Morrison v. JA Jones Const. Co., Inc.

Citations: 537 So. 2d 360; 1988 La. App. LEXIS 2788; 1988 WL 139140Docket: 88-CA-0577

Court: Louisiana Court of Appeal; December 28, 1988; Louisiana; State Appellate Court

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In the case of Kim Morrison v. J.A. Jones Construction Company, Inc., the plaintiff, a bartender at Kabby's Restaurant in the Hilton Hotel, slipped and fell due to water accumulation on the restroom floor, which dripped from the ceiling as a result of construction work in the hotel's expansion. Morrison received workers' compensation from her employer and subsequently filed a lawsuit against multiple defendants, including J.A. Jones Construction and Standard Roofing. 

The case involved complex litigation, including multiple petitions, third-party demands, and cross-claims. At trial, the district court granted a directed verdict dismissing claims against Mechanical Construction Company and Atlas Blowpipe, a decision that was not appealed. The jury found J.A. Jones Construction to be 35% negligent and International River Center to be 65% negligent, while Standard Roofing and Perez Associates were deemed not negligent. The jury awarded Morrison $300,000 for damages.

J.A. Jones Construction appealed, contesting the judgment and the trial court's allowance of expert testimony regarding the water's source, arguing that the expert's opinion had changed without proper disclosure. The appeal also included seven assignments of error. The original judgment was amended to exclude International River Center as a solidary obligor in the award, with the court affirming the amended judgment. Morrison responded to the appeal by seeking an increased award and removal of International River Center's negligence from consideration in her recovery.

According to La. C.C.P. Art. 1428, a party's failure to supplement witness interrogatories may lead a trial judge to exclude testimony at trial. Mr. Fleishmann's trial testimony remained consistent with his earlier deposition, indicating he could not pinpoint the exact source of the water but maintained his opinion on its origin. The judge's discretion in allowing testimony is upheld unless it constitutes an abuse of discretion. The court found no significant changes in Mr. Fleishmann's opinions and determined that the appellant was not prejudiced by the admission of his testimony.

The appellant also contested the inclusion of Bernell Hadley's deposition, arguing that the unavailability of the witness was not adequately demonstrated. However, Hadley’s testimony was deemed cumulative, merely supporting the plaintiff's assertion of water on the restroom floor without contributing new information regarding the water's source or negligence. Thus, any error in admitting this testimony was considered harmless.

The court rejected the appellant's claim that there was insufficient evidence to support the jury's finding of negligence by J.A. Jones, emphasizing that Louisiana law requires establishing fault, causation, and damage for delictual liability. The plaintiff's injuries resulted from slipping on water that leaked from the ceiling, and since the appellant was the general contractor, they had a responsibility to construct the restroom properly to prevent such hazards. This duty to rectify any post-construction issues related to construction deficiencies is ongoing and aims to prevent accidents like the plaintiff's.

The evidence suggests that water entering the structure and leaking onto the restroom floor was due to either deficient construction or inadequate investigation and repair efforts. The jury found Standard Roofing not negligent, indicating insufficient evidence of deficiencies in the roof system construction, a conclusion that is upheld. Consequently, the appellant cannot pursue a third-party claim for contractual indemnity against Standard Roofing, as that claim is contingent on a finding of negligence. The jury attributed 65% of the negligence to the International River Center, primarily for failing to investigate and repair the leak, and also found the appellant, J.A. Jones, partially responsible for this negligence due to a lack of diligence in addressing the water source and repair. The ongoing leak issue, present since construction completion, indicated a failure in construction integrity for which the appellant was responsible.

Although the appellant claimed immunity under La. R.S. 9:2772 for constructing according to provided plans and specifications, the record lacks evidence of compliance. Moreover, a contractor may still be liable for damages if issues stem from their fault rather than the plans. The jury also found Perez Associates not negligent, a determination that stands unchallenged. The jury’s conclusions regarding both the plans and the appellant's fault are upheld. 

Regarding the compensation awarded to the plaintiff, the appellant argues it is excessive while the plaintiff claims it is inadequate. Following her fall, the plaintiff suffered severe back pain, which led to surgery and a diagnosis of 10% permanent partial disability. She continues to experience back issues, impacting her employment prospects and enjoyment of family life.

The trier of fact has significant discretion in awarding damages for injuries, as established by La. C.C. Art. 2324.1. In this case, the jury's award of $300,000.00 to the plaintiff is deemed appropriate and will not be disturbed due to the absence of an abuse of discretion. There is a consensus among the parties that International River Center should not be held jointly liable with the appellant, but they disagree on the judgment's modification. The jury correctly evaluated International River Center’s potential fault in relation to the plaintiff's accident; however, as the plaintiff's employer, it is immune from tort liability and should not be included in the judgment.

Further, since the jury found the plaintiff not negligent, her damages will not be reduced according to La. C.C. Art. 2323. Based on the version of La. C.C. Art. 2324 in effect at the time of the accident, the appellant, J.A. Jones Construction Company, Inc., holds sole responsibility for the damages, as its fault exceeds that of the plaintiff and International River Center is immune from liability. Although the result may seem unfair to the appellant, it is consistent with the law, and any changes would need to come from the legislature, not the courts.

The appellant's argument for retroactive application of the amended La. C.C. Art. 2324 is rejected, as the amendment is considered a change in substantive law and will be applied prospectively only, in accordance with La. C.C. Art. 6. Consequently, the judgment is modified to remove International River Center as a judgment debtor, affirming that only J.A. Jones Construction Company, Inc. is liable for the $300,000.00 damages awarded to the plaintiff. The judgment is amended and affirmed. Additional claims against Perez Associates are on hold due to bankruptcy, and Aetna was dismissed from the case as a solidary obligor.