can, render judgment on the record.
This is not to say, and Gonzales should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.’ ”

Here as in Broussard, supra, we conclude that the record before us is complete and we believe it is our duty to decide the matter on the merits.

The plaintiff and her witnesses estimated the number of skaters on the floor at 100 while the two floor guards estimated between 40 and 50. The plaintiff and her witnesses indicated that they did not hear any announcement over the public address system with regard to the rules of skating. Furthermore, the plaintiff and at least one of her witnesses testified that they observed the same two boys skating very fast while weaving in and out of traffic and that those two boys skated past the plaintiff in such a manner on 4 or 5 occasions before the plaintiffs fall.

The manager of the skating rink testified that there are stringent duties required of floor guards, one of which is to stop skaters from weaving in and out of traffic while skating too fast. The two floor guards on duty, a middle aged man who also played records in addition to his duties as a floor guard and a teenage boy, testified that they exercised their duty as floor guards and that they had previously worked as the only floor guards without any complications when there were 700-800 people skating. Billy Ebersole, the 16-year-old floor guard testified that he could not recall seeing anyone skating too fast or weaving in and out of traffic and that he did not stop anyone for doing the same within the hour before the plaintiff fell. He also stated that he had taken a written test, the subject matter of which concerned the duties of a floor guard. However, John Sammar-tino, the floor manager and the other floor guard on the date in question, stated that he could not recall anyone ever having taken such a written test. He also stated that it was pretty easy to spot speeding skaters from the center circle and that no one complained of speeding skaters during the hour before the plaintiffs fall.

On the other hand, Irma Hearn, one of the two adults at the skating party, testified that she observed the people skating for thirty to thirty-five minutes and kids were being very wild, going in and out, passing one another, trying to race one another on the floor. She didn’t hear anyone announce any rules, nor did she observe any supervision of the skating rink. Patricia Ortego testified that she removed her three-year-old daughter from the skating floor because of the boys skating fast and she was afraid they would knock her daughter down.

The plaintiff, Alemitta Phillips, testified that she had gone about three or four times around the rink, when two boys passed her. They appeared to her to be racing. These boys passed her about five or six times cutting in to catch one another when they fell in front of her causing her to fall down breaking her leg. An analysis of the testimony as a whole reveals to us that plaintiff’s witnesses testified to positive occur-rances, while defendant’s witnesses testified to negatives, eg. — they didn’t see anything unusual.

These facts, coupled with the failure to give the plaintiff’s requested jury charges, numbers three and five, indicate to this Court that the verdict of the jury was clearly wrong and should be reversed.

Having concluded that the verdict should be reversed, under Gonzales v. Xerox Corporation, supra, we now assign damages. The Plaintiff suffered a broken tibia and fibula and wore a cast of some type for a period of nine months. She complained that she was confined to bed during this time and was in considerable pain and discomfort. She complains of pain while standing and walking and that since the accident her foot swings out when she walks. She also complains about a “pulling” feeling in her hip, that she has difficulty sleeping and that she can no longer enjoy the pleasurable activities that she enjoyed prior to the accident. She complains that she has pain in her leg, back and hip area and that it is present while she works. In fact, Thomas Hebert, a former employer of hers testified that he could see she was in pain while she was working.

Dr. H.R. Soboloff testified that he examined the plaintiff and found that she had a 10 degree loss of function in ankle dorsi-flexion and a 15 degree loss in plantar flexion. He found that she had a 15% loss of function of her left ankle and that she would also continue to experience trouble and pain while walking on uneven surfaces, such as New Orleans sidewalks, and while ascending and descending steps. He also stated that the plaintiff had developed osteoporosis, a leaking out of the bone salts caused by not applying full stress to her knee, as a result of the accident. He stated that this condition may or may not go away.

Dr. Charles Billings’ testified that the fracture sustained by the plaintiff did not heal completely in a anatomical position. However, he qualified his answer by stating that most fractures do not heal in such a way and that he felt the bones had become satisfactorily aligned.

He stated that difficulty in walking could cause a strain upon the hips and the back and that such a trauma could conceivably have caused the narrowing in the disc of spaces shown in the plaintiff’s x-rays. However, he qualified this by testifying that such a trauma was unlikely to be the sole cause of this type of back problem. He explained this further by stating that if an individual had such a back problem he or she would complain of pain within 6 months to a year and it was not until a considerably longer period of time that the plaintiff complained of back pain. Finally he stated that the narrowing in the discs is significant enough to warrant treatment.

Under the facts enumerated above we conclude that an award of $12,000 in general damages for past, present and future pain and suffering is adequate to compensate plaintiff in this matter. Additionally our examination of the record as well as all exhibits filed herein fails to show any items of special damages proven at trial other than lost wages. Plaintiff testified that she lost four months of work at $200.00 per month and is entitled to $800.00 in lost wages. We have included this in the general award.

Accordingly, the judgment of the trial court rendered in favor of Defendant, Skate Country East, and against Alemitta Phillips is reversed and set aside, and judgment is rendered in favor of Alemitta Phillips and against Skate Country East for $12,000 together with legal interest thereon from the date of judicial demand until paid and all costs including costs of this appeal.

REVERSED AND RENDERED.

REDMANN, C.J., dissenting with written reasons.

REDMANN, Chief Judge,

dissenting.

The testimony does not “reveal” that the facts are what plaintiffs witnesses testified to. There is credible testimony to the contrary from defense witnesses. A reading of the entire record suggests that the jury disbelieved plaintiff’s witnesses and not that they were misled by the jury charge on assumption of risk.

Perhaps ideally the jury charge should have included a specific declaration concerning a “skate at your own risk” sign. But it may be doubted that the charge as given constitutes reversible error.

Assuming, however, that the charge was reversible error, the consequence is not that the losing party wins, but rather that the appellate court must either independently evaluate the evidence to decide the case correctly, disregarding the jury’s verdict but not automatically reversing it (Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975)), or if necessary remand for retrial to a correctly charged jury (see Ragas v. Argonaut Southwest Ins. Co., 388 So.2d 707 (La.1980)).

If this writer is obliged to decide this case on the record, he would vote in favor of defendant because plaintiff did not bear the ordinary burden of proving her case by credible evidence (see n. 1). The view that the defense testimony is “negative” and therefore not probative is in error. The defense witnesses did not merely testify negatively that they didn’t see the dangerous misbehavior that plaintiff’s witnesses said prevailed during 30 minutes. The defense witnesses testified positively that they were on duty, looking for dangerous misbehavior; that they were skating in an inner circle in a direction opposite to the flow of the rink patrons, who were limited to skating in an outer circle, making it easy to see any dangerous skating; that they (the testifying guards) would have seen dangerous misbehavior of the kind plaintiff’s witnesses described, if it had occurred; and that they (the guards) did not see any such misbehavior during the hour prior to plaintiff’s fall. That is simply not mere negative testimony.

Finally, if this writer is obliged to accept plaintiff’s witnesses’ testimony (see n. 1), this writer would hold that plaintiff did indeed assume the risk of the precise incident that occurred. If, as plaintiff’s witnesses testified, during the whole 35 minutes that the 45-year-old plaintiff was on the floor, the two young boys were “skating fast ... making people collide ... falling down on the floor,” then plaintiff should have either stopped skating to avoid the same fate that (according to her witnesses) was befalling so many, or at least called upon the guards to make the havoc-causing youngsters behave.

      . The verdict of the jury was 9 for the verdict and 3 against the verdict; the minimum necessary to render a verdict. LSA C.C.P. Art. 1795.

