Canty v. Terrebonne Parish Police Jury

Decision Date23 March 1981
Docket NumberNo. 13870,13870
Citation397 So.2d 1370
PartiesRidgely CANTY, Individually and as Administrator of Minor Children Sharon Elizabeth Canty and Shane Michael Canty and Christina LeCompte Canty v. TERREBONNE PARISH POLICE JURY, Terrebonne Parish, Louisiana and City of Houma, Houma, Louisiana.
CourtCourt of Appeal of Louisiana — District of US

Gordon Hamner, Houma, for plaintiff and appellant.

Philip Henderson, Houma, for defendant and appellee Terrebonne Parish Police Jury.

A. Deutsche O'Neal, Sr., Houma, for defendant and appellee City of Houma.

Before LOTTINGER, EDWARDS and PONDER, JJ.

LOTTINGER, Judge.

This is a suit by a Terrebonne Parish property owner 1 for loss of land and house damage allegedly resulting from the defendant's dredging of a drainage canal which flows through the plaintiff's property. The plaintiff claims the dredging pierced a firm clay soil layer in the canal and caused loose silty soil beneath the surface of his property to ooze into the canal. His land subsequently subsided and his house sunk, causing cracks in the walls and floors and requiring him to repeatedly jack up the foundation.

Ridgely Canty originally instituted the suit against the Terrebonne Parish Police Jury and the City of Houma, alleging that they were jointly responsible for his damages. Later, the city was dismissed without prejudice from the litigation but the suit against the police jury went forward. From a trial court judgment finding a lack of causation and relieving the police jury of liability, the plaintiff brought this appeal.

A number of issues have been raised by the plaintiff in his specification of errors but all of them center around questions of causation, negligence and strict liability.

THE FACTS

Canty and his wife purchased a house and lot at 308 Carolyn Avenue in Houma, Louisiana in August, 1976. The eastern edge of the lot was near the western bank of Bayou Sale, a small ditch-like canal which flows through part of Houma. Canty's title to the property and a survey prepared in connection with his acquisition show that he owns that portion of Bayou Sale which traverses his property. Canty testified that, except for a few small cracks in the driveway and a leaning support pillar at one corner of the house, the property was in good shape at the time of acquisition. The house and land were level.

Prior to Canty's acquisition, somewhere in the mid-1960's, the City of Houma apparently dredged and widened Bayou Sale to enhance drainage in the area. The widening allegedly caused Canty's ancestor in title to suffer a sudden loss of land along the bayou bank, and the city thereafter built a bulkhead to prevent further erosion. The bulkhead purportedly accomplished its intended purpose until late 1977 and early 1978, when the loss of land complained of in this suit allegedly began to occur.

In the early 1970's the Terrebonne Parish Police Jury began constructing forced drainage projects in many areas of the parish to relieve persistent flooding problems. One of those projects, Project 1-5, was built around the area where Canty's residence is located. Bayou Sale is used as the main drainage artery through which runoff flood and rain water in the Project 1-5 area is collected. Forced drainage Project 1-5 was completed and accepted by the police jury on April 24, 1974. It is maintained in conjunction with the City of Houma. It was designed and built to accommodate about 3,500 acres of land in the east Houma area. Five 48 inch pumps are used to pump rain and flood waters out of the area.

As part of its maintenance of the Project 1-5 system, the Terrebonne Parish Police Jury let a contract in August, 1974, for dredging or cleaning of Bayou Sale. The purpose of the contract was to remove silt and debris which had collected in the canal and had hindered efficient operation of the forced drainage system. Testimony at trial was conflicting as to whether Bayou Sale near Canty's residence was actually dredged or merely swept clean. An engineer representing the firm which designed the sweep out and the contractor who performed the job testified that the canal near Canty's residence was merely swept out only loose silt on the bottom and trash and debris were removed. There was no dredging of any solid soils, they claimed. Their testimony indicated that an oral change order resulted in the clean out near Canty's residence in lieu of the dredging called for by the plans and specifications.

