Crowell v. City of Alexandria Through Snyder

• Citation: 558 So.2d 216
• Decision Date: 12 March 1990
• Docket Number: No. 89-C-1548,89-C-1548
• Parties: Catherine CROWELL v. CITY OF ALEXANDRIA Through Mayor John K. SNYDER, et al. 558 So.2d 216
• Court: Supreme Court of Louisiana

Page 216

558 So.2d 216

Catherine CROWELL v. CITY OF ALEXANDRIA Through Mayor John K. SNYDER, et al.

No. 89-C-1548.

558 So.2d 216

Supreme Court of Louisiana.

March 12, 1990.

Chris J. Roy, Chris J. Roy, Jr., Alexandria, for applicant.

DeWitt T. Methvin, Jr., Charles F. Nunnally III, Gist, Methvin, Hughes & Munsterman, Alexandria, for respondent.

MARCUS, Justice.

Catherine Crowell filed suit against the City of Alexandria to recover damages sustained by her in a one-car accident. More than one year after the accident, she filed a supplemental and amending petition to add Deborah A. Marzula as a defendant. ¹ Crowell filed a second supplemental and amending petition asking for exemplary damages because of Marzula's alleged intoxication.

The accident occurred at about 6:30 P.M. on September 7, 1984 in the City of Alexandria. Crowell and Marzula testified that they had been drinking together for about two and one-half hours before the accident. Crowell admitted drinking two and one-half white Russians and at least part of a margarita. Marzula admitted drinking two beers and a margarita. She further testified that the two shared a six-pack of beer, but Crowell denied drinking any beer. After Marzula dropped Crowell off at her car, Crowell proceeded down Hill Street. She testified that, as she approached the intersection of Hill and Hickory, she heard someone yelling. She turned to look and saw Marzula beside her on her left. Crowell said that Marzula was asking her where she was going. The next thing Crowell heard was a loud noise at the front of her car. Marzula testified that she did pass Crowell, but stated that she did not yell anything to her. Marzula said that she had completed her passing maneuver and was about one-half block ahead of Crowell when the accident occurred. Through her rearview mirror, Marzula saw Crowell's car go off to the right and hit a drainage culvert. She then turned around to go back to the scene. After hitting the drain, Crowell apparently lost control of her car. Both tires on the right side of the car were blown out. Crowell was thrown from the auto, which came to rest against a tree in a residential yard. She suffered multiple abrasions and lacerations and underwent surgery to close two open lacerations on her lower left thigh. She was hospitalized for one night. At trial, Crowell introduced photographs of drainage culverts located along Hill Street including the culvert at the accident scene of Hill and Hickory. The photographs also show repair work underway on a culvert at Hill and City Park Boulevard.

After the plaintiff had completed the presentation of her evidence, the defendants moved for dismissal of Crowell's suit against them. After argument on the motions, the trial judge concluded that Crowell had simply drifted to the right into the gutter portion of the street. In reviewing the photographs, he referred to the culvert under repair at Hill and City Park rather than the culvert at the accident scene. Considering the barricade surrounding the repair site, he erroneously concluded that the culvert at the accident scene was well-marked. Based on these conclusions, the judge found no liability on the part of the City. He also concluded that Crowell had not established any negligence on the part of Marzula. Therefore, the judge granted the motions for involuntary dismissal and entered judgment in favor of the City and Marzula and against Crowell dismissing her suit at her costs. The court of appeal affirmed concluding that the judge's mistaken impression that the culvert at the accident scene was under repair was not significant. ² Upon Crowell's application to this court, we granted certiorari to determine the correctness of that decision. ³

La.Code Civ.P. art. 1672(B) provides that:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Upon a motion for an involuntary dismissal in a nonjury case, the judge must evaluate all the evidence, without any special inferences in favor of the opponent to the motion, and grant the dismissal if the plaintiff has not established proof by a preponderance of the evidence. Bartley v. Pailet, 527 So.2d 430 (La.App. 4th Cir.), cert. denied, 532 So.2d 115 (La.1988); Fuller v. Wal-Mart Stores, Inc., 519 So.2d 366 (La.App. 2d Cir.1988); Tillotson v. Undisclosed Ins. Co., 486 So.2d 918 (La.App. 1st Cir.), cert. denied, 488 So.2d 1026 (La.1986). Proof by a preponderance of the evidence means that the evidence, taken as a whole, shows that the fact or cause sought to be proven is more probable than not. Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971).

The issue presented is whether Crowell has established, by a preponderance of the evidence, a right to relief from the City and, if so, whether she has also established, by a preponderance of the evidence, a right to relief from Marzula.

CITY OF ALEXANDRIA

Crowell alleges that the City was strictly liable and/or negligent in its failure to protect motorists from the drainage culvert. The premise of strict liability is found in La.Civ.Code art. 2317 which provides in pertinent part:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.

An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused the injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that the injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Riche v. City of Baton Rouge, 515 So.2d 765 (La.1987); Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). Municipalities and other public bodies have been held strictly liable for damages caused by things in their custody. Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980). Moreover, this court has approved the application of comparative fault principles to strict liability cases involving public property. Landry v. State, 495 So.2d 1284 (La.1986).

First, Crowell's testimony that Hill Street is located in the City of Alexandria was not contradicted. A police officer with the Alexandria Police Department was dispatched to investigate the accident. Further, Anthony S. D'Angelo, the Director of the Public Works Department for the City of Alexandria in September 1984, testified that the city department was doing repair work on culverts along Hill. Thus, the evidence supports a finding that the culverts along Hill Street were in the care or custody of the City. Second, the photographs of drainage culverts along Hill Street show that the culvert which Crowell hit appears to extend twice as far into the street from the curb as the other drains pictured. This opinion is supported by D'Angelo. He testified that the culvert, known as a cross drain, may be twice as wide as others along Hill Street. The photographs show that the cross drain extends beyond the gutter into the travel portion of the street. Also, the photographs show that Hill Street is not striped to designate travel lanes so no markings prohibit motorists from driving along their far right side of the street. No signs are seen which would alert drivers to the location of the cross drain. Photograph No. 15 is reproduced to help visualize the accident scene:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Moreover, D'Angelo testified that the City was doing repair work on other culverts to prevent people from "falling off" into them. Hence, the evidence supports a finding that the cross drain is defective, that is, it occasioned an unreasonable risk of injury to Crowell. Finally, Marzula's eyewitness testimony that she saw Crowell "go off to the right and hit the drain" is not controverted. Photographs of the car show that both tires on the right side of the car blew out, which is consistent with impact with a drainage culvert causing Crowell to lose control of the car. Thus, the evidence supports a finding that the cross drain was a cause of Crowell's injuries. Consequently, Crowell has proven, by a preponderance of the evidence, the elements of a strict liability claim against the City. The trial judge was clearly wrong in granting the City's motion for involuntary dismissal. The court of appeal erred in affirming that judgment. The case must be remanded to the district court to complete the trial. Having thus concluded, we do not reach the issue of the City's alleged negligence.

DEBORAH A....