Scott v. Boh Bros. Const. Co., 2492

• Decision Date: 13 February 1967
• Docket Number: No. 2492,2492
• Parties: Bernice B. SCOTT, Individually and as Ad ministratrix for the Estate of her Minor Daughter, Glenda Scott v. BOH BROS. CONSTRUCTION CO., and Travelers Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 353

195 So.2d 353

Bernice B. SCOTT, Individually and as Ad ministratrix for

the Estate of her Minor Daughter, Glenda Scott v. BOH BROS. CONSTRUCTION CO., and Travelers Insurance Company.

No. 2492.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 13, 1967.

Racivitch, Johnson, Wegmann & Mouledoux, Salvatore Panzeca, New Orleans, for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Thomas G. Rapier, New Orleans, for defendant-appellees.

Before McBRIDE, CHASEZ, and JANVIER, JJ.

JANVIER, Judge.

Plaintiff brings this action in her own behalf and that of her minor daughter for damages sustained as a result of an accident on June 3, 1963.

For the first time in this court, by brief alone, Defendant contends Plaintiff's cause of action is prescribed since Plaintiff did not qualify as administratrix of the estate of her minor daughter nor as tutrix of the child until more than two years after the accident. Although according to LSA-C.C.P. art. 2163 a plea of prescription may be filed for the first time in an appellate court if pleaded prior to the submission of the case, it must be specially presented by a pleading and not by brief alone. In the instant case because no formal plea of prescription was filed in this court, we can not consider the exception. Chase v. Davis, 20 La.Ann. 201; City of New Orleans v. Di Benedetto, La.App., 144 So.2d 558. See also Merchants Adjustment Bureau v. Malta, 102 So.2d 781 and the cases cited therein.

We will now consider the merits. The accident occurred when Plaintiff's daughter, aged six, fell while playing on top of a large drainage pipe on the North Claiborne Avenue neutral ground, breaking her left leg. Defendants are Boh Bros. Construction Company and its insurer, Travelers Insurance Company. It is undisputed that Boh Bros. was installing the pipes which were lying on four or five blocks of the North Claiborne Avenue neutral ground; that there were no warnings or barricades except those warning pedestrians of holes in the neutral ground; that the pipes were unfenced; and that there was a watchman on duty from 3:00 p.m. until 11:00 p.m., Monday through Saturday, and that part of his job was to attempt to prevent children from playing on the pipes.

These pipes were heavy, weighing between a ton and a half and two tons, and were large, eight feet long and 24 inches in diameter. There is no allegation that the pipe on which Plaintiff's daughter was playing either rolled or tilted causing her fall.

Plaintiff urges two theories of recovery; (1) a general negligence theory under LSA-C.C. arts. 2315 and 2316 and (2) the attractive nuisance doctrine. With regard to negligence, Boh Bros.' pipe foreman testified the company's method of operation was the usual one on such jobs, and that it was common practice to line the pipes along the area in which they were to be installed. He further testified it would have been impractical to barricade or fence them in one place. It is a matter of record that these pipes were used daily and Defendants' counsel pointed out in oral argument that in order to get to the pipes, the fence would have to be partially torn down and, of course, rebuilt every day. Nor was it practical, according to the foreman, to take the pipes away every night and bring them back in the morning. This conclusion is logical because of the pipes' large size and heavy weight and the attendant difficulty of transporting them.

The leaving of building materials at a construction site in a public place does not of itself constitute negligence. In Genovese v. New Orleans Public Service, La.App., 45 So.2d 642, rail spikes were left on a street by New Orleans Public Service and one of the children who was playing in the area was hit in the eye by another child with one of the spikes. This court held the defendant could not be held liable under a theory of negligence because the rail spikes themselves had no peculiarly dangerous characteristics. In Jackson v. Jones, 224 La. 403, 69 So.2d 729, there is dicta to the effect that the leaving of building material, not inherently dangerous, unguarded at a construction site where children play, is not an act of negligence. In the cited case the contractor who left a pile of lumber in a school yard was held to be negligent but only because the lumber pile contained protruding nails, the court stating:

'Of course, if this pile of lumber provided no great hazard to the safety of the children because it was stacked evenly, was only two feet high and did not contain protruding nails, as found by the district judge in the Court of Appeal, There would not be any liability as it is essential, in this type of case (like those following under the attractive nuisance doctrine), that the offending object be not only tempting and inviting to the child but it must also be inherently dangerous for him to climb or play on.' 69 So.2d at 731. (Emphasis added.)

In the instant case, because of their height (only two feet) and the fact that machinery was necessary to move them, the pipes were less dangerous than most building materials at construction sites. Therefore we do not find Defendant committed any act nor was guilty of any omission which would constitute fault under LSA-C.C. arts. 2315 and 2316.

With regard to the attractive nuisance doctrine, Plaintiff cites the following requisites for the application of that doctrine as set forth in Saxton v. Plum Orchards, 215 La. 378, 40 So.2d 791:

'1. That the injured child was too young to understand and avoid the danger.

'2. That there was reason to anticipate the presence of such children, either because of some attraction on the premises, or because the danger was in some place where children had a right to be.

'3. That there was a strong likelihood of accident.

'4. That the danger was one other than those ordinarily encountered.

'5. That the...