However, Charles Hair, a geotechnical engineer who was qualified as an expert for the plaintiff, testified that the canal had indeed been dredged and that the dredging pierced a layer of thick clay soil on the bottom of the bayou. When the clay layer was dredged away, loose silt and soil which underlay Canty's residence began oozing into the bayou through the action of ground water and the weight of the land on top of the silty soil. When the soil flowed into the bayou, the waters which flowed through the bayou entrained the soil and carried it away, the expert testified. As the soil oozed out, the land upon which Canty's residence was situated began to subside. Canty testified he constructed a fence about 8 feet from the bayou bank when he first acquired the property, but only a few feet of land remained between the fence and the bayou at the time of trial. Canty said the fence now leans towards the bayou and he had to tie it back to prevent it from falling into the bayou. He also claimed that the land behind the bulkhead which had been built by the city had subsided about 10 inches. Trees which had grown near the bayou bank also began leaning towards the canal.

Canty's expert said his opinion that the bayou had actually been dredged was based on the fact that engineering charts depicting the bayou prior to the dredging showed the bayou at a depth above that at which it was at the time of trial. Also, the bayou depth at the time of trial was almost exactly the depth which the engineers had planned for the bayou to be when the dredging contract was completed. The expert said the effect of the dredging was like uncapping a tube of toothpaste. When the cap of the tube (the firm clay layer) was removed, the toothpaste (the silt beneath Canty's residence) was squeezed out. The expert also said that while it is possible that another clean out at another time or the installation of culverts under a nearby street might have caused Canty's problems, he believed the 1974 dredging was the triggering mechanism.

A recent engineering report prepared for the City of Houma and introduced into evidence states that the drainage capacity of Bayou Sale is "severely hampered by such problems as siltation due to eroding banks, trash being thrown into the channel, clogged trash screens and other related problems." Testimony at trial showed that the police jury, after being informed of Canty's problems, put up a trash screen to help prevent a backwash effect which some parish officials blamed for Canty's problems.

A former occupant of the house testified that there did not appear to be any difference as to the amount and level of the property in 1976 compared with the property as it existed at the time of trial. She also testified that her father, who owned the house before Canty, told Canty how to jack the house up and also told Canty that he had jacked the house up in the past. Canty generally denied these statements, although he acknowledged that the former owner may have lifted the house on one occasion to straighten the corner foundation on the northern side of the house.

TRIAL COURT'S FINDINGS

In written reasons for judgment, the trial court found as a fact that the dredging operation performed by the jury's contractor in 1974 was actually a cleanout of Bayou Sale. The court found that an oral change order had changed the contract from a dredging operation to a cleanout. In regard to the plaintiff's expert's testimony, the court stated that the expert "very carefully noted" that the subsidence and erosion could have begun prior to the 1974 cleanout, and could have been caused by the placement of culverts beneath the nearby street. While the sweeping or cleaning out of the bayou may have accelerated the erosion problem by increasing the flow of water in the bayou, the trial judge held that the increased erosion "(c)ertainly ... was not a foreseeable consequence." The judge concluded that the plaintiff failed to prove a causative connection between the jury's operation and the plaintiff's damages.

SPECIFICATIONS OF ERRORS

The plaintiff claims on appeal that the trial court erred: (1) in finding that the police jury made an oral change order in the contract for the dredging of Bayou Sale; (2) in finding that the jury's cleanout operation was not the cause of the subsidence; (3) in finding that the jury was not negligent or not liable under a theory of strict liability; and (4) in denying the plaintiff the right to call certain purported agents of the police jury under cross examination.

CAUSATION

Whether the plaintiff seeks recovery under a negligence or strict liability theory, he must prove that the negligent act or defect complained of was a cause-in-fact of the injury.

Conduct is a cause-in-fact of an injury or damage if it is a substantial factor in bringing about the harm. Follins v. Barrow, 354 So.2d 609 (La.App.1st Cir. 1977), writ denied 356 So.2d 434 (La.1978); and Hall v. State through Department of Highways, 231 So.2d 169 (La.App.3rd Cir. 1968), writ refused 252 La. 959, 215 So.2d 128 (1968). In the instant case we are of the opinion that the depth of Bayou Sale was a substantial factor in bringing about the rapid subsidence which took place; thus, it was a cause-in-fact.

It certainly could be argued that subsidence was already taking place at an unnoticeable rate because culverts under a nearby roadway located at a corner of the property had previously pierced...

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