LeBlanc v. City of Abbeville

• Decision Date: 17 October 2018
• Docket Number: 18-206
• Citation: LeBlanc v. City of Abbeville, 259 So.3d 372 (La. App. 2018)
• Parties: Riley LEBLANC v. CITY OF ABBEVILLE
• Court: Court of Appeal of Louisiana

259 So.3d 372

Riley LEBLANC

v.CITY OF ABBEVILLE

18-206

Court of Appeal of Louisiana, Third Circuit.

October 17, 2018

Joy C. Rabalais, Allison M. Ackal, BORNE, WILKES & RABALAIS, LLC, P. O. Box 4305, Lafayette, LA 70502-4305, (337) 232-1604, COUNSEL FOR DEFENDANT/APPELLANT: City of Abbeville

Bernard F. Duhon, P. O. Box 1169, Abbeville, LA 70511-1169, (337) 893-5066, COUNSEL FOR PLAINTIFF/APPELLEE: Riley LeBlanc

G. Andrew Veazey, Bradford H. Felder, Dona K. Renegar, VEAZEY, FELDER & RENEGAR, P. O. Box 80948, Lafayette, LA 70598-0948, (337) 234-5350, COUNSEL FOR PLAINTIFF/APPELLEE: Riley LeBlanc

Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

KYZAR, Judge.

Defendant/Appellant, the City of Abbeville("the City"), appeals a trial court judgment rendered in favor of Plaintiff/Appellee, Riley LeBlanc, after Mr. LeBlanc was injured while stepping on a storm grate in the custody and control of the City.After a full trial on the merits, the trial court awarded Mr. LeBlanc the following: past medical expenses in the amount of $35,846.38; future medical expenses in the amount of $100,532.50; past lost earnings in the amount of $59,348.00; future loss of earning capacity in the amount of $524,595.00; and past and future general damages in the amount of $250,000.00 for a total award of $970,321.88.For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On April 1, 2016, Riley LeBlanc was standing outside of his neighbor's home at 203 Gauraud Street in Abbeville, Louisiana, speaking to his neighbor, Reed Hebert.The two men were in front of Mr. Hebert's house, Mr. Hebert inside his fenced yard and Mr. LeBlanc on the outside.During their conversation, Mr. Hebert's daughter, who had been playing in the yard, fell into a rose bush and cried out for help.Both gentlemen immediately stepped toward the sound in an effort to reach and assist the child.In his haste, Mr. LeBlanc stepped on a metal storm grate that was partially covered with grass.The grate sits above a catch basin.When Mr. LeBlanc stepped on the metal grate, it purportedly broke at two separate corners, causing Mr. LeBlanc's right leg to fall through the opening.This caused Mr. LeBlanc to suffer a severe laceration to his lower leg.Due to this injury, Mr. LeBlanc is unable to continue his work as a carpenter and purportedly has ongoing pain and issues with his lower extremity.

On September 21, 2016, Mr. LeBlanc filed a Petition for Damages, naming the City as the defendant.Mr. LeBlanc stated that the metal storm grate involved is part of a sewage servitude maintained by the City in connection with its sewage, water, and wastewater systems and that the City is authorized and conducts routine maintenance and inspections on the sewage servitude and its related parts.He asserted the storm grate in question was severely deteriorated and riddled with rust.The City denied all of Mr. LeBlanc's claims and filed a motion for summary judgment, claiming that it owed no duty to the plaintiff as the storm grate was open and obvious and also that the grate was in good condition and not unreasonably dangerous.The City's motion was heard and denied on October 23, 2017.

A trial on the merits took place on November 20, 2017 to November 21, 2017, after which the trial court rendered judgment in favor of Mr. LeBlanc with written reasons signed on December 6, 2017.The trial court found the City liable for Mr. Leblanc's injury, citing the provisions of La.Civ.Code art. 2317andLa.R.S. 9:2800.It specifically found that the compromised condition of the storm grate was not "obvious to all" and as such the City did owe a duty and, further, that the City had constructive knowledge of the grate's defect.Finally, the trial court awarded Mr. LeBlanc both general and special damages, including past medical expenses, future medical expenses, past lost earnings, and future loss of earning capacity.

The City timely appealed on January 3, 2018.On appeal, the City presents six issues for review.

