FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. 20163619 HONORABLE DAVID MICHAEL SMITH,
A. MAHTOOK, JR. MAHTOOK & LAFLEUR, L.L.C. COUNSEL FOR
DEFENDANT/APPELLEE: LAFAYETTE CITY-PARISH CONSOLIDATED
T. MORALES THE TOWNSLEY LAW FIRM COUNSEL FOR
PLAINTIFF/APPELLANT: DEMETRIC TANNER
composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis
M. Keaty, Judges.
HOWARD EZELL JUDGE.
Tanner appeals a trial court judgment granting summary
judgment in favor of the Lafayette Consolidated Government
(LCG) and dismissing her case. Ms. Tanner alleges that there
are genuine issues of material fact as to whether the LCG had
knowledge of a dangerous condition of one of its manhole
September 9, 2015, Ms. Tanner was going to the Legacy Bar on
Jefferson Street in Lafayette, Louisiana. She forgot her
driver's license, so she and a friend went back to her
car to get it. She saw a friend across the street and
proceeded to go to talk to the friend. The friend walking
across the street with her was on her left and slightly
behind her. According to Ms. Tanner's deposition, she
took a couple of steps into the street. Ms. Tanner claims she
stepped on a manhole cover and it popped up, hitting her
ankle and leg, at which time her leg went in the manhole. As
a result of the incident, she alleges she injured her knee
and other body parts. Ms. Tanner stated that her friend said
the manhole cover was flat before the accident.
Tanner filed suit against the LCG on July 8, 2016.
Subsequently, the LCG filed a motion for summary judgment. A
hearing on the motion was held on September 10, 2018.
Following the hearing, the trial court ruled that the LCG did
not have actual or constructive knowledge of any defects with
the manhole cover. Judgment was signed on September 17, 2018,
dismissing Ms. Tanner's claims against the LCG. Ms.
Tanner then filed the present appeal.
appeal, Ms. Tanner alleges the trial court erred in granting
summary judgment in favor of the LCG. She argues there are
genuine issues of material fact concerning the LCG's
knowledge of a dangerous condition.
summary judgment procedure is favored and "designed to
secure the just, speedy, and inexpensive determination of
every action[.]" La.Code Civ.P. art. 966(A)(2).
Appellate courts review the grant or denial of a motion for
summary judgment de novo, "using the same criteria that
govern the trial court's determination of whether summary
judgment is appropriate., i.e., whether there is any
genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law." Samaha v.
Rau, 07-1726, p. 4 (La. 2/26/08), 977 So.2d 880, 882-83;
La.Code Civ.P. art. 966(A)(3).
moving party has the burden of proof unless the mover
"will not bear the burden of proof at trial on the
issues that is before the court on the motion for summary
judgment." La.Code Civ.P. art. 966(D)(1). In that case,
the mover need only "point out to the court the absence
of factual support for one or more elements essential to the
adverse party's claim, action, or defense."
Id. "The burden is on the adverse party to
produce factual support sufficient to establish the existence
of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law." Id.
Revised Statutes 9:2800(C), regarding a claim against a
public entity for damages caused by things in its care and
custody, provides, in pertinent part:
[N]o person shall have a cause of action based solely upon
liability imposed under Civil Code Article 2317 against a
public entitled 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.
order to establish liability under La.R.S. 9:2800, the
supreme court has held that a plaintiff must prove: "(1)
custody or ownership of the defective thing by the public
entity; (2) the defect created an unreasonable risk of harm;
(3) the public entity had actual or constructive notice of
the defect; (4) the public entity failed to take corrective
action within a reasonable time; and (5) causation."
Chambers v. Village of Moreauville, 11-898, p. 5
(La. 1/24/12), 85 So.3d 593, 597. The failure to establish
any one of the elements will defeat a claim under La.R.S.
9:2800 against a public entity. Walters v. City of W.
Monroe, 49, 502 (La.App. 2 Cir. 2/4/15), 162 So.3d 419,
writ denied, 15-440 (La. 5/15/15), 170 So.3d 161.
notice is defined as "the existence of facts which infer
actual knowledge." La.R.S. 9:2800(D).
Tanner argues that this manhole cover should have been
secured or bolted down because it was in a vehicle's
wheel path. She argues that the LCG is presumed to have
knowledge of this defect since this condition has existed for
over twenty years.
court has held that a public entity is deemed to have
constructive notice of a defect when the defect has existed
for such a period of time that the public entity should have
discovered it by the exercise of ordinary care and had the
opportunity to protect the public from injury by fixing the
defect. Scott v. Lafayette Consol. Gov't-Risk Mgmt.
Div., 10-716 (La.App. 3 Cir. 12/8/10), 52 So.3d 1068.
to La.Code Civ.P. art. 1442, depositions of Mitchell P.
