
    Donald J. OLIVIER and Susan D. Olivier v. Reverend Avery C. ALEXANDER and Shirl Green Brock.
    No. 97-CA-1463
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 6, 1999.
    Rehearing Denied Feb. 17, 1999.
    
      Silbert & Garon, W. Gregory Merritt, New Orleans, Attorney for Plaintiffs-Ap-pellees Donald J. Olivier, Jr., et al. , .
    Henry P. Julien, Jr., New Orleans, Attorney for Defendant-Appellant Rev. Avery C. Alexander, et al.
    Court composed of Judge DENIS A. BARRY, Judge ROBERT J. KLEES, Judge WILLIAM H. BYRNES III, Judge MIRIAM G. WALTZER, Judge MOON LANDRIEU.
   hKLEES, Judge.

In this suit for personal injuries, defendant, Avery Alexander, appeals from a judgment of the trial court rendered in favor of plaintiff Donald Olivier. The trial court ruled that Alexander had custody of a construction scaffold on his property, and that he was strictly liable to plaintiff for the serious injuries he suffered after the scaffold collapsed. Donald Olivier answered the appeal contending that the trial court erred in finding no negligence on the part of Alexander. Plaintiff also contends that the damage award of $90,000.00 was inadequate. Mrs. Olivier appeals the failure to award her consortium damages.

FACTS AND PROCEDURAL. HISTORY

Avery Alexander owned the property at 2714 Second Street and began renovation of the apartment building located on the premises in 1984. Over a period of several years Alexander employed three general and independent contractors, including Ronnie’s Heating and Plumbing which employed Olivier. Alexander routinely visited the construction site to check on progress of the work.

On December 11,1986 Olivier was working at the construction site under the direction of Ronnie Gabriel, owner of Ronnie’s Heating and Plumbing.

| ^.Olivier was standing on a ladder outside the building installing furnaces and attempted to step on a scaffold that surrounded and was attached to the building. The scaffold collapsed, and Olivier fell approximately 20 feet and suffered serious injury to his back. Olivier testified that he believed the scaffold was not constructed properly. He stated that the scaffold on Alexander’s property consisted of wooden boards and nails, while other scaffolding he had used was made of iron and pieced together with screws and braces.

Alexander admitted seeing the scaffold on his building, but he did not remember when. Work on Alexander’s building lasted from 1984 until 1987. Alexander said the scaffold was erected by the first contractor shortly after construction began. He denied any involvement in construction of the scaffold or its design.

Donald and Susan Olivier filed a petition for damages against Alexander. On January 11, 1988 Aetna Casualty & Surety Company, insurer of Ronnie’s Heating and Plumbing, intervened to recover compensation benefits paid to or on behalf of Olivier.

The trial court awarded Olivier $90,-000.00 against Alexander and awarded Aetna $6,613.05 to be recovered “out of the Judgment of this Court.” In reasons for judgment the trial court stated as follows:

This Court finds that plaintiff [sic] indeed had the custody and garde of the scaffold. Testimony was presented at trial that revealed that the defendant was visible and intimately involved in the construction project. The defendant visited the job on a weekly basis, provided plumbers and electricians for the job, signed off on acceptances of the work and approved the hiring and firing of contractors. Thus, this Court finds that defendant is liable for plaintiffs injuries due to strict liability but not negligence.

[.¡Plaintiffs argue that the trial court erred by finding that defendant was not negligent, by refusing to award Mrs. Olivier loss of consortium, and by awarding Mr. Olivier only $90,000.00 in total damages. Alexander denies liability under theories of negligence or strict liability.

STANDARD OF REVIEW

In reviewing factual findings of a trial court, an appellate court is limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100 (La. 1/16/96); 666 So.2d 612. Before an appellate court reverses a trial court’s factual conclusions, we must find, after reviewing the entire record, that no reasonable factual basis exists for the verdict. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). We are also mindful of our constitutional duty to review the record for clearly erroneous factual determinations. Ambrose v. New Orleans Police Ambulance Service, 93-3099, 93-3110, 93-3112 (La.7/5/94); 639 So.2d 216, 221.

LIABILITY

La. Civ.Code art. 2317 imposes strict liability for damage caused by a defective thing in a defendant’s custody. To hold defendant liable under article 2317, the plaintiff must prove: (1) the thing which caused the damage was in the care, custody and control of the defendant; (2) the thing had a vice or defect which created an unreasonable risk of harm; and (3) the injuries were caused by this defect. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Article 2317 imposes liability based on custody, not ownership. Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4th Cir.1993), unit denied, Montalbano v. Lombard, 617 So.2d 1182 (La.1993). Custody, distinct from ownership, refers to a person’s supervision and control (garde) over a thing posing an unreasonable risk |4of harm. Id. (citing Loescher v. Parr, 324 So.2d 441, 446 (La.1975).) The Supreme Court has utilized a two-part test in determining whether the defendant has custody. First, the defendant must have right of direction and control over the thing. Second, the court must examine what, if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991).

