
    Arnold SCHEIDEL v. Michel F. MELLE, Michel F. Melle d/b/a Michel’s Lounge and Wohl, Inc., and X.Y.Z.
    No. 12847.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 23, 1983.
    Rehearing Denied May 24, 1983.
    
      Clark A. Richard, New Orleans, and Harvey J. Green, Metairie, for plaintiff-appellant.
    Lee C. Grevemberg, Mandeville, for defendants-appellees.
    Before GULOTTA, SCHOTT, GARRISON, CIACCIO and LOBRANO, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court in CDC case No. 77-19585 dismissing plaintiff’s tort action against Wohl, Inc., TAC Amusement Co. and its liability insurer, Gulf Insurance Co., and Michel Melle d/b/a Michel’s Lounge. The instant case was consolidated for trial with CDC No. 77-18980, Liberty Mutual’s suit for compensation benefits paid to plaintiff, Arnold Seheidel, who was an employee of Crescent Distributing Company. Liberty Mutual is the workmen’s compensation insurer of Crescent. After trial by jury and a uniquely confusing plethora of interrogatories, the trial judge interpreted those interrogatories to mean that plaintiff’s case should be dismissed.

In response to Interrogatory Number 10b, “Did Wohl, Inc. should have known (sic) about the defect (Answer yes or no),” the jury answered “Yes.” In response to Interrogatory Number 11, “What sum of money would fairly and reasonably compensate Arnold Seheidel for the damages (sic) he has sustained a result of the accident for which he has filed this lawsuit?”, the jury responded “700,000.00” (sic). On the other hand, in the very same set of interrogatories the jury responded to the question “Is the negligence of Wohl, Inc. a proximate cause of Arnold Scheidel’s injury?” with the reply “No.”

Adding to the general confusion was the trial judge’s clearly erroneous granting of a directed verdict in favor of the defendants TAC Amusement Co. and Gulf Insurance Co. Not the least of the effects of this ruling was that it deprived the jury of hearing evidence concerning the full range of options before it with regard to all defendants who might possibly be obligated to the plaintiff.-

It is not possible to reconstruct in retrospect the manifold legal concepts contemplated by the jury with regard to its varied and even conflicting answers to Judge Katz’s interrogatories. While, evanescently, it appears to have called for a $700,-000.00 verdict for the plaintiff, just as quickly it appears to have swept away all underpinning on which liability for any particular defendant or defendants could be based.

Consequently, despite our customary disinclination to remand out of considerations of judicial economy, we have no alternative in this case but to do so.

IT IS ORDERED, ADJUDGED AND DECREED that this case be remanded to the trial court for new proceedings, ab ini-tio, in harmony with this decision.

REVERSED AND REMANDED.

GULOTTA and SCHOTT, JJ., concur with written reasons.

LOBRANO, J., concurs for the reasons assigned by GULOTTA, J.

GULOTTA, Judge,

concurring.

I concur.

Plaintiff alleges injury from a fall on the “entranceway” to a rear door of a building on a surface constructed of cinder blocks covered by plywood. This structure extended from the rear door of the building between an air-conditioning water tower and a beer cooler onto the rear concrete parking lot. The entranceway was used by customers and “service people” to enter directly a lounge which was part of the entire building complex. Plaintiff claims he fell when a cinder block of the entranceway crumbled or broke off beneath his foot while he was delivering a keg to the beer cooler.

Defendants are Wohl, Inc. (owner-lessor of the building), Tac Amusement Company (lessee of the lounge), and Michel Melle d/b/a Michel’s Lounge (occupant of the lounge under an oral sub-lease from Tac). Wohl has third partied Tac and Melle, claiming indemnification under a “hold harmless” clause in its lease with Tac. The pleadings and evidence raise a number of legal issues bearing on the potential liability of the defendants. Also called into question is the ripple effect resulting from the trial judge’s dismissal of Tac on its motion for a directed verdict.

Concerning Wohl’s liability, a question arises whether the owner-lessor of the building is strictly liable under LSA-C.C. Art. 2322 for plaintiff’s injuries resulting from a “ruin” of the building. Resolution of this issue requires a determination whether the entranceway is an appurtenance to the Wohl building complex. See Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978); Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970). Assuming the entrance-way is within the LSA-C.C. Art. 2322 concept, further questions are raised whether plaintiff’s injury resulted from a defect creating an unreasonable risk of harm to him, and whether his fault or that of an intervening third party should exculpate the owner-lessor from liability.

Also affecting Wohl’s liability is the “hold harmless” clause in the lease between Wohl and Tac, whereby the lessee assumed responsibility for the condition of the premises and agreed to hold the owner-lessor free of liability for injuries from defects in the premises. A further question arises whether this hold harmless clause shields the owner-lessor from liability to an injured third party. Pertinent to this issue is whether Wohl knew or should have known of the alleged defect, and is thus liable to plaintiff despite the exculpatory language in the lease. See LSA-R.S. 9:3221;. Brooks v. Southway Furniture Company, 290 So.2d 438 (La.App. 4th Cir.1974), application denied 293 So.2d 188 (La.1974) and 293 So.2d 190 (La.1974).

Serious questions also arise concerning Tac’s liability to plaintiff under both LSA-C.C. Art. 2315 and LSA-C.C. Art. 2317. In its lease with Wohl, Tac assumed responsibility for the condition of the premises and undertook the duty to repair. The jury should have been given the opportunity to decide whether Tac’s duty under the lease encompassed the rear entranceway and whether Tac is liable in negligence to plaintiff for a breach of that duty. However, an erroneous directed verdict in favor of Tac prevented the jury’s consideration of Tac’s responsibility.

