Preview:

IRVING ROTH AND MRS.                                                     *                 NO. 2007-CA-0549
GERTRUDE ROTH
*                                                                        COURT OF APPEAL
VERSUS
*                                                                        FOURTH CIRCUIT
NEW HOTEL MONTELEONE,
L.L.C.                                                                   *                 STATE OF LOUISIANA
*
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2004-7304, DIVISION “D-16”
Honorable Lloyd J. Medley, Judge
Charles R. Jones
Judge
(Court composed of Judge Charles R. Jones, Judge Edwin A. Lombard, and
Judge Leon A. Cannizzaro, Jr.)
Robert J. Caluda
THE CALUDA & REBENNACK LAW FIRM
3232 Edenborn Avenue
Metairie, LA   70002
COUNSEL FOR PLAINTIFF/APPELLANT
John W. Waters, Jr.
Kristina L. Junot
David E. Walle
BIENVENU, FOSTER, RYAN & O'BANNON
1010 Common Street, Suite 2200
New Orleans, LA   70112-2401
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED




The  Appellants,  Gertrude  Roth,  wife  of/and  Irving  Roth                               (hereinafter
collectively referred to as “the Roths”), appeal the judgment of dismissal of their
personal injury suit.  We affirm.
The  Roths  checked  into  a  hotel  owned  by  the  New  Hotel  Monteleone
(hereinafter referred to as “the Monteleone”) on September 11, 2003, to attend a
reunion for World War II veterans, which was being held in the hotel.   Mr. Roth,
who  was  seventy-five                                                                      (75)  years-old  at  the  time  of  his  stay,  suffers  from
ambulatory problems and walks with the assistance of a walker.
Upon arriving at the Monteleone, the Roths entered the hotel via its Royal
Street entrance, which requires ascending steps in the foyer to enter the hotel
lobby.   Mr. Roth received assistance from the bellman to climb the steps upon his
initial entrance. During the Roths four (4) day stay, they exited and entered the
hotel through the Royal Street entrance. Mr. Roth testified that after checking into
the Monteleone, he exited and entered the hotel approximately twice a day through
the  Royal  Street  entrance  with  the  assistance  of  hotel  personnel.    The  hotel,
however, did have a handicap entrance on Bienville Street.
1




Nevertheless, on the third day of their stay, Mr. Roth fell while attempting to
descend the lobby steps with his walker.   He was not being assisted by anyone,
including  Monteleone  staff  at  the  time  of  his  fall.    Mrs.  Roth  had  already
descended the foyer steps and was waiting outside of the hotel for her husband.
The Roths filed suit against the Monteleone in Civil District Court on May
17,  2004,  alleging  that  the  Monteleone  was liable for the damages the Roths
sustained as a result of Mr. Roth’s fall. The Roths did not allege that the steps in
question were defective. Rather, at a bench trial held on September 12, 2006, Mr.
Roth  testified  that  the  Monteleone  staff  did  not  advise  him  that  there  was  a
handicap entrance. The Roths further averred that there were no warning signs at
the main entrance on Royal St. to indicate that a handicap entrance existed.   Mr.
Roth testified that he decided to descend the lobby steps alone because the hotel
staff was busy assisting other guests.
The Monteleone does not contest that a sign was not posted at its main
entrance.   However, Ms. Sandra Erneker— the manager on duty at the time of Mr.
Roth’s fall— testified that the hotel staff assigned to the Royal Street entrance are
trained to inform handicapped patrons of the ramp at the Bienville   Street   entrance
and to assist handicapped guests who choose to use the Royal Street entrance.
Ms. Erneker further testified that Mrs. Roth admitted to her that the couple
knew about the Bienville Street entrance, but they opted not to use it because they
did not want to walk through the hotel’s garage.   Another Monteleone employee,
Mr. Richard Condon— the executive in charge of loss prevention— testified that
the hotel staff assigned to the main entrance are trained to tell visibly impaired
patrons about the ramp at the Bienville Street entrance.
2




The district court rendered judgment in favor of the Monteleone, finding no
liability on its part and dismissing the Roths’ case with prejudice.   It is from this
judgment that the Roths have filed the instant appeal.
The Roths raise two (2) assignments of error on appeal. First, they allege
that the district court committed legal error in finding that the Monteleone was not
liable when the Roths proved by undisputed evidence that there were no directional
signs on the handicap inaccessible main entrance of the hotel and where the breach
of that duty caused the plaintiffs’ damages.   In their second assignment of error,
the Roths assert that the district court committed legal error by failing to invoke an
adverse presumption against the Monteleone because it did not call its employees
as witnesses at trial.
Legal errors are subject to a de novo standard of review.   Overton v. Shell
Oil Co., 05-1001, p. 8 (La.App. 4 Cir. 7/19/06), 937 So.2d 404, 410. Additionally,
where there are conflicts in testimony then reasonable evaluations of credibility
and reasonable factual findings should not be disturbed upon review, even though
the  appellate  court  may  feel  that  its  own  evaluations  and  inferences  are  as
reasonable. Rosell v. Esco, 549 So. 2d 840, 844 (La. 1989).
With regard to the Roths’ first assignment of error, they contend that the
lack of a handicap sign at the front door is a violation of the Americans with
Disabilities Act and LSA R.S. 40:1731-1735.   The Monteleone does not contest
that it did not have a sign posted at its Royal Street entrance to direct handicapped
persons to its ramp at the Bienville Street entrance.   Instead, the hotel contends that
its policy was for hotel personnel— especially those stationed at the front door—
to inform handicapped persons of the Bienville Street entrance and to assist those
3




