96-0367 La.App. 4 Cir. 12/18/96, Patterson v. City of New Orleans
| Citation | 686 So.2d 87 |
| Parties | 96-0367 La.App. 4 Cir |
| Decision Date | 18 December 1996 |
| Court | Court of Appeal of Louisiana (US) |
Joseph G. Albe, Metairie, for plaintiff/appellant Rickey Patterson.
Mary-Elizabeth Paltron, General Counsel, Jacob Taranto, III, Assistant Special Counsel, John D. Lambert, Jr., Special Counsel Sewerage and Water Board of New Orleans, New Orleans, for defendant/appellee.
Sidney J. Angelle, Michael J. Tarleton, Lobman, Carnahan and Batt, Metairie, for plaintiff/appellant Lea Smith, Wife of/and Toney Kersh.
Before ARMSTRONG, JONES and MURRAY, JJ.
[96-0367 La.App. 4 Cir. 1] ARMSTRONG, Judge.
These two consolidated appeals involve personal injury cases. One is a single vehicle accident. The other is a slip and fall. Both accidents occurred at an underpass of Press Drive below a railroad track. Each allegedly occurred because of a slick condition involving algae which grew due to seepage of water in the underpass. Each plaintiff sued both the City of New Orleans and the Sewerage and Water Board ("S & WB"). Each plaintiff settled with the City but went to trial against the S & WB. The two actions were tried together on a consolidated basis. The trial, which was a bench trial, was bifurcated into liability and damages phases. At the conclusion of the liability phase, the trial court found no liability of the S & WB. Each of the plaintiffs has appealed. Because we find no error in the result reached by the trial court, we affirm.
The trial court found, and the undisputed evidence shows, that the Press Drive underpass was constantly or frequently wet due to seepage of water from expansion joints in the embankments of the underpass. This caused algae to grow in the underpass which created a slick condition. This problem was compounded by pigeon droppings which, apparently, added to the slickness. These facts [96-0367 La.App. 4 Cir. 2] were uncontested at trial, and are not contested on appeal. Certainly, these factual findings of the trial court are not manifestly erroneous or clearly wrong. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989).
The trial court also found that a van driven by plaintiff Ricky Patterson slid out of control, which slide caused it to turn over, because of the slick condition of the street in the Press Drive underpass. The trial court found that plaintiff Ricky Patterson was driving the van at a reasonable speed and was not comparatively at fault. The trial court also found that plaintiff Lea Smith slipped and fell because of the slick condition of the sidewalk and that Ms. Smith was proceeding in a reasonable manner and was not comparatively at fault.
The trial court concluded that the Press Drive underpass was in an unreasonably dangerous condition and that the City, which had known of the condition of the Press Drive underpass for many years prior to the plaintiffs' accidents, was negligent. Of course, the City had settled with both plaintiffs prior to trial. Thus, the key issue was whether the S & WB also was liable with regard to the condition of the Press Drive underpass. It is undisputed that the S & WB, like the City, had known of the condition of the Press Drive underpass for many years prior to the plaintiffs' accidents. The S & WB had done nothing to remedy the condition except to call it to the attention of the City. However, the S & WB argued, and the trial court agreed, that the S & WB was not responsible for the water seepage which caused the algae growth and the slick condition in the underpass. We find no error with this conclusion.
The evidence at trial was that the water seeping into the underpass was natural ground water and was not water from any S & WB line. The underpass [96-0367 La.App. 4 Cir. 3] is about one half mile from Lake Pontchartrain and is about 17 feet below the level of the lake. One would expect that there would be ground water from the lake at that location and depth. When the water seeping into the underpass was tested chemically, it proved to be consistent with being ground water from the lake and to be inconsistent with being water from a S & WB line. In particular, the water seeping into the underpass had a high level of "chlorides" (salt, apparently, and not chlorine) which was similar to lake water but not water from a S & WB line. Also, the S & WB line in the area was shut off for several weeks, as a test, and the seepage of water into the underpass continued, which indicates that the S & WB line was not the source of the water seeping into the underpass. These findings of the trial court as to the source of the water seeping into the underpass apparently are not challenged on appeal and, in any case, are well supported by the evidence and are certainly not clearly wrong or manifestly erroneous. See Stobart, supra; Rosell, supra.
