Lombard v. Sewerage and Water Bd. of New Orleans
| Decision Date | 29 October 1973 |
| Docket Number | No. 53006,53006 |
| Citation | 284 So.2d 905 |
| Parties | Victor A. LOMBARD v. SEWERAGE AND WATER BOARD OF NEW ORLEANS et al. and consolidated cases. |
| Court | Louisiana Supreme Court |
Harry P. Gamble, Jr., Harry P. Gamble, III, Cameron C. Gamble, Gamble & Gamble, New Orleans, for plaintiffs-applicants.
John A. Gordon, Sp. Counsel, Sewerage and Water Bd. of New Orleans, Vincent T. LoCoco, Richard M. Olsen, Associate
Counsel, Ernest A. Carrere, Jr., Patrick W. Browne, Jr., Donald O. Collins, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants-respondents.
Seventeen consolidated suits involving 119 plaintiffs are presented for review on certiorari. Plaintiffs are seeking awards for damages claimed to have resulted to their residences, a church, school buildings and a combination radio repair shop and dwelling. The damages are alleged to have been caused by activities in connection with a canal construction project on Louisa Street in the city of New Orleans. The city of New Orleans, the Sewerage and Water Board of New Orleans, Boh Brothers Construction Co., Inc., and their insurer Travelers Insurance Company are named defendants.
Louisa Street was chosen by the Sewerage and Water Board as the site for the construction of an underground drainage canal extending from Florida Avenue to North Claiborne Avenue. The location was selected as the most feasible for draining a considerable area on all sides of Louisa Street where flooding had presented problems in the past. Boh Brothers was the successful bidder for the job, and the contract was awarded on November 14, 1962, and approved by the City Council.
Louisa Street is a relatively narrow (40.98 feet) street in a heavily populated area with small, modest, closely spaced, substandard residences located near the street. The plans called for a canal 14 feet wide with one-foot sex-inch-side walls and a 2-foot pay slope on either side, or a total of twenty-one feet.
Work began on December 4, 1962 with the removal of existing sewerage and water lines from the center of Louisa Street and the excavation and laying of replacement lines on the sidewalk rights of way on both sides of Louisa Street. Laying of the replacement sewer lines required a ditch, 5 to 12 feet deep, within a few feet of adjacent buildings. Another such ditch parallel to and near the first was required for the water lines. These excavations were accomplished with a 'back hoe', a heavy, tractor-like machine equipped with a mechanical arm or beam and bucket for digging. At least in some instances, these ditches were not braced, and the loose excavated soil was used for backfilling without compaction. Wood bracing used to retain the ditch bank was buried with the backfill. Water mains were laid in shallow trenches, and no bracing was used.
Thereafter, construction of the canal began following a fixed sequence. First, interlocking, one-half inch sheet piling was driven along the periphery of the intended excavation. The wall or bulkhead formed by this 25-foot sheet piling was expected to retain the mud bank on either side of the excavation between them. Round, wood, supporting piling was then driven within the parallel lines delineated by the sheet piling. Installation of the wood piling was designed to provide support for the concrete barrel of the canal to be superimposed on them. All piling was driven with a steam hammer mounted on a skid and rollers. They were driven to the desired depth below the surface with a punch.
When a segment of sheet piling was down--segments being variously shown by the record to be from 25 to 100 lineal feet in length along both sides of the canal route--and driving of the support piling was completed, excavation began. A large dragline was employed for this purpose. After excavating to a depth of 3 or 4 feet, a line of large, heavy 12 12 timbers (wales) were placed against the sheet piling parallel to, and about two feet below, the street surface. Screw jacks on the ends of poles extending from one side of the excavation to the other were tightened to exert pressure on the wales and to hold them snug against the sheet piling, preventing movement inward. Thus the bank of the excavation was not permitted to give into the excavated trench.
Excavation then proceeded to the bottom of the proposed canal. The round, wood piling was cut to the proper level and clam shells were used to cover the bottom. Forms were then installed and quick drying concrete was poured. This operation generally took place 125 to 150 feet behind the pile-driving and on the same day excavation began. The next morning bottom braces, made of round piling cut to size, were installed from each side of the canal bottom to the sheet piling as additional bracing.