      . Perhaps worst was the testimony of the 11-year-old girl for whose birthday a party at the rink was being held: Q. And these boys that— now, you say these boys did what now? Before [plaintiff] tripped over them what did you see? A. They were going in and out the traffic and they were making people collide to each other, and people were skating and colliding to each other and falling down on the ground there were so many people out there and they were going in and out the traffic and out the people skating around them. Q. Did you notice someone there from the Skate Country, you said? A. Yes. Just one old man, and he was skating in with the traffic.... Q. Can you tell us how long — for how long a period of time you had seen these boys before they passed [plaintiff] right before she tripped over them? A. About 30 minutes. Q. What were they doing during that 30 or 35 [sic] minutes. A. They were skating fast. They passed me up about four or five times and they were going in the traffic making people collide and everything. They were falling down on the floor. They had people falling on the floor and everything. MR. BRADLEY: I have no further questions. CROSS-EXAMINATION BY MR. SCHMIDT: Q. Wendy, how did you know that there were five other birthday parties and the regular session that you were waiting on? A. Because my mother asked the lady. She thought we were having a party all alone by themselves (sic.) We thought it was a private party because she called over the phone and my momma went and asked her and she said there was five other parties plus the session. Q. Were you standing there when your mother talked to the lady? A. I was. Q. You say there was about a hundred people on the floor when the accident happened? A. I did. Q. How do you know that, Wendy? A. Because there was a lot of people out there and they were colliding. People were up against one another skating. Q. I understand that you say that there was a lot of people out there and a lot of people colliding, but that’s not my question. My question is: How do you know there was a hundred people? Are you saying there was a hundred people just because you saw a lot of people colliding or are you just giving us a rough estimate? A. One time I went there with my friend and they had people like that. She said that day they had four or five birthday parties. Q. So you were upset that they had these people and you didn’t think there was going to be that many? A. I was.

      . The charge follows, in its central part, Johnson, Pattern Jury Instructions in Louisiana Civil Cases (1978), p. 77. As given, the charge was: Another of the defenses which the law permits the defendant in this case to raise is that the person injured assumed the risk of her own injury, thus barring her recovery. On this issue, the defendant has the burden of proof. To conclude that the plaintiff assumed the risk of her own injury, you must find that defendant has proved by a reasonable preponderance of the evidence that plaintiff fully understood the danger which was involved and that plaintiff then voluntarily exposed herself to the danger, or risk of harm. In this connection, you must determine the question on the basis of what this plaintiff in this lawsuit understood and what she encountered voluntarily. If you find that the plaintiff assumed the risk of the harm that happened to her, then you must return a verdict for the defendant. However, if you find that the plaintiff did not assume the risk of harm, then her conduct on this issue will not bar her recovery.


author: AUGUSTINE, Judge.

text:
    Althea Jones ROBINSON v. F.W. WOOLWORTH & CO.
    No. 12895.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Owen J. Bradley and Michael R. Guidry, Sherman F. Raphael, New Orleans, for plaintiff and appellee.
    Law Offices of James J. Morse, Carl L. Aspelund, New Orleans, for defendant and appellant.
    Before REDMANN, AUGUSTINE and LOBRANO, JJ.
   AUGUSTINE, Judge.

On February 19, 1981, a unanimous jury awarded Althea Jones Robinson $75,000.00 for injuries suffered in a slip-and-fall accident at a store owned by F.W. Woolworth & Co., the defendant. Woolworth now appeals that judgment, citing seven assignments of error in the proceedings below. We affirm.

FACTS

Just before noon on August 16, 1979, Althea Robinson went to the Woolco Store located 5601 Chef Menteur Highway, accompanied by two young nephews, Keely Robinson and Dwayne Allen. Their primary purpose for shopping that day was to purchase a baby bed — Mrs. Robinson was eight months pregnant.

About twenty minutes after arrival at the store, as Mrs. Robinson pushed her shopping cart through the aisles of the paint department, scanning the shelves for various items, she failed to notice a puddle of transparent liquid in her path. Mrs. Robinson stepped in the pool and slipped, falling to the floor in the puddle of spilled fluid. Almost immediately, the plaintiff experienced an intense burning sensation in her buttocks. She did not yet know what had happened to her, and, in her confusion, thought that she might be bleeding internally.

Mrs. Robinson’s screams attracted the attention of several other shoppers, store personnel, and her two nephews. It was then that she became aware that the liquid which she had fallen into was the spillage of a can of KUTZIT paint remover. Several shoppers gathered in a circle around Mrs. Robinson and removed her dress, which was soaked with the burning solvent. One of them called an ambulance, but it did not come until about a half-hour later. As they waited for help to arrive, one gentleman, wanting to be of assistance, wrote his name, address, and telephone number on a scrap of paper and handed it to Keely, one of the plaintiffs nephews. The man was to testify later in Mrs. Robinson’s behalf, the only independent eye-witness to the accident.

Mrs. Robinson was finally driven to Southern Baptist Hospital in an emergency unit. She remained in great pain on the way. As medics attempted to remove her undergarments, they realized that they were stripping away her skin along with her clothes, so efficient was the chemical reaction.

Upon arrival at the hospital’s emergency room, the plaintiff was first treated by Dr. Al Pavy, who diagnosed her injuries as acute lumbosacral strain, accompanied by first and second degree burns of the buttocks. She was later treated by Dr. Courtney Russo, an orthopedist, who reviewed and affirmed Dr. Pavy’s diagnosis. Mrs. Robinson was admitted to the hospital, where she remained for two weeks. Further examination by Dr. Russo revealed the possibility of neurological damage, as it was discovered that the plaintiff was having difficulty perceiving sensation in her left foot. And consistent with the earlier diagnosis of lumbosacral strain, the doctor noted spasms in the patient’s lower back.

One week after admission to Southern Baptist, plaintiff gave birth to her third child. Although the birth was without medical complications, Mrs. Robinson was unable to receive any pain medication during the week prior to delivery except for tylenol. During that time, plaintiff testified, she was very anxious and distraught over the possibility that her fall might have caused grievous injury to the baby. The plaintiff also testified that she was in excruciating pain because of the burns.

Mrs. Robinson was released from the hospital a week after giving birth. After her return home, she continued to suffer loss of mobility in her lower back, rendering most physical activity, particularly bending, extremely painful. Moreover, plaintiff’s second-degree burns did not allow any sitting, as the buttocks area was still quite raw. As a result of these injuries, it was impossible for the plaintiff to take care of herself or her own baby. — she was fortunate to have several relatives who gave assistance. Not until a month after her return from the hospital did plaintiff’s condition improve to the point that she could ride in an automobile for a visit to Dr. Russo’s office. Treatment for the back injury began again, but with little progress. Examinations performed by Dr. Russo in September, 1979 showed that the plaintiff was able to flex only 70 degrees in the straight leg raising test, and could bend forward only 60-70 degrees. The normal range of motion in each of these exercises is 80-90 degrees. By September 1980, more than a year after the fall, plaintiff’s range of motion still had not improved, and in fact it may be said that her condition had deteriorated in that she developed a pelvic tilt and scoliosis, or curvature of the spine. In January 1981, plaintiff was informed by Dr. Russo that she probably would continue to have problems with her back. As of trial on February 19,1981, Mrs. Robinson’s lower back still had not returned to normal.

LIABILITY

The duty of a store owner to protect customers from foreign substances is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Gonzalez v. Winn-Dixie, Louisiana, Inc. 326 So.2d 486 (La.1976). The reasonableness of protective measures varies with the circumstances — the type and volume of merchandise, the volume of business, the floor space used for customer service.

