Burrell v. SchlesingerBurrell v. Schlesinger
Bruce S. Kingsdorf, Carl W. Cleveland, Carl W. Cleveland & Associates, New Orleans, for appellee—Joseph Burrell, Jr.
Lynn L. Lightfoot, Kiefer & Lightfoot, Metairie, for appellees—Tassin Pile Driving Co., Inc. and Wausau Underwriters Company, Inc.
Before REDMANN, C.J., and KLEES and CIACCIO, JJ.
CIACCIO, Judge.
Plaintiff sued to recover fоr damage to his home alleged to have resulted from pile driving activities conducted on an adjacent lot. He named as defendants the owner of the adjacent lot, the general building contractor and the piling subcontractor. The owner and general contrаctor filed a third-party demand for indemnification against the piling subcontractor. After a trial on the merits, judgment was rendered in favor of plaintiff against the owner only. All other demands were dismissed.
The owner has appealed. Plaintiff has answered the appeal seeking to have the amount of the award increased, and to have the general contractor and piling subcontractor adjudged solidarily liable with the owner. For the reasons that follow, we affirm.
Appellant, the owner, has specified six assignments of error. The first two concеrn whether the piling subcontractor was negligent. The first assigned error complains of the trial judge‘s failure to find the piling subcontractor negligent. In his reasons for judgment the trial judge specifically found “that the defendants’ work caused the damage to the plaintiff‘s property“, but “the evidence adduced on the trial of this case failed to prove, by a preponderance of the said evidence, that either of the defendants was negligent.” We have reviewed the entire record and have considered the arguments made to this court and havе concluded that we cannot say the trial judge was clearly wrong. We, therefore, will not disturb his findings. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).
The second assigned error complains that the trial judge dismissed the third-party demand against the piling subcontractor. The only argument presented for maintaining the third-party demand is premised uрon finding the piling subcontractor negligent. The trial judge found no negligence, and we have affirmed that finding. Accordingly, we affirm the dismissal of the third-party demand. To borrow a passage from D‘Albora v. Tulane University, 274 So.2d 825 (La.App. 4th Cir.1973), cert. denied, 278 So.2d 504 and 505 (La. 1973):
To adopt the opposite view would ultimately oblige the skillful employee to indemnify (or at least contribute to) his employer or the general contractor or the owner: not because of negligence, improdence or want of skill, but because the job he was given to do was likely to cause damage (and did). 274 So.2d at 832.
Appellant‘s third assignment of error addresses itself tо the piling subcontractor‘s claimed “immunity” under
Sec. 2273 Limitations on the responsibility of agents, contractors and representatives
A. It is the public policy of the state that the responsibility whiсh may be imposed on an agent, contractor, or representative by reason of the responsibility of proprietors under Article 667 of the Louisiana Civil Code shall be limited solely to the obligation of such agent, contractor, or representative to act аs the surety of such proprietor in the event the proprietor is held to be responsible to his neighbor for damage caused him and resulting from the work of such agent,
contractor, or representative, and only in the event the proprietor is unable to satisfy any claim arising out of such damage. The agent, contractor or representative who is responsible for damages, as limited by this Section, shall have a right of action against the proprietor for any damages, costs, loss or expense which he may suffer in his capacity as thе surety of the proprietor. B. Nothing in this Section shall be construed to relieve a contractor of any liability which he may incur as a result of his own negligence or the improper performance of the work performed under the construction contract.
C. The provisions of this Section shall apply to all construction agreements entered into after the effective date hereof and may be waived by the contractor.
