Thumfart v. Lombard, 91-CA-2602

• Decision Date: 21 January 1993
• Docket Number: No. 91-CA-2602,91-CA-2602
• Citation: 613 So.2d 286
• Parties: Theresa Montalbano, Wife of/and Erhard THUMFART v. Ronald J. LOMBARD, State Farm Insurance Company and Water Board of New Orleans and/or City of New Orleans.
• Court: Court of Appeal of Louisiana — District of US

Page 286

613 So.2d 286

Theresa Montalbano, Wife of/and Erhard THUMFART v. Ronald J. LOMBARD, State Farm Insurance Company and Water Board of New Orleans and/or City of New Orleans.

No. 91-CA-2602.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 21, 1993.

Rehearing Denied March 10, 1993.

Writ Denied May 21, 1993.

John F. Tooley, Jr., Woodlands, and Kevin A. Rieth, Gretna, for plaintiffs/appellants.

Marianne S. Pensa, Galloway, Johnson, Tompkins & Burr, New Orleans, for defendants/appellees.

Before KLEES, BYRNES, ARMSTRONG, PLOTKIN and WALTZER, JJ.

WALTZER, Judge.

This appeal comes from a trial court judgment dismissing plaintiff's claims against defendants Ronald Lombard and the Sewerage and Water Board of New Orleans. In his reasons for judgment, the trial judge stated that Theresa Thumfart, plaintiff, failed to establish by a preponderance of the evidence whether the uncovered hole causing her injuries was the hole located on Mr. Lombard's property or the Sewerage and Water Board's meter box hole, which was on city property. After a trial on the merits, the trial judge dismissed plaintiff's claims against Mr. Lombard and the Water Board. ¹ The trial judge never reached the issue of damages. Plaintiff now appeals the trial court's judgment, claiming both liability and damages.

This action arose from an accident involving an uncovered hole in a parking lot on November 27, 1988. On that date, Theresa Thumfart drove to a lounge known as Chasers at 5771 Crowder Boulevard. Chaser's Lounge is one part of a building owned by Ronald Lombard. The other part of the building contains a pawn shop. In front of the building, in the parking lot, is a snowball stand. On the evening of November 27, 1988, Mrs. Thumfart parked her car in front of the snowball stand. She walked across the parking lot, entered the bar, had one drink, and left. As she was walking back to her car, Mrs. Thumfart failed to notice an uncovered hole, which could have been either one foot or four inches deep. ² Her foot fell into the hole and her arm and upper body hit the pavement, causing several sprains, bruises, and other injuries. Plaintiff then made her way back to the lounge and told the owner what had happened. The owner went out to the parking lot to examine the area, saw the uncovered water meter hole, and immediately called the Sewerage and Water Board of New Orleans, who then sent someone to replace the cover that night. Mrs. Thumfart then went to Methodist Hospital's emergency room where she was treated. She was later treated by several other physicians.

Mr. Lombard had purchased the lot at 5771 Crowder Boulevard in 1976. At that time, the lot was undeveloped grassland. In 1976, Mr. Lombard built a building which he now leases to Chaser's Lounge and a pawn shop. In 1977, he constructed a separate snowball stand on the lot. In addition to the building and the snowball stand, Mr. Lombard paved the rest of his property as a parking lot and driveway. While he initially paved only his property, he later got a permit and servitude to pave over city property which separated a portion of his land from Crowder Boulevard, and which Mr. Lombard used to extend his parking lot and create another entrance to his property. An imaginary line thus runs through the parking lot separating Mr. Lombard's property from the City's. On Mr. Lombard's side of the property line is a hole for sewerage drainage and cleanout, which he built and was required to have in accordance with city regulations. On the City's side of the property line, close to the other hole, is a water meter hole wherein the Sewerage and Water Board reads the meter in order to determine Mr. Lombard's water bill. The attorney for Mrs. Thumfart argued before this Court that Mr. Lombard constructed the water meter hole when he developed the city property on which it is located. The attorney for Mr. Lombard denied this allegation, claiming that the water meter hole existed prior to Mr. Lombard's development of the property. The deposition testimony of Warren Lawrence of the Sewerage and Water Board indicates that the water meter box existed prior to Mr. Lombard's development of the property.

