Gallien v. Commercial Union Ins. Co.

• Decision Date: 20 December 1977
• Docket Number: No. 6193,6193
• Citation: 353 So.2d 1127
• Parties: Janice GALLIEN, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE CO. et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1127

353 So.2d 1127

Janice GALLIEN, Plaintiff-Appellant, v. COMMERCIAL UNION INSURANCE CO. et al., Defendants-Appellees.

No. 6193.

Court of Appeal of Louisiana, Third Circuit.

Dec. 20, 1977.

Rehearing Denied Jan. 12, 1978.

Writ Refused Feb. 17, 1978.

Francis E. Mire, Lake Charles, for plaintiff-appellant.

Brame, Bergstedt & Brame, Joe A. Brame, Lake Charles, for defendants-appellees.

Before HOOD, CULPEPPER and FORET, JJ.

FORET, Judge.

This is a suit for damages for personal injuries, allegedly sustained by plaintiff, Janice Gallien, against Gravity Drainage District No. 4, Third Ward, Calcasieu Parish, Louisiana, and its public liability insurer, Commercial Union Insurance Company. A trial jury rendered a verdict rejecting plaintiff's demands, and judgment was signed accordingly. Plaintiff perfected an appeal to this Court.

On Tuesday, August 31, 1976, at approximately 9:45 A.M., at the northwest corner of Mill and Ryan Streets, Lake Charles, Louisiana, plaintiff-appellant, Janice Gallien, a young, unmarried woman, who weighed approximately a hundred or so pounds, alighted from a bus, walked toward the sidewalk adjacent thereto, and while in the process of traversing a catch basin, stepped on a man-hole cover over the basin, which collapsed or caved in, causing her right leg to go down into the catch basin. She claims she sustained bruises and a pulled muscle in her back.

The evidence discloses that the man-hole cover on this catch basin had a round lid in the middle of the cover which can be removed for inspection purposes. It was discovered, subsequent to the accident, that this circular piece was broken in several pieces, and the large rectangular cover had split in two.

Plaintiff claimed negligence on the part of the Drainage District in their having man-hole covers that were not safe to step upon, not having warning signs to warn the public of its being cracked, and allowing a dangerous condition to exist, and not taking the necessary steps to correct the situation when they knew or should have known of this danger.

Defendant denies that the man-hole cover or catch basin cover had been cracked previously, or that it knew of it being cracked, and if such was the case, it had no notice.

The evidence disclosed that approximately two years before the accident in question, this catch basin, including the cover, was rebuilt by a contracting firm doing work on the traffic signal lights in the City of Lake Charles. When the catch basin was rebuilt, there was no frame built on which to put the cover, and additionally, there were no braces for it. After the accident to the plaintiff, the Drainage District crew rebuilt the catch basin, installing a frame, braces, and cementing the cover so it would not be dislodged by trucks cutting the corner. All of defendants' witnesses testified that they had not worked on the man-hole cover since it was rebuilt two years before the accident. The evidence also developed that subsequent to the contractor's rebuilding the catch basin two years before the accident, no one from the Drainage District checked or inspected it.

The catch basin in question was located on the curb of Ryan Street, one of Lake Charles' main traffic and business arteries, near the northwest corner of the intersection of that thoroughfare with Mill Street. A city bus stops at this corner many times daily. Many people enter and leave the buses at this particular corner. Many persons, daily, traversed the catch basin.

On appeal, plaintiff-appellant asserts that the trial court committed error in refusing to charge the jury that proof of negligence is not necessary when an injury is caused by a defective thing in the custody of the defendant. Plaintiff-appellant relies on the case of Loescher v. Parr, La.Sup.Ct., 324 So.2d 441 (1975). In that case, a large magnolia tree located on defendant's property suddenly toppled over onto plaintiff's car, causing damage thereto. It was discovered, after the accident, that the interior of the tree was rotted out, although this fact had not been, and indeed could not have been, ascertained by the owner of the tree upon simple inspection. Thus, defendant could not be charged with negligent conduct, or even inattention on his part. The Supreme Court analogized the situation to that of an owner of a building who is held to "strict liability" for a defect in his building which causes injury to an innocent victim. Additional analogy was made to a parent being held liable for the conduct of a minor child, even without negligence on the part of the parent, and the owner of an animal being liable for the harm done by that animal even though the owner himself was not personally negligent.

As a pure matter of logic, the facts of this case appear to be indistinguishable from Loescher. If Loescher holds, as indeed it does seem to hold, the custodian of a defective thing which causes damage to an innocent victim is responsible to that victim, just as the owner of the thing would be. In the case at bar, there is no question but that the man-hole cover and the catch basin cover were defective. The Gravity Drainage District had control and custody ¹ of it, although the City of Lake Charles was the owner of the catch basin, and the defect did cause some damage to the plaintiff, although very slight damage. The following language from Loescher is pertinent:

"The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others."

The main issue is whether the Supreme Court intended that the Loescher doctrine should be applied, or extended, to cases involving property owned by, supervised by, or in the custody of, public bodies such as the State Highway Department, municipalities, police juries, gravity drainage districts, etc. Loescher made no mention of the long line of jurisprudence to the effect that actual or constructive notice to a public body is a prerequisite to its tort liability. In Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975), 309 So.2d at Page 386, we took occasion to quote the Fourth Circuit Court of Appeal as correctly stating the applicable rule in Garrett v. Sewerage and Water Board of New Orleans, 235 So.2d 164 (La.App. 4 Cir. 1970):

"Our long settled jurisprudence is that in order for a public body (the defendant in this case is a public body) to be held liable for injuries caused by defects or defective conditions the plaintiff has the burden of pleading and proving both of the following: (1) such defects or conditions were patently dangerous or in the nature of a trap; and (2) the corporation had either actual or constructive notice of the same, actual notice being knowledge of the dangerous defects or conditions by a corporate officer or employee having the duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities, and constructive notice being the fact that the defect or condition had existed for such a period of time it would have been discovered and repaired if the public body had exercised reasonable care."

As mentioned above, the Supreme Court, in Loescher, made no mention of the well-established rule of law of actual or constructive notice being a prerequisite of tort liability where public bodies are involved. The Supreme Court had an opportunity to do so, at least by way of dictum, in United States Fidelity and Guaranty Company v. State of Louisiana, Dept. of Hwys., et al, 339 So.2d 780 (La., 1976). In that case, there was a defect in the headache bar at the west end of the Atachafalaya River Bridge. The plaintiffs alleged, and...