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LeBlanc v. City of Abbeville

Court of Appeals of Louisiana, Third Circuit

October 17, 2018

RILEY LEBLANC
v.
CITY OF ABBEVILLE

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 102352 HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

          Joy C. Rabalais Allison M. Ackal BORNE, WILKES & RABALAIS, LLC COUNSEL FOR DEFENDANT/APPELLANT: City of Abbeville

          Bernard F. Duhon COUNSEL FOR PLAINTIFF/APPELLEE: Riley LeBlanc

          G. Andrew Veazey Bradford EL Felder Dona K. Renegar VEAZEY, FELDER & RENEGAR COUNSEL FOR PLAINTIFF/APPELLEE: Riley LeBlanc

          Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.

          VAN H. KYZAR, JUDGE

         Defendant/Appellant, the City of Abbeville ("the City"), appeals a trial court judgment rendered in favor of Plaintiff' Appellee, Riley LeBlanc, after Mr. LeBlanc was injured while stepping on a storm grate in the custody and control of the City. After a full trial on the merits, the trial court awarded Mr. LeBlanc the following: past medical expenses in the amount of $35, 846.38; future medical expenses in the amount of $100, 532.50; past lost earnings in the amount of $59, 348.00; future loss of earning capacity in the amount of $524, 595.00; and past and future general damages in the amount of $250, 000.00 for a total award of $970, 321.88. For the following reasons, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On April 1, 2016, Riley LeBlanc was standing outside of his neighbor's home at 203 Gauraud Street in Abbeville, Louisiana, speaking to his neighbor, Reed Hebert. The two men were in front of Mr. Hebert's house, Mr. Hebert inside his fenced yard and Mr. LeBlanc on the outside. During their conversation, Mr. Hebert's daughter, who had been playing in the yard, fell into a rose bush and cried out for help. Both gentlemen immediately stepped toward the sound in an effort to reach and assist the child. In his haste, Mr. LeBlanc stepped on a metal storm grate that was partially covered with grass. The grate sits above a catch basin. When Mr. LeBlanc stepped on the metal grate, it purportedly broke at two separate corners, causing Mr. LeBlanc's right leg to fall through the opening. This caused Mr. LeBlanc to suffer a severe laceration to his lower leg. Due to this injury, Mr. LeBlanc is unable to continue his work as a carpenter and purportedly has ongoing pain and issues with his lower extremity.

         On September 21, 2016, Mr. LeBlanc filed a Petition for Damages, naming the City as the defendant. Mr. LeBlanc stated that the metal storm grate involved is part of a sewage servitude maintained by the City in connection with its sewage, water, and wastewater systems and that the City is authorized and conducts routine maintenance and inspections on the sewage servitude and its related parts. He asserted the storm grate in question was severely deteriorated and riddled with rust. The City denied all of Mr. LeBlanc's claims and filed a motion for summary judgment, claiming that it owed no duty to the plaintiff as the storm grate was open and obvious and also that the grate was in good condition and not unreasonably dangerous. The City's motion was heard and denied on October 23, 2017.

         A trial on the merits took place on November 20, 2017 to November 21, 2017, after which the trial court rendered judgment in favor of Mr. LeBlanc with written reasons signed on December 6, 2017. The trial court found the City liable for Mr. Leblanc's injury, citing the provisions of La.Civ.Code art. 2317 and La.R.S. 9:2800. It specifically found that the compromised condition of the storm grate was not "obvious to all" and as such the City did owe a duty and, further, that the City had constructive knowledge of the grate's defect. Finally, the trial court awarded Mr. LeBlanc both general and special damages, including past medical expenses, future medical expenses, past lost earnings, and future loss of earning capacity.

         The City timely appealed on January 3, 2018. On appeal, the City presents six issues for review.

(1) Whether the trial court misapplied the law to the facts presented at trial on the issue of whether the storm grate was [an] open and obvious condition.
(2) Whether the trial court committed legal error in finding that the City of Abbeville owed a duty of care to plaintiff to protect him from an open and obvious condition.
(3) Whether the trial court committed legal error in finding that the City of Abbeville had notice of any alleged defect pursuant to La.R.S. 9:2800.
(4) Whether the trial court committed legal error in failing to find that the City was immune for its discretionary acts under La.R.S. 9:2798.1.
(5) Whether the trial court committed error in failing to assess plaintiff with any fault.
(6) Whether the damages awarded by the trial court are impermissibly excessive.

