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Demetric Tanner v. Lafayette City-Parish Consolidated Government

Court of Appeals of Louisiana, Third Circuit

May 22, 2019

DEMETRIC TANNER
v.
LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20163619 HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE.

          ROBERT A. MAHTOOK, JR. MAHTOOK & LAFLEUR, L.L.C. COUNSEL FOR DEFENDANT/APPELLEE: LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

          JUSTIN T. MORALES THE TOWNSLEY LAW FIRM COUNSEL FOR PLAINTIFF/APPELLANT: DEMETRIC TANNER

          Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges.

          BILLY HOWARD EZELL JUDGE.

         Demetric 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 covers.

         FACTS

         On 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.

         Ms. 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.

         SUMMARY JUDGMENT

         On 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.

         The 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).

         The 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.

         Louisiana 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.

         In 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.

         Constructive notice is defined as "the existence of facts which infer actual knowledge." La.R.S. 9:2800(D).

         Ms. 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.

         This 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.

         Pursuant 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 judgment.

         The LCG 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.

         Mr. 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.

         Mr. 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 don't always.

         In 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.

         We 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.[1]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.

         We 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 manhole cover.

         The judgment of the trial court is affirmed. Costs of this appeal are assessed to Demetric Tanner.

         AFFIRMED.

         (Image Omitted)

          COOKS, J. dissent.

         The 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 ...


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