Dupree v. City of New Orleans

• Decision Date: 31 August 2000
• Docket Number: No. 99-C-3651.,99-C-3651.
• Parties: Lawrence DUPREE v. CITY OF NEW ORLEANS and Sewerage and Water Board of New Orleans.
• Court: Louisiana Supreme Court

765 So.2d 1002

Lawrence DUPREE v. CITY OF NEW ORLEANS and Sewerage and Water Board of New Orleans.

No. 99-C-3651.

Supreme Court of Louisiana.

August 31, 2000.

Rehearing Denied October 27, 2000.

Robert Elton Arceneaux, Mack E. Barham, Travis Louis Bourgeois, Mary Elizabeth Dromgool Paltron, Camille LeVois Richard, Barham & Arceneaux, New Orleans, for Applicant.

Patrick G. Kehoe, Jr., Madeleine M. Landrieu, New Orleans, Michael D. Riley, Jay Christopher Zainey, Metairie, Birdsall, Rodriguez, Kehoe & Riley, for Respondent.

KNOLL, Justice.¹

This case involves a single-vehicle accident caused by a large cave-in on a street in New Orleans. On May 26, 1994, the plaintiff, Lawrence Dupree, Sr. ("Dupree") was operating his pick-up when he struck the cave-in and lost control of his vehicle causing him to suffer severe, permanent, and disabling injuries. The trial court rendered judgment in favor of the plaintiff and against the Sewerage & Water Board ("S & WB"), finding it 100% at fault. The Fourth Circuit Court of Appeal affirmed, concluding that the actions and inactions of the S & WB caused the accident and resulting injuries to Dupree. We affirm, concluding that the S & WB is liable for plaintiff's injuries because of its legal fault arising out of a thing in its custody or garde that had a vice or defect that presented an unreasonable risk of harm to the motoring public and that defect was the cause-in-fact of Dupree's damages.

FACTS

On May 26, 1994, Dupree was operating his 1994 Mitsubishi pick-up traveling northbound on Gordon Street in New Orleans, Louisiana. At around 7:30 p.m., the weather was clear, it was still daylight, and the street was dry. Dupree struck a large cave-in or depression filled with water on Gordon Street, near the intersection of North Robertson Street. In unrefuted testimony, Dupree testified that as he was traveling at approximately twenty miles per hour, he noticed water in the street that looked like a puddle. The water completely filled the cave-in and concealed its true width and depth. Dupree also stated that he had no prior notice of the cave-in because no barricades were present to warn motorists of the dangerous condition. Upon hitting the cave-in, both of the pick-up's front tires fell into the hole causing Dupree's vehicle to go out of control, bouncing up and down as it traveled through the cave-in. As a result, Dupree was thrown such that his head hit the top of his vehicle, compressing his cervical spine, breaking three vertebrae, and causing immediate quadriplegia. Dupree then slumped over to the passenger side of his truck and fell to the floor of the truck. His truck eventually came to a stop after it knocked down a fence and hit a parked vehicle in a yard. Mr. Oliver Bush, an eyewitness to the accident, corroborated Dupree's testimony. Mr. Bush further testified that he waved at Dupree as he approached the cave-in, apparently in an attempt to warn him of the dangerous condition.

The testimony from the residents of the neighborhood where the accident occurred established that the cave-in was large, measuring approximately five feet wide, five feet long, and two feet deep, and was constantly filled with water. One resident, Ms. Loretta Eugene, testified that the cave-in was large enough for her to lie down in completely.² The testimony also established that the cave-in had been in the street for several months.³ All of the residents testified that there was no barricade at the cave-in on the date of the accident. Mr. Bush testified that he walked past the intersection everyday on his way to work and had never seen any barricades at the cave-in before the accident, but did see the S & WB place barricades at the cave-in after the accident. Officer Hunter, the investigating police officer, corroborated this testimony describing the cave-in as a very large, very deep pothole filled with water. He approximated its diameter at five feet. Officer Hunter also testified that his investigation revealed that there were no barricades at the cave-in on the date of the accident. He also testified that this area of the City was his regular patrol area and that he never saw a barricade at this location.

