Socorro v. Orleans Levee Bd.
| Decision Date | 29 March 1990 |
| Docket Number | No. 89-CA-0212,89-CA-0212 |
| Citation | 561 So.2d 739 |
| Parties | Franz SOCORRO v. ORLEANS LEVEE BOARD and/or Board of Levee Commissioners of the Orleans Levee District; The City of New Orleans; The State of Louisiana; ABC Insurance Co.; DEF Insurance Co.; and XYZ Insurance C 561 So.2d 739 |
| Court | Court of Appeal of Louisiana — District of US |
Phillip A. Wittmann, Stephen H. Kupperman, Charles L. Stern, Jr., Alex J. Peragine, Stone, Pigman, Walther, Wittmann & Hutchinson, and Raymon G. Jones, Jaime C. Waters, Deutsch, Kerrigan & Stiles, New Orleans, for the Board of Com'rs of the Orleans Levee Dist., defendant-appellant.
Robert A. Redwine, Alan D. Ezkovich, Sessions, Fishman, Boisfontaine, Nathan, Winn, Butler, & Barkley, New Orleans, for the City of New Orleans, defendant-appellee.
David W. Robertson, Austin, Tex., and Vincent J. Glorioso, Jr., Ronald A. Welcker, Dennis J. Phayer, Glorioso, Welcker & Phayer, New Orleans, and Edward A. Kaufman, Jeffrey Dickstein, Miami, Fla., for Franz Socorro, plaintiff-appellee.
Before BARRY, CIACCIO, LOBRANO, WARD and WILLIAMS, JJ.
Plaintiff, Franz Socorro, sustained severe injuries when he dove from the bulkhead at Breakwater Point in New Orleans and struck a submerged object on the bottom of Lake Pontchartrain. 1 He sued the City of New Orleans, the Board of Commissioners for the Orleans Levee District (the "Levee Board"), and the State of Louisiana for damages as a result of that accident. Also named as defendants were the "XYZ" insurance companies, the then unknown insurers of the various defendants. Each defendant third-partied the other for contribution and/or full indemnity asserting their freedom from fault and the fault of their co-defendant.
After a bench trial, the trial court found the City 60% at fault, the Levee Board 30% at fault, and the plaintiff 10% at fault. No liability was imposed on the State. The court awarded damages in the following amounts:
Future Medical Expenses $4,352,943.00
Loss of future earning capacity 338,000.00
Past Medical Expenses 139,091.35
Pain and suffering 3,500,000.00
All parties except the State appealed
FACTS
Socorro is a Venezuelan citizen who was enrolled as a student at Delgado Community College in New Orleans in the fall of 1983. 2 After class on the afternoon of October 19, 1983, Socorro and a friend, Ronald Clarke, bought a six-pack of beer and drove out to Lake Pontchartrain for a swim. As they proceeded down Lakeshore Drive looking for a suitable place to swim, they noted numerous "no swimming" and "no diving" signs at various points along the lakefront. They eventually reached the western end of Lakeshore Drive, where they finished their beer and watched a number of people boating and windsurfing. 3 Socorro wanted to swim but refrained from doing so because of the prohibitory signs posted along the lakefront. It appeared to them, however, that a number of people were swimming and windsurfing near Breakwater Drive. Socorro and Clarke drove to the end of Breakwater Drive, hereinafter called "the Point," where they hoped to go swimming themselves.
While en route down Breakwater Drive, Socorro and Clarke noticed rocks and boulders ("riprap") extending from the water on both sides of the road. When they reached the Point, they observed a number of people swimming and windsurfing in the waters adjacent to it. They saw no signs prohibiting swimming or diving, and concluded that those activities were permitted. The Point itself was surrounded on three sides by a vertical concrete bulkhead. The top of the bulkhead was flat, about fifteen inches in width, and stood about one foot above ground level of the Point. There was no visible riprap in the waters adjacent to the bulkhead.
Socorro had never been to the Point before. Clarke had been there several times but had never attempted to swim in the surrounding waters. Upon reaching the bulkhead, they observed the water but failed to ascertain the water conditions, except to note that it appeared dark and deep. Clarke jumped feet first from the bulkhead into the water four to five feet below. He testified that he never touched the lake bottom or any objects on the bottom. Socorro, who had been a competitive swimmer and diver in Venezuela, noted that the water was very dark, but apparently made no attempt to ascertain its depth. He executed two flat racing dives in a southerly direction from the bulkhead. These dives were without incident. Like Clarke, Socorro did not touch bottom or any objects on the bottom.
