Cothern v. LaRocca

• Decision Date: 23 February 1970
• Docket Number: Nos. 49897,49902,s. 49897
• Citation: 255 La. 673,232 So.2d 473
• Parties: , 39 A.L.R.3d 571 Dorothy COTHERN, wife of/and Billy R. Cothern v. Peter J. LaROCCA, d/b/a Jim's Place, Firemen's Fund American Insurance Companies, the Employers' Group of Insurance Companies, and Mr. and Mrs. J. M. Lavigne, d/b/a Travel Inn Motel.
• Court: Louisiana Supreme Court

Page 473

232 So.2d 473

255 La. 673, 39 A.L.R.3d 571

Dorothy COTHERN, wife of/and Billy R. Cothern v. Peter J. LaROCCA, d/b/a Jim's Place, Firemen's Fund American Insurance Companies, the Employers' Group of Insurance Companies, and Mr. and Mrs. J M. Lavigne, d/b/a Travel Inn Motel.

Nos. 49897, 49902.

Supreme Court of Louisiana.

Feb. 23, 1970.

Dissenting Opinion March 4, 1970.

Rehearing Denied March 30, 1970.

Garvey, Salvaggio & Prendergast, Peter A. Winkler, Jr., New Orleans, for plaintiff-relators, 49,902.

Loeb, Dillon & Livaudais, James E. Glancey, Jr., New Orleans, for petitioners 49,897.

Mollere & Barbera, James S. Arceneaux, Metairie, for respondents 49,897, 49,902.

BARHAM, Justice.

Mr. and Mrs. Billy R. Cothern sued for damages for an injury sustained by Mrs. Cothern when she fell on the night of April 3, 1965, on the premises of the Travel Inn Motel. The accident happened as the Cothern family were alighting from their automobile in order to enter Jim's Place, a restaurant adjacent to the motel. The defendants in the suit are Mr. and Mrs. J. M. Lavigne, owners of the motel, and their insurer, Employers' Liability Assurance Corporation, Ltd. (mistakenly referred to in the petition by another name), and Peter J. LaRocca, lessee-operator of the restaurant, and his insurer, Fireman's Fund American Insurance Companies. The trial court gave judgment for the plaintiffs against the Lavignes d/b/a Travel Inn Motel and their insurer for $2573.50, but dismissed the plaintiffs' claim against LaRocca d/b/a Jim's Place and his insurer. The Court of Appeal reversed the judgment of the district court but rendered judgment for plaintiffs for the same amount against LaRocca and his insurer. 221 So.2d 836. We granted writs on application of the plaintiffs, who seek to hold all defendants in solido, and on the application of LaRocca and his insurer, who seek reversal of the judgment against them.

Jim's Place is a restaurant fronting on Airline Highway in Jefferson Parish, which had been leased by LaRocca nine days before the incident with which we are concerned. Shell-surfaced parking areas to the front and rear of the restaurant are connected by a shell driveway on each side of the building. The properties to the right and to the rear of the restaurant are separated from the restaurant premises by cyclone fencing.

Important for our consideration is the exact nature of the area in the vicinity of the boundary line of the property to the left, or Baton Rouge, side of the restaurant. This abutting property is owned by the Lavignes, who operate the Travel Inn Motel there. The rear wall of the motel, which runs at right angles to the highway, is five feet from the actual boundary between the two properties and approximately six feet from the shell-surfaced driveway. It is apparent from the numerous photographs in the record that from the rear parking area of the restaurant up to Airline Highway there is a definite demarcation where the shell-surfaced drive meets a heavy growth of grass between it and the rear wall of the motel. Parallel to the driveway are sections of stakes, posts, or markers placed at intervals. A number of individual air conditioning units project several feet from the motel's rear wall along its entire length. Near the center of this rear wall a trellis runs the height of the motel from the ground and projects approximately the full five feet to the boundary, where a concrete foundation footing, several feet long, also runs parallel to the driveway. It would appear that the stakes or posts and the concrete foundation footing, which are aligned, make the boundary of the properties, and we find that they are there for that purpose. Toward the front of the restaurant property and along this boundary are two tall poles which suspend the restaurant's large lighted sign.