In summary, Alexander owned an apartment building which was under renovation from 1984 to 1987. The scaffolding was attached to. his building for over four years with his knowledge and he- had control and visited the job site regularly. Alexander directly benefited from the scaffolding because it had been used to renovate his building.

The trial court determined that Alexander was at the construction site weekly, that he provided plumbers and electricians, signed acceptances of work, hired and fired contractors, and -was “intimately involved in the construction project.” Considering the record, the trial court’s conclusion that Alexander had custody and control of the scaffolding is not manifestly erroneous and should not be disturbed.

We also find that the scaffold was clearly defective and created an unreasonable risk of harm which directly caused Olivier’s injuries. Therefore, we affirm the finding of strict liability.

COMPARATIVE FAULT

The trial court did not address the issue of Olivier’s fault, although Alexander alleged in his answer to the petition that Olivier’s injuries were caused by plaintiffs negligence. Considering the photographs in evidence which depict obvious defects in the scaffolding, an examination of Olivier’s fault is warranted.

|sThe trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96); 666 So.2d 607, 610. A reviewing court may reallocate fault only after it has found an abuse of discretion and then, only to the extent of lowering or raising the percentage of fault to the highest or lowest point. Warren v. Compagna, 96-0834 (La.App. 4 Cir. 12/27/96); 686 So.2d 969, 980. The Supreme Court has outlined five factors which may influence the degree of fault assigned: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1986).

Applying these factors to this case, we are compelled to conclude that Olivier’s negligence was a major factor in his fall. Olivier attempted to install a furnace vent on an exterior wall and used a ladder to position himself at or above the second level of the building. He was unable to reach a screw to anchor a clamp for the vent, and rather than reposition his ladder, he put one foot on a horizontal piece of lumber that was part of the scaffolding. The board gave way and Olivier fell to the ground.

Based on Olivier’s testimony and the photographs introduced at trial, we find that plaintiff knew or should have known that the boards of the scaffolding were unstable and totally unsafe. The scaffold had been in place for several years and deteriorated to a point where only a few boards remained. In fact, photographs lfiof the building show that the boards could only loosely be referred to as “scaffolding,” and the structure appeared to be completely unusable.

Olivier had worked on scaffolding and testified that it did not look like other scaffolding which was generally made of iron, secured with screws and braces. There was no evidence that Olivier was compelled to complete his work in a hurry. Under these circumstances, we find that Olivier disregarded his own safety by stepping on the scaffold and was grossly negligent.

We find the trial court’s failure to assign fault to Olivier to be an abuse of discretion. We conclude that the minimum amount of fault attributable to Olivier is seventy-five (75%) percent. Cf. Verrett v. Louisiana World Exposition, Inc., 503 So.2d 203 (La.App. 4th Cir.), writ denied, 506 So.2d 1229 (La.1987). (Plaintiff who lost balance and fell from scaffold assigned 75%. fault.) We therefore allocate 75% fault to plaintiff and 25% fault to defendant.

DAMAGES

Plaintiffs contend that the amount of damages is inadequate considering the serious nature of the injuries. We agree.

The trial court awarded $90,000.00 in total damages to Olivier. He fell approximately twenty feet onto his buttocks and lower back. He suffered multiple rib fractures and herniated discs which required two back surgeries. During the second surgery, a two-level laminotomy, metal screws and plates were placed in his back and he must wear a back brace. He has a 20% permanent disability of his lower back and is restricted to light work without prolonged sitting, stooping, bending, crawling, lifting or climbing. Olivier has not been able to return to work since the accident. Olivier, 38 years old at the time of trial, testified that he cannot |7play on the floor with his children, play ball, travel with them or teach his children to ride a bike.

Plaintiff has $55,660.62 in stipulated past medical expenses. With his severe injuries and permanent disability, the award of $90,000.00 is woefully inadequate. The award does not encompass the gravity of the injuries, his large medical expenses, or past and future lost wages, all of which were proven at trial.

