ELIZABETH SEWELL, WIFE OF/AND WILLIAM SEWELL, ELSEBETH FENNER, WIFE OF/AND JAMES FENNER AND BETH DUESSING, WIFE OF/AND GEORGE DUESSING
SEWERAGE AND WATER BOARD OF NEW ORLEANS
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-04501,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE
M. Bruno Daniel A. Meyer BRUNO & BRUNO LLP Alexis A.
Butler THE WHITAKER LAW FIRM, APC Michael T. Whitaker (Pro
Hac Vice) THE WHITAKER LAW FIRM, APC COUNSEL FOR
B. Mitchell Kiana A. Mitchell Joseph B. Morton, III
Christopher D. Wilson Kendale J. Thompson MITCHELL &
ASSOCIATES, APLC Darryl Harrison SEWERAGE & WATER BOARD
OF NEW ORLEANS COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Tiffany G. Chase
L. BELSOME JUDGE
Defendant, the Sewerage and Water Board of New Orleans,
appeals the trial court's judgment awarding damages,
attorney fees and costs to the Plaintiffs: George and Beth
Deussing, David Epstein, Faye Lieder, Thomas Ryan and Judith
Jurisich, and Dorothy White. For the reasons that follow, we
amend the trial court's judgment and affirm as amended.
AND PROCEDURAL HISTORY
case involves several groups of homeowners, who claimed their
homes were damaged during the course of construction of the
Southeast Louisiana Urban Drainage Project (SELA
Project). The United States Army Corps of Engineers
(USACE) partnered with the Sewerage and Water Board of New
Orleans (SWB) for the Orleans Parish portion of the SELA
Project. There were seven phases involving the uptown area:
Claiborne I, Claiborne II, Jefferson I, Jefferson II,
Napoleon II, Napoleon III, and Louisiana I.
of 2015, a lawsuit was filed against the SWB. The Plaintiffs
claimed that their homes were damaged as a result of pile
driving, the operation of heavy equipment, and other
activities related to the SELA Project. As a result, they
brought numerous claims against the SWB under strict
liability for timber pile driving activities, custodial
liability for ownership of defective things, negligence, and
inverse condemnation. In response, the SWB filed an answer
including third-party indemnity demands against the
contractors hired by the USACE to construct the SELA project.
Consequently, the case was removed to federal court in July
of 2015. After the federal trial court granted the
contractors' motions for summary judgment based on
immunity, the case was remanded back to Civil District Court
in January of 2017.
Plaintiffs in the instant appeal (Residential Trial Group A)
were set for priority trial due to their ages, pursuant to
La. C.C.P. art. 1573. After a four-day bench trial in March of
2018, the trial court rendered a judgment in favor of the
Plaintiffs in the amount of $518, 653.08. In addition, it
awarded the Plaintiffs reasonable attorney fees and costs.
The trial court later denied the SWB's motion for new
trial. After a hearing on the Plaintiffs' Motion to Tax
Attorneys' Fees and Costs, the trial court rendered a
second judgment awarding the Plaintiffs $400, 000.00 in
attorney fees and $145, 000.00 in expert costs. The SWB
appeals both judgments.
reviewing a trial court's findings of fact, appellate
courts employ a "manifest error" or "clearly
wrong" standard of review. Rosell v. ESCO, 549
So.2d 840, 844 (La. 1989) (citations omitted). Regarding
issues of law, the standard of review of an appellate court
is simply whether the court's interpretive decision is
legally correct. Glass v. Alton Ochsner Medical
Foundation, 02-412, p. 3 (La.App. 4 Cir. 11/6/02), 832
So.2d 403, 405. Accordingly, if the decision of the trial
court is based upon an erroneous application of law rather
than on a valid exercise of discretion, the decision is not
entitled to deference by the reviewing court. Ohm Lounge,
L.L.C. v. Royal St. Charles Hotel, L.L.C., 10-1303, p. 4
(La.App. 4 Cir. 9/21/11), 75 So.3d 471, 474.
appeal, the SWB asserts nine assignments of error related to
the trial court's conclusions on three key issues:
liability, damages, and attorney fees and costs.
the SWB challenges the trial court's liability rulings,
raising four errors concerning: 1) inverse condemnation, 2)
custodial liability for defective things, 3) strict liability
for timber pile driving, and 4) comparative fault. On the
liability issues, the trial court concluded that the SWB was
the owner of the SELA Project and the SELA project caused the
Plaintiffs to suffer damages. As such, the trial court found
the SWB solely liable to the Plaintiffs for inverse
condemnation, hazardous pile driving activities and ownership
of a defective thing arising from the SELA Project
to inverse condemnation, the SWB argues that the trial
court's finding against the SWB was clearly wrong.