The two friends then decided to stage a race. They climbed to the top of the bulkhead, planning to dive together from there. There was a false start, and Socorro dove in while Clarke remained on top of the bulkhead. As Socorro entered the water, he struck his head on a submerged object believed to be rip rap lying on the lake bottom about ten feet from the bulkhead.
Clarke realized that Socorro was in trouble and waded in to rescue him. The water was chest deep. Clarke felt the bottom of the lake, noting that it was comprised of "a lot of stones." Clarke noticed Socorro was bleeding from the head, that his body felt flat and heavy and that he could not move his arms and legs. Socorro told Clarke that he could not feel anything. With assistance from a bystander, Clarke pulled Socorro from the water.
Medical help was summoned. Socorro was transported to Ochsner Hospital. Physical examinations revealed a laceration to the forehead. Neurological examinations revealed a complete sensory loss below the T-12 level and motor examination revealed complete paralysis of Socorro's arms and legs. X-rays revealed a compression fracture at the C5-6 level with complete motor loss below C6.
On November 27, 1983, Socorro was transferred from Ochsner to Baptist Hospital in Miami, Florida, where he remained until January 24, 1984 for additional treatment (including several surgical procedures) and rehabilitation therapy. He was discharged from Baptist with a final diagnosis of permanent quadriplegia with an accompanying neurogenic bladder. Socorro returned to Venezuela, where he now resides with his family.
In their appeal, the Levee Board, the City and Socorro assert the following assignments of error:
I. Liability
1) The trial court erred in determining that the Levee Board had custody and control of the area into which plaintiff dove.
2) Even if one assumes that the Levee Board did have custody and control of the area into which plaintiff dove, the trial court erred in determining that the condition of the area created an unreasonable risk of harm.
3) The trial court erred in failing to hold the Levee Board immune from liability pursuant to LSA-R.S. 9:2791, 2795.
4) The trial court erred in failing to hold the Levee Board immune from liability pursuant to LSA-R.S. 9:2798.1, discretionary immunity.
5) The trial court erred in determining plaintiff to be only 10% at fault for the injuries he sustained.
6) The trial court erred in excluding and refusing to consider any evidence relating to plaintiff's blood alcohol level and the effects thereof.
7) The trial court erred in determining that they had "garde" of the Point so as to give rise to a duty to warn or otherwise protect plaintiff from diving.
8) Even assuming arguendo that the City had custody, control and "garde" of the Point, the trial court erred in determining the City breached its duty to warn Socorro or otherwise protect him from the danger of diving from the Point.
9) Assuming arguendo that the City had custody and "garde" of the Point, the trial court erred in finding that the absence of warning signs or other protective measures was a proximate cause of Socorro's injuries.
10) The trial court erred in failing to hold the City immune pursuant to LSA-R.S. 9:2791, 2795.
11) The trial court erred in failing to hold the City immune from liability pursuant to LSA-R.S. 9:2798.1, discretionary immunity.
12) The trial court erred in giving any credence to the testimony of Socorro and his companion Ronald Clarke.
13) The trial court erred in determining Socorro to be only 10% at fault.
14) The trial court erred in excluding and refusing to consider evidence relating to Socorro's blood alcohol level and the effects thereof.
15) The trial court erred in allocating any comparative negligence to him.
16) The trial court erred in failing to enter judgment against Angelina Casualty Company, as the record clearly reflects that Angelina made a general appearance, thus subjecting itself to the Court's jurisdiction.
17) Alternatively, if the Levee Board is found free of fault, then the trial court's judgment should be amended to name the State as judgment debtor in place of or concurrently with the Levee Board.
18) The trial court erred in failing to hold the Levee Board and the City solidarily liable to Socorro for the full amount of his damages less his 10% assigned percentage of fault.
II. Damages:
A. The Levee Board asserts:
19) The trial court erred in failing to award the Levee Board indemnity on its cross claims against the City.
B. The Levee Board and the City assert:
20) The trial court acted contrary to the law and abused its discretion in the award of damages.
The City also filed in this Court a Peremptory Exception of No Cause of Action, urging that the City owed no duty to Socorro to warn or otherwise protect him from the obvious dangers inherent in the activity of diving into unknown waters. 4 The duty owed by the City to Socorro is a legal issue properly addressed on the merits of this appeal as it relates to the issue of liability.
To better understand the locations involved in this litigation and their importance in addressing the issues, a description of the West End area of New Orleans is necessary.
The Point, from which Socorro dove when he was injured,...
To continue reading
Request your trial