(1)Whether the trial court misapplied the law to the facts presented at trial on the issue of whether the storm grate was [an] open and obvious condition.

(2) Whether the trial court committed legal error in finding that the City of Abbeville owed a duty of care to plaintiff to protect him from an open and obvious condition.

(3) Whether the trial court committed legal error in finding that the City of Abbeville had notice of any alleged defect pursuant to La.R.S. 9:2800.

(4)Whether the trial court committed legal error in failing to find that the City was immune for its discretionary acts under La.R.S. 9:2798.1.

(5)Whether the trial court committed error in failing to assess plaintiff with any fault.

(6)Whether the damages awarded by the trial court are impermissibly excessive.

The City asserts that the trial court committed legal error in finding that it was liable for Mr. Leblanc's injury.The City stipulated that the storm grate involved in the incident was in its custody.However, the City argues the trial court erred in ruling that the storm grate in question was not an open and obvious condition for which the City owed no duty to Mr. LeBlanc and also in ruling that the City had notice as to any alleged defect in said storm grate.Under La.Civ.Code art. 2317, "[w]e 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."Louisiana Revised Statutes 9:2800(C), which governs the analysis of a public entity's liability for a defective thing within its custody or care, further states:

[N]o 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.

To establish a claim against a public entity for damages caused by the condition of things within its care or custody, a plaintiff must show that (1) the thing that caused the damage was in the care or custody of the public entity, (2) the thing was defective due to a condition that created an unreasonable risk of harm, (3) the public entity had actual or constructive notice of the condition yet failed to take corrective action within a reasonable period of time, and (4) the defect was a cause in fact of the plaintiff's harm.La.R.S. 9:2800;La.Civ.Code art. 2317;Ricks v. City of Shreveport , 42,675(La.App. 2 Cir.10/24/07), 968 So.2d 863.Constructive notice means the existence of facts which imply actual knowledge.La.R.S. 9:2800(D).A trial court's findings under La.R.S. 9:2800, the statute governing limitations of liability for a public entity for things within its care and custody, are subject to manifest-error review.Ricks , 968 So.2d 863.

Liability of the City

In its first three assignments of error, the City alleges the trial court erred in finding the City liable to Mr. LeBlanc for his injury based upon a number of the factors that a plaintiff is required to show in order to establish a claim against a public entity.SeeRicks , 968 So.2d 863.As such, we will now address these factors.

(1) Care or Custody of the Storm Grate

The City's custody of the storm grate involved in the incident is undisputed.Clay Menard, the City's Public Works Director, and Richard Sysak, the foreman for the City's Streets Department, both testified at trial.Mr. Menard acknowledged that the storm grate was in the custody of the City and that the City is responsible for the maintenance, repair, and cleaning of storm and drainage grates that are in its rights-of-way.Mr. Sysak testified that the storm grates around the City are part of the City's infrastructure and they are responsible for maintaining them.The City replaced the subject storm grate after the incident.

(2) Unreasonable Risk of Harm

To determine whether a defect presents an unreasonable risk of harm, the supreme court has adopted a risk-utility balancing test, synthesized to a consideration of four pertinent factors: "(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature."Broussard v. State ex rel. Office of State Bldgs. , 12-1238, p. 10(La.4/5/13), 113 So.3d 175, 184.

Because the determination of whether a defective thing presents an unreasonable risk of harm "encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court."[ Reed v. Wal-Mart Stores, Inc. , 97-1174, p.4(La. 3/4/98, 3), 708 So.2d 362, 364-365.]Accordingly, the fact-finder's unreasonable risk of harm determination is subject to the manifest error standard of review and should be afforded deference on appeal.Id. at 364-65.Under the manifest error standard of review, a court of appeal may not set aside a jury's finding of fact unless it is manifestly erroneous or clearly wrong.Rosell v. ESCO , 549 So.2d 840, 844(La.1989).The reviewing court must only decide whether the factfinder's conclusion was reasonable, not whether it was right or wrong.Stobart v. State through DOTD , 617 So.2d 880, 882(La.1993).In order to reverse a jury's factual finding as manifestly erroneous, an appellate court must find the record, when reviewed in its entirety, (1) contains no reasonable factual basis for the jury's finding and (2) establishes

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