Furthermore, under LSA-C.C. Art. 2317, liability without fault is imposed upon a person who has “custody” of a defective thing creating an unreasonable risk of harm to an injured plaintiff. See Loescher v. Parr, 324 So.2d 441 (La.1975). The jury should have addressed the issue whether the rear entranceway was in Tac’s “custody” as lessee, within the meaning of this codal article. See Williams v. Hempen, 396 So.2d 999 (La.App. 3rd Cir.1981). To resolve this question of Tac’s liability, the jury should have determined whether the entranceway was part of the premises leased by Tac. Similarly, the question of Melle’s liability under LSA-C.C. Art. 2317 as sub-lessee and occupant of the lounge premises should also have been addressed to the jury.

Apart from plaintiff’s main demands, Wohl’s third party demand for indemnification by Tac and Melle must also be resolved.

I am mindful of the dictates of Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975), which requires the courts of appeal to decide a matter when the record is complete rather than remand the case. Nonetheless, our case is beyond the ambit of Gonzales, supra, and I feel we are compelled to remand this matter to the trial court for a new trial for the following reasons.

Tac points out that it is unfair to render a judgment on appeal ultimately making Tac responsible after it has been exonerated from liability to the plaintiff on a motion for directed verdict. As beneficiary of the directed verdict at the end of plaintiff’s case, Tac was out of the case and had no interest in defending its liability to the plaintiff, although Tac did remain in the case on the third party demand. A judgment by this court casting Tac liable on the basis of the record before us would prejudice Tac without the benefit of a hearing or an opportunity to present a factual case in its defense against plaintiff’s demand. Another reason for remand is Wohl’s argument that to render judgment against Wohl and exonerate Tac on the ground that the entranceway is not a part of the leased premises would prejudice Wohl because the jury concluded that Wohl’s negligence was not a proximate cause of the accident.

For these reasons, I am of the opinion that the entire matter should be remanded to the trial court for a new trial.

Accordingly, I concur.

SCHOTT, Judge,

concurring:

The critical issue before us is whether Tac’s motion for directed verdict under LSA-C.C.P. Art. 1810 was properly granted. This action was warranted only if the facts and inferences were so overwhelmingly in favor of Tac that reasonable jurors could not arrive at a contrary verdict. Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4th Cir.1982). Because they could have reasonably concluded that Tac was liable, especially under C.C. Art. 2317, the motion should not have been granted.

There was evidence that one of the cement blocks serving as a walkway to the rear entrance of the lounge was broken so that it gave way under plaintiff’s foot as he struggled with a heavy beer barrel. The jury could have concluded that this was a defective thing so as to give rise ,to Art. 2317 liability. The next question is whether the evidence provided them with a basis to conclude that Tac had custody over this defective thing so as to make it liable to plaintiff.

First, as between Wohl and Tac, the lease itself contains an assumption of responsibility by Tac for the condition of the premises. However, Tae contends that this particular area was not a part of the leased premises which are described in the lease simply as “Store No. 1 of the Wohl Apartment Building.” Common sense dictates that the parties intended to include in the lease ingress and egress which included the cement block walkway between the parking lot and the back door.

Furthermore, there was considerable evidence of custody in Tac (through its sublease or co-adventurer Melle) as opposed to Wohl. The air conditioning unit and beer refrigerator box serving the lounge were placed on either side of the walk. Customers and suppliers used the walk to enter the lounge and the walk seemed to serve no other, purpose but as an entrance or exit for the lounge. Melle kept his garbage containers in the area and he testified that he felt it was his responsibility and not Wohl’s to clean up the area. He also testified that Wohl did not use this area although some tenants of the building did occasionally place their garbage next to his in the area. Thus, the jury could have concluded that as between Wohl and Tac the latter had custody-

The next question would be custody as between Tac and Melle. Tac leased these premises from Wohl in May, 1965. The lease provided that Tac could not sublet the premises without Wohl’s written consent. However, in June, 1967, the lease was amended to permit Tac “to rent, sublet, assign this lease or grant use or possession to any other party” without Wohl’s written consent. The only conditions were that the subtenant or whatever could not operate a business in competition with other Wohl tenants and no matter what else Tac would remain responsible to Wohl under the lease.

There was no written contract between Tac and Melle. Thus, Tac’s assumed liability insulating Wohl under R.S. 9:3221 was not in turn assumed by Melle. Furthermore, this “sublease” was not a simple transfer of the right to occupy the premises in exchange for rent. Melle testified that he had one of Tac’s coin machines in the lounge with the understanding that he and Tac would split the proceeds of the machine and that if he told Tac to take the machine out he would be evicted forthwith. Thus, the jury might believe that Tac’s primary motive in “subletting” was to have a location for its machine and that the true relationship between Tac and Melle was some sort of joint venture in the operation of the machine or an agency relationship for Melle to operate Tae’s machines. In any event the degree of control maintained over the premises by Tae because of its determination to keep its machine there was a factor for the jury to consider in deciding whether Tac had custody over the lounge and the walk either jointly with Melle or through him as agent.

When the case went to the jury plaintiff’s suit against Tac had been dismissed and the jury was left with interrogatories directed against Wohl and Melle only. In reading the inconsistent answers to the interrogatories we can speculate that the jury may have been frustrated because of its inability to reach the party they thought responsible.

The only fair and just solution in the case is to remand for a new trial. Since Tac was granted its motion for directed verdict it put on no evidence in its own defense, was unconcerned about jury charges, and had no need to argue its case to the jury. From its point of view the record is incomplete and only a new trial can correct the deficiency at this point. We cannot decide Tac’s liability on the record we have before us.

For these reasons and those assigned by my colleagues I respectfully concur.

LOBRANO, Judge,

concurring.

I concur for the reasons assigned by Judge Gulotta, and adopt said reasons as my own.  