Louviere v. Great Am. Corp.
| Decision Date | 28 February 1966 |
| Docket Number | No. 6593,6593 |
| Parties | Gordon J. LOUVIERE, Individually and as Natural Tutor of his minor son, Lance Louviere, Plaintiff-Appellant, v. GREAT AMERICAN CORPORATION et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
F. Louis Gonzales, Joel B. Dickinson, Baton Rouge, for appellant.
Robert L. Kleinpeter, of Kantrow, Spaht & Kleinpeter, M. Aubrey McCleary, Jr., of McCollister, Belcher, McCleary & Fazio, Baton Rouge, for appellees.
Before ELLIS, LOTTINGER, LANDRY, REID and BAILES, JJ.
Gordon J. Louviere brought this suit individually and as the natural tutor of his minor son, Lance Louviere, to recover on his own behalf medical expenses and on behalf of his son damages for bodily injuries. Made defendants were Great American Corporation, the owner of a certain tract of land in Baton Rouge known as Stanford Place Subdivision, and W. O. Bergeron, d/b/a W. O. Bergeron Construction Company, the contractor of Great American Corporation as to the streets, curbs, gutters, drainage and sewers in said subdivision. American Surety Company of New York is the liability insurer of W. O. Bergeron Construction Company. The trial judge dismissed plaintiff's suit and this appeal followed.
The accident giving rise to this litigation occurred on August 2, 1963, at which time Lance Louviere was nine and one-half years of age. He and his companion, Bob Jolly, rode their bicycles to a point on the south side of Floyd Drive between Ross and Stephens Avenues. There, approximately two to three feet from the edge of the sidewalk, the terrain breaks off into a steep decline forming a ravine, the total depth of which is approximately twelve feet. About half of this depth is concealed by bushes and undergrowth but the ravine itself is clearly visible from the street. Approximately four feet past the top edge of the ravine stands a fair-sized tree which, at the time of the accident, supported a two and one-half inch diameter vine. The vine has been severed as the bottom and thus swings freely.
On this occasion Lance and his friend, Bob, had gone to this site in order to swing out on the vine over the ravine and back again to the top of the ravine. They had been doing this for several weeks without incident. The testimony of the boys establishes that it was necessary to leave the sidewalk, walk down into the ravine, and thereby secure the end of the vine. The vine, therefore, was not within reach of the sidewalk itself, though it was clearly visible for approximately fifty feet.
After swinging several times on the vine on this occasion the boys decided they would jump from the edge of the ravine, grab onto the vine in mid-air, swing out and back. Bob Jolly actually accomplished this but Lance lost his grip on the vine during this operation and fell, breaking his arm.
Plaintiff attempts recovery under these facts on the theory that the vine, considering its location with reference to the ravine, constituted an attractive nuisance to children and that, accordingly, the landowner and contractor breached their duties to children known to be in the neighborhood. Recovery is opposed by the defendants on the dual ground that the doctrine of attractive nuisance is inapplicable and that Lance was contributorily negligent .
In denying recovery the trial judge relied on both of these arguments and we believe properly so.
The doctrine of attractive nuisance has been accepted in Louisiana and has been well discussed in several Louisiana cases. See Saxton v. Plum Orchards, 215 La. 378, 40...
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