Once a customer proves that a foreign substance on the floor caused him to fall and be injured, the presumption arises that the fall was caused by the store owners’ negligence. Gonzalez, supra; Kavlich v. Kramer, 315 So.2d 282 (La.1975).

In those cases where it appears that a third person is responsible for spilling the foreign substance, a store owner may rebut the presumption of negligence by proving that store employees made periodic inspections and took reasonable precautions to make aisles and floor space reasonably safe for customers. Gonzalez, supra.

Appellant argues that the presumption of negligence has been effectively rebutted by proof that periodic inspections were made. Additionally, he relies upon Maryland v. Winn-Dixie, Louisiana, Inc., 393 So.2d 316 (La.App. 1st Cir. 1981) for the proposition that a store owner must be relieved of liability arising from a slip-and-fall if it is proved that the foreign substance was allowed to remain on the floor for only a brief time.

Upon review of the evidence, we find that Woolco has not adequately rebutted the presumption of its negligence. First, we note the testimony of an independent eye-witness to the fall, Mr. Edmond Rollins, who stated that he had been shopping in the store at the time of Mrs. Robinson’s fall, and had noticed the transparent fluid on the floor a full fifteen minutes before the plaintiff slipped in it.

The defense presented Mr. Jerry Mills to dispute Mr. Rollins’ testimony. Mills, a Woolco employee, testified that he was in the area where Mrs. Robinson fell only two or three minutes prior to the accident, and saw nothing on the floor. Mills, however, admitted that his immediate concern at that time was to wait on customers.

The jury also heard the testimony of Mr. George Burns, another Woolco employee, who stated that within two to five minutes prior to Mrs. Robinson's fall, he had been in the area — about five feet from the place where the plaintiff fell — and did not notice any liquid on the floor. At that time, Mr. Burns’ attention was occupied by the task of stocking the shelves.

Absent a showing of manifest error, we will accept the jury’s factual findings. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). In the face of Mr. Rollins’ testimony, it is not unreasonable to conclude that the spill simply escaped the notice of both Mr. Mills and Mr. Bums, whose attention at that time focused upon other matters. We find no manifest error in the jury’s accepting the testimony of Mr. Rollins (who sought to prove a positive — the existence of the spill) over that of Mr. Mills and Mr. Burns (who sought to prove a negative). We therefore accept it as proven by a preponderance that the paint remover was on the floor for at least fifteen minutes prior to plaintiff’s fall.

We do not regard- that length of time to be so brief as to exculpate Woolco under the rule of Maryland v. Winn-Dixie, supra. In reaching this conclusion, we note that by Mills’ and Burns’ own admission, they were in the area of the plaintiff’s fall only minutes before it occurred. The spilled KUTZIT was indeed noticeable, for it had been observed by Rollins to be approximately two feet wide. Had the store’s employees been as observant as he, they too would have seen the solvent on the floor and taken the proper precautions. We note also that although Woolco employed a porter whose duty it was to keep the floors clean at all times, the store’s procedure required him to make only one inspection during the morning hours. We do not think that Woolco should escape liability on the merits of such minimal precautions. Moreover, there is no evidence that the inspection was actually carried out. We conclude that defendant Woolco has not sufficiently rebutted the presumption of negligence.

As to the defendant’s contention that Mrs. Robinson was contributorily negligent, the record clearly establishes that pri- or to her fall, plaintiff was pushing a shopping cart which obscured her view of the floor in front of her. Additionally, plaintiff’s attention was fixed upon the merchandise on the store’s shelves. Under these circumstances, we do not think that the plaintiff’s failure to notice the spilled paint remover amounts to contributory negligence. See Gonzalez v. Winn-Dixie, supra.

EVIDENTIARY MATTERS

Appellant assigns as error the trial court’s ruling on the admissibility of certain hearsay testimony offered by the plaintiff over objection by Woolco. The claimed error arose when Mrs. Loretta Robinson, the plaintiff’s sister-in-law, testified that following the slip-and-fall, the plaintiff stated that her injury and burns were causing her great pain. Although we agree that the witness’ testimony was hearsay (in that an out of court declaration was offered to prove the truth of the matter asserted, therein, i.e. that the plaintiff was in pain), we recognize that such statements fall within an exception to the general rule against hearsay testimony. Considering that the plaintiff’s extrajudicial statements were a natural and spontaneous expression of then-present bodily condition, and that such testimony has been traditionally viewed as reliable, we find no error in allowing the jury to hear the testimony. See McCormick on Evidence, § 291 Second Edition, 1972.

Appellant assigns as error the trial court’s refusal to allow a can of KUTZIT paint remover to be admitted into evidence. Cross-examination of the proferring defense witness revealed that the can was not the one which had spilled, causing plaintiff’s injury. Moreover, that witness could not say with certainty whether the can was of the same kind as that which caused the harm. We therefore find no error in the trial court’s ruling that the evidence should not be admitted.

Appellant claims that the trial court erred in admitting into evidence photographs of the plaintiff’s burns, arguing that the pictures were prejudicial and inflammatory. We see no merit to this assignment. During the trial, the plaintiff testified that a number of weeks after the accident, her husband confessed to her that he was repulsed by the burns on her body and no longer found her physically attractive. There was also dispute raised by the defendant as to whether the scars left by the burns would be permanent. The photographs corroborated prior testimony regarding the severity of the burns and the permanence of the scarring. They were therefore relevant and probative as to material facts in dispute and should have been admitted into evidence.

QUANTUM

Finally, appellant contends that the jury’s award of $75,000.00 was excessive. At the outset, we observe several principles which must be borne in mind by an appellate court in review of quantum. In the assessment of general damages, much discretion must be left to the judge or jury. In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1971), it was emphasized that: “before a Court of Appeal can disturb an award made by a trial court ... the record must clearly reveal that the trier of fact abused its discretion in making the award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” Id. at 335. (Italics supplied).

The procedure by which an appellate court reviews a jury’s award is notable for its emphasis upon the particular circumstances of the case before the bar — the type and extent of injury to this plaintiff — rather than comparison with awards upheld by prior jurisprudence. Reck v. Stevens, 373 So.2d 498 (La.1979).

Viewing the particulars of this case, we observe that the damages awarded by the jury represent compensation for several types of injury: pain and suffering, caused by injury to the back, which has persisted even as of the time of trial; pain and suffering caused by the second-degree burns — and we note here that due to her pregnancy, the plaintiff was unable to receive any medication to relieve pain during the week-long period between the accident and the birth of her child; the immeasurable anxiety that was endured by plaintiff, who, faced with the imminency of her child’s birth, suddenly was forced to confront the real possibility of tragic injury to her unborn child as a result of the fall; the fact that upon returning home from the hospital, Mrs. Robinson continued to suffer from the burns, and could not even assume a sitting position or take care of herself or her own child; Mrs. Robinson’s knowledge that her burns have left her unattractive to her husband; the embarrassment felt by plaintiff as a result of her permanently scarred flesh. Considering all these to be the effects of defendants’ negligence, we think the jury’s award was within the reasonable limits of its great discretion. Accordingly, the award shall not be reduced.

For the reasons stated, the jury’s verdict and award of damages are affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    Gladys BUTLER, Individually and as Tutrix of the Estate of Her Minor Son, Kedric D. Butler v. Rufus P. ATWOOD, d/b/a Atwood Amoco Service Station, Amoco Oil Company and Charles E. Spahr, d/b/a Charles E. Spahr Distributor.
    No. 12702.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Robert E. Peyton, Christovich & Kearney, New Orleans, for defendants-appellees.
    David R. Fine, Fine, Waltzer & Bagneris, New Orleans, for plaintiff-appellant.
    Before GARRISON, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

This is an action to recover damages for personal injuries sustained by Kedric Butler, the minor child of the plaintiff. The trial court granted a summary judgment in favor of one of the defendants, Amoco Oil Co., and the plaintiff appeals.

