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Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream Communications, Inc.

Court of Appeals of Louisiana, First Circuit

December 21, 2017

LAKESHORE CHRYSLER DODGE JEEP, INC.
v.
WINDSTREAM COMMUNICATIONS, INC., BELLSOUTH TELECOMMUNICATIONS, INC., D/B/A AT&T LOUISIANA, GRADY CRAWFORD CONSTRUCTION CO., INC. OF BATON ROUGE, GRADY CRAWFORD CONSTRUCTION COMPANY, INC., A&A CABLE CNTRACTORS, INC., AND AMERICA FIRST INSURANCE COMPANY

         On Appeal from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Trial Court No. 2011-15148 Honorable Peter J. Garcia, Judge Presiding

          Dwight L. Acomb William F. Bologna John C. McNeese New Orleans, LA Attorneys for Plaintiff-Appellant, Lakeshore Chrysler Dodge Jeep, Inc.

          Pamela S. Croft Metairie, LA Attorney for Defendants-Appellees, Bellsouth Telecommunications, Inc., d/b/a AT&T Louisiana, Grady Crawford Construction Company, Inc. of Baton Rouge, Grady Crawford Construction Co., Inc., and America First Insurance Company

          BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

          HIGGINBOTHAM, J.

         In this negligence action, plaintiff appeals the district court's grant of the defendants' motion for involuntary dismissal at the close of plaintiff s case.

         FACTUAL AND PROCEDURAL HISTORY

         On September 6, 2010, and December 8, 2010, Lakeshore Chrysler Dodge Jeep, Inc., a new and used vehicle sales and service dealership located in Slidell, Louisiana, lost telephone and internet service for several hours, allegedly precluding Lakeshore from fully conducting its business. After both outages, Lakeshore signed incident reports indicating that the outages were a result of nearby installation of underground cables. At the time of the outages, Lakeshore's internet and phone service provider was Windstream Communications, Inc. To provide service to Lakeshore, Windstream utilized BellSouth Telecommunications, Inc., d/b/a AT&T Southeast's (AT&T) underground cable network. In order to maintain the cable network, AT&T contracted with Grady Crawford Construction Co., Inc., to do line work. Grady Crawford subcontracted with A&A Cable Contractors, Inc., a business specializing in directional drilling and cable installation, to perform the work on AT&T's underground cables that served Lakeshore and other businesses in the area. On December 8, 2010, A&A installed a new cable for AT&T down the street from Lakeshore. In the process of digging for installation of a new cable, A&A pulled back the auger, and the cable providing service to Lakeshore was severed, causing Lakeshore, as well as other businesses in the area, to lose service.

         On September 6, 2011, Lakeshore filed a "Petition for Damages" naming as defendants, Windstream, [1] AT&T, Grady Crawford, A&A, and America First Insurance Company. In its petition, Lakeshore claimed that the outages were caused by the negligence of the defendants, and as a result of the outages, it suffered damages in the form of lost sales and profits, as well as inconvenience.

         On September 26, 2016, the matter came before the district court for trial. After Lakeshore presented its case, the defendants jointly raised a motion for involuntary dismissal under La. Code Civ. P. art. 1672. The district court granted the defendants' motion, finding insufficient evidence to prove the defendants were the cause of the outage on September 6, 2010, and insufficient evidence to prove negligence on the part of the defendants for the outage on December 8, 2010. On October 18, 2016, the district court signed a judgment dismissing Lakeshore's claims against all of the remaining defendants. Lakeshore appealed.[2]

         LAW AND ANALYSIS

         Louisiana Code of Civil Procedure article 1672(B) provides the basis for an involuntary dismissal at the close of a plaintiffs case in a bench trial, when a plaintiff has shown no right to relief based on the facts and law. In determining whether involuntary dismissal should be granted, the appropriate standard is whether the plaintiff has presented sufficient evidence in its case-in-chief to establish a claim by a preponderance of the evidence, which means taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Jackson v. Capitol City Family Health Center, 2004-2671 (La.App. 1st Cir. 12/22/05), 928 So.2d 129, 131. When considering a motion for involuntary dismissal, a plaintiff is entitled to no special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Id.

         The trial court's grant of an involuntary dismissal is subject to the manifest error standard of review. Broussard v. Voorhies, 2006-2306 (La.App. 1st Cir. 9/19/07), 970 So.2d 1038, 1041-42, writ denied, 2007-2052 (La. 12/14/07), 970 So.2d 535. Accordingly, in order to reverse the trial court's grant of involuntary dismissal, we must find that there is no factual basis for the trial court's finding or that the finding is clearly wrong. Id., 970 So.2d at 1042. See also Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

         Because an involuntary dismissal of an action pursuant to Article 1672(B) is based on the "facts and law, " a review of the substantive law applicable to the plaintiffs case is necessary. In an action to recover damages allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So.2d 564, 578. Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether ...


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