The trial judge found it difficult to determine which hole Mrs. Thumfart fell into. Because there were no witnesses to the incident, only Mrs. Thumfart could give direct testimony as to which hole caused her injuries. At trial she stated that Mr. Lombard's drainage cleanout hole caused her fall. She also introduced photographs, taken the day after the accident, indicating the hole on Mr. Lombard's property as the cause. Defendant's witnesses were found equally credible as they identified the Sewerage and Water Board's water meter hole as the one fallen into by plaintiff. The owner of the lounge and an employee of the Sewerage and Water Board both testified that there was a missing cover to the water meter hole on the evening of the accident. The trial judge, having found the plaintiff and defendant's witnesses equally credible, stated in his reasons for judgment that neither party proved by a preponderance of the evidence which hole caused Mrs. Thumfart's fall.

After a full trial on the merits, the trial judge ruled that (1) although strict liability applied, and the uncovered hole (whichever one actually caused the plaintiff's injuries) constituted a defect, because Mrs. Thumfart could not prove by a preponderance of the evidence that the hole she fell into was located on Mr. Lombard's property, her claim against Mr. Lombard must be dismissed, ³ and (2) that if the hole causing her injuries was the Sewerage and Water Board's water meter hole, then plaintiff failed to prove by a preponderance of the evidence that the Sewerage and Water Board had actual or constructive notice of the missing cover. ⁴ Moreover, because the trial judge did not affirmatively answer the issue of liability, he found no need to answer the question of damages. The trial judge did, however, apportion one third of the fault to Mrs. Thumfart, pointing to the fact that she had one drink and was walking through a dark parking lot inattentively. Mrs. Thumfart now appeals the trial court's judgment, arguing that her claim against Mr. Lombard was improperly dismissed and that damages should be awarded.

The plaintiff's claim against Mr. Lombard is based upon La.Civil Code article 2317. That article states:

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 is to be understood with the following modifications. (emphasis added)

In order to prove liability under article 2317, the plaintiff must prove that (1) a defect posing an unreasonable risk of harm to persons exercising ordinary care, (2) which was in the custody of the defendant, (3) caused her injuries. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990). The trial judge, in his reasons for judgment, found that the uncovered hole (whichever one) in a "somewhat dark" area of the parking lot at night posed an unreasonable risk of injury to persons exercising ordinary care and thus a defect for 2317 purposes. This Court agrees with that conclusion. ⁵ Furthermore there was no question in the trial court that one of the two holes caused Mrs. Thumfart's accident. The issue on appeal is whether the trial court was correct in ruling that Mr. Lombard could only be liable under 2317 for injuries resulting from the hole on his property, and not for the hole located on city property.

It is well settled law in Louisiana that strict liability under La.C.C. article 2317 is based upon the relationship between the person with custody and the thing posing an unreasonable risk of harm to others. The article imposes liability based on custody and not ownership. Ownership allows a presumption of custody. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991). However, absence of ownership does not end the inquiry of 2317 liability. Custody, distinct from ownership, refers to a person's supervision and control (garde) over a thing posing an unreasonable risk of harm. Loescher v. Parr, 324 So.2d 441, 446 (La.1975). Under Louisiana law, the guardian is in a better position than the innocent victim to detect, evaluate, and take steps to eliminate a defect posing an unreasonable risk of harm to others. Doughty, supra at 463, 464 (citing Ross v. La Coste de Monterville, 502 So.2d 1026, 1028 (La.1987); Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 n. 5 (La.1982)). Our Louisiana Supreme Court has recently used a two part test in determining whether the defendant has custody. First, the defendant should have a right of direction and control over the thing. Second, a court should examine what, if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); King v. Louviere, 543 So.2d 1327, 1329 (La.1989).

In the case presently before us, the trial judge dismissed plaintiff's claim against Mr. Lombard stating, "[t]he plaintiff has failed to establish by a preponderance of the evidence that it is more likely than not that she stepped into the hole for sewerage/drainage clean-out located on Lombard's property." The trial judge thus determined that strict liability could not exist for the hole located on property not owned by the defendant. ⁶ While ownership would have allowed a presumption of custody, the inquiry of liability does not end with a determination of nonownership. We think the trial court should have further determined whether Mr. Lombard exercised sufficient control or supervision over property with the water meter hole and whether Mr. Lombard benefited from this property.

The trial record indicates that Mr. Lombard received a significant benefit from the property with the water meter hole. Mr. Lombard leased his property and building at...