Specifically, the SWB contends that the SELA Project was a
federal project, not a state project. Thus, it suggests that
the USACE, not the SWB, was liable for the damages on the
inverse condemnation claim.
Const. art. I, §4 provides that the State or its
subdivisions may not take or damage a person's private
property without paying just compensation. An action for
inverse condemnation allows property owners to seek
compensation for land already taken or damaged from a
governmental entity or private entity having powers of
eminent domain where no expropriation has commenced.
State Through Dep't of Transp. & Dev. v. Chambers
Inv. Co., 595 So.2d 598, 602 (La. 1992)(citation
omitted). However, the state and its political subdivisions
cannot be held liable for the taking and damaging of private
property under circumstances in which the federal government
carries out the taking and damaging of the private property
as part of a federal project. Holzenthal v. Sewerage
& Water Bd. of New Orleans, 06-796, p. 15 (La.App. 4
Cir. 1/10/07), 950 So.2d 55, 66.
support of its argument that the SELA Project was a federal
project operated by the USACE, the SWB cites to Cooper v.
City of Bogalusa, 195 La. 1097, 198 So. 510 (La. 1940);
Vuljan v. Bd. of Com'rs of Port of New Orleans,
170 So.2d 910, 912 (La.App. 4th Cir. 1965); and
Petrovich v. State of Louisiana, 181 So.2d 811
(La.App. 4th Cir. 1966). However, this Court
rejected that argument in Holzenthal,
supra, which is factually analogous to the instant
Hozenthal, this Court reviewed the facts in
Vuljan, finding in that case the State's
participation in the project was limited to its agreement to
furnish the necessary lands, servitudes and rights-of-way,
and to use its inherent power of eminent domain to hold the
United States harmless against claims arising out of the
Mississippi River-Gulf Outlet's construction,
maintenance, and operation. Id. 06-796, p. 16, 950
So.2d at 67. There was no evidence that the State had any
contribution in project design, monitoring, financing or
contrast, the Holzenthal Court distinguished its
facts finding that the facts of its case established that the
Cooperation Agreement between the federal government and the
Sewerage & Water Board called for continued input,
consultation, and shared responsibilities for the project.
Id., 06-796, p. 17 950 So.2d at 67. The Sewerage
& Water Board co-chaired a coordination team that oversaw
issues related to design, planning, scheduling, contract
awards, costs, inspections, and more. Id. Finally,
the Sewerage & Water Board was responsible to contribute
a minimum of twenty-five percent but not more than fifty
percent of the costs of the total project. Id. The
Hozenthal Court further found these facts
distinguishable from Vuljan, and from
Petrovich, wherein the United States exercised
exclusive jurisdiction and control over a federal project.
Id., 06-796, pp. 18-19, 950 So.2d at 68.
to Hozenthal, the record in the instant case reveals
that the SWB was the non-federal SELA Project sponsor. As
such, it was part of the SELA Project Coordination Team. As a
member of the Coordination Team, the SWB participated in
monthly meetings concerning the SELA Project construction.
While USACE was responsible for administering the SELA
Project, the SWB granted USACE the necessary access for the
SELA Project construction and was responsible to pay
thirty-five percent of the SELA Project costs.
owner of the SELA drainage systems, the SWB was tasked with
the project design and responsible for the operation,
maintenance, repair and replacement of the SELA drainage
system. In addition, the SWB fielded complaints through a
hotline and agreed to indemnify USACE from damages arising
from the SELA Project.
these facts and circumstances, the record supports the
conclusion that the SELA Project was a state project, wherein
the SWB was acting under its power of eminent domain in
carrying out the project. Thus, we cannot say that the trial
court was manifestly erroneous in finding that the SWB was
liable to the Plaintiffs on the inverse condemnation claim.
to custodial liability, the SWB claims that the trial court
was manifestly erroneous in finding it owned and controlled
the SELA Project, for purposes of La. C.C. art. 2317. In
addition, it contends the trial court legally erred when it
failed to apply La. R.S. 9:2800, which is the applicable
statute for public entities.
