
    Helen GOODEN v. CANAL PLACE LIMITED PARTNERSHIP and Continental Insurance Company, et al.
    No. 95-CA-1330.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1996.
    Writ Denied May 17, 1996.
    
      Daniel J. Mackel, Jr., New Orleans, for PlaintiffyAppellee.
    Leon A. Crist, Law Offices of Ronald J. Ronzello, Metairie, for Defendants/Appellants.
    Before BARRY, CIACCIO, JONES, WALTZER and LANDRIEU, JJ.
   ItLANDRIEU, Judge.

Canal Place Complex (Canal Place) appeals from a judgment the trial court rendered in favor of Helen Gooden (Gooden). A jury determined that Canal Place was strictly liable for Gooden’s injury, awarded her damages of $125,555.55, and assigned 71% of the fault to Canal Place and 29% of the fault to Gooden.

For the reasons stated herein, we reverse the trial court’s judgment and dismiss plaintiffs suit.

STATEMENT OF THE FACTS

This case involves a slip and fall that occurred on November 10, 1989, when Gooden was descending steps onto the Glen Gardner Plaza of Canal Place. On the day of the accident, a Christmas tree was being erected in front of Canal Place and all pedestrian traffic entering the building had been routed through the plaza area. Gooden, who was described as “heavily obese”, was carrying hot lunches for delivery to employees in the building. A Canal Place security guard spotted Gooden as she approached a set of five steps. He realized that, because |2she was carrying a large box in front of her with both hands, she could not see the steps or use the handrail, and was going to have difficulty descending the steps. He rushed over to help her, but before he reached her she had fallen from the top of the steps. Gooden sustained a broken foot as a result of the fall.

Gooden sued Canal Place and its insurer for negligence alleging that she “slipped and fell on Christmas decorations” that had been left on the stairs and caused her to fall. More than three years later, Gooden amended her complaint and added a claim under strict liability for a structural defect. Goo-den specifically claimed that she “was caused to slip and fall down upon the steps” because the “steps were loose, worn, depressed, broken and uneven; parts of the step were worn and broken away and the steps were slick and slippery and in a dangerous condition.” During the trial, Gooden waived any and all claims she had for negligence against Canal Place.

After a trial on the merits, the jury determined that a crack in the area surrounding the bottom of the steps was a defect which created an unreasonable risk and was the cause of Gooden’s fall. Canal Place appeals this decision asserting that there was insufficient evidence for the jury to conclude that the defect at the bottom area of the steps created an unreasonable risk of harm and was the proximate cause of the slip and fall accident. Both parties contend that the jury erred in assigning 29% of the fault to Goo-den.

DISCUSSION

Strict liability for damage caused by a defect in a building is established by the Louisiana Civil Code. To sustain such a claim, Gooden had to prove the Igsteps and surrounding area were in the care and custody of Canal Place, that the premises had a defect which created an unreasonable risk of harm, and that Gooden’s injury was caused by the defect in the steps. See Loescher v. Parr, 824 So.2d 441 (La.1975). Both parties stipulated that Canal Place had custody and control over the steps and the surrounding area where Gooden fell.

Defect and Unreasonable Risk of Harm

Canal Place asserts that there was insufficient evidence to prove the second element of strict liability, ie., that there was a defect in the steps that created an unreasonable risk of harm. Appellate review for sufficiency of the evidence begins with a review of the facts using the manifest error standard. Ambrose v. New Orleans Police Dep’t Ambulance Service, 93-3099 (La. 7/5/94) 639 So.2d 216, reh’ing denied, (Sept. 15, 1994).

Although Gooden claims Canal Place was strictly liability for broken and uneven steps, no evidence was introduced that the steps were defective. However, the emergency medical technician who attended to Gooden testified that he “kind of vaguely lookfed] around” and noticed that some of the slate tile at the base of the steps where Gooden had landed were cracked. He described the crack as looking like a spider web. He further testified that cracked slate was level with no raised areas or displaced pieces of slate. Canal Place’s security guard testified that he did not see a crack when he investigated the area.