Wyble, the Public Works Civil Engineering Supervisor, project
control for the LCG, and Eddie Wiltz, Project Coordinator for
the LCG, were taken. Excerpts from these depositions were
introduced by the LCG in support of its motion for summary
does not deny that it owns the manhole cover involved in this
case. Mr. Wyble, an employee with the LCG for
thirty-two-and-a-half years, explained that his department
would pick and choose the manhole covers depending on the
application it would be used for. This cover was installed in
the early to mid-1990s when Jefferson Street was
reconstructed. The cover is in an area off the street in a
corner by the driveway entrance to a parking lot and next to
a fire hydrant. It is a standard manhole cover without vents.
The cast-iron cover weighs 120 pounds and requires a special
tool similar to a crowbar to lift it. There is no mechanism
to keep the cover in place except the weight of the cover.
Mr. Wyble stated that a locking mechanism on a manhole cover
may be necessary if it is in the wheel path of a vehicle.
However, the LCG has no policy of placing locking mechanisms
on manhole covers. The LCG tries to keep manholes off travel
lanes and out to the edge because it does not want someone
working in a manhole in the path of a vehicle.
Wyble explained that water from the street does not enter the
manhole but there are lines running under the manhole cover
which drains the water. He stated that rainwater collected in
the adjacent parking lot drains into lines running under the
manhole cover. Mr. Wyble has seen a manhole cover get out of
place before and agreed that excessive water in the street
could lift a manhole cover, but he never saw a manhole cover
in Lafayette lifted by water pressure. He also stated that
not enough water gets into the basin to require ventilation.
As explained by Mr. Wyble, the LCG does not inspect or
maintain manhole covers unless a problem has been reported.
There is also no policy in place for the LCG employees to
report a dangerous condition, but they will report an issue
if they see something.
Wiltz agreed that the LCG only inspects manholes if it
receives a request due to a citizen's concern and there
is no procedure in place to see if covers are sitting flush
in the frame. He agreed that other employees would report a
cover that is not flush in the frame. Mr. Wiltz was not aware
of any reports of a cover not sitting flush in the frame. Mr.
Wiltz's supervisor notified him of this accident, and he
went to check it out a day or two later, but found nothing
wrong with the cover. The frame was intact, and there were no
breaks or cracks in the cover. There was no water in the
drain. If an LCG employee accessed the manhole, there would
be an express written order on file. There was none. Mr.
Wiltz explained that private contractors are supposed to get
permission from the LCG to assess the manhole, but they
opposition to the motion for summary judgment, Ms. Tanner
introduced the affidavit of Jason T. English, a professional
engineering consultant from Texas. He stated that
"[a]bsent of intended removal of the lid with a special
tool, the most likely causes for a manhole lid to become
displaced are vehicular traffic, internal pressure due to
liquid or gas, or damage to the frame due to deterioration,
shifting of the ground, or adjacent construction
activities." Mr. English was critical of the LCG for
failing to establish and implement an adequate safety
inspection and maintenance program for manholes located in
public walkways and streets. He also criticized the failure
of the LCG to install a vented manhole lid and failure to
install a secured lid. He opined that the lid was in the
potential wheel path of traffic. Mr. English never examined
the manhole cover.
first observe that the LCG's failure to have a plan for
periodic inspections does not impute constructive notice.
See Scott, 52 So.3d 1068; Jones v. Hawkins,
98-1259, 98-1288 (La. 3/19/99), 731 So.2d 216. Furthermore,
there is no evidence that the lid in question was lifted by
water pressure. To the contrary, evidence indicated that
there had never been a manhole cover displaced by water
pressure in Lafayette. Pictures of the manhole cover attached
to the depositions of Mr. Wyble and Mr. Wiltz clearly show
that it is not in the wheel path of traffic, but in a corner
of a raised curb, next to a driveway and fire hydrant, and
out of the lane of travel.Furthermore, pursuant to La.R.S. 32:143,
no person shall park a vehicle within fifteen feet of a fire
hydrant or in front of a public or private driveway, so that
pursuant to the law, there should be no vehicles in this
area. Additionally, there was never a report before this
accident of the manhole cover being displaced. Following a
report of this accident, Mr. Wiltz checked out the manhole
cover and found no issues.
agree with the trial court that the LCG was entitled to
summary judgment dismissing Ms. Tanner's case, as there
is no genuine issue of material fact that the LCG did not
have actual or constructive notice of any problems with this
judgment of the trial court is affirmed. Costs of this appeal
are assessed to Demetric Tanner.
majority affirms the trial court's granting summary
judgment applying the provisions of La.R.S. 9:2800 because,
it says, "there is no genuine issue of material fact
that the LCG did not have actual or constructive notice of
any problems with this manhole cover" as required by
La.R.S. 9:2800. The provisions of La.R.S. 9:2800 are
not applicable to this case because Plaintiff did not choose
to pursueher claim under La. Civ.Code art.
2317 or 2317.1. Plaintiff's petition includes
only allegations of general negligence under La. Civ.Code