Lanclos v. Tomlinson
| Decision Date | 30 June 1977 |
| Docket Number | No. 6023,6023 |
| Citation | 351 So.2d 1218 |
| Parties | Alexon LANCLOS et al., Plaintiffs and Appellees, v. Robert S. TOMLINSON, Jr., et al., Defendants and Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Dubuisson, Brinkhaus & Dauzat by Jerry J. Falgoust, Opelousas, for defendants and appellants.
Taylor & Trosclair by Frank P. Trosclair, Jr., Opelousas, for plaintiffs and appellees.
Lewis & Lewis by John M. Shaw, Opelousas, for third party defendant-appellee.
Before CULPEPPER, WATSON and STOKER, JJ.
Plaintiff, Pearl Lanclos, and her husband, Alexon Lanclos, seek damages for personal injuries sustained by Mrs. Lanclos when she fell while attempting to cross a small wooden bridge spanning a roadside ditch. The bridge provided ingress and egress to a lot and rental dwellings owned by the principal defendants, Robert S. Tomlinson, Jr. and Allen T. Tomlinson. The principal defendants filed a third party demand against the City of Opelousas (the City) and its insurer seeking indemnification or contribution from the City in the event the principal defendants were found liable. The trial court rendered judgment against the principal defendants and their insurer, but rejected the third party demand against the City and its insurer. The principal defendants appealed. Plaintiffs answered the appeal, seeking an increase in damages.
The substantial issues are: (1) Was there a reasonable evidentiary basis for the trial court's conclusion that a latent defect in the bridge planking was the cause of plaintiff's fall? (2) Did the trial court err in applying the doctrine of strict liability, embodied in Articles 670, 2322, 2693 and 2695 of our Civil Code, to this defective bridge which was not located on defendant's property? (3) Are defendants liable in tort?
Robert Tomlinson and his brother, Allen Tomlinson, purchased a tract of land on December 24, 1973 described as Lot No. 1 of Block 4 of the Colorado-Southern Subdivision in the City of Opelousas, Louisiana. This rectangular corner lot is bounded on the west by Arkansas Avenue and on the north by U.S. Highway 190. It has a frontage of 50 feet on Highway 190 and of 150 feet on Arkansas Avenue.
At the time of the accident, two houses were situated on the lot. One faced U.S. Highway 190 and the other faced Arkansas Avenue. Mr. and Mrs. Noah Bourque were living in the house facing Arkansas Avenue at the time of the accident. This house was leased by the Tomlinsons to Bertha Bourque, the daughter of the tenants.
Plaintiffs lived in a house across Arkansas Avenue from the Bourque residence. Often plaintiff would walk to the Bourque house to get food scraps to feed her pig. Her usual route was through her back yard, across Arkansas Avenue, and finally over a small wooden bridge spanning a shallow ditch which ran along the eastern edge of the graveled portion of Arkansas Avenue.
To the casual observer, it would appear that the eastern edge of the small wooden bridge rested on the front yard of the Bourque residence, and the western edge of the bridge rested on the easternmost part of Arkansas Avenue. The edge of the bridge nearest the Bourque residence was only nine feet away from the porch of the house. Actually, however, surveys showed the bridge and ditch were situated entirely within the right of way of Arkansas Avenue, and did not abut defendants' property.
Arkansas Avenue is a city street with a 60-foot right of way. The graveled portion along the center has a width of about 20 feet. The ditch, about one and one-half feet deep and four feet wide, runs along the eastern edge of the graveled portion. Thus, the right of way boundary is about 14 feet beyond the bridge and ditch.
The porch of the Bourque house encroaches 5.4 feet onto the Arkansas Avenue right of way.
On June 8, 1974, plaintiff fell and injured her leg while crossing the bridge on her return trip from the Bourque house. She was carrying a bucket of slop for her pig. There were no other witnesses to the accident, but plaintiff testified she fell through the bridge when one of its planks broke under her weight. Though there is some dispute as to the condition of the bridge, the trial court found the defect in the bridge was latent, and plaintiff was not crossing the bridge in a negligent manner.
The bridge in question was built by Wilfret Anderson more than 20 years before the accident. It was a simple wooden frame structure with no handrails. Its surface consisted of wooden planks attached to cross beams. At the time Anderson built the bridge, he was a resident of one of the lease houses on the property. The record shows that from the time the bridge was built, it was repaired only once. These repairs were performed about 20 years before the accident by the present lessee, Noah Bourque, and the plaintiff, Alexon Lanclos.
Both defendants testified that prior to the date of the accident they did not know the bridge in question existed. The Tomlinsons further testified that prior to the accident they had never inspected the property. They stated their father acted as their agent in negotiating the purchase of the property, and that not even he viewed the property prior to the date of the accident. Defendants did not construct or maintain the bridge.
Once or twice a year, city crews cleaned the drainage ditch. In the course of their cleaning operations, the crew would lift the small platform-type bridge and set it aside to clean the portion of the ditch under the bridge. After cleaning operations were completed, the bridge was replaced in the same spot it had been before. In 1974, the year of the accident, the City work crew did not remove the bridge because someone, apparently Noah Bourque, told the crew he would clean under the bridge.
The city instructed its road crews to remove any bridges found to be unsuitable or dangerous. In 1974 and prior years the city road crews did not consider the subject bridge to be unsuitable or dangerous.
Apparently, the city has never used the full 60-foot width of the Arkansas Street right of way.
The first issue is whether there is a reasonable evidentiary basis for the trial court's conclusion that a latent defect in the bridge planking was the cause of plaintiff's fall. There is some dispute in the evidence as to whether the bridge was in good condition or was instead falling apart at the time of the accident. Pictures introduced into evidence show a very dilapidated wooden bridge with six to eight inch gaps where planks had fallen off or are only partially attached to the supports. There is some question, however, as to whether these are pictures of the bridge which was in place at the time of the accident. In any event, the trial court concluded: (1) Plaintiff walked on the side of the bridge where there were no gaps between the planks and not the more dangerous side of the bridge with large gaps. (2) Plaintiff stepped on a plank which either gave or broke under her weight. (3) The defect in the bridge was a latent one rather than an apparent one, and could not have been discovered on a simple inspection of the bridge. (4) Plaintiff was not crossing the bridge in a negligent manner at the time of the accident.
Though there is conflicting testimony about the condition of the bridge, the above findings of the trial court are supported by a reasonable evidentiary basis and should not be disturbed on appeal.
In Krennerich v. WCG Investment Corporation, 278 So.2d 842 (La.App.3rd Cir. 1973), we stated the following rule:
The trial court quoted this same language from Krennerich in holding the Tomlinsons strictly liable for injuries sustained by plaintiff while crossing the bridge. We think the trial court erred in its application of the Krennerich case and the four Code Articles cited there.
There is no legal basis for holding defendants strictly liable for injuries sustained on a defective bridge not located on or attached to their property and which was not proved to be built, owned, maintained or leased by defendants. A reading of the cited Code Articles reveals their inapplicability to the present case:
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