Gooden presented evidence that a yellow caution sign, located about five to six feet away from where she had fallen, indicated both the seriousness of the defect and that Canal Place had knowledge of this defect. However, we find it | unrealistic for Canal Place to place a caution sign five to six feet away from the crack and then route all pedestrian traffic directly over the danger. We believe it more probable that the sign was to deny access to the area where the Christmas tree was being erected.

We do not agree with the trial court that the premises were defective and created an unreasonable risk of harm for which Canal Place should be strictly liable. However, even though an appellate court might believe its inferences from the facts are more reasonable than the fact finders, reasonable inferences of fact should not be disturbed on review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989), on remand to, 558 So.2d 1360 (La.App. 4th Cir.1990), writ denied, 561 So.2d 105 (La.1990). Therefore, we do not disturb the fact finder’s determination and find no merit in this assignment of error.

Proximate Cause

Canal Place next argues that the jury erred in finding that the defect in the steps was the proximate cause of Gooden’s fall. To establish proximate cause, Gooden had to prove that her injuries more probably than not were caused by the crack at the bottom of the steps. We find that the jury was clearly wrong in determining that the crack at the bottom of the steps caused Gooden’s fall. No reasonable person hearing the evidence presented at trial could have determined that a crack in a piece of slate in the area surrounding the bottom of steps could have caused Gooden to fall down the steps.

The set of steps that Gooden was descending at the time of her fall had five steps. The evidence consistently and overwhelmingly shows that Gooden slipped when she misjudged her footing and fell to the bottom of the steps. Armando Vado, a former security guard at Canal Place, testified that he saw Gooden slip at the top of the steps and fall down the steps. His testimony was as follows:

IsA. At the time I was in Glen Gardner Plaza is where the accident occurred.... At the time when I looked to the left to the steps that comes from the shopping mall entrance into the office tower, I noticed a lady coming down the stairs carrying at the time what looked like lunches and things in a brown box.... I saw that she was not going to be able to make that first step, so when I went over to try and assist her to get her boxes and help her is when she just started falling, and I mean she just fell down the stairs.

Testimony omitted

Q. Do you know how many steps all total there are in the area where Mrs. Gooden fell?
A. Approximately four or five steps.
Q. Can you recall which of those four or five steps she actually fell upon or where the fall started?
A. It started as she got off the ground level on to the first step that would bring her down to Glenn Garden Plaza, so the first step is where she lost her footing.

This testimony was consistent with the information Vado gave to the building investigator and was recorded in the accident report completed shortly after the accident.

Vado’s recollection of the accident was corroborated by Gooden herself. Twice she testified that she fell at the top of the steps:

Q. Do you recall — can you tell the jury how many total steps there were that you were going down?
A. I think it was about five steps. I got to the — I got off the top. I was on the next step and I went to step to the next one and that was it right where I went. That’s when I went to go to the next one, I landed down on my butt.

(Testimony omitted)

Q. So the second step is where your left foot slipped; is that correct?
A. Yes. Right where I was going down, that’s where I went and landed.

On another day of the trial, Gooden gave the same explanation of what happened:

Q. Isn’t it true you earlier testified that you actually slipped on the second step from the top?
IcA- I was on the — this is the first step (indicating). That’s the next step, then the next step I was down. Right where I slipped, that’s where I went down, right on my sit down.
Q. So your testimony is that you actually landed while—
A. Right where I slipped.
Q. You actually landed and your body was still on the set of steps, not at the bottom?
A. No, sir. It was flat on the ground.
Q. Didn’t you earlier testify there were five steps?
A. That’s what it was, five steps.
Q. When you just said you went down the first step and then on the next step?
A. I went the first, second, and next step I was down. My feet was on that second step, and when I went to go down, that’s where I slipped. That’s where I landed, right there.