Backfilling then commenced. A select backfill of river sugar sand, specified and used exclusively on the job, was deposited in the trenches from heavy trucks in layers on either side of the concrete canal. Water was then jetted over the sand to fill voids, and give the maximum cohesiveness and compaction to improve setting. The sheet piling was removed vertically during backfilling with special machines designed by the contractor. The sheets were then transported in trucks along the line to be used again.
At all times during construction, lasting more than one year, the job was adequately supervised and carried on by competent workmen in a workmanlike manner. In March 1964 the work was accepted as completed by the Sewerage and Water Board.
In the voluminous testimony taken at the trial, according to defendants' evidence, no negligence on the part of the contractor, the Sewerage and Water Board or the City was established. The methods and procedure employed were approved as reasonable and acceptable for that type construction by the experts called to testify. It is a tribute to the industry, experience and competence of defendants that such a project, beset by the unique soil and water conditions prevailing in the city of New Orleans, could be accomplished in such a manner as to meet acceptable standards of reasonableness and workmanlike performance.
Notwithstanding the many precautions taken, however, and the skill displayed by the contractor, it is relatively impossible to accomplish this type work in a perfect manner. Consequently there were numerous complaints by the owners and occupants of the buildings along the construction route.
A careful and accurate review of the evidence bearing upon the alleged negligence of defendants was made by the commissioner appointed by the trial judge and by the Court of Appeal. Each correctly concluded that no negligence was established on the part of defendants. However, no adequate review of plaintiff's evidence on the issue of causation appears from these findings. Especially is this true in regard to the testimony of the individual plaintiffs which these courts found to be 'uncorroborated' and contentions that the construction activity caused damage to their property does not appear to be supported by the facts. For these reasons it is necessary to review the evidence they offered.
Earl Jupiter is a plaintiff who owns a concrete block residence at 2510 Louisa Street. He testified that before the construction activity began his house was in 'perfect condition'. Because of the pile-driving and excavation, the level of his house was 'dislocated'; the doors would no longer close; and the porch moved away from the structure. While the pile-driving was in progress, the house would shake, window panes and walls cracked, the toilet pipes parted and the toilet moved away from the bathroom wall. Later, when soil subsidence occurred, the concrete driveway on his lot cracked.
Eugene Scott's house is six blocks away on the corner of Louisa and Law Streets. Several years prior to the construction he contracted for a concrete chain wall foundation for his house. While the pile-driving operation was being conducted, he noticed that cracks became larger in the plaster of several rooms, some falling from the walls. The large bucket of the dragline also caused serious vibrations when it dropped to the ground. After the canal was completed and the excavations filled in, he noticed a gradual subsidence of the soil, cracks in concrete walks, doors and windows jamming, cracks in sheetrock, and a lean toward Louisa Street of the soil surface and his house, fence and walkway. Five years later at the time of the trial, this subsidence was still in progress to some extent. He attributes the subsidence to pulling the sheet piling too soon, before the land settled. He complained to Boh Brothers who sent someone to examine the property and take his statement.
At the time of the construction, Joseph Sorbet's house was ten years old and in good condition. It is a two-story frame structure set back fifteen feet from the front property line. The house rests on a reinforced concrete chain foundation, with a concrete footing. The inside walls are sheetrock. According to his testimony, the construction activity causing most vibration was the pile-driving and dropping the dragline bucket. While standing on the walkway in front of his house, talking to one of the guards on the construction job, during the dragline operation, they saw the concrete crack in the walkway.
In addition, the inside sheetrock and the outside precast concrete steps to his house cracked. Some of the back filling was not well done, he noticed, and large holes four or five feet deep formed in front of his house due to settling. These holes remained unfilled for about two weeks. He made verbal complaint to the person he assumed to be superintendent on the job. He was advised to notify Travelers Insurance Company, Boh Brothers' insurers, which he did. Traveler's agent took his statement.
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