Loescher v. Parr

• Court: Louisiana Supreme Court
• Writing for the Court: TATE; BOLIN; MARCUS; SUMMERS; SANDERS; MARCUS; SUMMERS; SANDERS
• Citation: Loescher v. Parr, 324 So.2d 441 (La. 1975)
• Decision Date: 08 December 1975
• Docket Number: No. 56402,56402
• Parties: Daniel F. LOESCHER, Sr., Plaintiff-Appellant-Relator, v. George PARR and State Farm Fire and Casualty Company, Defendants-Appellees- Respondents.

Page 441

324 So.2d 441

Daniel F. LOESCHER, Sr., Plaintiff-Appellant-Relator, v. George PARR and State Farm Fire and Casualty Company Defendants-Appellees- Respondents.

No. 56402.

Supreme Court of Louisiana.

Dec. 8, 1975.

Dissenting Opinion of Sanders, C.J., Dec. 22, 1975.

Rehearing Denied Jan. 16, 1976.

Rudolph R. Schoemann, New Orleans, for plaintiff-appellant-relator.

Dale E. Branch, Seal, Lee, Branch & Brown, Bogalusa, for defendants-appellees-respondents.

TATE, Justice.

The plaintiff Loescher's automobile was demolished when a tree from a neighboring lot fell across it. He sues Parr, the owner of the neighboring lot, and Parr's homeowner's liability insurer (State Farm).

The court of appeal affirmed the district court's dismissal of the suit, holding that no negligence on Parr's part is proven. 312 So.2d 347 (La.App.1st Cir. 1975). We granted certiorari, 313 So.2d 833 (La.1975), to consider the correctness of the holding that the owner of a diseased tree cannot be held for damage caused to a neighbor (who is himself without fault) by the fall of the tree because of its diseased condition.

The Facts

The tree which fell was a magnolia tree some sixty feet high. From the outside the tree did not appear to be obviously diseased. However, in fact, the magnolia was 90% Rotted out and hollow beneath its outside structure of the bottom portion of the trunk. The tree was situated on the defendant Parr's home lot six feet from his home.

At 3:00 a.m. the tree fell across the property line and onto the plaintiff Loescher's Cadillac on the neighboring lot. The vehicle was parked in the parking lot of the appartment house into which Loescher had moved three weeks earlier.

The primary cause of the fall was the diseased condition of the tree. The weather was windy, of a nature that occurs in the vicinity about thirty times a year; but the wind was not even of storm nature. The only tree that was damaged or fell in the town was the present one.

The Legal Issue

The trial and intermediate courts held that Parr could not be held liable for the fall of his diseased tree in the absence of proven negligence on his part. These previous courts accepted his testimony that, from the outside, the tree did not appear to be diseased. They rejected testimony, as mistaken, of a tree surgeon that, shortly before the accident, he had warned the defendant's wife of the defective condition of the tree and recommended its removal.

We are not prepared to hold that the trial court committed error in its appreciation of the facts. Canter v. Koehring, 283 So.2d 716 (La.1973). Thus, we accept the factual holding that the tree was internally diseased but that the owner could not reasonably realize its defective condition, although such defect of the tree constituted an unreasonable hazard of injury to those upon whom it might foreseeably fall.

The issue remains whether, nevertheless, the owner of a tree with such a defect may be held liable to others injured by reason of such defect, even in the absence of negligent conduct or inattention on his part.

The plaintiff argues that the owner is liable for damage caused by the defect of a thing in his custody. Civil Code Article 2317. The plaintiff further contends that, at any rate, the owner should be held liable for the fall of a diseased tree, analogously to the strict liability of an owner of a building for its fall due to a structural defect or to his neglect to repair it. Civil Code Articles 670, 2322.

Liability of an Owner for the Fall of His 'Building'

At the least, the liability of an owner for harm caused because of a defect in his building is illustrative of the strict liability here sought to be imposed upon the owner of a tree for harm caused through its defect.

Under Louisiana law, founded on Articles 670 ¹ and 2322 ², the owner of a building is liable to a neighbor or passer-by injured through the fall of his building due either to a vice in its original construction or to his neglect to repair it. His fault is founded upon the breach of his obligation to maintain or repair his building so as to avoid creation of risk of undue injury to others.

