Melerine v. State

• Court: Court of Appeal of Louisiana
• Writing for the Court: Plotkin
• Citation: Melerine v. State, 773 So.2d 831 (La. App. 2000)
• Decision Date: 08 November 2000
• Docket Number: No. 2000-CA-0162.,2000-CA-0162.
• Parties: Betty G. Melerine, wife of/and Dwight J. MELERINE v. The STATE of Louisiana, The State of Louisiana Through the Department of Natural Resources, The Department of Conservation, Delacroix Corporation, Albert M. Stall and Victor A. Smith.

Page 831

773 So.2d 831

Betty G. Melerine, wife of/and Dwight J. MELERINE v. The STATE of Louisiana, The State of Louisiana Through the Department of Natural Resources, The Department of Conservation, Delacroix Corporation, Albert M. Stall and Victor A. Smith.

No. 2000-CA-0162.

Court of Appeal of Louisiana, Fourth Circuit.

November 8, 2000.

Opinion Denying Rehearing January 12, 2001.

Lorna P. Turnage, Glenn E. Diaz, Chalmette, LA, Counsel for Plaintiffs/Appellants.

Richard P. Ieyoub, Attorney General, Gustave A. Manthey, Jr., Assistant Attorney General, Louisiana Department of Justice, New Orleans, LA, Counsel for Defendant/Appellant, State of Louisiana.

Gary P. Kraus, Onebane, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, LA, Counsel for Defendant/Appellant, Victor P. Smith.

Paul A. Bonin, Bonin Law Firm, New Orleans, LA, Counsel for Defendant/Appellant, Albert M. Stall.

(Court composed of Judge JOAN BERNARD ARMSTRONG, Judge STEVEN R. PLOTKIN, Judge MIRIAM G. WALTZER).

PLOTKIN, Judge.

The unique legal issue in this case is the ownership of and liability for an abandoned partially-submerged oil well casing located on a navigable waterway in State waters.

Defendants Albert M. Stall, Victor P. Smith, and the State of Louisiana appeal a trial court judgment awarding plaintiff Dwight J. Melerine a total of 8436,144.32 for damages he sustained when his fishing boat struck an abandoned oil well casing. Melerine and his wife, Betty G. Melerine, appeal the trial court's calculation of interest, as well as the apportionment of damages on a joint and several basis.¹

I. FACTS

Melerine claims that he suffered permanent injury to his back and damage to his vessel on September 15, 1994, when his fishing boat, F/V SHELLEY CRAIG, which he was operating, struck an abandoned submerged oil well casing located near the entrance to Pumpkin Bay, east of Bayou Terre Aux Beouf, in St. Bernard Parish. Stall and Smith obtained State Lease No. 3938 and permits from the Louisiana Department of Conservation and U.S. Army Corps of Engineers. The oil platform and well was drilled in 1963 by defendants, Stall and Smith, on water bottom land owned by defendant, the State of Louisiana. The well, which was dry, was plugged and abandoned according to the regulations of the Louisiana Department of Conservation, on May 18, 1964. Thereafter, the lease terminated and the land was released to the State of Louisiana.

The Melerines filed an admiralty or general maritime law claim in state court pursuant to the Savings to Suiters clause against Stall, Smith, Delacroix Corporation and the State, seeking recovery for Melerine's injuries, for damages to the boat, and for Mrs. Melerine's loss of consortium. Prior to trial, Delacroix Corporation was dismissed from the suit on a motion for summary judgment. At trial, on the motion of defendant Stall, the trial court dismissed Mrs. Melerine's loss of consortium claim, finding that it was impermissible under general maritime law.

Following a trial of the matter, the trial court held that the defendants were liable for Melerine's injuries, and apportioned fault 40 percent to Stall and Smith, 40 percent to the State, and 20 percent to Melerine. All defendants filed motions for new trial, or alternatively, to amend the judgment. The trial court amended the judgment to distinguish between past and future wage losses, to award prejudgment judicial interest on all past losses, to award postjudgment judicial interest on all losses, and to specify that the apportionment of damages should be on a joint and several basis. The motions for new trial were denied.

The issues presented by the various appeals that must be decided by this court may be summarized as follows:

1. Liability under the Louisiana Civil Code property articles;

2. Liability under Statewide Order 29-B;

3. Liability under general maritime law;

4. State of Louisiana's immunity from liability;

5. Melerine's comparative negligence;

6. Allocation of fault; and

7. Calculation of interest.

II. LIABILITY UNDER THE LOUISIANA CIVIL CODE

The petition filed by the Melerines in the instant case alleges that the legal cause of their alleged injuries was the negligence of the various defendants. Most of the acts of negligence alleged by the Melerines involve the defendants' failure to take certain actions, particularly failing to remove the abandoned oil well casing. According to La. C.C. art. 2315, Louisiana's general negligence provision, "[ably act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." At the time of Melerine's accident, La. C.C. art. 2315 had been consistently interpreted to impose liability both for acts of commission and acts of omission if the duty imposed by the relationship of the parties is breached by such act or omission. Dominici v. Wal-Mart Stores, Inc., 606 So.2d 555, 559 (La.App. 4 Cir.1992).