handicapped persons who chose to use the Royal Street entrance in spite of being
advised of the Bienville Street entrance.
The  Roths  assert  that  the  Monteleone’s  failure  to  post  a  sign  notifying
handicapped patrons that there is a handicap entrance makes them liable for Mr.
Roth’s injuries. Their contention is that had Mr. Roth known of the handicap ramp,
he would have used it. Nevertheless, the district court found that the Roths did
know of the entrance. We agree.
Both parties testified regarding whether the Roths in fact knew that the hotel
had a handicap entrance. Though the Roths testified that they were not informed
that there was a handicap entrance, the Monteleone presented testimony from Ms.
Erneker and Mr. Condon that it was the hotel’s policy to verbally advise impaired
patrons of the hotel’s handicap entrance and provide assistance for those patrons
who nevertheless decided to utilize the Royal Street entrance.
In fact, the Roths testimony that Mr. Roth was assisted by hotel staff every
time  he  used  the  Royal  Street  entrance  corroborates  the  testimony  of  the
Monteleone’s staff that it was their policy to assist handicapped patrons with the
lobby steps.
According to the testimony provided by the Monteleone staff, there are two
(2) categories of handicapped guests: those who use the Bienville Street ramp, and
those who use the Royal Street entrance with the assistance of the Monteleone’s
staff.    Mr.  Roth  belonged  to  the  latter  category  of  persons.    Mr.  Roth  was
dependent upon hotel staff to assist him in exiting and entering the hotel.   Indeed,
he was assisted by them each time he entered and exited the hotel, except for the
date of the accident.    Yet, on the date in question, he decided not to wait for
assistance because the staff at the front entrance was busy.
4




In other words, Mr. Roth became inpatient and decided he was no longer
going to wait.   When asked how long he waited for someone to help him, Mr. Roth
testified “I didn’t wait long at all.   I waited a few minutes, there was nobody there,
and I started down.”
We do not find that the district court erred in finding that the Monteleone
was not accountable for the Roths’ damages where Mr. Roth: knew about an
alternate handicap-accessible means of exiting the hotel; purposefully chose not to
use said exit, and subsequently, injured himself after attempting to use the main
entrance  unassisted  by  anyone.    It  was  Mr.  Roth’s  impatience,  not  a  lack  of
signage, that caused him to fall. The Bienville Street entrance and a lack of signage
is not what caused Mr. Roth’s fall.   We find that this assignment of error lacks
merit.
The second assignment of error that the Roths raise is that the district court
committed legal error in failing to invoke an adverse presumption against the
Monteleone for its failure to call employees who allegedly told the Roths that there
was a handicap entrance.   The Roths argue that an adverse presumption should
have been applied against the Monteleone pursuant to the “uncalled witness rule.”
In Taylor v. Entergy Corp., 01-805, (La. App. 4 Cir. 4/17/02), 816 So.2d
933, this Court explained the uncalled witness rule as follows:
The  “uncalled  witness”  rule  has  been  defined  as  an
adverse presumption that arises when  “a party has the
power  to  produce  witnesses  whose  testimony  would
elucidate the transaction or occurrence” and fails to call
such witnesses. 19 Frank L. Maraist, Louisiana Civil Law
Treatise: Evidence and Proof,  §  4.3  (1999). A party's
failure   to   call   such   witnesses   gives   rise   to   the
presumption  that                                                                          “the  witnesses'  testimony  would  be
unfavorable to him.” Id. Although the advent of modern,
liberal discovery rules has been recognized to limit this
rule,  it                                                                                  “remains  viable.”  Id.  Indeed,  this  court  has
5




recognized  this  rule  applies  when,  as  in  this  case,
witnesses  with  peculiar  knowledge  of  material  facts
pertinent  to  the  case  are  not  called.  Stewart  v.  Great
Atlantic  and  Pacific  Tea  Co.,                                                        657  So.2d  1327,  1330
(La.App.                                                                                                           4    Cir.1995);   Gurley   v.   Schwegmann
Supermarkets,  Inc.,                                                                     617  So.2d                41,                                          44   (La.App.   4
Cir.1993).  We  have  also  noted  that  “[t]he  court  may
consider this presumption as it would any other relevant
evidence in the case.” Id.
Id., p.14-15, 816 So.2d at 941.
We noted that the purpose of the adverse presumption is that “a court may
consider the fact that a party did not call a witness, available only to that party,
with knowledge of facts not testified to by any other witness, which are pertinent to
the case. Once a party makes a showing of this, and the other party does not
produce a reasonable explanation for its failure to call that witness, the court may
presume  that  the  witness' testimony would have been unfavorable.” Gurley v.
Schwegmann Supermarkets, 617 So.2d 41, 44 (La.App. 4 Cir.1993).
Upon reviewing the “uncalled witness,” we find that the application of an
adverse  presumption  against  the  party  who  does  not  produce  a  witness  is
discretionary on the part of the district court. It was well within the discretion of
the district court to decide not to apply an adverse presumption.
Furthermore, considering the evidence in the record indicates that there were
witnesses who were no longer in the Monteleone’s employ and were dispersed by
Hurricane Katrina, the uncalled witness rule is not applicable.   The rule is intended
to punish parties who are withholding witness testimony, not to penalize parties
6




who do not have the power to produce witnesses to testify. Taylor, 01-0805, p. 14,
816 So.2d at 941.  Therefore, we find this assignment of error to be without merit.
DECREE
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED
7

Download 201303.pdf

Louisiana Law