The awards given in Louisiana courts for back injuries similar to those of plaintiffs are varied. In Jones v. Trailor, 93-2144 (La.App. 4 Cir. 4/28/94); 636 So.2d 1112 writ denied, Rome v. Traylor, 94-1337 (La.9/16/94); 642 So.2d 193, a plaintiff underwent two back surgeries and had restrictions placed on her employment similar to those given plaintiff here and was awarded $300,000 in general damages, exclusive of past and future medical expenses and lost wages. In Spangler v. North Star Drilling Co., 552 So.2d 673 (La.App. 2nd Cir.1989), the appellate court reduced the trial court’s general damage award from $600,000 to $375,000 for a plaintiff who had two back surgeries. However, in these cases, the appellate court either affirmed the award of the trial court or reduced the award to the highest point within the discretion of the trier of fact. In this case, we must increase the award to the lowest point which would reasonably be within the discretion of the trial judge. We find the case of Maynor v. Vosberg, 25,922 (La.App. 2 Cir. 11/28/94), 648 So.2d 411, writ denied, 95-0409 (La.4/28/95), 653 So.2d 590, to be similar to the case at hand. In that case, the plaintiff suffered two herniated discs and three surgeries which resulted in a permanent impairment and an inability to work. The appellate court increased his award of damages to the lowest possible amount, $150,000.00.

| sUnder the circumstances presented in the present case, and after a review of the applicable Louisiana jurisprudence, we find that an award of $200,000.00 is the lowest possible award which the trial court could have reasonably awarded to Mr. Olivier in general damages. We affirm the award of $55,660.62 for stipulated medical expenses.

Further, the trial court failed to make an award for lost wages, although the record supports such an award. Plaintiff testified at trial that he has been unable to return to work as a plumber following this accident, although he attempted to do so. Plaintiff claims he earned over $15,000 in 1986, prior to this accident, and introduced records from the Social Security Administration to support this claim. He claims that he is entitled to an award of lost wages in this yearly amount from the date of the accident through the time of trial in 1996, or approximately $155,-000.00. However, plaintiff only introduced evidence of his income for two years, 1985 and 1986. In addition, although plaintiffs treating physician released plaintiff, to light duty work following the surgeries, there is no evidence in the record that plaintiff attempted to obtain employment within his limitations. Further, plaintiff offered no expert testimony concerning his ability to return to work. Under these circumstances, we find that plaintiff is entitled to an award for past lost wages in the amount of $50,000, which fairly represents the wages he may have earned through 1990 when he underwent the second surgical procedure'

Finally, Mr. and Mrs. Olivier contend that the trial court abused its discretion by failing to award damages to Mrs. Olivier for loss of consortium. We agree. The testimony showed that Mr. Olivier can no longer support his family, participate in sports, travel, or assist with major household chores. His disability | flhas made him more irritable and adversely affected his intimate marital relationship. We therefore award Mrs. Olivier $25,000 for loss of consortium, services and society. . Cf. Crane v. Exxon Corp., 613 So.2d 214 (La. App. 1st Cir.1992).

CONCLUSION

Accordingly, for the reasons assigned herein, we amend the judgment of the trial court to increase the amount of total damages awarded to plaintiffs to $330,660.62, plus interest from judicial demand, which shall be reduced by 75% to reflect plaintiffs comparative fault. The judgment is affirmed as amended.

AFFIRMED AS AMENDED.

WALTZER, J., dissents.

BYRNES, J., DISSENTS FOR THE REASONS ASSIGNED BY WALTZER, J.

| WALTZER, Judge,

dissenting.

I respectfully dissent. The record contains no evidence that Alexander paid for the erection of the scaffold or the material used to build it. The only contract in evidence between Alexander and one of the three general contractors states that the contractor is responsible for any scaffold. This contract is the one between Alexander and Dave Terrick, the final general contractor, who was the contractor at the time Olivier was injured.

The Oliviers argue that Alexander became the owner of the scaffold after he fired the first general contractor who abandoned the scaffold when he didn’t remove it. LSA-C.C. art. 3418 provides, “One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.” (Emphasis added.) The Oliviers offered no evidence that Alexander intended to own the scaffold. Moreover, the record contains little evidence that Alexander was in possession of the scaffold. “Possession is the detention or enjoyment of a thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.” LSA-C.C. art. 3421. Alexander knew it remained on the site, but he exercised no | ¡.control over the scaffold. The evidence in the record establishes that Alexander intended the general contractor to assume responsibility for the scaffold. Thus, even though the two subsequent contractors used the scaffold erected by the first contractor, they did not possess in Alexander’s name under the terms of the contract. Therefore, assuming the scaffold was abandoned property, the record does not establish that Alexander acquired ownership by possession with the intent to own.