A system of six inch and eight inch perforated pipes, referred to as "filter beds" (or "French drains") was installed under the roadway and embankments of the underpass in anticipation of a ground water problem. These filter beds are connected to the S & WB's drainage lines which carry away collected water. These filter beds were designed and constructed by the State's Highway Department and the City's Department of Streets as part of the original construction of the underpass. They were not designed, constructed or approved by the S & WB. Also, these filter beds are not accessible for maintenance (without tearing up the street) and have never been maintained by the S & WB. The trial court found, based upon the expert testimony of a S & WB engineer, John R. Huerkamp, that the filter beds had become clogged up with sand, so that [96-0367 La.App. 4 Cir. 4] they did not function, and that this resulted in the seepage of ground water into the underpass. The trial court obviously found Mr. Huerkamp to be credible as to this point (and, in fact, commented on the record that Mr. Huerkamp was a "candid" witness). Such questions of credibility are primarily the responsibility of the trier of fact. Stobart, supra; Rosell, supra. The trial court's finding that the sand clogging up the filter beds was the cause of the water seeping into the underpass is not, apparently, challenged on appeal and, in any case, is certainly not clearly wrong or manifestly erroneous. Id.
The issue thus resolves into one of whether the S & WB, as opposed to just the City, is responsible for the filter beds and, in particular, for remedying the clogging-up of the filter beds. The plaintiffs argue that the S & WB is responsible for the filter beds under the terms of a 1987 contract between the City and The S & WB which provides in pertinent part:
A. The parties acknowledge that subsurface drainage is a part of the street.
B. Subsurface drainage is hereinafter defined as all catch basins attached to said drainage lines and all drainage lines smaller than thirty-six (36"') inches in diameter. Lines thirty-six (36"') inches and larger shall be considered part of the major drainage systems of the City of New Orleans and therefore the Board is responsible for maintenance, repair and replacement.
C. For the mutual considerations received and the benefits to be derived for the citizens of the City, the Board, agrees to maintain and repair the subsurface drainage. Such repair and maintenance shall not be an assumption of responsibility for installation or an indication of ownership. (emphasis added).
The contract provided that "subsurface drainage" includes all "drainage lines" smaller than 36 inches in diameter and that the S & WB agrees to maintain and repair "subsurface drainage". The plaintiffs argue that the 6 inch and 8 inch diameter perforated pipes of the filter beds are "drainage lines" and, being smaller [96-0367 La.App. 4 Cir. 5] than 36 inches in diameter, are "subsurface drainage" for which the S & WB is responsible. 1
The S & WB argues that the perforated pipes of the filter beds are not "drainage lines" within the meaning of the contract. The S & WB introduced the testimony of Mr. Huerkamp in support of its interpretation of the contract. The plaintiffs object to this testimony on the ground that the contract is clear and unambiguous and so no extrinsic evidence ("parole evidence") is admissible as to its meaning. The trial court held (1) that the contract is vague and ambiguous and, therefore, Mr. Huerkamp's testimony was admissible, and (2) that the contract did not make the S & WB responsible for the condition of the underpass (in view of the trial court's finding that the clogged filter beds caused the condition of the underpass, the trial court's decision necessarily implies that the S & WB was not responsible for the filter beds). The plaintiffs attack both of these holdings of the trial court.
As a general rule, extrinsic evidence may not be admitted to "negate or vary" the contents of a written contract. La. Civ.Code art. 1848. Thus, while the interpretation of a contract is the determination of the common intent of the parties, La. Civ.Code art. 2045, if "the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties' intent". La. Civ. code art. 2046.
[96-0367 La.App. 4 Cir. 6] However, if a contract is...
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