Kedric Butler, an eleven year old child, purchased gasoline from Atwood’s service station to be used in his model airplane. He took the plastic container with the gasoline to his house. Several days later while Kedric Butler was attempting to pour the gasoline into the engine of his model airplane the gasoline was accidentally ignited causing Kedric to sustain burns to his face and upper torso.

This suit was filed by the child’s mother, against the owner/operator of the service station, the oil company and the distributor, to recover damages for the injuries of the child.

Mrs. Butler alleges the negligence of the defendants in the sale and distribution of a dangerous substance to a child. Specifically, with regard to the defendant, Amoco, she contends Amoco was negligent in distributing or allowing distribution of such a substance to children; in failing to properly supervise the method of distribution; and in failing to maintain reasonable safety measures for distribution.

Amoco filed a general denial and affirmatively pleaded the negligence of the minor child and, alternatively, pleaded the child’s contributory negligence.

In response to interrogatories concerning specific areas of control by Amoco over the defendant service station, Amoco described its business practices in its dealings with its distributors and with its wholly owned service stations. Amoco denied any contractual or other dealings with independently owned stations, such as Atwood.

The deposition of Rufus Atwood, the owner/operator of the service station was admitted into evidence. It reveals numerous business transactions with the distributor, Charles Spahr. Mr. Atwood testified that with regard to daily business operations, product prices and safety measures he did not receive information from either the oil company or the distributor. He did have a sign with the Amoco emblem and certain literature with this seal, but he testified that both of these items came from the distributor.

The defendant, Amoco, submits the affidavit of its general manager, Dale Kohl-man, in support of its motion for summary judgment. Kohlman states that Amoco has no business relations with Atwood, it does not provide him with products, and that all of Amoco’s dealings are with its distributor, Spahr.

In opposition to the motion for summary judgment, the affidavits of the plaintiff and her child are attached. The mother’s affidavit states that she was unaware of the gasoline being on her premises and that she did not warn the child of its dangers prior to the accident. In the child’s affidavit he basically refutes his testimony given at his deposition. He now attests that he was confused about the facts; he was not told before the accident of the danger of gasoline; that he did not read the instructions for the airplane assembly, and that the gasoline he was pouring in the plane ignited and caused his injuries.

The sole issue presented for our review is whether based upon the pleadings, depositions, affidavits and other evidence filed by the parties, pursuant to Amoco’s motion for summary judgment, a genuine issue of material fact exists as to the liability of Amoco Oil Co.

On appeal, the plaintiff contends that there are three separate areas wherein material fact issues exist concerning the actual or vicarious liability of the defendant, Amoco Oil Company. Initially, plaintiff contends that the determination of the master-servant relationship is not a proper subject matter to be resolved by summary judgment, and she further asserts that the facts in this case support a finding of the existence of a master-servant relationship between the defendants Atwood and Amoco Oil Co.

In the case of Fontenot v. Andrus Homes, Inc., the court specifically addressed the issue of summary judgment as a proper procedure to resolve the question of independent contractor status. 391 So.2d 42 (La.App. 3rd Cir., 1980). In deciding that summary judgment could be used to resolve this issue, the court stated:

“The question as to whether the work performed by a contractor is part of the principal’s business, is an issue of fact and consequently summary judgment is seldom appropriate for its resolution. McMoris v. Sheppard, 315 So.2d 342 (La.App. 4th Cir. 1975.) Where appropriate, however, courts have not hesitated to utilize it. Barnes v. Sun Oil Co., 358 So.2d 655 (La.App. 1st Cir. 1978), aff’d., 362 So.2d 761 (1978); Pullig v. Shreveport Packing Co., Inc. of Kansas, 342 So.2d 1217 (La.App. 2nd Cir. 1977); Burse v. Boh Bros. Construction Company, 349 So.2d 438 (La.App. 4th Cir. 1977), writs den. 351 So.2d 172 (1977); Fontenot v. Andrus Homes, Inc., supra at 43.”

The issue of independent contractor status is a proper subject to be resolved on summary judgment. Likewise, the issue of master-servant relationship is properly a subject for summary judgment. Where a master-servant relationship exists the master is answerable for the tortious acts of his servants. C.C. Art. 176, 2317, 2320. In determining whether such a relationship exists the major consideration is the control or right of control which one party exercises over the other. Savoie v. Fireman Fund Ins. Co., 347 So.2d 188 (La.1977); Donovan v. Standard Oil Co., 197 So. 320 (La.App. 2nd Cir. 1940). Accordingly, courts may examine the economic relationship of the parties and the right of one party to control the time and physical activities of the other party. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (La., 1968); Badeaux v. East Jefferson General Hospital, 364 So.2d 1348 (La.App., 4th Cir., 1978); Florence v. Clinique Laboratories, Inc., 347 So.2d 1232, 1237 (La.App., 1st Cir. 1977).

This Court has reviewed the pleadings and evidence in this matter and we are convinced the control and economic relationship needed in order to create a master-servant relationship between Atwood and Amoco Oil Co. is not present in this case. There is no material issue of fact concerning the existence of a master servant relationship.

The next argument presented by the plaintiff is that summary judgment should not have been granted because Amoco Oil Co., as the manufacturer of a high explosive material, has a duty to warn of the danger of the product and the care to be exercised in its distribution.

Gasoline, while not an ultra-hazardous substance, is a highly inflammable and explosive substance. Jones v. Robins, 289 So.2d 104 (La., 1974). Those who handle such dangerous substances should exercise a high degree of care. Miller v. Lambert, 380 So.2d 695 (La.App., 4th Cir. 1980). The manufacturer of a dangerous substance has a duty to warn users of the substance when the danger cannot reasonably be expected to be within the knowledge of the users generally. Chappius v. Sears Roebuck, Inc., 358 So.2d 926 (La., 1978); American Insurance Co. v. Duofast Dixie, Inc., 367 So.2d 415 (La.App., 4th Cir., 1979). That is, where the danger is obvious, there is no duty to warn. Albert v. J & L Engineering, 214 So.2d 212 (La.App., 4th Cir. 1968).

In the instant case the danger of the gasoline was obvious. Accordingly, the manufacturer had no duty to warn of its dangerous propensities nor of the care to be exercised in its distribution. No material issue of fact exists as to the manufacturer’s failure to warn.

Finally, plaintiff argues that Amoco should not have been granted summary judgment because Amoco allowed Atwood to hold Amoco out as a partner, and is estopped from denying that a partnership existed. The plaintiff relies upon Federal District Court decision of In Re: Red China Union Lines, Inc., 342 F.Supp. 426 (Eastern Dist. of La.1971).