The Oliviers rely heavily on a decision of the Louisiana Supreme Court, holding that “An owner who transfers possession of his thing having a structural defect to another continues to have the garde or custody of its structure and a duty to protect others from harm caused by the defect.” Ross v. La Coste de Monterville, 502 So.2d 1026, 1029 (La.1987). In Ross, a gratuitous lender who was also the owner of a defective stepladder was found by the trial court to be the custodian of the ladder, even though the owner/lender loaned plaintiff the ladder and was not its possessor at the time of the accident. The Supreme Court agreed with these determinations. This holding is distinguishable from the Oliviers’ situation, since the evidence does not establish that Alexander owned the scaffold or gratuitously loaned it to the independent contractors.

Other parties removed the scaffold from defendant’s property when the construction job was complete. Plaintiffs introduced no evidence that defendant was billed for either the materials used to construct the scaffold or the labor. The trial court did not conclude that defendant owned the scaffold, and we are not persuaded that the record permits such a conclusion.

After reviewing the entire record, I find that plaintiffs have not proved defendant’s ownership. I view this case as one involving a piece of equipment owned by an independent contractor who is engaged by the defendant to work on defendant’s property and who used the equipment on the job. Therefore, plaintiffs were obliged to prove ^defendant’s custody of the scaffold, considering both the benefits derived from it by defendant and his right to control or direct its use.

The evidence in the record does not support a conclusion that Alexander either derived any real benefit from the scaffold or had any control over it. The scaffold was erected early in the project and was used by various employees of the contractors engaged by the defendant. Defendant visited the construction site frequently to determine the progress of the project. Constructing an apartment building, he intended to rent the four apartments for profit. In other words, defendant was not building his home or personal residence. Furthermore, the scaffold was not essential to the project, since many tasks were completed without it. Specifically, plaintiff had used a ladder generally to perform his work. Plaintiff fell after his first step onto the scaffold. Photographs of the “scaffold” evidence either a scaffold in progress or an incomplete structure.

Although defendant testified he saw the scaffold when he viewed the construction site -for progress, there is no evidence for what purpose the scaffold was built or for what purpose it was used. Moreover, plaintiff testified that he saw no one use the structure and that no one told him to use it. Thus, although defendant derived some benefit from the scaffold, it was both insubstantial and indirect.

Plaintiffs allege that defendant had the requisite degree of direction and control over the scaffold. However, the record reveals little if any evidence of any right of defendant to direct or control the scaffold. Defendant neither built the scaffold nor dismantled it. Defendant hired a general contractor for the construction project. Actually, defendant hired three different general contractors to oversee construction. The trial court concluded that defendant “visited the job |4on a weekly basis, provided plumbers and electricians for the job, signed off on acceptance of the work and approved and [sic] the hiring and firing of contractors.” I find no error with these factual determinations, but I do not believe these facts necessitate a conclusion that defendant had any degree of control or direction over the scaffold. Defendant responded in his deposition that if he noticed any safety concerns, he believed he had the right to correct them by reporting them to his lender. Defendant also testified that he complained about the scaffold, but the scaffolding remained on the site long after his complaints. Defendant did not decide when it was ultimately removed.

Plaintiffs introduced a contract between defendant, the lender (the Association), and the third contractor, Dave Terrick. Plaintiffs rely on the contract provision, stating that the “Association is not a supervisor or a protector of individual rights and, accordingly, assumes no liability whatsoever to anyone, in contract, or in tort.” Defendant relies on another provision of the contract, declaring that “the Contractor agrees to work, contract or subcontract, and generally perform, or cause to be performed, all of the work necessary to be done, to the satisfaction of and under the direction of the Building Expert of the Association, named above, and his decision shall be final.” The contract further provides that the “Contractor is to furnish all labor, tools, materials, appliances, scaffolding and cartage of every description necessary ...” (Emphasis supplied.) I do not believe that this contract is determinative of the issue whether defendant had custody of the scaffold, but I do believe it is indicative of the parties’ intent regarding such equipment. The contract evidences that the contractor was completely responsible for the scaffold at the construction site. Even though defendant “was visible and intimately involved in the construction project,” plaintiffs failed to prove defendant had any control over or direction of the scaffold.

| [¡Therefore, plaintiffs did not offer any evidence establishing a relationship between the defendant and the scaffold. Although defendant “visited the job on a weekly basis, provided plumbers and electricians for the job, signed off on acceptance of the work and approved and [sic] the hiring and firing of contractors,” the record does not evidence any right of the defendant to control and direct the scaffold or to derive any substantial benefit from its use. Accordingly, I conclude that plaintiffs did not prove that defendant had custody of the construction scaffold and that the trial court’s conclusion was clearly wrong.

