Morrow v. Sewerage and Water Bd. of City of New Orleans

• Court: Court of Appeal of Louisiana
• Writing for the Court: GARRISON
• Citation: Morrow v. Sewerage and Water Bd. of City of New Orleans, 562 So.2d 1082 (La. App. 1990)
• Decision Date: 31 May 1990
• Docket Number: No. 89-CA-2024,89-CA-2024
• Parties: Mary M. MORROW v. The SEWERAGE AND WATER BOARD OF the CITY OF NEW ORLEANS and The City of New Orleans. 562 So.2d 1082

Page 1082

562 So.2d 1082

Mary M. MORROW v. The SEWERAGE AND WATER BOARD OF the CITY OF NEW ORLEANS and The City of New Orleans.

No. 89-CA-2024.

562 So.2d 1082

Court of Appeal of Louisiana Fourth Circuit.

May 31, 1990.

Ivan David Warner, Clyde A. Ramirez, Patricia D. Miskewicz, Byron P. Guillory, New Orleans, for plaintiff/appellant.

Harold D. Marchand, New Orleans, for defendant/appellee.

Okla Jones, II, City Atty., William D. Aaron, Jr., City Atty., Chief Deputy, Val K. Scheurich, III, Deputy City Atty., Adrienne Lacour, Asst. City Atty., New Orleans, for defendant/appellee.

Before GARRISON, KLEES and PLOTKIN, JJ.

GARRISON, Judge.

Mary Morrow brought suit for damages against the Sewerage & Water Board of New Orleans (the Board) and the City of New Orleans (the City), for injuries suffered in a fall on Prytania Street in New Orleans. After a trial on the merits, the trial judge ruled in favor of the defendants, finding no liability on the part of the Board or the City. The plaintiff appeals.

Mrs. Morrow alleges three assignments of error. The first assignment of error is that the trial court was incorrect in ruling that the Board had no facilities at the accident location. Secondly, that the trial court erred in ruling that the record does not reflect where the plaintiff fell and what defective condition, if any, existed at the time of the accident. Finally, that the court erred in finding that liability did not extend to the City under LSA-R.S. 9:2800 because the defendant failed to prove the proximate cause of her accident.

To prevail on a negligence action under LSA C.C. art. 2315, the plaintiff must prove the existence of a duty, breach of that duty, cause in fact, and legal causation. Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988); Shroyer v. Grush, 555 So.2d 534 (La.App. 4th Cir.1989) writ denied 559 So.2d 139, 140 (La.1990). To establish the first three elements, the plaintiff must prove that the thing which caused the damage was owned or in the custody of the defendant, that its defective or hazardous condition created an unreasonable risk of injury which resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to take adequate steps to prevent the damage caused by the thing. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). To prevail in a strict liability claim the plaintiff is relieved of proving knowledge, constructive or otherwise, of the hazardous condition or defect. Burris v. Lloyds, 417 So.2d 511 (La.App. 3 Cir.) writ denied 420 So.2d 982 (La.1982). However, when the defendant is a public entity and the plaintiff's basis for recovery lies in strict liability, LSA-R.S. 9:2800 requires that the plaintiff prove that the defendant had actual or constructive notice of the defect.

Plaintiff alleges that the trial court incorrectly concluded that the Board had no facilities at the location of the accident.

Plaintiff's petition alleged that the Board's manhole was a proximate cause of her injuries. At trial, plaintiff both testified as to the location of her accident and identified a photograph of the area, marking with an X and a circle where she fell. In these photographs there is a manhole. This manhole lid is clearly marked as the property of Bell Systems. At no time during the trial was any...