Jacobs v. City of Bunkie

• Decision Date: 18 May 1999
• Docket Number: No. 98-CA-2510.,98-CA-2510.
• Citation: 737 So.2d 14
• Parties: Lillie JACOBS v. CITY OF BUNKIE and/or Town of Bunkie.
• Court: Louisiana Supreme Court

737 So.2d 14

Lillie JACOBS v. CITY OF BUNKIE and/or Town of Bunkie.

No. 98-CA-2510.

Supreme Court of Louisiana.

May 18, 1999.

Dannie P. Garrett, III, Paul A. Holmes, Baton Rouge, Counsel for Applicant.

Richard P. Ieyoub, Attorney General, Angie Rogers LaPlace, Baton Rouge, John Taylor Bennett, Candyce Catherine Gagnard, Marksville, Counsel for Respondent.

KIMBALL, J.¹

Lillie Jacobs was injured on February 11, 1993, in a single-car accident within the city limits of Bunkie, Louisiana when a sink hole in the street caved in beneath the tire of the pickup truck she was driving. Mrs. Jacobs filed suit against the City under Civil Code Articles 2315 and 2317. The Twelfth Judicial District Court held the 1995 constitutional amendment to Article XII, Section 10(C), was not curative or remedial, and therefore, could not be applied retroactively to the instant case. Further, finding that La. R.S. 9:2800 stood in conflict with Article XII, Section 10(A) prior to the amendment, the trial court declared the statute unconstitutional and awarded damages to the plaintiff. We affirm.

I.

On February 11, 1993, Lillie Jacobs was driving a pickup truck down Holly Street in Bunkie, Louisiana. As she proceeded through the intersection of Holly and Vine Streets, a sink hole caved in under the right front tire of the truck she was driving. As a result of the impact, Mrs. Jacobs sustained an injury to her wrist. Mrs. Jacobs filed suit against the City of Bunkie on February 22, 1994.² She alleged that the City was liable for her injuries under the theories of strict liability and negligence.³ The City answered and plead as an affirmative defense the "limitations of liability for public bodies" under La. R.S. 9:2800. Plaintiff then amended her petition to assert the unconstitutionality of the notice provision La. R.S. 9:2800.⁴

Louisiana R.S. 9:2800 "Limitation of liability for public bodies," provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.

B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

C. Constructive notice shall mean the existence of facts which infer actual knowledge.

* * *

The first trial in this case was held September 28, 1995, in which the trial judge, Harold J. Brouillette, specifically found that "the City of Bunkie had no notice of this defect," as would be required for plaintiff to recover under La. R.S. 9:2800. However, the judge observed that the first circuit in Rhodes v. State Through Dept. of Transp. and Development, 941758 (La.App. 1 Cir. 5/5/95), 656 So.2d 650, had recently declared La. R.S. 9:2800 unconstitutional as a violation of the abrogation of sovereign immunity contained in Article XII, § 10(A) of the Louisiana Constitution. Additionally, he noted that this Court in Chamberlain v. State Through Dept. of Transp. and Development, 624 So.2d 874 (La.1993), found La. R.S. 13:5106(B)(1), limiting damage awards against the state to $500,000.00, unconstitutional as a violation of that same constitutional provision. At the time of the Rhodes decision, and this Court's issuance of the Chamberlain opinion, Article XII, § 10 provided:

(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.

(B) Waiver in Other Suits. The legislature may authorize other suits against the state, a state agency, or a political subdivision. A measure authorizing suit shall waive immunity from suit and liability.

(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.

Based upon the pronouncements in Rhodes and Chamberlain, the trial court found La. R.S. 9:2800 to be "an unconstitutional violation of Article XII, paragraph 10(A) of the Louisiana Constitution, in that it is a partial sovereign immunity application." Holding "9:2800 is unconstitutional as it relates to this case," the trial court did not allow the City a defense under the statute. Therefore, because the plaintiff established the traditional elements of strict liability under Article 2317, that the street was in the custody of the City, presented an unreasonable risk of harm, and caused plaintiff's injury, the court awarded damages against the City totaling $12,433.42.