Gooden signed the record of the triage nurse who took her history upon admittance to the emergency room. The report included the phrase “States at Canal Place was walking down steps, missed a step & fell down two steps.” The emergency medical technician’s report, also signed by Gooden, stated that “she misjudged the bottom step which caused her to fall.” Upon cross-examination, Gooden stated that both the triage nurse and the technician had lied in their respective reports. Gooden testified as follows:

Q. Did you at any time tell the nurse how the accident happened?
A. No.
Q. You never did?
A. I told her that. When I was at the deposition I told them that.
Q. So if there’s any information in this report about you telling her how the accident happened that—
A. A lie. I didn’t tell her that. I didn’t tell her nothing about the accident.
Q. And you didn’t tell the EMT nothing about the accident?
I7A. No. I sure didn’t.
Q. So if either of them testify you did tell them about how the accident happened, they would both be lying?
A. That’s right.

This Court finds little credibility in Gooden’s testimony that two medical personnel who treated her at different times recorded the same “lie” on separate reports.

The evidence was consistent that Goo-den who was carrying a large package in front of her and not using the handrail fell down the steps in Glen Gardner Plaza because she misjudged a step and lost her footing. A court of appeal may find manifest error in a finding purportedly based upon a credibility determination when documents and evidence so contradicts a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story. Gardner v. McDonald, 27,303 (La.App. 2d Cir. 8/23/95), 660 So.2d 107. We find that the jury’s determination that Gooden fell because of a defect at the bottom of the steps clearly wrong.

For the above reasons, we reverse the trial court’s judgment and dismiss the plaintiffs claim. Costs are assigned to the plaintiff.

REVERSED AND RENDERED.

JONES and WALTZER, JJ., dissent with reasons.

11 JONES, Judge,

dissenting with reasons.

I find nothing in the reeord to support a finding that the jury specifically found that the defect in the steps was the proximate cause of the plaintiffs fall. Rather, the jury merely gave the following answers to interrogatories presented for their consideration:

1. On November 10,1989, did the premises at Canal Place contain a vice or defect? yes 12 no 0
2. Did the vice or defect present an unreasonable risk of harm to others? yes 12 no 0
3) Were the defective premises at Canal Place on November 10,1989 a cause in fact of the injuries the plaintiff sustained? yes 9 no 3

The jury was never specifically asked to delineate the nature of the defect it found posed an unreasonable risk of harm to others. Consequently, I cannot say that the jury erred in ruling on Mrs. Gooden’s behalf.

Moreover, assuming that the unreasonable risk of harm was in fact a defect in the steps, I am unable to say the jury clearly erred. Admittedly, inconsistencies existed in the testimony concerning the reason for the plaintiffs fall. At one point, the plaintiff quite candidly testified that she did not know for sure what had caused her to fall. At another point she seemed to testify that she fell on either the second or third step. When presented with the following extremely leading statement posed as a question of “So the second step is where your left foot slipped; is that correct?, she replied ‘Tes, Right where I was going down, that’s where I went and landed.” Nonetheless, she adamantly maintained that she went |2down where she fell and remained there until the emergency medical people arrived. The emergency medical technician testified that she was on the ground floor when they arrived and that he observed cracks in the tile at the site where she was found. Given this fact and the fact that both the plaintiff and her son testified that her left shoe contained a long gray or black mark at the bottom after the fall, it could very well be that the jury concluded that the plaintiff had in fact fallen on the step containing the cracks. The fact that none of the witnesses remembered seeing any spillage on the floor from the lunches the plaintiff was carrying could have led the jury to conclude that the plaintiff could not possibly have fell on the first step. Even Mr. Vado, the former security guard admitted that he did not recall any spillage from the lunches on the floor.

For these reasons, I would affirm the judgment of the trial court.

hWALTZER, Judge,

dissenting with reasons.

While I agree with the majority that there is substantial evidence of record supporting a finding for the defendants, I am persuaded that under this state’s manifest error standard, the jury’s verdict should be affirmed. Therefore, I respectfully dissent.

Ms. Gooden testified:

Q: Where did you park?
A: I think that was by Fifth Avenue where I parked, Sax Fifth Avenue where I parked the car.... As I said, it was barricaded all around so I had to go— where I parked the car I had to go around and then go down the steps to get into the part that I wanted to get to. I went to deliver some lunches to my niece and some of the workers.... She worked on the 12th floor, 1290.... As I was going to deliver the lunches, on my way down right where I stepped down and went on, I landed on the ground and that’s where I stayed.