PROCEDURAL HISTORY

Dupree filed suit and initially named the City of New Orleans ("City") as the sole defendant. Subsequently, Dupree, represented by new counsel, filed a second lawsuit naming the City and the S & WB as defendants. Dupree then dismissed his first attorney and consolidated the two actions. The case was tried by judge over four days. On the first day of trial, the City filed a motion for summary judgment. Neither the S & WB nor Dupree filed an objection to the motion and the court granted the City's motion, finding it free of liability and dismissing it from the lawsuit.⁴ The trial court denied S & WB's exception of no cause of action and held S & WB liable assessing it with 100% fault. The trial court reasoned that regardless of whether the City was ultimately responsible for repairing the cave-in, the S & WB undertook the duty to protect the public from harm when it chose to barricade the cave-in. The trial court found that the S & WB breached its duty when it failed to safely barricade the cave-in either by failing to place any barricades around the cave-in, as testified by all the plaintiffs witnesses, or by placing only one barricade around the cave-in, as the S & WB contended. The trial court concluded that, given the size of the hole and the danger it posed to the public, multiple barricades were required. The trial court awarded Dupree $2,000,000.00 in general damages, $79,630.87 in past medical expenses, $153,605.00 in future medical expenses, and $2,513,889.00 in future attendant care, for a total award of $4,747,134.87.

S & WB suspensively appealed the judgment, asserting several assignments of error. The appellate court found no merit to any of the assignments of error and affirmed the trial court. Dupree v. City of New Orleans, 99-0620 c/w 99-0621 (La. App. 4 Cir.9/29/99), 745 So.2d 77. The court of appeal, extensively quoting the trial court's reasons for judgment, found that the record clearly supported the trial court because regardless of whether the S & WB facilities caused the cave-in, the S & WB nonetheless had the duty to place adequate warnings at the cave-in to protect the public from harm. We granted the S & WB's writ of certiorari to review the judgments of the lower courts. Dupree v. City of New Orleans, 99-3651 (La.3/24/00), 757 So.2d 645, 2000 La. LEXIS 961.

LAW and ANALYSIS

S & WB LIABILITY

The S & WB argues that because it eventually determined that the cave-in was not caused by any S & WB facilities and notified the City of the problem after the accident and because the City owns Gordon Street and repaired the cave-in, then the S & WB should be absolved from any liability in this matter.⁵

Under Louisiana law, liability for injuries sustained by one as the result of a defective condition of a thing is based on legal fault, i.e., strict liability. See LA. CIV.CODE art. 2317.⁶ Louisiana's codal provision for legal fault is found in LA. CIV. CODE art. 2317 which provides:

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....

In an action asserting liability under LA. CIV.CODE art. 2317 before 1996, the plaintiff bore the burden of proving three elements: (1) that the thing which caused the damages was in the care, custody, and control (garde) of the defendant; (2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and (3) that the vice, ruin, or defect was the cause-in-fact of the plaintiffs damages. LA. CIV.CODE art. 2317; Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990); Loescher v. Parr, 324 So.2d 441 (La.1975).⁷ To recover, plaintiff bears the burden of proving these elements in the affirmative, and the failure on any one is fatal to the case. We must therefore determine if the lower courts erred in determining that S & WB was strictly liable for plaintiffs damages.

The S & WB does not contest that the cave-in on Gordon Street was the cause-infact of Dupree's damages. However, it vigorously contests whether Gordon Street at the location of the cave-in was in its care, custody, and control (garde) and whether it presented an unreasonable risk of harm. The S & WB contends that it owed no duty to the plaintiff and did not assume any duty to the public by its gratuitous act of placing a barricade at the scene. It also asserts that if it owed a duty, it did not breach that duty because the placing of one barricade at the location of the cave-in was reasonable under the circumstances. The plaintiff argues that the S & WB is liable because even if it did not create the dangerous condition, it had the care, custody, and control of Gordon Street at the location of the cave-in on the date of the accident and it failed to act reasonably under the circumstances.

Turning to the first element, we find the record supports the conclusion that the thing that caused plaintiffs damages, i.e., the cave-in, was in the care, custody, and control (garde) of the S & WB. It is well-settled law in Louisiana that liability under LA. CIV.CODE art. 2317 is based upon the relationship, i.e., supervision and control, between the person with custody and the thing posing an unreasonable risk of harm to others. Liability is imposed based on custody or garde, not just ownership. Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4 Cir.),writ denied sub nom., Montalbano v. Lombard, 617 So.2d 1182 (La.1993). The fault of the custodian is based upon his failure to prevent the thing under his garde from causing an unreasonable risk of injury to others. Loescher, 324 So.2d at 441; Entrevia, 427 So.2d at 1146. Rather than the loss falling upon some innocent third...