An owner may be liable for exercising control over the contractor’s methods of operation or giving express or implied authorization to an unsafe practice. Davenport v. Amax Nickel, Inc. 569 So.2d 23, 28 (La.App. 4 Cir.1990), writ denied 572 So.2d 68 (La.1991). In Davenport, this court specifically found that “Amax monitored the job, but its personnel did not directly supervise the day to day details of the work. The fact that Amax personnel periodically inspected the job to insure that the work was performed according to contract specifications does not constitute the exercise of operational control.” Furthermore, this court explained,

The fact that Amax personnel may have pointed out obvious violations of safety rules and may have sought to have them corrected does not make Amax liable for the consequences of such violations. Imposing liability based on that theory could lead to the absurd result of encouraging owners to ignore and condone safety violations by independent contractors in order to avoid liability.

In this suit, the trial court found that Alexander “visited the job on a weekly basis, provided plumbers and electricians for the job, signed off on acceptances of the work and approved and [sic] the hiring and firing of contractors.” The record supports these factual conclusions, but these actions do not render Alexander liable for the actions of the independent contractors. The record contains no evidence

|fithat Alexander supervised the details of the work of the contractors. Moreover, Alexander admitted seeing the scaffold, but this fact alone does not render him liable for the independent contractors’ negligence.

The appropriate inquiry is whether Alexander impliedly assented to the unsafe condition, use of the scaffold. Even though knowledge is not a consideration in imposing strict liability, we must consider Alexander’s knowledge of the alleged defective condition. Ross, supra at 1033. Furthermore, the policy considered by this court in Davenport seems applicable in this matter, supra at 29. Other than a general awareness of the scaffold by Alexander, there is no evidence that he knew the scaffold was defective or that he knew the laborers used the scaffold. Thus, I find that the trial court clearly erred when it concluded that Alexander’s actions in overseeing the construction project rendered him strictly hable for any negligence of the absent independent contractors who constructed and used the defective scaffold.

Plaintiffs argue for strict liability pursuant to LSA-C.C. art. 2322. This article imposes strict liability upon “the owner of a building”. As discussed above, the record evidence shows, more probably than not, that defendant did not own the scaffold. However, plaintiffs argue that the scaffold is a part of the “building” which defendant owned. I find that LSA-C.C. art. 2322 is inapplicable. The scaffold was “transitorily attached” to the building for construction purposes only and “was never intended to be an integral part of or to remain permanently attached to” the apartment building, regardless of the length of time it stood. Davenport, supra at 29. Plaintiffs offered no evidence that the scaffold was a permanent attachment to the defendant’s building. I conclude that the construction scaffold was not a part of this building and that defendant is not strictly liable to plaintiffs for their damages, under LSA-C.C. art. 2322.

17Plaintiffs argue that defendant assumed a supervisory duty over the scaffold and thus he was responsible when it collapsed under Donald Olivier. White v. Gulf States Utilities Co., 525 So.2d 145, 147-48 (La.App. 3 Cir.1988). At trial, plaintiffs did not prove such a duty.

Defendant explained that he often visited the construction site to determine the progress of the job, and he admitted he saw the scaffolding before plaintiffs accident. Moreover, defendant related that he inquired when the scaffolding would be removed because he wanted to be assured that the job would soon be complete and he recognized that removal of the scaffold signaled its completion. However, as discussed above, defendant neither controlled the construction of the scaffold or its removal nor inspected it. Workers who were not his employees used the scaffold. Furthermore, Alexander did not supervise any work at the construction site, especially work from the scaffold.

Although plaintiffs offered numerous exhibits proving that defendant was “intimately involved in the construction project,” this evidence does not establish or allow this court to reasonably infer that the defendant assumed such a duty. Plaintiffs failed to prove that defendant had assumed a duty to supervise the work performed for the “construction project.” Thus, the defendant had no supervisory duty over Donald Olivier, the scaffold or the construction project.

For the reasons discussed above, I would reverse the judgment of the trial court holding that Alexander had garde of the scaffold after finding that the Oliviers failed to prove defendant had custody of the construction scaffold and concluding that defendant was not strictly liable to plaintiff for his damages under LSA-C.C. art. 2317. After finding that plaintiffs did not prove that the scaffold was both an integral part of the defendant’s building and a permanent attachment, I conclude that the defendant was not strictly liable under LSA-C.C. art. 2322. |sFinally, I find that the evidence in the record did not establish that defendant had assumed a duty to supervise the work at the construction site, especially the work from the scaffold. Therefore, I respectfully dissent.  