171 So. 3d 1136
La. Ct. App.2015Background
- On January 7, 2011 a fire occurred at Fellowship Missionary Baptist Church (FMBC). Cause and origin of the fire could not be conclusively determined by fire investigators.
- Nearby properties owned by S & R Properties and insured by American Empire (subrogated for Show and Tell/neighbor) suffered fire and water damage; plaintiffs sued FMBC for negligence in failing to secure and maintain the vacant church.
- Evidence at trial included testimony that the church had been boarded/tarped and fitted with burglar bars and scaffolding after Katrina, alongside testimonial reports (some years earlier) of homeless/vagrants around and at times inside the church.
- Plaintiffs’ experts opined human intervention (possibly vagrants) likely ignited the fire; defense witnesses and expert disputed that the church was unsecured or a fire hazard and suggested other possible origins (including a nearby dumpster).
- Trial focused on liability (bifurcated); jury found FMBC’s premises did not have a defect creating an unreasonable risk of harm. The trial court denied JNOV and a new-trial motion based on “newly discovered” photos of blight notices. Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FMBC s premises had a defect creating an unreasonable risk of harm | Church was unsecured, previously accessible to vagrants, blight citations and deteriorated interior made it a fire hazard | Church took reasonable security measures (bars, tarps, deadlocks, scaffolding); no evidence vagrants were inside near the fire; cause unknown | Jury verdict finding no defect was reasonable and not manifestly erroneous; affirmed |
| Whether the trial court should have given a Mistretta jury instruction | Mistretta instructs that failure to secure vacant property can be proximate cause when vagrants cause fires; instruction necessary to interpret New Orleans ordinances | Mistreta is distinguishable — here cause/origin unknown and no factual finding that unauthorized persons caused the fire; ordinances were read to the jury | Denied; court found the given ordinance instructions sufficed and Mistretta was not applicable |
| Whether res ipsa loquitur instruction should have been given | Circumstantial evidence (vagrants, blight, condition) establishes negligence when other causes are unlikely | There was direct and competing testimony and multiple plausible causes (dumpster, arson, unknown); res ipsa not appropriate | Denied; res ipsa did not apply because evidence did not eliminate other probable causes and direct evidence existed |
| Whether JNOV or new trial was required (including based on newly discovered blight photos) | Verdict was contrary to law and evidence; post-trial photos of blight notices would have changed outcome and were not discoverable earlier | The evidence at trial did not overwhelmingly favor plaintiffs; the photos were discoverable and cumulative and would not have altered the result | Denied; standard for JNOV and new trial not met; trial court did not abuse discretion |
Key Cases Cited
- Stobart v. State through Dept. of Transp. & Dev., 617 So.2d 880 (La. 1993) (articulates manifest-error/clearly-wrong standard and deference to factfinder credibility determinations)
- Mistretta v. Fiorella, 269 So.2d 589 (La. App. 4 Cir. 1972) (owner's failure to secure vacant property can be a proximate cause of a fire set by trespassers)
- Linnear v. CenterPoint Energy Entex/Reliant Energy, 966 So.2d 36 (La. 2007) (limits on use of res ipsa loquitur where direct evidence explains occurrence)
- Adams v. Rhodia, 983 So.2d 798 (La. 2008) (standards for adequacy and review of jury instructions)
- Scarberry v. Entergy Corp., 136 So.3d 194 (La. App. 4 Cir. 2014) (application of manifest-error standard to appellate review)