Watts v. Town of Homer, 10942

• Citation: 207 So.2d 844
• Decision Date: 05 February 1968
• Docket Number: No. 10942,10942
• Parties: Christell WATTS, Individually and as natural tutrix of Betty Jean Watts, minor, Plaintiff-Appellant, v. TOWN OF HOMER et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana (US)

Page 844

207 So.2d 844

Christell WATTS, Individually and as natural tutrix of Betty

Jean Watts, minor, Plaintiff-Appellant, v. TOWN OF HOMER et al., Defendants-Appellees.

No. 10942.

Court of Appeal of Louisiana, Second Circuit.

Feb. 5, 1968.

Rehearing Denied March 4, 1968.

Writ Refused April 19, 1968.

Shaw & Shaw, Homer, Thomas & Friedman, Natchitoches, for plaintiff-appellant.

George H. Robinson, Homer, for Town of Homer, defendant-appellee.

Fred L. Jackson, Homer, for Claiborne Parish School Bd., defendant-appellee.

Before AYRES, BOLIN and PRICE, JJ.

AYRES, Judge.

This is an action in tort wherein plaintiff, Christell Watts, in her individual capacity and as natural tutrix of the minor, Betty Jean Watts, seeks to recover of the Town of Homer and of the Claiborne Parish School Board damages for personal injuries allegedly sustained by the minor as a result of the collapse of playground equipment in a park established by the defendants adjacent to the Mayfield School in the Town of Homer. Demand is also made for medical expenses already incurred and to be incurred in the treatment of the minor's injuries.

To plaintiff's petition defendants filed pleas to the jurisdiction of the court and motions for a summary judgment based on the contention that the Legislature of Louisiana has not authorized plaintiff's suit nor waived defendants' immunity from suit and liability. Defendants urged, also, pleas of prescription. These pleas and motions on trial were sustained and, from a judgment accordingly dismissing plaintiff's action, she has appealed.

Appropriate in a consideration of this action are certain constitutional provisions. For instance, Art. 19, § 26 of the Constitution of the State of Louisiana, so far as pertinent, provides:

'The following named commissions, boards, bodies or municipal corporations are and shall be considered special agencies of the State of Louisiana:

'(4) Any municipal corporation, parish or subdivision of the State in matters respecting the operation or maintenance of parks and other recreational facilities or in connection with any rule or regulation applicable thereto.

'(7) The parish school boards of each of the parishes of the State of Louisiana,

'The consent of the State of Louisiana to suits or legal proceedings against any of the above listed special agencies, (however heretofore given) is hereby expressly withdrawn and no such suit or proceeding shall be permitted except as provided in this section. * * * the Legislature of Louisiana may, in individual cases, by appropriate act grant to any party showing just and reasonable cause the right to sue any of these special agencies, in compliance with Section 35 of Article III of this Constitution.'

Art. 3, § 35 of the Constitution referred to, likewise, so far as pertinent, provides:

'The Legislature is empowered to waive, by special or general laws or resolutions, the immunity from suit and from liability of the state, and of parishes, municipalities, political subdivisions, public boards, institutions, departments, commissions, districts, corporations, agencies and authorities and other public or governmental bodies; and each authorization by the Legislature for suit against the State or other such public body, heretofore and hereafter enacted or granted, shall be construed to be and shall be effective and valid for all purposes, as of and from the date thereof, as a waiver of the defendant's immunity both from suit and from liability.'

It was conceded by plaintiff's counsel in argument before this court, and correctly, so, we think, that under the present jurisprudence of this State, in order that this action be instituted and maintained, defendants' immunity from suit and liability must be waived by appropriate action of the Legislature. It is, however, contended that this action was authorized and defendants' immunity from suit and liability waived by House Concurrent Resolution No. 16 of the 1964 regular session of the Louisiana Legislature and by Senate Concurrent Resolution No. 15 of the 1966 regular session of the Louisiana Legislature.

After the adoption of its Resolution No. 16 of 1964, the House of Representatives transmitted the resolution to...