On the night of the accident Mr. Cothern drove his wife and children to Jim's Place for dinner. Being unable to find parking space either in the front or in the rear of the building, he drove from the rear toward the front on the driveway which runs between the restaurant and the motel, and parked his compact car immediately behind the poles suspending the sign, in an indeterminate but limited space between the sign and the concrete footing near the trellis. Mr. Cothern, in order not to block the driveway, parked his car with the right side extending over and onto the motel property. When Mrs. Cothern stepped from the right side of the car and was moving to open the right rear door for her children, she stepped into a hole, fell, and injured her leg. This hole, a concrete sleeve, pipe, or opening eight inches in diameter, giving access to a shut-off valve on a water line connected to the motel, was upon motel property approximately 18 inches from the rear wall of the motel and three and one-half feet from the property line.

At the time of the accident it was difficult to see the hole because the grass was several inches high around it. Normally this opening was covered by a metal shield to which wooden pieces had been attached, and the cover, when in place, would safely support one walking upon it. Except for the wooden attachments which were designed to make it more stable and immobile, the cover was apparently similar to those commonly used to give access to cut-off valves for gas and water and to sewerage lines upon private properties and neutral grounds. Although the cover was missing at the time of the accident, neither the motel manager nor the owners had knowledge that it had been removed.

The trial court and the appellate court concluded that the motel manager was aware that customers for the restaurant had parked upon previous occasions in the area of the hole. As we have already noted, the defendant LaRocca had leased the restaurant premises only nine days before the accident. He had no knowledge of the concrete hole or the parking practices in that vicinity, and in fact did not know the exact boundary between his property and the motel.

Plaintiffs urge us to apply Articles 670 and 2322 of the Civil Code in order to assign liability to the motel owners and their insurer. Article 670 reads: 'Every one is bound to keep his buildings in repair, so that neither their fall, nor that of any part of the materials composing them, may injure the neighbors or passengers (passersby), under the penalty of all losses and damages, which may result from the neglect of the owner in that respect.' We conclude that this article has no application to the situation at hand, for it is designed for the protection of those upon neighboring property or public thoroughfares from damage resulting from the fall of a building or portion of a building, and is inapplicable when the one injured is upon the property itself. ¹

The article which establishes an owner's liability to one who is actually in and around a building upon the premises for damages caused by ruin of or defect in the building is Article 2322. ² It provides: 'The owner of a Building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.' (Emphasis supplied.) The Court of Appeal in rejecting the application of Article 2322 to the owners of the Travel Inn Motel first expressed its conclusion that the absence of the metal cover over the concrete pipe was not 'ruin' of a 'building' under Article 2322. However, it then discussed at considerable length the application of the common law distinctions of status to this particular Code article--that is, the distinctions in the duty of care owed to the trespasser, the licensee, and the invitee. We reject the application of these common law distinctions to Article 2322, which defines a particular, strict delictual liability. We have held repeatedly that the only requirement of status for one upon the premises as relates to the right of action for damages occasioned by the ruin of a building or a vice in its original construction is that the person be lawfully and rightfully upon the premises. ³ The common law distinctions in status are not applicable to this right of action.

It is our conclusion, however, that the Court of Appeal was correct in stating that the failure to have the cover upon the concrete pipe or hole was not a ruin of a building within the contemplation of Article 2322. The word 'building' has been held to encompass a wharf or walkway over water which gave access and was attached to a camphouse. ⁴ This court has held, and we adhere to the rule, that necessary appurtenances to structures and movables made immovable by attachment, which are defective or have fallen into ruin, also may be included within that term 'building'. ⁵ We readily admit that structures not necessarily intended for human habitation may be comprehended as buildings within Article 2322.

However, Civil Code Article 2322, which imposes a duty of care and an obligation different in degree from the general limits of Article 2315 and which holds one accountable to all classes of persons lawfully upon the premises, should not be extended to include an aperture in the ground giving access to plumbing, to water pipes, or to gas pipes. Neither the opening, that is, the concrete pipe, nor the cover for it was an attachment to or appurtenance of any part of the building or structure. It was simply a common device such as is located upon most property for the convenience of owners and workmen to reach cut-off valves and to service underground plumbing.

We then conclude that the liability of the owners of the motel, if any, is to be determined under Civil Code Articles 2315 and 2316. For the purpose of determining the duty of care owed By an owner or occupier of premises to those upon the premises, our jurisprudence has grafted onto these articles the common law classifications of trespassers, licensees, and invitees. The encroachment of the...