FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
VERMILION, NO. 102352 HONORABLE EDWARD B. BROUSSARD, DISTRICT
Rabalais Allison M. Ackal BORNE, WILKES &
RABALAIS, LLC COUNSEL FOR DEFENDANT/APPELLANT: City of
Bernard F. Duhon COUNSEL FOR PLAINTIFF/APPELLEE: Riley
Andrew Veazey Bradford EL Felder Dona K. Renegar VEAZEY,
FELDER & RENEGAR COUNSEL FOR PLAINTIFF/APPELLEE: Riley
composed of Marc T. Amy, John E. Conery, and Van H. Kyzar,
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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
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.
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.
of the City
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.
Care or Custody of the Storm Grate
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.
Unreasonable Risk of Harm
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.
of the Thing
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.
and Magnitude of Harm: Obvious and Apparent
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.
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.
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
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
Id. at 844. As there is ample evidence in the record
to support the trial court's findings, we will not
disturb them here.
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
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 ...