         OPINION

         The City asserts that the trial court committed legal error in finding that it was liable for Mr. Leblanc's injury. The City stipulated that the storm grate involved in the incident was in its custody. However, the City argues the trial court erred in ruling that the storm grate in question was not an open and obvious condition for which the City owed no duty to Mr. LeBlanc and also in ruling that the City had notice as to any alleged defect in said storm grate. Under La.Civ.Code art. 2317, "[w]e 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." Louisiana Revised Statutes 9;2800(C), which governs the analysis of a public entity's liability for a defective thing within its custody or care, further states:

[N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

         To establish a claim against a public entity for damages caused by the condition of things within its care or custody, a plaintiff must show that (1) the thing that caused the damage was in the care or custody of the public entity, (2) the thing was defective due to a condition that created an unreasonable risk of harm, (3) the public entity had actual or constructive notice of the condition yet failed to take corrective action within a reasonable period of time, and (4) the defect was a cause in fact of the plaintiffs harm. La.R.S. 9:2800; La.Civ.Code art. 2317; Ricks v. City of Shreveport 42, 675 (La.App. 2 Cir. 10/24/07), 968 So.2d 863. Constructive notice means the existence of facts which imply actual knowledge. La.R.S. 9:2800(D). A trial court's findings under La.R.S. 9:2800, the statute governing limitations of liability for a public entity for things within its care and custody, are subject to manifest-error review. Ricks, 968 So.2d 863.

         Liability of the City

         In its first three assignments of error, the City alleges the trial court erred in finding the City liable to Mr. LeBlanc for his injury based upon a number of the factors that a plaintiff is required to show in order to establish a claim against a public entity. See Ricks, 968 So.2d 863. As such, we will now address these factors.

         (1) Care or Custody of the Storm Grate

         The City's custody of the storm grate involved in the incident is undisputed. Clay Menard, the City's Public Works Director, and Richard Sysak, the foreman for the City's Streets Department, both testified at trial. Mr. Menard acknowledged that the storm grate was in the custody of the City and that the City is responsible for the maintenance, repair, and cleaning of storm and drainage grates that are in its rights-of-way. Mr. Sysak testified that the storm grates around the City are part of the City's infrastructure and they are responsible for maintaining them. The City replaced the subject storm grate after the incident.

         (2) Unreasonable Risk of Harm

         To determine whether a defect presents an unreasonable risk of harm, the supreme court has adopted a risk-utility balancing test, synthesized to a consideration of four pertinent factors: "(1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature." Broussard v. State ex rel. Office of State Bldgs., 12-1238, p. 10 (La. 4/5/13), 113 So.3d 175, 184.

Because the determination of whether a defective thing presents an unreasonable risk of harm "encompasses an abundance of factual findings, which differ greatly from case to case, followed by an application of those facts to a less-than scientific standard, a reviewing court is in no better position to make the determination than the jury or trial court;' [Reed v. Wal-Mart Stores, Inc., 97-1174, p.4 (La. 3/4/98, 3), 708 So.2d 362, 364-365.] Accordingly, the fact-finder's unreasonable risk of harm determination is subject to the manifest error standard of review and should be afforded deference on appeal. Id. at 364-65. Under the manifest error standard of review, a court of appeal may not set aside a jury's finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The reviewing court must only decide whether the fact- finder's conclusion was reasonable, not whether it was right or wrong. Stobart v. State through DOTD, 617 So.2d 880, 882 (La. 1993). In order to reverse a jury's factual finding as manifestly erroneous, an appellate court must find the record, when reviewed in its entirety, (1) contains no reasonable factual basis for the jury's finding and (2) establishes the finding is clearly wrong. Id. The court of appeal must always be mindful that if the jury's findings "are reasonable in light of the record reviewed in its entirety ... [it] may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 882-83; Rosell, 549 So.2d at 844.

Broussard, 113 So.3d at 185-86.

         Utility of the Thing

         There can be no doubt that storm grates like the one involved in the current incident serve a vital purpose as a part of the City's drainage system. The storm drainage system employed by the City is designed to remove water from the roadways and provide proper drainage for neighborhoods. However, this is only the first prong in our inquiry.