Neither ignorance of the condition of the building, nor circumstances that the defect could not easily be detected, absolve the owner from his liability for damages so caused. He is absolved from such liability only if the thing owned by him falls, not because of its defect, but rather because of the fault of some third person or of the person injured thereby, or because the fault is caused by an irresistible cause or force not usually foreseeable, Article 3556(14), (15) (usually, an act occasioned exclusively by violence of nature without the interference of or contribution by any human agency).

See: Klein v. Young, 163 La. 59, 111 So. 495 (1927); Thompson v. Commercial National Bank, 156 La. 479, 100 So. 688 (1924); Barnes v. Beirne, 38 La.Ann. 280 (1886); Camp v. Church Wardens, 7 La.Ann. 321 (1852); Crawford v. Wheless, 265 So.2d 661 (La.App.2d Cir., 1972); Anslem v. Travelers Insurance Company, 192 So.2d 599 (La.App.3d Cir., 1966); Green v. Southern Furniture Company, 94 So.2d 508 (La.App.1st Cir., 1957); Comment, 42 Tul.Law Rev. 178 (1967).

In arguing for similar liability here, the plaintiff Loescher points out that a tree is an immovable thing considered as part of the land to which it is attached. Articles 462, 465.

If the tree can be considered a 'building', its fall is within the strict liability envisioned by Articles 670, 2322. Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970). See also: Cothern v. La. Rocca, 255 La. 673, 232 So.2d 473 (1970). However, as the reasoning of the latter decision indicates, under our jurisprudence there is substantial doubt as to whether a tree can be considered a 'building' for purposes of the owner's strict liability under Articles 670, 2322.

Nevertheless, as will be set forth more fully below, Article 2317 (to be quoted below) provides for the liability of an owner of things for damages caused through their defect. In the scheme of the Civil Code of Louisiana, which is based upon the scheme of the French Civil Code, this article rather than Articles 670 and 2322 is the code basis of the fault of an owner in possessing and failing to properly maintain a tree on his property which, through its defect, falls and causes injury to a neighbor or passer-by who is himself without fault.

We pretermit, therefore, whether by analogy the strict liability of an owner for damages caused through a defect of buildings on his premises might not also include a liability for damages caused by fault or ruin of any other immovable part of his premises, such as a tree. But see Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971).

The 'Fault' Scheme of the Civil Code

Articles 2315 through 2324 of the Louisiana Civil Code comprise the code's entire chapter of legal principle regulating offenses and quasi-offenses.

The underlying principle is provided by Article 2315: 'Every act whatever of man that causes damage to another obliges him by whose Fault it happened to repair it. * * *' The remaining articles constitute amplifications as to what constitutes 'fault' and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.

Article 2316 provides for delictual (tort) responsibility for negligent acts or omissions: 'Every person is responsible for the damage he occasions not merely by his act, but his negligence, his imprudence, or his want of skill.' However, negligence is not necessarily a basis for the obligation to respond in damages for harm caused by persons or things for which we are responsible as provided by the subsequent Articles 2317 through 2322. ³

We have already noted that the owner of a building is held to strict liability under Article 2322 for damage caused by a defect in his building, without regard to his own personal negligence. Likewise, under Article 2320 it has long been settled that a master (employer) is liable for the harm caused through his servant's (employee's) unreasonable creation of risk of injury to others (negligence), despite the freedom from personal negligence of the master thus vicariously held liable. See Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), citing long-established jurisprudence.

Recently, upon examination of the code scheme of fault liability, we held that under Article 2318 the parent of a minor child is liable for the damage caused by the child's conduct which creates an unreasonable risk of injury to others, even though the parent himself is not personally negligent and the child is too young to be personally negligent. Turner v. Bucher, 308 So.2d 270 (La.1975), following Mullins v. Blaise, 37 La.Ann. 92 (1885) and overruling intervening jurisprudence. Likewise reverting to earlier jurisprudence, in Holland v. Buckley, 305 So.2d 113 (La.1974) we held that under Article 2321 the owner of an animal which creates an unreasonable risk of injury to others is liable for the harm done by that animal because of its deficient conduct, even though the owner himself was not personally negligent.

The principle of legal fault thus recognized under Articles 2318, 2320, 2321, and 2322--and indicated as applicable under Article 2319 ⁴--, it is argued, should also be held to apply to the liability under Article 2317 of the guardian (in this case, the owner) of a thing for damages caused by its defect.

Summary of Principles of Legal Fault under Articles 2318, 2320, 2321 and 2322

To summarize the principle of legal fault thus already recognized in favor of an injured person himself without fault:

When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may...