The City appealed the judgment to the third circuit, and on May 29, 1996, the appellate court dismissed the City's appeal and remanded the case to the district court due to a "procedural flaw;" the plaintiff failed to notify the Attorney General of her attack on the constitutionality of the statute pursuant to La.Code of Civ. Proc. art. 1880.⁵

While the case was on appeal to the third circuit, the legislature passed Acts 1995, No. 1328 which proposed a constitutional amendment to Article XII, § 10(C) allowing the legislature to limit the liability of the state. Moreover, the legislature also passed Acts 1995, No. 828 in which La. R.S. 9:2800 was reenacted in the same form originally enacted in 1985. The newly reenacted statute was to become effective upon the adoption of the constitutional amendment and share its effective date. The proposed constitutional amendment was submitted to the people of the state in the general election on October 21, 1995. The people approved the measure and it became part of the constitution effective November 23, 1995.

On January 29, 1997, after notifying the Attorney General's Office, the hearing on remand from the third circuit was held before Judge Ted R. Broyles, ad hoc, concerning the constitutionality of La. R.S. 9:2800. The City filed a motion for involuntary dismissal in which it argued that while the case was on appeal, the constitution was amended, and that this amendment cured any constitutional infirmity in La. R.S. 9:2800. In support of this proposition, the City cited a footnote found in this Court's case of Matherne v. Gray Ins.Co., 95-0975 (La.10/16/95), 661 So.2d 432, n. 10, in which this Court speculated that the issue of the constitutionality of La. R.S. 9:2800 "may never reach this Court in a posture requiring resolution" as the proposed amendment to the constitution was intended to put to rest the constitutional authority of the legislature to prescribe limits on the state's liability. The City argued that the implications from this statement together with the second circuit decision in Ayers v. Brazell, 27756 (La. App. 2 Cir. 12/6/95), 665 So.2d 694,writ denied,96-0086 (La.3/29/96), 670 So.2d 1236, holding the new constitutional amendment to be "curative," therefore allowing for retroactive application to cases still in the court system, foreclosed any argument against the constitutional application of the terms of La. R.S. 9:2800 to the case on remand. Since La. R.S. 9:2800 was rendered constitutional by the amendment and could be applied retroactively, the City argued, they could not be liable to plaintiff as Judge Brouillette had made the specific finding that the City had no notice of the defective condition. However, Judge Broyles rejected the City's arguments and dismissed the City's motion.

Judge Broyles held that the 1995 constitutional amendment was not curative or remedial, and therefore, could not be applied retroactively to the instant case. Adopting the earlier reasoning and conclusions of Judge Brouillette as his own, Judge Broyles declared La. R.S. 9:2800 unconstitutional and affirmed the damage award against the City. From this judgment the City has appealed directly to this Court pursuant to LA. CONST. art. 5 § 5(D).⁶

II.

Initially, we must determine whether Judge Broyles was correct in his ruling that the amendment to Article XII, § 10(C) is not curative or remedial and cannot be applied retroactively to plaintiffs case. In order to determine whether the constitutional provision may apply to the instant case, we must initially resolve whether Section C, as amended, is a self-executing provision. Substantively, amended Article XII, Section 10(C) provides that the legislature "may" by law "limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages." LA. CONST. art. XII, § 10(C).

The characterization of a constitutional provision as `self-executing' or not, is generally only a conclusion as to whether the constitutional intent is to provide a presently effective rule, by means of which the right given may be enjoyed and protected and the duties imposed may be enforced without supplementary legislation. 1 Cooley's Constitutional Limitations, pp. 165-172 (8th Ed., 1927; Carrington, ed.); 16 C.J.S. `Constitutional Law' ss 48-60; 16 Am.Jur.2d, `Constitutional Law', Sections 93-100.

Student Government Ass'n of Louisiana State University and Agr. and Mechanical College, Main Campus, Baton Rouge v. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College, 264 So.2d 916, 919, 262 La. 849 (1972).

In Chamberlain, we applied this...