She testified that she fell “on the front part going down the steps to Canal Place.”

Not in the direct building where I wanted to go.... I just went down.... When I got out the ear I took — getting out the car I took one bag and put it in my hand and I rested and got the other bag and put it in my hand and I was just walking on, and when I got down doing down the steps, I took the two bags and was holding them in one hand.

The defense attempted to show that plaintiff was carrying a box full of lunches; however, plaintiff testified that she was carrying the lunches in two plastic grocery bags in one hand:

Q: Was it plastic with handles like this? 1¾A: Yes.
Q: Were those lunches very heavy to carry?
A: No.

She describes how she was holding the bag:

Q: In the right hand?
A: Yes. When you got something in the plate, they fit level in the bag and the bags that I have was a little bigger than those bags and I was holding them like this (indicating) by the handle going about my business.
Q: Where were you looking when you were walking down?
A: Straight ahead.... As I was going down, right where I was going down that’s where I landed.... My left foot slipped and I landed down right where I slipped. I went down and this here was buckled under my other leg....

On cross-examination, she responded as follows:

Q: Isn’t it true that when your foot slipped you were on the second step from the top of the steps?
A: If I was there, I went down, and right where I went down, that’s where I come from.
Q: Do you recall ... how many total steps there were that you were going down?
A: I think it was about five steps. I got to the — I got off the top. I was on the next step and I went to step to the next one and that was it right where I went. That’s when I went to go to the next one, I landed down on my butt....
Q: ... So the second step is where your left foot' slipped; is that correct?
A: Yes. Right where I was going down, that’s where I went and landed.
Q: Did you land — my question is — on the steps or on the bottom area of the plaza? A: On the bottom, the very bottom.
Q: So, when you fell, you didn’t actually fall on to the step, you fell at the bottom of the steps?
A: On the bottom.
... Q: So if you slipped on the second step, you would have fallen down maybe three more steps if there were five steps total, would that be fair maybe?
A: Yes. But you know I had come down the steps.

Ms. Gooden testified she looked down at the first step as she started to descend the steps. When continued questioning to ascertain whether she was | booking down at the steps as she descended brought the repeated response, “I was looking straight ahead,” and she refused to answer yes or no, she was asked:

Q: When you looked down at the first step, did you see anything on the step?
A: No, I didn’t see anything on the step.
Q: Did you at any point see anything on the steps after your accident?
A: I was going down the steps. I’m sitting on the ground, and when the guards and the people that was around me trying to calm me down, that’s when I glanced over. I was sitting facing the steps then and I seen some little green things off the [Christmas] tree.
Q: Little needles?
A: Yes. It looked like needles on the step.... The second step, the second, third step.
Q: Don’t guess. We are trying to get the facts.
A: The second step had the little green needles that comes off the tree.... I didn’t count. All I know it was trash_ little pines and things on the ground up there on the step.
Q: Isn’t it true when you gave your deposition -you said there was also some tinsel on the steps? ...
A: I know they had something like that on there but I know them little green things.
Q: But you don’t know if that’s what caused you to fall?
A: I don’t know what caused me to fall. All I know I went down.
Q: Did you ever tell anyone that cracks in the pavement caused you to fall?
A: No.

On re-direct examination by plaintiffs counsel, she testified:

Q: So you fell directly over the area where you slipped?
A: Yes.

The EMS driver, Mr. Johnson, testified that there was a cracked brick or slate at the bottom of the steps in the courtyard, which he described as a spider-web radiating. Plaintiffs counsel repeatedly phrased his questions referring to the crack on the STEP, but Johnson testified that the spiderweb cracking was on the floor of the courtyard, not on the steps. The cracked brick was immediately under Ms. Gooden as she sat on the floor of the courtyard:

UQ: Where was Mrs. Gooden positioned relative to this cracked area?
A: Mrs. Gooden was in the courtyard area, kind of as I recall maybe sitting right in the courtyard and the break was basically in front of her or to the side of her.
Q: But you are certain that this cracked area you saw was at the bottom of the steps, not at the top of the steps?
A: Right.
Q: Isn’t it also true that the area of the cracks that you saw were even though it was cracked it was level, it wasn’t raised pieces of slate or brick or whatever the material was but it was a level area, as you call it a spider web type crack in it?
A: Correct.
Q: Did you observe any king of Christmas tree needles or any kind of Christmas decorations on the steps in the area where Mrs. Gooden had fallen?
A: I don’t recall anything.
Q: Did Mrs. Gooden tell you anything about Christmas tree tinsel or needles on the steps?
A: Not as I recall.