In order for a partnership to exist in Louisiana, there must exist: a sharing in the profits and losses of the business enterprise; mutual consent to form a partnership; and the property of, or stock in, the enterprise must form a community of goods in which each party has a propriety interest. C.C. Art. 2801, et seq., Franklin Printing Co., Inc. v. Scott Fence of N. O., Inc., 392 So.2d 170 (La.App., 4th Cir. 1980), writ. ref. 397 So.2d 805. A partnership may be found to exist even though there is no intent to form a partnership, in those instances in which a person holds himself out as a partner to the justified detrimental reliance of a third party. Pelican Plumbing Supply, Inc. v. Dixie Plumbing & Heating, 225 So.2d 239 (La.App., 4th Cir. 1969). It appears however, that even in those cases, the intent to share profits and losses is an indispensable element. In the case of Du-bois v. Reliance Insurance Co., where the plaintiff sued a business for injuries he received, the court found that there was no partnership because this factor was not present. 349 So.2d 458 (La.App., 3rd Cir. 1977.) The court stated:

“The second issue presented is whether the alleged partnership and other individual partners should have been cast in judgment.
The evidence does not show the existence of a partnership. There was no mutual participation in the profits. LSA-C.C. Art. 2801. The mere fact that the term ‘partnership’ was used does not prove the existence of a partnership when the circumstances do not show the necessary intent to share profits and losses. Darden v. Cox, 240 La. 310, 123 So.2d 68 (1960).” Dubois v. Reliance Insurance Co., Supra at 460.

In the case of In Re: Red China Union Lives, Inc., supra., the parties who were said to meet the criterion of partners, under Louisiana law, shared profits and losses.

In reviewing the facts of the instant case it is questionable, at best, as to whether the use of the name “Atwood Amoco Service Station” was sufficient to allow a third party to justifiably rely upon this being a partnership. Assuming, for the sake of argument, that this type of holding out was sufficient to cause the public to rely to their detriment upon the existence of a partnership, we find that an essential element necessary for the formation of a partnership was absent. Amoco Oil Company is the manufacturer of the product which Atwood purchases through its distributor and sells. Any profit which Amoco makes is at the wholesale level and any profit or loss which Atwood sustains are clearly his own. There can be no partnership under the facts presented. No issue of material fact exists as to a partnership relationship between Amoco Oil Co. and Rufus Atwood or his service station operation.

The record is void of any suggested basis for the defendant Amoco’s liability. It is the conclusion of this Court, after reviewing the pleadings, interrogatories, affidavits, depositions, and supporting evidence that Amoco Oil Company is entitled to summary judgment as a matter of law. The trial judge made no error in this regard.

For the reasons assigned summary judgment in favor of Amoco Oil Co. and against Gladys Butler, et al., is affirmed at plaintiffs cost.

AFFIRMED.

      . The areas of control included items of bulletins and literature regarding daily operations, safety measures, measures of distribution and products; seminars and meetings; dealership approvals, and credit transactions.

      . Defendant Atwood testified that Spahr was the one to whom he. had applied for his dealership; from whom he rented his property, secured his products and obtained literature and business information; the one to whom he turned in his credit receipts, and the one from whom he could have received promotion dinners.

      . The affidavit of Dale Kohlman, answer to interrogatories by Amoco and the deposition of Rufus Atwood are dispositive of the master-servant issue. Although the appellant alludes to contervailing facts raised by the Spahr deposition and documents, in order to support the existence of requisite “control”, this Court finds no such evidence in the record. The unsupported allegations of the appellant will not defeat summary judgment. Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La., 1980).


text:
    CREOLE SALES, INC. v. H & H UTILITIES SERVICE CO., INC.
    No. 13085.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      John M. Landis, of Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for appellant, Cement Asbestos Products Co.
    John I. Hulse, IV, Hulse, Nelson & Wan-ek, New Orleans, for appellee, Walter C. Drennan, Inc.
    William' J. Daly, White, Daly & White, Metairie, for appellee, Creole Sales, Inc.
    Before BARRY, BYRNES and CIACCIO, JJ.
   CIACCIO, Judge.

Creole Sales, Inc. originally sued H & H Utilities Service Company, Inc. on an open account to recover $10,781.51 for certain cement asbestos pipe. H & H had sold the pipe to Wallace C. Drennan, Inc., a contractor. Drennan had claimed that some of the pipe was defective and not fit for the use intended and had backcharged H & H for $5,568.23. H & H, therefore, filed a third-party claim against Drennan to recover the amount of the backcharge, and reconvened against Creole for the loss of Drennan’s business, allegedly resulting from the sale of the defective pipe. In the event that the pipe was found to be defective, Creole filed a third-party claim against the pipe manufacturer, Cement Asbestos Products Company. The trial court rendered judgment in favor of Creole Sales and against CAPCO for the amount of the backcharge and against H & H for the remainder due Creole. The third-party and reconventional demands filed by H & H were dismissed. H & H has not appealed and the judgment against it is now final. Only CAPCO appeals. We affirm.

CAPCO manufactured the pipe in question and sold it to Creole Sales, a distributor in Baton Rouge. CAPCO was paid by Creole for the pipe. Creole sold the pipe to H & H, a distributor in New Orleans, who sold the pipe to Drennan for use on an Orleans Parish Sewerage and Water Board contract job. The job involved the laying of water pipelines along Gull and Thrasher Streets in New Orleans.

Drennan installed the pipeline and tested it for leaks as per Sewerage and Water Board specifications. The pipeline leaked, so Drennan attempted to locate and repair the leakage. As Drennan’s employees investigated for leaks they found an excessive number and realized that something was wrong.

All of the leaks were located at various joints in the pipeline. On the first leak located Drennan used a repair clamp, but when several more leaks were found the pipe distributors and ultimately CAPCO were contacted. CAPCO sent a representative to the jobsite who viewed the leaking pipeline and formed the opinion that the leaks were caused by improper installation. Drennan’s employees, on the other hand, concluded that the leaks occurred because the pipe was non-concentric or out-of-round.

Drennan informed H & H of their determination that the pipe was defective. H & H told Drennan to do what it had to do to resolve' the problem. Drennan secured new pipe, took the leaking pipe out of the ground and installed new pipe. The pipeline was tested again and did not leak. Drennan then backcharged H & H for the costs of the corrective work.

After a trial on the merits the trial judge found that Drennan was justified in back-charging H & H because the pipe supplied to Drennan by H & H was defective and had to be replaced at H & H’s cost. The trial court ruled that the pipe manufacturer, CAPCO, should ultimately bear the replacement costs. The trial judge rendered judgment against CAPCO for the amount of the Drennan backcharge to H & H.

CAPCO argues on appeal that the trial court erred in finding (1) that the pipe was defective, (2) that pipeline leaks were caused by the defective condition of the pipe, and (3) that Drennan adequately proved the amount and/or reasonableness of the costs of repairing the leaks. These are factual findings by the trial court. The issue on appeal is whether the judgment of the trial court against CAPCO should be reversed because the findings of fact are clearly wrong or manifestly erroneous. See: Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

CAPCO combines the first two specified errors in an argument premised on the conclusion that this is a products liability case. CAPCO argues that in order to be held liable under a products liability theory, there must have been adequate proof at trial (1) that the pipe was. defective and (2) that the leaks were caused by the defective condition.

The first two findings of fact are best handled together. No one disputes that the pipe was laid in the best possible soil conditions, namely, stable sand. The four Dren-nan supervisors who were on this job each testified that they had many years of experience in this type of work. One of the supervisors testified that he observed every step of the pipeline installation, watched to make sure every joint of pipe was properly installed, and if any problems were encountered he would get into the trench himself and manually participate in the installation. Those witnesses who remembered where the pipeline leaks had occurred testified that the leaks were along the straight sections of the pipeline. A Drennan supervisor testified that if a deflection in the pipe needed to be taken, his normal practice, which was followed on this job, was not to exceed four inches from the straight line. The manufacturer’s allowable deflection is 13 inches. A cumulative assessment indicates this pipeline was installed under the best possible conditions, in basically a straight line, while under the supervision of men with a wealth of experience. However, when the pipeline was tested, it leaked.

