Watts v. Town of Homer

• Decision Date: 01 October 1974
• Docket Number: No. 12421,12421
• Citation: 301 So.2d 729
• Parties: Christell WATTS, Individually and as natural tutrix of the minor, Betty Jean Watts, Plaintiff-Appellant-Appellee, v. The TOWN OF HOMER, Louisiana, Defendant and Third Party Defendant; Appellant and Appellee, The CLAIBORNE PARISH SCHOOL BOARD, Third Party Plaintiff; Appellant and Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 729

301 So.2d 729

Christell WATTS, Individually and as natural tutrix of the minor, Betty Jean Watts, Plaintiff-Appellant-Appellee, v. The TOWN OF HOMER, Louisiana, Defendant and Third Party Defendant; Appellant and Appellee The CLAIBORNE PARISH SCHOOL BOARD, Third Party Plaintiff Appellant and Appellee.

No. 12421.

Court of Appeal of Louisiana, Second Circuit.

Oct. 1, 1974.

Rehearing En Banc Denied Nov. 5, 1974. ^*

Gerard F. Thomas, Jr., Natchitoches, Shaw & Shaw by W. M. Shaw, Homer, for plaintiff-appellant-appellee.

Meadors & Meadors by William F. M. Meadors, Jr., Homer, for Town of Homer.

Mayer, Smith & Roberts by Charles L. Mayer, Shreveport, for Claiborne Parish School Bd.

Charles E. Welsh, Bossier City, for Confederate Memorial Medical Center.

Before BOLIN, PRICE and HALL, JJ.

PRICE, Judge.

This is an appeal from the judgment of the trial court awarding plaintiff the sum of $250,000 for the use and benefit of her minor daughter who sustained an injury at a playground constructed by the Town of Homer on property belonging to the Claiborne Parish School Board. Both the Town and School Board, who were named defendants, have appealed from the judgment holding them liable in solido for the child's injury and rejecting the School Board's third party demand against the Town.

Plaintiff has answered the appeal, asking for an increase in the amount awarded to the sum sued for, $782,500.

The issues raised on this appeal are multiple and arise out of a lengthy course of litigation. The injury happened on March 25, 1963 . Prior to the filing of this suit on August 6, 1970, plaintiff brought a similar action against the same defendants, which was dismissed by the trial court for lack of jurisdiction on a finding that the resolution of the legislature attempting to waive the immunity of the defendants from tort liability enjoyed as governmental agencies was ineffective for technical reasons. This judgment of dismissal was affirmed by this court in the opinion reported at 207 So.2d 844. The sustaining of a plea of prescription by the trial court was not then passed on by this court as the issue was considered to be moot.

Prior to answering the plaintiff's petition in the present suit, the defendants filed a joint pleading asserting alternatively the defenses of res judicata, prescription and unconstitutionality of the resolutions granting legislative permission for this action.

We shall dispose of these preliminary questions before discussing the facts and issues involved in the merits of the case.

PLEA OF RES JUDICATA

Defendants base their exception of res judicata on the judgment of dismissal rendered July 14, 1967, in the first suit. A reading of the opinion of this court affirming the dismissal indicates that lack of jurisdiction for want of proper legislative authority to prosecute the action was the sole ground for rejection of plaintiff's suit. No consideration of the merits of her claim was reached in that suit. La.Civil Code art. 2286 in part provides:

'The authority of the thing adjudged takes place only with respect to what was the object of the judgment. * * *'

For the article to apply it is clear that there must be a 'thing adjudged.' We think the case of Tucker v. New Orleans Laundries, Inc., 238 La. 207, 114 So.2d 866 (1959), is dispositive of this issue. In that case the court speaking through Justice Hawthorne said:

'Under the law of this state, neither a judgment of non-suit no one dismissing a suit for want of proper parties will serve as the basis for res judicata, for in such a suit the judgment of the court has decided nothing on the merits of the controversy. Weinberger v. Merchants' Insurance Co., 41 La.Ann. 31, 5 So. 728; Riggs Cypress Co . v. Albert Hanson Lumber Co., 127 La. 450, 53 So. 700. We do not think any citation is necessary for the legal proposition that where a court sustains an exception to the jurisdiction, plaintiff is not barred from bringing another suit in the proper forum, and that the second suit will not be amenable to a plea of res judicata.' P. 872 .

We find no merit in the plea of res judicata urged by defendants.