         Likelihood and Magnitude of Harm: Obvious and Apparent

         It is while studying the likelihood and magnitude of the harm that the obviousness and apparentness of the complained of condition should be considered. Mr. Menard and Mr. Sysak both testified for the City that storm grates located within the City's rights-of-way, such as the one at issue here, are expected to be able to fully support the weight of a vehicle. While instances of injuries involving storm grates are rare, the involved storm grate's structural integrity was weakened to such an extent that the portion of the grate that Mr. LeBlanc stepped on broke and fell into the catch basin.

         The City asserts that the trial court did not properly apply the law to the facts and evidence adduced at trial. The City suggests that the accident occurred, not because the storm grate was rusted, but because it was not seated properly over the catch basin. According to the City's version of events, the improperly seated storm grate flipped up when stepped on by Mr. LeBlanc, allowing Mr. LeBlanc's leg to fall between the grate and the wall of the catch basin. This is in direct contradiction to the testimony of Mr. LeBlanc and his neighbor, Mr. Hebert, who witnessed the incident.

         Both Mr. LeBlanc and Mr. Hebert testified that the storm grate broke when Mr. LeBlanc stepped on it. Photographs taken after the event by Mr. LeBlanc's father and by Mr. Menard corroborate this version of events and show the storm grate with broken pieces and jagged edges. The trial court specifically found that Mr. Menard's testimony was not credible and, further, that his assertion that the storm grate was not bent or broken was contradicted by other evidence. "[W]here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review[.]" Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.

Id. at 844. As there is ample evidence in the record to support the trial court's findings, we will not disturb them here.

         The City also asserts the trial court erred in regard to its finding that the corroded storm grate was not an open and obvious condition such that it owed a duty to Mr. LeBlanc. Whether a dangerous or defective condition is obvious and apparent is covered under the second prong of the risk-utility balancing test utilized by the supreme court in determining if a condition presents an unreasonable risk of harm. See Broussard, 113 So.3d 175. Though the City concedes that the storm grate was in its custody, a property owner generally does not have a duty to protect against an open and obvious hazard. La.Civ.Code art. 2317; Broussard, 113 So.3d 175. "In order for a hazard to be considered open and obvious, this Court has consistently stated the hazard should be one that is open and obvious to all, i.e., everyone who may potentially encounter it." Id. at 184. If the facts show that the supposedly defective condition should be obvious and apparent to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty. Dauzat v. Curnest Guillot Logging Inc., 08-528 (La. 12/2/08), 995 So.2d 1184.

         On appeal, the City argues that the storm grate at issue was an open and obvious condition. To support its position, the City cites Pitre v. Louisiana Tech University, 95-1466 (La. 5/10/96), 673 So.2d 585, cert denied, 519 U.S. 1007, 117 S.Ct. 509 (1996). In Pitre, 673 So.2d 585, the supreme court held that a landowner/custodian does not owe a duty to persons on their land when it comes to obvious or apparent defects so long as the injured person was in the same position as that of the landowner to observe the alleged defect. The City argues that because Mr. LeBlanc knew of the location of the storm grate, he was in a better position than the City to view any defect in said grate. It urges that Mr. LeBlanc has lived across the street from the storm grate for many years and points to Mr. Leblanc's testimony stating that the weather on the day of the accident was sunny and clear and that Mr. Leblanc saw the storm grate before he stepped on it. The City asserts that based upon these facts, it owed no duty of care whatsoever to Mr. Leblanc. However, as the supreme court noted:

[T]he key to a finding of no liability in such cases is not the plaintiffs subjective awareness of the risk, but the determination that the defendant did not act unreasonably vis-a-vis the plaintiff, or injure the plaintiff through the instrumentality of an unreasonably dangerous thing in his custody. The determination of what the plaintiff knew regarding the risk of injury is made after fault on the part of the defendant has been established[.]

Pitre, 673 So.2d at 591 (quoting Murray v. Ramada Inns, Inc.,521 So.2d 1123, 1136 (La. 1988)). "The open and obvious inquiry thus focuses on the global knowledge of everyone who encounters the defective thing or dangerous condition, not the victim's actual or potentially ascertainable knowledge." Broussard, 113 So.3d at 188. Further, it is the defect or dangerous condition of the ...


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