Ms. Gooden testified that she gave Johnson information about the heart medication she was taking, but she denied that she told Johnson anything about how the accident happened, although his report says: “Patient stated she misjudged bottom step which caused her to fall.” Ms. Gooden also signed the report, and identified her signature during the course of her cross-examination.

The emergency room nurse, Kathleen Thompson, testified, and identified the emergency room record for Ms. Gooden. Thompson had taken the history when Ms. Gooden arrived, and testified that she spoke to Ms. Gooden herself (which Ms. Gooden had denied during her testimony.)

Q: Did you make any record of what the patient told you about the accident?
A: Yes, sir.
Q: Could you tell the jury what Mrs. Gooden told you as far as what happened.
A: I have written: States at Canal Place was walking down steps, missed step and fell down two steps.
Q: ... was it customary for you to write exact words that the patient told you?
A: Exactly. We quote the patient_ “States” means she stated to me how the incident happened.... She was able to 15[communicate] because I said “states.” ... I wrote no LOC. That means no loss of consciousness.

On cross-examination, she testified:

Q: At no tone did you ask any follow-up questions of Mrs. Gooden as to what caused you to fall or what caused you to slip?
A: She told me she was walking down the steps and she missed a step. She told me how she fell. She missed a step.
Q: And you just left it right there?
A: Yes, I did.
Q: You don’t know anything about the condition of the area where Mrs. Gooden slipped and fell, do you?
A: No sir, I don’t.

While to this Court’s view the weight of the evidence might well support the premise that Ms. Gooden misstepped on the second or third step from the top and landed to the courtyard where the spider-web crack was, we are not the trier of fact. The record is not so overwhelming, that we must conclude the jury was manifestly erroneous/clearly wrong in accepting Ms. Gooden’s testimony. The plaintiffs testimony is somewhat contradictory concerning where she fell, since she said she fell on the second step and also that she fell where she landed. Particularly on cross-examination, her testimony doesn’t seem to be very direct. However, the jury probably took into account that she was not articulate and was distrustful of the circumstances of the trial in evaluating her testimony. The jury evidently chose to disregard the testimony of the two disinterested witnesses, both of whom testified they had nothing to gain or lose in the trial, but the case law is clear that a jury is entitled to make its own credibility choices.

My review of the record to its entirety convinces me that the jury’s findings are reasonable in light of that record. I am mindful of the standard of review of the verdict of a properly instructed jury:

I f,Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.... [Ajppellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.... When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations to demeanor and tone of voice that bear so heavily on the listener’s understanding and belief to what is said.... [Where] a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).

Intermediate appellate courts are instructed that before a fact-finder’s verdict may be reversed, review of the record must show that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State through Dept. of Transp. and Development, 94-2370 (La. 4/21/95), 654 So.2d 311, 314; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). Although according deference to the factfinder, I am cognizant of this Court’s constitutional duty to review facts , not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La. 7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La. 2/20/95), 650 So.2d 742, 745.

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest |7error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973).

Based on the manifest error standard enunciated in the foregoing jurisprudence, recognizing the jury’s prerogative to make reasonable credibility choices, and mindful of the allocation of responsibility between the trial and appellate courts, I would affirm the judgment of the trial court. 
      
      . Gooden testified that she carried the lunches in plastic bags. We did not find the type of container relevant.
     
      
      . "The owner of a building is answerable for the damage occasioned by its ruin, when it caused by neglect to repair it, or when it is the result of a vice in its original construct.” La.Civ. Code art. 2322 (West Supp.1995).
      "We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody_" La.Civ.Code art. 2317 (West Supp.1995).
     
      
      . See, LSA-Const. Art. 5, section 10(B).
     