Although not specifically articulated in the assignments of error, appellant argues in brief that
We find, however, that the trial judge did not properly apply
The trial court found that “[t]here was ‘fault’ on the part of each of the defendants in cаusing the work to be done which they knew (or should have known) could damage the adjoining property.” (footnote omitted.) The court then correctly opined, citing D‘Albora v. Tulane University, supra, that “both [the piling subcontractor] and [the general contractor] should be held to be solidarily liable to plаintiff, along with the landowner ... based upon La.Civil Code Article 667.” The court then went on to dismiss the demands against the piling subcontractor and the general contractor and rendered judgment only against the owner on the basis of
The court should not have dismissed the piling subcontractor and the general contractor, but should have cast them in judgment as sureties to the owner under the conditions set forth in
Through her fourth assignment of error appеllant complains that the trial judge did not find “victim fault” or the failure of the victim to mitigate his damages. Although the trial judge made no specific findings as to these particular questions, he did make a finding as to the quantum of damages suffered by plaintiff. We have reviewed the record and we dо not find any abuse of the fact finder‘s much discretion under
In her fifth assignment of error appellant complains that the trial judge would not allow evidence of third-party fault, viz., the fault of NOPSI buses causing vibrations as they passed on the street in front of plaintiff‘s house. At trial defendant-appellant called as a witness a NOPSI bus driver. The witness began testifying about what occurs when he drives his bus on the street in front of plaintiff‘s house. Plaintiff‘s counsel reurged an objection that this evidence was “irrelevant and immaterial.” The trial judge sustained the objection, listened to defense counsel‘s argument in favor of admissibility, and maintained that he would “rule it out.”
Defense counsel indicated that he would make a proffer. The colloquy between counsel and the court briefly continued, and counsel again indicated that he would make a proffer. The court responded:
THE COURT:
You make the proffer. You know how I have it done. You put it in an enveloрe and seal it and it will go up to the Court of Appeal if the case goes up. I am not listening to it. Step down.
Counsel now complains in his brief that he was not allowed to make a proffer, and he argues that this is reversible error. See
As to appellant‘s purported proffer, a review of this document reveals that it contains only an argument as to why the evidence should have been аdmitted. The document alludes to potential testimony from additional NOPSI employees. This other evidence, however, was never offered at trial and, therefore, never excluded. As a whole the document is not a proffer, but a mini-brief on this issue. A proffer is used to set forth the nаture of the evidence, not to preserve counsel‘s arguments in favor of admissibility.
We find that appellant failed to take advantage of the opportunity to make an offer of proof. Having made no offer of proof, appellant cannot now complain on appeal. Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir. 1981), writ denied, 401 So.2d 988 (La.1981); Inniswold-Jefferson Terrace Civic Association, Inc. v. Louisiana Health Services and Indemnity Company, Inc., 396 So.2d 348 (La.App. 1st Cir.1981); Carroll v. Guillot, 337 So.2d 310 (La.App. 3d Cir.1976).
The sixth assignment of error complains that the trial judge, over timely objection, allowed an enlargement of the pleadings by plaintiff. Plaintiff‘s petition complains that the damage caused by pile driving occurred “on or about” September 1, 1980. Trial evidence establishes that the pile driving activity occurred on August 22, 1980.
At trial defense counsel objected to plaintiff‘s counsel‘s questioning that the damage occurred on August 22nd. Plaintiff‘s counsel retorted that August 22nd was “on or about” September 1st. The trial judge agreed, noting that in a case of this character the exact date is not particularly important. After continued discussion among both attorneys and the court, it was agreed that plaintiff would be asked about what happened to his house without regard to a date. So counsel asked, “What happened to your house?“. Plaintiff answered, and his testimony continued without further objection concerning the date on which the damage occurred.
Accordingly, the judgment of the trial court is affirmed. All costs are to be borne by appellant.
AFFIRMED.
REDMANN, C.J. concurs with reasons.
REDMANN, Chief Judge, concurring.
The only question presented by this appeal is whether the defendant owner is entitled to indemnity from the piling subcontractor. (The “general contractor” is the owner‘s son, and the owner‘s appeal does not ask that we cast her son). The only question presented by the answer to the appeal is whether the award against defendant owner should be increased.
I subscribe to the mаjority‘s reasoning regarding the amount of the award.
I concur in the refusal of indemnity against the piledriving subcontractor on the ground that the only expert testimony is that the “major cause of the damage [to plaintiff owner‘s house] was the filling of the [defendant owner‘s] lot ... with a contributоry cause being the piledriving which has shaken loose several loose [sic] pieces of plaster and caused them to fall.” Presumably the landfilling operation, which caused the shifting of plaintiff‘s house, caused the “several loose pieces of plaster” to bеcome loose and therefore in need of removal for replastering; so that the piledriving‘s causing their early “removal” by falling caused no additional damage.
The meaning and effect of
(This writer has considered that the same lawyer represents both the defendant landowner and the “general contractor.” They presumably are satisfied that there is no conflict of interest between them—an unlikely conclusion were it not for the close family relationship.)