94 1000 La.App. 1 Cir. 10/6/95, Green v. City of Thibodaux

• Decision Date: 06 October 1995
• Citation: 671 So.2d 399
• Parties: 94 1000 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 399

671 So.2d 399

94 1000 La.App. 1 Cir. 10/6/95

Julie E. GREEN v. The CITY OF THIBODAUX.

No. 94 CA 1000.

Court of Appeal of Louisiana First Circuit.

Oct. 6, 1995.

Writ Denied Feb. 28, 1996.

Jerald P. Block, Thibodaux, for Plaintiff-Appellee Julie E. Green.

Camille A. Morvant, Thibodaux, for Defendants-Appellants The City of Thibodaux and Titan Indemnity Company.

Before LOTTINGER, C.J., and SHORTESS, CARTER, LeBLANC and CRAIN ^*, JJ.

[94 1000 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.

This is an action for personal injuries sustained by the plaintiff, Ms. Julie Green, when she stepped off a cracked curb while observing a Mardi Gras parade. From a judgment in favor of Ms. Green, the City and its insurer have appealed.

FACTS

On Sunday, March 1, 1992, Ms. Julie Green was watching a Mardi Gras parade with a group of her friends near the intersection of Jackson Street and West Seventh Street in Thibodaux, Louisiana. As the first several floats passed, Ms. Green and her friends stood on Jackson Street approximately six feet from the sidewalk and the curb in question.

During a momentary lull in the parade, Ms. Green left the group and stepped up on the curb. As subsequent floats began to proceed towards them on Jackson Street, Ms. Green sought to rejoin her companions in the street. As she stepped off of the curb, Ms. Green fell into the street sustaining a fractured dislocation of her right ankle.

Ms. Green was transported via ambulance to the emergency room of Thibodaux Hospital and Health Centers where she underwent an open reduction, internal fixation surgery later that same day. She remained in the hospital for several days before being discharged. The metal internal fixation device used to stabilize her ankle was subsequently removed via an out-patient procedure.

Ms. Green filed suit against the City of Thibodaux (City) alleging that her fall was caused by the broken curb upon which she stepped, and that the condition of the curb presented an unreasonable risk of harm for which the City was strictly liable. Ms. Green amended her petition to name the City's insurer, Titan Indemnity Company, as an additional defendant.

The trial judge ruled in favor of the plaintiff concluding that the condition of the curb was a defect presenting an unreasonable risk of harm and a cause in fact of injury sustained by Ms. Green. The trial judge further held that because circumstantial evidence indicated the curb's cracked condition had existed for at least several months, [94 1000 La.App. 1 Cir. 3] the City had constructive knowledge of the defect as required under La.R.S. 9:2800, and was therefore responsible for the accident and resulting injury. From this judgment, the City and its insurer have appealed.

ASSIGNMENTS OF ERROR

On appeal, the City and its insurer set forth the following assignments of error:

(1) The trial court erred in its determination that the curb in question was defective, and that the condition of the curb was a cause in fact of Ms. Green's accident and subsequent injury;

(2) The trial court improperly applied La.R.S. 9:2800 to the facts of this case;

(3) The trial court erred, based upon the facts presented, in not applying La.Civ.Code art. 2323 and assessing a substantial portion of negligence to the actions of Ms. Green.

LAW

We need not discuss the applicability of La.R.S. 9:2800, because in a decision by this court in Daniel L. Rhodes, et al v. State, Department of Transportation and Development and State, Department of Public Safety and Corrections, 94-1758 (La.App. 1st Cir. 5/5/95), 656 So.2d 650, we have declared La.R.S. 9:2800 unconstitutional. Furthermore, the trial judge found as fact that the City had constructive knowledge of the condition of the curb.

ANALYSIS

It is clear that the City has a duty to maintain its streets in a safe condition for use by the public. Carr v. City of Covington, 477 So.2d 1202, 1204 (La.App. 1st Cir.1985), writ denied, 481 So.2d 631 (La.1986). However, it is not liable for every defect or irregularity in a street, but only for the dangerous defect that creates an unreasonable risk of injury to persons exercising ordinary care and prudence. McDade v. Town of Oak Grove, 545 So.2d 1276, 1278 (La.App. 2d Cir.1989); Montgomery v. City of New Orleans, 537 So.2d 1230, 1232 (La.App. 4th Cir.1989).

