Burmaster v. Gravity Drainage Dist. No. 2 of St. Charles Parish

Decision Date15 December 1978
Docket NumberNos. 62792,62809,s. 62792
PartiesMrs. Elizabeth Ann Daigrepont BURMASTER, etc. v. GRAVITY DRAINAGE DISTRICT NO. 2 OF the PARISH OF ST. CHARLES et al.
CourtLouisiana Supreme Court

Victor E. Stilwell, Jr., Ralph L. Kaskell, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for defendant-applicant in No. 62792 and for defendant-appellant in No. 62809.

R. Gray Sexton, Wilson & Sexton, Baton Rouge, amicus curiae for La. Engineering Society, the Consulting Engineers Council of La., Inc. and The American Society of Civil Engineers, La. Section.

Vincent J. Glorioso, Jr., Arthur A. Crais, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-respondent in No. 62792 and for plaintiff-appellee in No. 62809.

Albert H. Hanemann, Jr., and William Hardy Patrick, III, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendant-respondent in No. 62792 and for defendant-appellant in No. 62809.

MARCUS, Justice.

Mrs. Elizabeth Ann Daigrepont Burmaster, individually and as natural tutrix of her minor children, instituted this suit to recover damages resulting from the death of her husband, Elvin E. Burmaster, Jr. Named defendants are Gravity Drainage District No. 2 of the Parish of St. Charles, St. Charles Parish Police Jury, Parish of St. Charles, Fromherz Engineers, Inc., Riess Construction Company, and United States Fidelity & Guaranty Company. The Aetna Casualty & Surety Company (workmen's compensation insurer of Reagan Equipment Company) intervened for burial expenses and compensation benefits paid to the surviving dependents of decedent.

Plaintiff alleged in her petition that her late husband was employed by Reagan Equipment Company as a mechanic. On April 23, 1977, while attempting to remove a heavy piece of equipment belonging to Gravity Drainage District No. 2 on premises owned and maintained by it and/or other defendants, he tripped on a protruding guard rail brace, causing him to fall into the water and drown. Plaintiff further alleged, Inter alia, that the death of her husband was caused by Fromherz's negligent design and installation of the guard rail with a brace which protruded into an area where it knew or should have known persons would be required to walk and by its failure to incorporate in the design and construction any signs warning persons of the danger presented by the protruding brace, all in violation of recognized industry standards.

Fromherz's answer generally denied the allegations of plaintiff's petition and asserted that plaintiff's right of action had pre-empted under La.R.S. 9:2772 1 because the alleged incident occurred on April 23, 1977, more than ten years after the date of registry (March 20, 1962) in the mortgage office (St. Charles Parish) of acceptance of the work by the owner (St. Charles Gravity Drainage District No. 2). Thereafter, Fromherz filed a motion for summary judgment grounded on its claim that plaintiff's right of action had pre-empted pursuant to La.R.S. 9:2772. In support of its motion for summary judgment, Fromherz filed an affidavit of its executive vice-president who alleged that on November 30, 1959, Fromherz entered into a contract with Gravity Drainage District No. 2 whereby Fromherz was to provide engineering services for a storm drainage system in Norco, Louisiana. Under this contract, Fromherz prepared plans and specifications for construction of a drainage pumping station which included the guard rail and brace mentioned in plaintiff's petition. The guard rail and brace were constructed by Riess Construction Company in compliance with the plans and specifications prepared by Fromherz. Gravity Drainage District No. 2 accepted the project (including the guard rail and brace) and filed its acceptance in the St. Charles Parish mortgage records on March 20, 1962.

The trial judge denied Fromherz's motion for summary judgment, holding that La.R.S. 9:2772 was unconstitutional. On Fromherz's application, we granted a writ to review the correctness of this ruling. 2

The sole issue presented for our resolution is whether La.R.S. 9:2772 is constitutional under both the state and federal constitutions.

Plaintiff first contends that La.R.S. 9:2772 is a special law prohibited by the Louisiana Constitution. She argues that the statute grants a certain number of persons within a class (architects and contractors) a special privilege or immunity which is not extended to all persons possessing the characteristics of the class.

Article 3, section 12(A)(7) of the Louisiana Constitution provides:

Section 12. (A) Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:

(7) Creating private corporations, or amending, renewing, extending, or explaining the charters thereof; granting to any private corporation, association, or individual any special or exclusive right, privilege, or immunity.

In Teachers' Retirement System of Louisiana v. Vial, 317 So.2d 179 (La.1975), this court distinguished permissible general laws from special laws prohibited by our constitution:

General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons. Viewed in this context, the constitutional proscription against special laws on certain subjects . . . represents an important safeguard against the abuse of legislative power on behalf of special interests. (footnotes omitted)

We must thus determine whether La.R.S. 9:2772 operates equally upon all persons of a designated class founded upon a reasonable and proper classification or whether the statute affects only a certain number of persons within a class and not all persons possessing the characteristics of that class.

La.R.S. 9:2772 provides in pertinent part:

A. No action whether ex contractu, ex delicto or otherwise, to recover on a contract or to recover damages shall be brought against any person performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property:

(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or

B. The causes which are pre-empted within the time described above include any action:

(3) For injury to the person or for wrongful death arising out of any such deficiency; and . . . .

E. The pre-emptive period provided by this Section shall not be asserted by way of defense by a person in possession or control, as owner, lessor, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury, damage, or death sued upon with regard to any cause of action arising out of the alleged delict, quasi delict, or obligation of any such person arising out of his possession or control of the property.

F. Nothing in this Section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner of an immovable or the possessor, lessor or lessee of an immovable, by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property.

It is conceded by the parties before us that La.R.S. 9:2772 includes within its coverage architects and contractors. Plaintiff contends that the express language of subsection E of the statute excluding the owner, lessor and tenant from its coverage renders the statute an impermissible special law. We do not agree.

We consider that there is a valid distinction between persons performing or furnishing the design, planning, supervision, inspection or observation of construction or the construction of an improvement to immovable property and a person in possession or control, as owner, lessor, tenant or otherwise, of such improvement at the time of the incident giving rise to the cause of action. After the date of registry in the mortgage office of acceptance of the work by the owner, there exists the possibility of neglect, abuse, poor maintenance, mishandling, improper modification, or unskilled repair of an improvement to immovable property by the owner, lessor or tenant. It is difficult for the architect or contractor to guard against such occurrences because, after the acceptance by the owner, the architect or contractor ordinarily has neither control of the improvement nor the right to enter or inspect the improvement. It is thus reasonable for the legislature to have concluded that those with access to and control of improvements to immovable property (owner, lessor and tenant) should not be accorded the protection of the pre-emptive period established by La.R.S. 9:2772. Moreover, subsection F specifically provides that nothing in this section shall be construed as modifying the liability or responsibility otherwise imposed by law on the owner, lessor or lessee of an immovable by reason of the design, planning, supervision, inspection or observation of construction, or construction of improvements to immovable property. Our law creates special obligations and rules of liability applicable to the owner, lessor and tenant of immovable property which have no application to the architect or contractor. This is an additional ground of distinction from which the legislature could have reasonably excluded the owner, lessor and tenant of immovable property from the protection of the pre-emptive period established by La.R.S. 9:2772.

Plaintiff also contends that La.R.S. 9:2772 is a...

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