Although not mentioned by the Melerines or the trial court, but raised by other parties, liability for Melerine's damages, which occurred when his boat struck a fixed object located in a body of water, could be based, in addition to negligence principles, in strict liability principles. The Louisiana Third Circuit Court of Appeal has found that "the term `building' as used in the Civil Code is broad enough to include oil wells." Billiot v. State of Louisiana, 94-1365, p. 4 (La. App. 3 Cir. 4/12/95), 654 So.2d 753, 755, writs denied, 95-1648, 95-1772 (La.11/13/95), 662 So.2d 467. Thus, the following strict liability Civil Code articles apply:

Art. 2317. Acts of others and of things custody

We 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. This, however, is to be understood with the following modifications.

* * * * *

Art. 2322. Damage caused by ruin of building

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.

In 1990, the primary difference between a negligence action under La. C.C. art. 2315 and a strict liability action under La. C.C. arts. 2317 and 2322 was that the plaintiff in a strict liability action was "relieved of proving knowledge, constructive or otherwise, of the hazardous condition or defect." Morrow v. Sewerage and Water Board, 562 So.2d 1082, 1083 (La.App. 4 Cir.1990). This requirement was removed by the 1996 amendments to La. C.C. art. 2322. However, even in 1990, when the defendant was a public entity and the plaintiff's basis for recovery lay in strict liability, LSA-R.S. 9:2800 required that the plaintiff prove that the defendant had actual or constructive notice of the defect. Id.

The Louisiana Supreme Court most recently interpreted the pre-amendment article governing the strict liability of the owner of premises in Celestine v. Union Oil Co. of California, 94-1868 (La.1995), 652 So.2d 1299 as follows:

An owner's liability for a vice or defect on the premises is rooted in La. C.C. arts. 2317 and 2322. Both articles impose strict liability, or liability without fault, based upon status as an owner or custodian rather than on personal fault. Fonseca v. Marlin Marine Corp., 410 So.2d 674 (La.1981). Under La. C.C. art. 2317, liability is imposed upon an individual as a custodian for damage caused by things in his custody. Loescher v. Parr, 324 So.2d 441 (La. 1975). Under La. C.C. art. 2322, an owner is liable for damages to any person injured in an accident caused by the owner's neglect to repair the building or from a defect in its original construction. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978).

To recover under La. C.C. 2317, a plaintiff must prove that he was injured by a thing which was in the care or custody of the defendant and that such thing was defective. Fonseca, supra; Loescher, supra. To recover under La. 2322 against an owner of a building, a plaintiff must prove that the building posed an unreasonable risk of injury to others and that he was damaged by virtue of this risk. Entrevia v. Hood, 427 So.2d 1146 (La.1983).

* * * * *

A building owner is not responsible for all injuries resulting from any risk posed by his building; he is only liable for those injuries caused by an unreasonable risk of harm to others. Entrevia, 427 So.2d at 1149. Likewise, strict liability requires the plaintiff to prove that the vice or defect of the thing is a condition which poses an unreasonable risk of harm to others. Sistler v. Liberty Mutual Insurance Co., 558 So.2d 1106 (La.1990).

Id. at 6-7, 652 So.2d at 1303 (emphasis in original).

Thus, the following elements were necessary in 1990 to a finding of liability arising from ruin of a building: (1) ownership and/or custody of the building; (2) unreasonable risk of injury; and (3) causation. In order to impose liability on a public body, like the State, notice of the unreasonable risk of harm is also necessary.

A. OWNERSHIP AND CUSTODY

Under the above stated principles, the threshold issue that must be decided by this court is ownership and custody of the abandoned oil well casing in question. The trial court's reasons for judgment do not address this issue.

Under the provisions of La. C.C. art. 450, "waters and bottoms of natural navigable water bodies" are "public things" owned by the State of Louisiana. The State leased the water bottom land where the oil well casing was drilled, part of State Lease 3938, to Lujon Oil Co. by agreement dated April 11, 1962. Lujon Oil then gave Stall and Smith permission to drill for oil. Stall and Smith also received a permit from the Army Corps of Engineers and from the State of Louisiana, Department of Conservation. They then entered a turnkey contract with a company called Hawkins & Hawkins to actually drill the oil well. When the oil well was determined to be a dry, it...