Socorro v. City of New Orleans
| Decision Date | 06 May 1991 |
| Docket Number | 90-C-1653,Nos. 90-C-1633,s. 90-C-1633 |
| Citation | 579 So.2d 931 |
| Parties | Franz SOCORRO v. The CITY OF NEW ORLEANS, The State of Louisiana, and The Board of Commissioners of the Orleans Levee District. 579 So.2d 931 |
| Court | Louisiana Supreme Court |
Vincent J. Glorioso, Jr., Ronald A. Welcker, Glorioso & Welcker, New Orleans, and Edward A. Kaufman, Jeffrey Dickstein, and David W. Robertson, Baton Rouge, for Franz Socorro, plaintiff-applicant.
Phillip A. Wittmann, Stephen H. Kupperman, Charles L. Stern, Jr., Alex J. Peragine, Stone, Pigman, Walther, Wittmann & Hutchinson, and Raymon G. Jones, and Jaime C. Waters, Deutsch, Kerrigan & Stiles, New Orleans, for Bd. of Com'rs of the Orleans Levee Dist.
Robert A. Redwine and Alan D. Ezkovich, Sessions & Fishman, New Orleans, for City of New Orleans, defendant-respondent.
This is a personal injury lawsuit for damages sustained when the plaintiff, Franz Socorro, dove from the bulkhead at Breakwater Point on Lake Pontchartrain and struck a submerged object. The plaintiff suffered injuries to his spinal cord resulting in permanent quadriplegia.
Socorro filed a petition for damages in the Civil District Court for the Parish of Orleans, naming as defendants the City of New Orleans, the Board of Commissioners for the Orleans Levee District (the Levee Board), and the State of Louisiana. He also named as defendants several liability insurance companies. One of them was named in the petition as "DEF Insurance Company" and identified as the City's principal liability insurer. During discovery, plaintiff's counsel learned "DEF's" identity--Angelina Casualty Company. Although the petition was not amended to substitute Angelina in place of "DEF," Angelina filed a motion for summary judgment (later denied) through the same attorney who represented the City.
The parties have conceded in briefs that pending trial, a partial settlement was reached between the plaintiff, the City and its excess liability carrier, whereby plaintiff released the City for all liability in excess of one million dollars ($1,000,000.00), and presumably fully released the excess insurance carrier as well.
After a bench trial, the judge apportioned 60% fault to the City, 30% fault to the Levee Board, 10% fault to the plaintiff, and no percentage of fault to the State. The district court awarded the following damages:
Future Medical Expenses $4,352,943.00
Loss of Future Earning Capacity 338,145.00
Past Medical Expenses 139,091.35
Pain and Suffering 3,500,000.00
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Total Judgment $8,330,179.35
All parties but the State appealed. The Fourth Circuit Court of Appeal agreed with the judge's assessment of damages, but limited the pain and suffering award to $500,000.00 by applying retroactively the provisions of LSA-R.S. 13:5106(B)(1). 1 Finding clear error in the district court's apportionment of fault because "a swimmer or diver has a primary duty to determine the safety of such inherently dangerous activities," the court of appeal held plaintiff to be 75%, not 10%, at fault for his own injuries. The remaining 25% fault was assigned to the City under Civil Code articles 2316 (negligence) and 2317 (strict liability). The court of appeal exonerated the Levee Board, and in doing so reversed the district court in that respect. It affirmed the district court's finding no portion of fault attributable to the State. Socorro v. Orleans Levee Board, 561 So.2d 739 (La.App. 4th Cir.1990). While the lower courts cast the City in judgment, they refused to cast the City's principal liability insurer, Angelina Casualty Company.
We granted writs upon application of the plaintiff (No. 90-C-1633) and the City (No. 90-C-1653). The assignments of error which chiefly prompted our grant of the two applications were the plaintiff's complaint about the court of appeal's retroactive application of LSA-R.S. 13:5106(B)(1) (), and the City's complaint that it was not liable for plaintiff's injuries at all because it had no duty to warn of the inherent dangers of diving into unknown waters. Nonetheless, the case is fully before us, and a proper resolution requires that we address and resolve a number of issues. For the forthcoming reasons, we resolve the main issues before us in the following manner:
With respect to the plaintiff's assignments of error, we conclude:
1. The court of appeal erred in retroactively applying LSA-R.S. 13:5106(B)(1) to limit Socorro's recoverable damages for pain and suffering to $500,000 (Section IV);
2. The court of appeal erred in approving the district court's refusal to enter judgment against Angelina Casualty Company, the City's liability insurer (Section VII).