At trial the representative from CAPCO who had viewed the leaking pipeline testified that he thought the cause of the leaks was that the pipe had been belled at an angle, that is, improperly installed. All of the Drennan supervisors on this job testified to the contrary; they narrated the general events of installation and indicated that they knew how to install the pipe and that the pipe had been properly installed.

Upon concluding that something was wrong with the pipe, Drennan’s employees measured the diameters of the ends of the leaking pipe joints in an attempt to detect the cause of the leaks. These field measurements, although crude, indicated that some of the pipe was not perfectly round. The manufacturer’s specifications called for an average pipe diameter of 9.11 inches ± .03 inches. The field measurements demonstrated that some of the pipe fell outside of the ± .03 inch tolerance.

At Drennan’s request, a pipe expert measured some of the pipe. His measurements supported the conclusion drawn from the field measurements. These measurements were taken at Gulf South Testing Laboratories on three pieces of pipe allegedly randomly selected from among the CAP-CO pipe Drennan had on this job. The expert measured the pipe ends to determine six different diameters. Comparing these measurements revealed that different locations around the pipe ends had different diameters.

Alone, fluctuations in diameter may not be indicative of a defective condition so as to make the pipe unfit for the use intended. When the entire record is considered the theory of improper installation cannot be supported. However, the record contains ample testimony to support the conclusion reached by the trial court that the pipe was defective and that it was the defective condition of the pipe which caused the leaks. These findings of fact are not clearly wrong and will not be disturbed.

As to the remaining finding regarding the adequacy of proof and reasonableness of the costs incurred for corrective measures by Drennan, the trial judge committed no error. Testimony at trial established that when the leaks were encountered H & H told Drennan to keep track of the costs of correction and these costs would be absorbed by H & H. Pursuant to this instruction Drennan submitted an invoice which represented the correction costs to H & H. This backcharge invoice outlined the amount of time and the unit time cost for each supervisor and each laborer who participated in the corrections. The same method was used in calculating the costs for the tools and materials. H & H accepted the backcharge from Drennan.

The invoice was introduced at trial. The Drennan representative responsible for writing up the invoice testified as to how it had been prepared. Each of the supervisors also testified. They had been responsible for the laborers, tools and materials. The president of H & H testified that he felt the charges had been reasonable and could think of no reason to question Drennan’s figures. All of these witnesses were available to CAPCO for cross-examination. The proof was adequate and the evidence indicated the costs were reasonable. The trial judge’s finding was not clearly wrong.

Accordingly the judgment of the trial court is affirmed. All costs are assessed to appellants.

AFFIRMED.


text:
    Sylvia N. Trandacosta, wife of/and Nolan J. ESTOPINAL v. Mr. and Mrs. Donald J. BOURSHIE and Southern Savings Association.
    No. 13095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      James W. Brodtmann, Chalmette, for plaintiffs-appellants.
    Glenn E. Diaz, Chalmette, for defendants-appellees.
    Before BARRY, BYRNES and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiffs, Sylvia N. Trandacosta, wife of/and Nolan J. Estopinal, brought this action in quanti minoris seeking a reduction in the purchase price of a house purchased from defendants, Mr. and Mrs. Donald J. Bourshie and Southern Savings Association. The value of the reduction sought corresponds to the costs borne by plaintiffs for the repair of alleged latent defects in the property. Additionally, plaintiffs asked for attorney’s fees, court costs and interest. Prom a non-jury verdict dismissing their suit, plaintiffs appeal. We reverse.

Prior to purchasing the house, on at least two occasions Mr. and Mrs. Estopinal inspected the house while accompanied by Mrs. Bourshie. On the first of these inspections the Estopinals noticed that a portion of the fascia board was rotten and that the joists underneath were also rotten. An inspection of the interior revealed a small hole in the ceiling of one room with the surrounding area stained apparently by water. Both of these defective areas were located in the rear portion of the house.

Mr. Estopinal mentioned the defective areas to Mrs. Bourshie. Mrs. Bourshie indicated that at one time the roof had leaked but that the problem had been repaired. She assured the Estopinals the roof did not leak. She also assured Mr. Estopinal that the rotten fascia board would be repaired.

Just prior to the act of sale Mr. Estopinal inspected the house again. Mrs. Bourshie told him that a carpenter repaired the rotten fascia board. Mr. Estopinal saw that a new fascia board had been put up, although it had not been painted.

At trial Mr. and Mrs. Estopinal and Mrs. Bourshie testified that no other defects were apparent at the time of the act of sale. Mr. Bourshie neither participated in the showing of the house nor did he testify at trial.

After the sale, while in the process of renovation, Mr. Estopinal removed some sheetroek from the rear wall. He discovered the rear wall required replacement of sills, sill plates, rafters and weather boards. Mr. Estopinal also removed the gutters, molding and fascia boards in this rear area and discovered the joists were rotten. Additionally, Mr. Estopinal discovered that the roof leaked.

Mr. Estopinal hired a contractor to repair the rear wall and a roofer to repair the leaking roof. The repair fees totaled $2065.00. The Estopinals asked the Bour-shies to pay half the repair costs, but the Bourshies refused.

In rendering judgment the trial court reasoned that “upon seeing [the defects noticed by plaintiffs prior to the sale], the burden shifts from the seller to the buyer to make further examination and inspection for his or her own benefit.” The trial court ultimately found “that upon seeing these conditions that Mr. Estopinal should have investigated further and that his failure to do so is the cause of his loss, and therefore, the Court finds that the defects were apparent and legally discoverable by simple inspection and therefore, must dismiss the plaintiffs’ suit.” The trial judge applied a rule which shifts the burden from the seller to the buyer to conduct more extensive inspection once the buyer notices some defects. This is not a correct rule of law.

The correct rule that the trial court should have applied is whether a reasonably prudent buyer acting under similar circumstances would have discovered the defects. Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963); Fraser v. Ameling, 277 So.2d 633 (La.1973); Bernofsky v. Schwartz, 370 So.2d 590 (La.App. 4th Cir. 1979).

No burden shifts from seller to buyer. The law provides that the seller warrants the thing sold against hidden defects. L.S.A.-C.C. Arts. 2475, 2476. Hidden defects are those which cannot be discovered by simple inspection. L.S.A.-C.C. Art. 2521. Simple inspection involves more than mere casual observation. It requires the buyer who observes defects to conduct further investigation as would be conducted by a reasonably prudent buyer acting under similar circumstances. Simple inspection does not require the buyer to examine the inner or hidden parts of the object of the sale for the purpose of finding latent defects. There is no obligation on the part of the buyer to inspect with expertise or to deface the thing purchased while inspecting it. Pursell v. Kelly, supra; Fraser v. Amel-ing, supra; Bernofksy v. Schwartz, supra.

The defects in this house were not discovered until after the removal of sheet-rock and fascia board. Mrs. Bourshie indicated that she had been unaware of any of the problems discovered by Mr. Estopinal in his renovation work. Mrs. Bourshie testified that she and Mr. Bourshie had lived in this house for thirty-two years and that these defective conditions were not visible at the time of sale. Accordingly, the defects which are the subject of this suit were not apparent but were hidden, not only from the buyers but also from the sellers.

Furthermore, the buyer has a right to rely upon the representations of the seller. The defects which Mr. Estopinal noticed prior to the sale were brought to Mrs. Bourshie’s attention. Mrs. Bourshie assured the Estopinals that these defects had been repaired and were no longer problems. Before the sale a final inspection established that the defects appeared to have been corrected.

