McQuillan v. City of New Orleans

• Citation: 18 So.2d 218
• Decision Date: 29 May 1944
• Docket Number: 18023.
• Court: Court of Appeal of Louisiana (US)
• Parties: MCQUILLAN v. CITY OF NEW ORLEANS ET AL.

18 So.2d 218

MCQUILLAN v. CITY OF NEW ORLEANS ET AL.

No. 18023.

Court of Appeal of Louisiana, Orleans.

May 29, 1944

George Piazza, of New Orleans, for appellant.

F P. Burns, City Atty., and H. C. Keith, Asst. City Atty., both of New Orleans, for defendant-appellee.

WESTERFIELD Judge.

Miss Agnes McQuillan appeals from a judgment dismissing her suit against the City of New Orleans for $3,646.94, which she claimed to be due her as damages for physical injuries sustained as a result of a fall caused by her foot being caught in a metal grating which forms a part of a city sidewalk. The suit was originally brought against the Canal Bank & Trust Company in liquidation, the owners of the "Canal Building" the abutting property, the National Bank of Commerce, the occupants of the ground floor of the Canal Building, and the City of New Orleans. The National Bank of Commerce filed an exception of no cause of action which was maintained and acquiesced in by plaintiff. The Canal Bank & Trust Company in liquidation entered into an agreement of compromise and the suit against it was dismissed. The case continued against the City of New Orleans alone.

Miss McQuillan, in her petition, alleges that on the 3rd day of November, 1941, at mid-day, she was walking on the sidewalk in front of the "Canal Building", which is located at the corner of Baronne and Common Streets, and on that portion of the sidewalk next to the building or property line; that the street was crowded with other pedestrians which necessitated her walking upon a metal grating installed in the sidewalk next to the Canal Building; that as she did so, her shoe caught in an opening in the grating causing her to be precipitated violently to the sidewalk; that the grating, which was installed in the sidewalk at the time the Canal Building was erected about fifteen years ago, for its convenience, "is a source of danger to pedestrians chiefly because of its tendency to become slippery and because the opening in said grating are sufficiently large to catch a portion of shoes worn by ladies such as the heels toes or sole, etc."

The City filed an exception of no right or cause of action which was overruled and subsequently it answered setting forth the following defenses:

First: That the grating did not constitute a defective condition in the sidewalk.

Second: That if the grating did constitute a defective condition the City had no knowledge of its existence, and

Finally, and in the alternative, pleaded contributory negligence on the part of plaintiff.

The obligation of the City with respect to its sidewalks is to keep them reasonably safe for pedestrian use. If defective the City must have either actual or constructive notice. If the City, in this instance, did not have actual notice, the grating had been installed and had remained at that locality for more than fifteen years, therefore, if the sidewalk is indeed unreasonably defective the City will be held to have had constructive notice after the passage of that length of time. McQuillin on Municipal Corporations, 2d Ed., Vol. 7, p 240.

The important question is whether the existence of this grating on the sidewalk was, in fact, hazardous or dangerous so as to make its use unsafe for pedestrians. It is next to the property line of the bank building and its dimensions are 3 1/2' X 12'. It is composed of iron and there is nothing unstable...