3. The court of appeal was not incorrect in finding both Socorro and the City negligent, and in apportioning 75% fault to Socorro and 25% fault to the City (Sections II-III).
4. The court of appeal was not incorrect in exonerating the Levee Board and the State (Section I);
With respect to the City's assignments of error, we conclude:
1. The court of appeal was not incorrect in determining that the City breached its duty to warn under these circumstances. (Section II).
2. The lower courts were not incorrect in determining that the City is not entitled to recreational immunity under LSA-R.S. 9:2791 and 9:2795, nor discretionary immunity under LSA-R.S. 9:2798.1 (Section V).
3. The lower courts were not incorrect in determining that evidence of Socorro's blood alcohol level was inadmissible (Section VI).
Although the City's 25% proportionate share of the awarded damages equates to $2,082,544.84, we take note of the partial settlement limiting the plaintiff's recovery from the City to one million dollars ($1,000,000.00). 2 For this reason and for reasons to follow, including the fact that Angelina Casualty made a general appearance in this litigation 3, we will cast in judgment solidarily both the City and Angelina for $1,000,000.00.
On October 19, 1983, Franz Socorro, a 21 year old citizen of Venezuela, was a student at Delgado Community College in New Orleans. He had been in the United States for about five weeks and had never been to Lake Pontchartrain. After class that warm afternoon, Socorro and his friend Ronald Clarke (who was from Peru) bought a six pack of beer and decided to drive to Lake Pontchartrain for a swim. While driving on Lakeshore Drive looking for a place to swim, they observed many "no diving" and "no swimming" signs along the lakefront. These signs had been erected by the Orleans Levee Board.
Still searching for a place to swim, the young men eventually parked on the western end of Lakeshore Drive. They looked across the entrance to the Municipal Yacht Harbor and saw people windsurfing and swimming in the waters near Breakwater Point. The Point is a man-made peninsula which forms the tip of Breakwater Drive, and juts out into Lake Pontchartrain in an easterly direction. Breakwater Drive and the Point are controlled exclusively by the City under a grant from the State. See Acts 1906, No. 209. Breakwater Drive is a road which was constructed by the City atop a breakwater, a sloping structure made up in part of pieces of asphalt and concrete paving of varying sizes, called "rip rap", which protects the road by breaking the force of the waves in Lake Pontchartrain. The court of appeal found that the breakwater is approximately one hundred feet wide at its base, and narrows as it rises out of the water. The Point at the end of Breakwater Drive is a semicircular seawall, the interior of which is a parking area. Although concealed by the lake waters, rip rap also covers the sloping lake bottom which surrounds the Point. The rip rap is an integral structural component which prevents erosion. As plaintiff's safety expert, Dr. M. Alexander Gabrielsen said:
... the purpose for taking this [photograph] was merely to show the rock formation that constitutes the rip rap, so to speak, to prevent erosion of this point. If it didn't have this, one good storm would wipe out the whole point. They have to have that rip rap in there on both sides.
Hoping that they had found a place to swim, Socorro and Clarke drove onto Breakwater Drive toward the Point, and noticed the rip rap protruding from the waters on both sides of the road. They entered the "Breakwater Recreation Area," 4 which includes the Point, and noticed no signs in that area prohibiting swimming or diving. The lower courts found that the plaintiff assumed it was appropriate to swim and dive there because of the lack of any warning signs on the Point (under the City's jurisdiction), coupled with the large number of prohibitory signs along the lakefront (under the Levee Board's jurisdiction) leading to Breakwater Drive and the Point.
Surrounding three sides of the Point is a one foot high vertical concrete bulkhead; the bulkhead is flat on top and approximately fifteen inches in width. The lower courts found that there was no visible rip rap in the waters surrounding the bulkhead at the Point, and that the surface of the water was four to five feet below the top of the bulkhead. The two friends stood on the bulkhead and observed the water. They testified that it appeared to be dark and deep. Without either of the two ascertaining the depth of the water, Ronald Clarke jumped in feet first from the bulkhead. He testified that he never touched the bottom of the lake or any other objects. Socorro testified that he then successfully executed two "flat" racing dives in a southerly direction from the bulkhead. Although Socorro had been a competitive swimmer and diver in Venezuela, he too did not attempt to touch bottom to determine the depth of the water.
Socorro's third and final dive from the bulkhead was a false start to a race that he and his friend Clarke were about to...
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