If the seller represents that suspected defects have been corrected and simple inspection establishes these representations to be accurate, the buyer need not investí-gate further. Mr. Estopinal’s final inspection just prior to the act of sale did not reveal any defects when considered in conjunction with Mrs. Bourshie’s representations that the suspected defects had been corrected. Any further investigation by Mr. Estopinal would have involved removal of the sheetrock and the fascia board. The law does not require such activity as this would go beyond the scope of simple inspection.

Accordingly, the trial court’s dismissal of plaintiffs’ suit must be reversed. The plaintiffs are entitled to recover the costs of correcting the defects. L.S.A.-C.C. Arts. 2520, 2531, 2541. The contractors who performed the repair work testified at trial. The plaintiffs paid these men $640.00 to repair the roof and $1425.00 to repair the rear wall.

The plaintiffs are not entitled to recover attorney’s fees. Mrs. Bourshie testified, and Mrs. Estopinal’s testimony corroborated, that she had been unaware of the defects. We will assume Mr. Bourshie had been unaware of the defects, although he did not participate in showing the house nor did he testify at trial. The good faith seller is not liable for attorney’s fees. L.S.A.C.C. art. 2531.

Accordingly, the judgment dismissing plaintiffs’ suit is reversed. Judgment is rendered in favor of the plaintiffs, Mr. and Mrs. Nolan J. Estopinal, and against defendants, Mr. and Mrs. Donald J. Bourshie, in the sum of two thousand sixty-five ($2065.00) dollars plus legal interest from the date of judicial demand, together with all costs of these proceedings.

REVERSED.

      . Before trial summary judgment was rendered in favor of Southern Savings Association dismissing plaintiffs’ suit. No appeal was taken from this judgment and this judgment is now final.


author: LOBRANO, Judge.

text:
    Virginia M. CHAUVIN v. GAMMON ENTERPRISES, INC. and ABC Insurance Company.
    No. 13101.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Laurence E. Larmann, Hailey, McNamara, McNamara & Hall, Metairie, for defendants/appellees.
    John G. Munoz, Garner & Munoz, New Orleans, for plaintiff/appellant.
    Before REDMANN, LOBRANO and WARD, JJ.
   LOBRANO, Judge.

This action arose as a result of an accident which occurred on November 7, 1977 at Rosy’s Restaurant and Nightclub which is owned and operated by defendant, Gammon Enterprises, Inc. Plaintiff, Virginia Chauvin Wood, was attending a performance by Irma Thomas and had been seated by an employee of Rosy’s against a door on the Tchoupitoulas Street side of the club. During the course of the performance the door opened, causing plaintiff to fall out of the nightclub onto the sidewalk. As a result of the fall the plaintiff sustained a fractured left elbow and a tear in the bra-chealis muscle, eventually requiring surgery.

After a three day jury trial, a verdict was returned in favor of the plaintiff, Ms. Virginia Chauvin Wood, in the amount of $12,-500.00, and in favor of her husband, who had intervened to recover medical expenses, in the amount of $5,800.00. Ms. Wood has appealed seeking an increase in the award. Her husband, Robert Wood, does not appeal the award made in his behalf. Defendant-appellee answered the appeal alleging that the jury erred in finding negligence on the part of Gammon Enterprises, Inc. and in failing to find that plaintiff was contributo-rily negligent and/or assumed the risk of her actions.

NEGLIGENCE OF GAMMON ENTERPRISES, INC.

The record reflects that on the night of the accident, Rosy’s was very crowded. Plaintiff and the members of her party were seated by defendant’s employee in an area of the nightclub immediately adjacent to a large wooden exit door with a push bar handle. Testimony revealed that none of the six people in plaintiff’s party were aware of the existence of the door, nor were they warned of its existence. It was not the normal practice of Rosy’s nightclub to warn patrons that an exist door was in the vicinity.

During the performance, plaintiff’s party was requested by an employee of Rosy’s to move their chairs further back against the wall so as to allow more room for the waitresses to pass by. Plaintiff eventually was located with her chair directly against the door, although still unaware of its existence.

Following an audience participation song, during which plaintiff and other members of the audience stood on their chairs, the accident occurred. Plaintiff claims she sat down normally at which time the door flew open and she fell sustaining her injuries. Defendant contends that plaintiff fell while standing on her chair, and that this constituted contributory negligence and/or assumption of the risk.

In support of their contention defendant’s witnesses testified that there would have to have been pressure applied to the push bar on the door in order to disengage the lock and then further pressure on the door itself for it to swing open. None of the defendant’s witnesses saw the accident occur. No witnesses testified that plaintiff was standing on her chair when she fell.

The duty of defendant in this case was one of reasonable and ordinary care, which includes the prior discovery of unreasonably dangerous conditions on the premises and the corrections thereof or a warning to the guest of the danger. Brasseaux v. Stand-By Corp., 402 So.2d 140 (La.App. 1st Cir.1981). Whether such a duty was breached is a determination that is within the province of the jury and one which will not be disturbed in the absence of manifest error.

In the instant case, the jury heard all the evidence and weighed the veracity and credibility of the witnesses who testified. “On appeal, the Court of Appeal will not disturb the factual findings of the trial court, whether judge or jury in absence of manifest error.” Molenaar v. McGill Mfg. Co., 410 So.2d 869 (La.App. 4th Cir. 1982). Our careful review of the record indicates to us that there was no manifest error in the jury’s findin'g that Rosy’s breached its duty toward the plaintiff and that this breach constituted actionable negligence which resulted in plaintiff’s injuries.

QUANTUM

Plaintiff contends that the jury erred in awarding her only $12,500.00, and cites the case of Hall v. Safeco Ins. Co., 374 So.2d 715 (La.App. 1st Cir.1979) as supportive of an increase in quantum. Appellant ignores the Supreme Court decision of Reck v. Stevens, 373 So.2d 498 (La.1979) which states:

“The use of such a scale of prior awards, made for merely generically similar medical injuries, has been expressly and repeatedly disapproved by Gaspard [v. LeMaire, 245 La. 239, 158 So.2d 149] and the succeeding jurisprudence. Such a hypothetical scale of hypothetical awards cannot be used to determine whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case.” id. at 500-501.

Absent an initial determination that the trial court’s very great discretion in the award of general damages has been abused under the facts of the particular case the court should not disturb the trier’s award. Reck, supra.

The medical testimony reveals that appellant sustained a fracture and dislocation of the left elbow with a comminution of the radial head, as well as a tear of the bra-chealis muscle. This required corrective surgery by Dr. Cary on November 7, 1977. Thereafter appellant was treated by Dr. Cary and Dr. Waldron until August of 1978. Both doctors concluded that the only disability she had was a minus twenty degrees full extension. There is some discrepency in the evidence as to whether appellant could return to her previous employment as a hairdresser.

Appellant first saw Dr. Gesser on August 28, 1979 complaining of feeling “pins and needles” in the ring and little finger of the left hand. On September 20, 1979 he performed surgery to transpose the ulnar nerve. On December 5, 1979 it was necessary that surgery again be performed because of the development of scar tissue from the September operation. On cross-examination, Dr. Gesser stated that the nerve was not torn or lacerated, and in general, some doubt was raised as to whether Dr. Gesser’s surgery was necessary. He also reaffirmed the opinions of Drs. Cary and Waldron that functionally appellant had a good elbow.

After review of the evidence we conclude that the jury award was within the discretion granted as set forth in Article 1934(3) of the Civil Code. We find no abuse of that discretion and will not disturb the award.

Appellant argues that the trial judge committed manifest error in failing to allow their expert witness to testify regarding violations of the building code at Rosy’s. It is suggested that proof of these violations would have resulted in a higher verdict. We find no merit in this argument. Appellant obviously suffered no harm since she was successful in proving appellees were negligent, which negligence caused the injuries. The degree of negligence is irrelevant.