judgment, the trial court found the SWB strictly liable to
the Plaintiffs under La. C.C. arts. 2317 and
2317.1. La. C.C. art. 2317 creates a cause of
action for damages caused by things in our custody. La. C.C.
art. 2317 states:
We 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. This, however, is to be understood with the
C.C. art. 2317.1 generally modifies custodial liability under
Article 2317 by requiring proof that: 1) the owner or
custodian of a defective thing has knowledge of the defect,
2) the damage could have been prevented by the exercise of
reasonable care, and 3) the failure to exercise reasonable
care. See Moffitt v. Sewerage & Water Bd. of
New Orleans, 09-1596, p. 5 (La.App. 4 Cir. 5/19/10), 40
So.3d 336, 339 (holding Article 2317 was qualified generally
by Article 2317.1). Specifically, Article 2317.1 provides:
The owner or custodian of a thing is answerable for damage
occasioned by its ruin, vice, or defect, only upon a showing
that he knew or, in the exercise of reasonable care, should
have known of the ruin, vice, or defect which caused the
damage, that the damage could have been prevented by the
exercise of reasonable care, and that he failed to exercise
such reasonable care.
custodial liability under Article 2317 is specifically
limited as to public entities by La. R.S. 9:2800, which
requires additional proof that the public entity had notice
and opportunity to repair the defect. See id., 15-1596,
pp. 5-6, 40 So.3d at 340 (holding Article 2317 is also
qualified particularly to public entities by entities such as
the SWB by La. R.S. 9:2800). As such, in order to impose
custodial liability against a public entity, the plaintiff
must prove that: (1) the thing which caused the damage was
owned or in the custody of the public entity; (2) the thing
was defective due to a condition creating an unreasonable
risk of harm; (3) the entity had actual or constructive
notice of the defective condition yet failed to take
corrective action within a reasonable period of time; and (4)
the defect was the cause of the plaintiff's harm.
See La. C.C. arts. 2317 and 2317.1; La. R.S. 9:2800.
See also Bridgewater v. New Orleans Regional Transit
Auth., 15-0922, p. 8 (La.App. 4 Cir. 3/9/16), 190 So.3d
408, 413 (citation omitted).
the SWB challenged the first and third elements. First, the
SWB argues that the trial court was manifestly erroneous in
finding that it was the owner of the SELA Project, who
exercised custody or garde over the SELA Project.
Custody or garde is a broader concept than
ownership. Dupree v. City of New Orleans, 99-3651,
p. 7 (La. 8/31/00), 765 So.2d 1002, 1009 (citation omitted).
"[I]n determining whether a thing is in one's
custody or garde, courts should consider (1) whether
the person bears such a relationship as to have the right of
direction and control over the thing; and (2) what, if any,
kind of benefit the person derives from the thing."
Dupree, 99-3651, p. 8, 765 So.2d at 1009. (citations
omitted). Determining custody or garde of the thing
is a fact driven determination. Dupree, 99-3651, p.
7, 765 So.2d at 1009 (citation omitted). "Although there
is a presumption that an owner has custody or garde
of its property, this presumption is rebuttable. One way to
rebut the presumption is by establishing a contractual
undertaking by another to maintain and control the
property." Gallina v. Hero Lands Co., 03-331,
p. 5 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 762.
first issue relative to the right of direction and control, a
review of the record reveals that SWB owned and maintained
direction and control over the SELA Project. As discussed,
the SWB owned the SELA drainage systems and was responsible
for the design, operation, maintenance, repair and
replacement of the SELA drainage system. The SWB also
participated in monthly meetings concerning SELA
construction, as well as received complaints from property
suggests that USACE had custody and control over the SELA
Project. However, more than one party may have custody or
garde of a thing under Article 2317.
Dupree, 99-3651, p. 7, 765 So.2d at 1009. While the
USACE was the project administrator, there was no evidence
produced to rebut the presumption the SWB, as the owner of
the SELA drainage system, also maintained custody or
garde over the construction, or otherwise entered
into a contract to give the USACE exclusive control over the
the second issue, there is no dispute that the SWB, as the
entity responsible for public drainage in New Orleans,
derived a substantial benefit from the SELA Project. Given
that the record supports the trial court's conclusion, we
cannot say that the trial court ...