[94 1000 La.App. 1 Cir. 4] Moreover, the fact that a pedestrian falls does not elevate the condition of the street to that of an unreasonably dangerous defect. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). A pedestrian has a duty to see that which should have been seen. He is not required to look for hidden dangers, but he is bound to observe his course to see if his pathway is clear. Carr v. City of Covington, 477 So.2d at 1204; Williams v. Orleans Parish School Board, 541 So.2d 228, 230 (La.App. 4th Cir.1989). A pedestrian is held to have seen those obstructions in his pathway which would be discovered by a reasonable prudent person exercising ordinary care under the circumstances. Carr v. City of Covington, 477 So.2d at 1204; Dunaway v. Rester Refrigeration Service, Inc., 428 So.2d 1064, 1067 (La.App. 1st Cir.), writ denied, 433 So.2d 1056, 1057 (La.1983). In each case, of course, the unreasonable character of the defect must be decided on the particular facts and circumstances presented. Lutz v. City of Shreveport, 25,801, p. 3 (La.App. 2nd Cir. 5/4/94); 637 So.2d 636, 639, writ denied, 94-1487 (La. 9/23/94); 642 So.2d 1294; McDade v. Town of Oak Grove, 545 So.2d at 1278.

At the trial of this matter, Ms. Green introduced a series of photographs taken shortly after the accident depicting the section of curb which she contended posed an unreasonable risk of harm. The section in question abuts the sidewalk along Jackson Street near the corner of West Seventh Street and extends over the top of a metal drainage box which is set into the curb. Directly in front of the drainage box is a metal drainage grate which is recessed into the street.

The photographs reveal that at the time of Ms. Green's accident, that portion of the curb directly above the drainage box was cracked and appeared to slant forward approximately thirty degrees according to Ms. Green's estimation. In the estimation of Mr. Bert Hebert, Jr., Director of Public Works for the City of Thibodaux, the difference in level between the sidewalk and the curb was no greater than an inch and a half at its worst point. While it is evident that the condition of the curb was not perfect, Mr. Hebert, in his testimony at trial, stated that upon investigating the curb in question after the accident, he saw nothing which he considered to be "hazardous or [94 1000 La.App. 1 Cir. 5] unsafe". For this reason, he asked Mr. Michael Guillot, the general manager of Hofman's Music, a business fronting on the curb, to point out the spot in question.

Mr. Guillot testified that during a given week, as many as two to three hundred people come into his store. While Mr. Guillot stated that most people park alongside the store on West Seventh Street, he admitted that some of his customers would likely have to walk near the area in question when entering or leaving his store. Mr. Guillot, an employee of Hofman's since 1976, testified that while he has previously complained to city officials about drainage problems in the area, he never complained about the condition of the curb until after Ms. Green's accident on March 1, 1992.

At trial, both sides stipulated that the City never received a complaint regarding this condition until its receipt of a letter dated April 30, 1992, from Michael Guillot which notified the City of the problem with the curb. Mr. Hebert testified that upon receipt of Mr. Guillot's complaint, employees of the City effected the necessary repairs that same date.

Ms. Green testified that a few minutes before the accident, the parade had "died off" and she stepped up on the curb in the hope of discerning the reason for the delay. Because there were people standing in front of her on the street ¹, Ms. Green walked down the sidewalk away from the parade to a spot near the drain and attempted from this new vantage point to look back and discover the proximity of the parade's remaining floats. Upon seeing the remainder of the parade proceeding towards her, Ms. Green called to her friends, and blindly stepped off the curb to rejoin them in the street. In so doing, her foot landed on the cracked portion of the curb in question causing her to fall into the street in the area of the drain.

We are mindful that our state supreme court has, in its recent decision in Bessard v. State Department of Transportation and Development, 94-0589, p. 5 (La. 11/30/94); 645 So.2d 1134, 1137, relied upon its earlier holding in White v. City of Alexandria, 216 La. 308, 43 So.2d 618, 620 (La.1949) for the proposition that a [94 1000 La.App. 1 Cir. 6] pedestrian "is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle." In her brief on appeal, Ms. Green cites Bessard for the same proposition.

We, however, find the facts presented in Bessard to be distinguishable from the facts in the case before us. In Bessard, the plaintiff's testimony revealed that the crack in the curb could be seen from a distance of three feet provided one was looking down while walking. The majority in Bessard found that evidence supported the lower courts' finding that plaintiff acted as an ordinary, prudent pedestrian by looking up to observe traffic as she approached the curb. The court went on to conclude that because the cracks in the curb in question were not readily apparent from plaintiff's viewpoint, the hole in the curb, like the restaurant floor in Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990) ² presented an unreasonable risk of harm.

Because the majority in Bessard found the plaintiff to have been exercising ordinary care and...