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

AFFIRMED.

      . This is a traditional gesture during performances by Irma Thomas. However plaintiff admits she was requested by the performer to stand, but not on her chair.


author: WARD, Judge.

text:
    Joseph MASCARO v. Leo DAVIS, Glazer Steel Corporation and Liberty Mutual Insurance Company.
    No. 13111.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.
    Frederick P. Heisler, New Orleans, for plaintiff-appellant.
    Bruce J. Borrello, Metairie, for defendants-appellants.
    Before REDMANN, LOBRANO and WARD, JJ.
   WARD, Judge.

The issue in this appeal is a factual finding of the District Court Judge that was adverse to the plaintiff, Joseph Mascaro. Mascaro brought suit in the District Court asking for damages for injuries he sustained when the van he was driving collided with a tractor trailer truck, owned by Glazer Steel and operated by Leo Davis. After trial, the District Judge found Mascaro “contributed to the accident,” meaning he found Mascaro was contributorily negligent, and “dismissed” his action. Joseph Mascaro now appeals that finding of fact.

The accident occurred at the intersection of North Claiborne Avenue and Lizardi Streets in New Orleans on February 23, 1979, at approximately 4:30 p.m. Joseph Mascaro was driving his Ford van on North Claiborne Avenue and travelling towards Canal Street. As Mascaro approached the intersection of North Claiborne and Lizardi Street, Leo Davis, driving the large tractor trailer truck, pulled out from Lizardi and made a right turn onto North Claiborne. Mascaro attempted to stop, but because it had been raining off and on that day, the streets were wet, and his van skidded and struck the truck.

Mascaro and Davis have different explanations for the accident. Mascaro testified that as he was approaching the intersection on North Claiborne, the favored street, he observed the truck also approaching from his right on Lizardi Street. Mascaro claimed that instead of stopping at the stop sign, the truck continued into the intersection. He explained in his testimony that when this occurred he was doing about thirty miles per hour and was approximately fifty feet from the intersection and because the streets were wet, he was unable to stop his van to avoid the accident. Leo Davis, on the other hand, testified that while driving the truck on Lizardi, he stopped for the stop sign at North Claiborne before he entered the intersection. After stopping, he stated, he saw the Ford van approaching, but it was in the left lane of traffic, nearest the median or neutral ground. He testified that he then entered the intersection, but swung his truck into the right lane, where he was forced to stop before clearing the intersection because traffic was backed up in front of him. He said that he then observed the Ford van attempting to pass the vehicle in front, that it “whipped” over into the right lane before it attempted to stop, and that it skidded on the wet street into the truck.

Although other witnesses testified for Mascaro, they gave conflicting testimony, even contradicting Mascaro, and the case comes down to an issue of credibility of witnesses. After hearing these varying accounts of the accident, the Trial Judge, without deciding whether defendant Davis was also negligent, found that Mascaro’s “failure to maintain control at the very least contributed to the accident,” and rendered judgment for the defendant and against plaintiff Mascaro.

The applicable standard of review requires that we give great weight to the factual conclusions of the trier of fact, in this case the Trial Judge. In cases where there is conflict in the testimony, as here, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Based on the evidence presented to the Trial Judge, we find there was a reasonable factual basis for his findings. Further, the record as a whole establishes that the findings are not manifestly erroneous (clearly wrong).

Therefore, the judgment of the trial court is affirmed.


author: WARD, Judge. •

text:
    Margaret CARDOZA v. NEW ORLEANS PUBLIC SERVICE, INC. Mary Doe, City of New Orleans and John Doe.
    No. 13118.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1982.

      Wayne E. Garrett, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant, New Orleans Public Service, Inc.
    Wilma T. James, George R. Simno, III, Salvador Anzelmo, Michelle M. Ostrander, New Orleans, for defendant-appellant, The City of New Orleans.
    Before REDMANN, LOBRANO, and WARD, JJ.
   WARD, Judge. •

Plaintiff, Margaret Cardoza, instituted this suit for damages against defendants, New Orleans Public Service, Inc. (NOPSI), its employee, Lottie Hamilton, and the City of New Orleans, for injuries she received while a passenger on a bus owned by NOP-SI and operated by Hamilton. After a judge trial, the court rendered judgment in solido against NOPSI and the City and in favor of Mrs. Cardoza, awarding $4,752.00 for general damages and medical expenses. Only NOPSI and Lottie Hamilton have appealed.

The primary issue which appellants have presented for review is the correctness of the Trial Judge’s finding of liability, on the part of appellants. Proper analysis of the issue requires that we look first at the facts of the incident, which are not disputed.

On February 27, 1980, Margaret Cardoza was a fare-paying passenger on a NOPSI bus travelling east on North Broad Street in New Orleans. As the bus approached the intersection of Broad and Laharpe Streets, Mrs. Cardoza rang the buzzer on the bus, signalling her intention to exit at the next service stop, and began to move toward the front of the bus. At the same time, an automobile travelling on Laharpe Street ran the stop sign at Broad and La-harpe, entering the intersection in the path of the bus. The distance between this automobile and the bus was such that it was not necessary for the bus to slow down to avoid the automobile. However, following the automobile was a police car which also ran the stop sign and pulled out into the path of the bus, which at that time was about twenty-five feet from the intersection. The police car’s emergency lights were flashing, but its siren was silent. In order to avoid a collision with the police car, the bus driver, Lottie Hamilton, made a sudden stop. Mrs. Cardoza was thrown forward in the bus and was injured when she became wedged between the driver’s seat and the fare box.

NOPSI argues that it rebutted the presumption of fault the law imposes on a common carrier where a passenger sustains injury by showing that an emergency was created and the accident was caused by the police ear running the stop sign and moving into the path of the oncoming bus.

We believe that the trial judge was correct; we affirm his judgment for the following reasons.

NOPSI, as a common carrier operating a public conveyance, is charged with the “highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence.” Davis v. Owen, 368 So.2d 1052 (La.1979); Wise v. Prescott, 244 La. 157, 151 So.2d 356 (La.1963). The mere showing of an injury to a fare-paying passenger on a public conveyance and his or her failure to reach his or her destination safely establishes a prima facie case of negligence, and imposes on the carrier the burden of exculpating itself of negligence and overcoming the presumption. Wise v. Prescott, supra; Galland v. NOPSI, 377 So.2d 84 (La.1979).

In order to exculpate itself from negligence, NOPSI is required to show that Ms. Hamilton, the driver, did “all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers.... ” Wise v. Prescott, supra.

NOPSI failed to show that Ms. Hamilton met that burden. The evidence shows that when Ms. Hamilton first saw an automobile running the stop sign, she did not apply her brakes at that time; she continued driving until she saw the police car pulling into the intersection. When she saw the police car, rather than immediately slowing down, Mr. Hamilton first checked her rearview mirror to see whether she could change lanes and avoid bringing the bus to a halt. When she found that she could not, she then had to brake suddenly to avoid the collision. NOP-SI did not exculpate itself from the burden of showing it was without “the slightest negligence”.

Further, after reviewing the record, this court cannot conclude that the Trial Judge was manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The judgment of the District Court is affirmed.

      . The City has not filed an appeal in this case. La.C.C.P. Art. 2121. Ms. Cardoza in her brief has requested this Court to increase the damage award of the Trial Judge. She has not, however, filed an appeal or an answer to the appeal of NOPSI. La.C.C.P. Art. 2133; Craig v. Southeastern Fidelity Ins. Co., 377 So.2d 1271 (La.App. 3rd Cir.1979).