PRESCRIPTION

Any question of prescription is laid to rest by the action of the legislature in the adoption of Senate Concurrent Resolution 89 of the General Assembly for the year 1970 which authorized the filing of the present suit by waiving immunity of liability and specifically waiving Prescription and peremption. Article III, Section 35 of the Louisiana Constitution grants this power to the legislature. The plea of prescription was properly overruled by the trial court.

CONSTITUTIONALITY OF SENATE RESOLUTION NO. 89 OF 1970

This attack rests on the contention the legislative resolution authorizing the suit provides any judgment rendered against the Town or School Board 'shall be satisfied and paid only out of any funds to the credit of the General Fund of the Claiborne School Board and/or the Town of Homer, Louisiana, and/or any other funds available to said School Board and/or Town,' which is contrary to Article 3, Section 35 of the Louisiana Constitution of 1921, which provides that a judgment against the State or any public body shall be payable only from funds appropriated for this purpose. This portion of the enabling resolution relating to a method of payment is superfluous to the issue of liability and should it be violative of the constitutional restrictions it would merely become ineffective. However, this issue relates to enforcement of the judgment and is not before the court at this time.

FACTUAL BACKGROUND OF PLAINTIFF'S ACTION ON MERITS

In the late afternoon of March 25, 1963, seventeen-month old Betty Jean Watts, the daughter of plaintiff, Christell Watts, was seriously injured when a steel pole of a swing set became dislodged and struck the child on the head as it fell to the ground. The child had been taken to the playground area by her seventeen-year old sister, Ada B. Watts, who watched after her while their mother worked. An older brother who accompanied the girls to the area was swinging on the set at the time the accident happened.

In an effort to provide a recreational program for children in the neighborhood where plaintiff resided, the Town of Homer several years prior to this accident acquired the playground equipment at an abandoned elementary school and placed it on property belonging to a church association in the area. A summer recreation program was carried on utilizing the equipment under the direction of William L. May, a teacher for the Claiborne Parish School Board, employed by the Town on a part-time basis for this purpose. During the year 1962, May was advised by the church association the equipment would have to be moved from its property. May, assisted by Reverend John Davis, Pastor of a church in the neighborhood, began looking for another site to continue the recreational facility for the benefit of children in this section of town. The school board owned a tract of some 44 acres adjoining this neighborhood, of which only a small portion was being used for the Mayfield School. May and Davis approached the then Superintendent of Schools, F. C. Haley, in regard to using a plot of this tract which was not being used for school purposes and was on the side of the tract nearest the residential area and farthest removed from Mayfield School. Haley granted permission and the site was cleaned, graded and sodded by the employees of the Town during the remainder of the year 1962. During February and early March of 1963, the equipment was moved from the former church site and erected on the school board property by employees of the Town. At the time of the accident all of the equipment apparently was in place on the site but the fencing of the plot had not begun.

Christell Watts, in her petition initiating this action, alleges the Town of Homer (hereinafter referred to simply as Town) and the Claiborne Parish School Board (referred to usually as School Board) are liable in solido for damages resulting to the child as they entered into a joint venture in providing the playground and the installation of equipment was done in a careless and negligent manner constituting a constructive trap for children who were invited to use the facility.

Plaintiff further alleges the collapse of the swing which caused injury to the child resulted from the use of obsolete, worn equipment which was not properly installed in that the proper footing for the steel framing was not provided, nor were the side members securely tightened into the sleeve at the top of the frame by a set screw.

The Town answered plaintiff's petition, denying all allegations of negligence directed toward it, and specifically alleged the plaintiff was negligent in permitting her seventeen-month old child to enter upon the playground without proper supervision. For this same reason the alternative plea of contributory negligence is urged as a bar to plaintiff's recovery.

In its original and amended answer the School Board denies participating in any joint venture with the Town in establishing the playground and denies it was guilty of any negligence which caused the injury sued on. Alternatively, by third party demand, the School Board seeks judgment over against the Town for any amount awarded against it in this action.

The merits of the case were tried before Judge David Caldwell who was seriously injured in an automobile accident prior to the time the case was submitted for decision. After its submission a decision was rendered by the district judge of an adjoining district who was assigned to assist in Judge Caldwell's absence. Although Judge Caldwell adopted the written reasons given by the assigned Judge as his own and proceeded to sign the formal judgment in the trial court, it is apparent the primary evaluation of the evidence and testimony was accomplished solely from a review of the record.

The trial court found the evidence...