Richard Rodney Laird v. City of Oakdale

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-767

RICHARD RODNEY LAIRD

VERSUS

CITY OF OAKDALE

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT,
PARISH OF ALLEN, NO. 2002-064,
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,*
Judges.

REVERSED AND REMANDED.

J. Craig Jones
Jones & Hill, LLC
131 Highway 165 South
Oakdale, Louisiana 71463
(318) 335-1333
Counsel for Plaintiff/Appellant:
Richard Rodney Laird

J. Scott Thomas
Attorney at Law
700 North Tenth Street
Baton Rouge, Louisiana 70802
(225) 344-5001
Counsel for Defendant/Appellee:
City of Oakdale

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

SULLIVAN, Judge.

Richard Rodney Laird appeals the dismissal of his suit against the City of

Oakdale (the City) on summary judgment. For the following reasons, we reverse and

remand.

Facts and Procedural History

On June 22, 2001, while walking on the sidewalk along Beck Avenue in

Oakdale, Louisiana, Mr. Laird fell into a storm drain when the grate covering it

collapsed as he stepped on it. Photographs taken before the site had been repaired

showed that the grate and one of the two metal bars supporting it had fallen into the

drain.

Mr. Laird filed suit against the City on February 7, 2002. On October 3, 2003,

the City filed a motion for summary judgment, arguing that Mr. Laird would not be

able to prove either that the grate was defective or, alternatively, that the City had

actual or constructive knowledge of a defect. The trial court granted summary

judgment after a hearing on March 5, 2004, but the court reporter was unable to

produce a transcript of the hearing because of a software malfunction. Hence, the

trial court’s reasons for granting summary judgment are not in the appellate record.

In support of its motion for summary judgment, the City introduced the

affidavit of its public works superintendent, Robert Staehle, and the deposition of

Mr. Laird. In his affidavit, Mr. Staehle stated that the storm drain in question was

“prefabricated” and “of standard construction”; that the City did not construct or alter

it in any way; that the City had not performed any work on that particular storm drain

in the year 2001, other than work related to the present incident; that no reports were

made to the City about this storm drain in the year prior to the incident in question;

and that there was no history of problems with the storm drain prior to this incident.

The City also pointed to Mr. Laird’s deposition testimony that he had walked across

that same storm drain about a week prior to the accident, at which time “it seemed to

hold [him] pretty steady.”

Mr. Laird opposed the City’s motion with the affidavit of Andrew J. McPhate,

a mechanical engineer, and with Mr. Staehle’s deposition. In his affidavit,

Mr. McPhate stated that the framework supporting the grate was unreasonably

dangerous because it did not have a “perimeter flange” support. As shown in

photographs taken shortly after the accident, the grate covering the storm drain was

supported only by two rolled steel bars welded to an angle iron. Mr. McPhate

explained that this configuration was inevitably subject to catastrophic failure, as

corrosion from the exposure to elements would lead to cracking, resulting in one of

the bars becoming detached from the angle iron. On the other hand, according to

Mr. McPhate, a perimeter flange was not subject to catastrophic failure and could

have been constructed from the same angle iron that the metal bars were welded to

at little or no additional cost. Mr. McPhate also stated that the absence of a perimeter

flange is apparent upon casual inspection, as the improper support system was

indicated by “obvious vertical distortion of the grate.” He also noted that another

storm drain on the same street, just to the south of the one into which Mr. Laird fell,

did have a perimeter flange support.

In his deposition, Mr. Staehle testified that the storm drain in question was

constructed sometime in the 1980s, before he became employed by the City. After

viewing photographs taken shortly after the accident, he stated that the obvious cause

of the accident was one of the welds coming loose. Mr. Staehle acknowledged that

a perimeter flange was a superior form of support because it created a cradle for the

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grate and that he did not know of a another grate in the City that was supported by

welded bars. He stated that, sometime in the past five years, residents had

complained that the storm drain in question was not draining properly, which led to

the construction of another drain about four to five feet south of the one into which

Mr. Laird fell. This second drain was built with a perimeter flange.

Mr. Staehle testified that the City does not have a policy for the regular

inspection of storm drains, but that his employees have general instructions to alert

his department whenever they see a potential hazard with the sidewalks and streets.

He stated that his employees perform routine maintenance on the drains, particularly

after heavy rains when debris needs to be removed. He assumed that the City would

have performed some maintenance on the drain in question at some time before

Mr. Laird’s accident. He also would have inspected, but not directly supervised, the

construction of the newly-added storm drain. That inspection would have been the

last time that Mr. Staehle viewed the drain where Mr. Laird fell.

On appeal, Mr. Laird argues that the trial court erred in granting summary

judgment because there are genuine issues of material fact as to whether the storm

drain was defective and as to whether the City had actual or constructive notice of a

defective condition.

Opinion

Appellate courts review summary judgments de novo, applying the same

criteria as the district courts in determining the appropriateness of summary judgment.

Richard v. Hall, 03-1488 (La. 4/23/04), 874 So.2d 131. In Babin v. Winn-Dixie

Louisiana, Inc., 00-78, pp. 3-4 (La. 6/30/00), 764 So.2d 37, 39, the supreme court

further explained:

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A motion for summary judgment will be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ.P. art. 966(B). This article was amended in 1996 to
provide that “summary judgment procedure is designed to secure the
just, speedy, and inexpensive determination of every action . . . The
procedure is favored and shall be construed to accomplish these ends.”
La.Code Civ.P. art. 966(A)(2). In 1997, the legislature enacted La.Code
Civ.P. art. 966(C)(2), which further clarified the burden of proof in
summary judgment proceedings, providing:

The burden of proof remains with the movant. However,
if the movant will not bear the burden of proof at trial on
the matter that is before the court on the motion for
summary judgment, the movant’s burden on the motion
does not require him to negate all essential elements of the
adverse party’s claim, action, or defense, but rather to point
out to the court that there is an absence of factual support
for one or more elements essential to the adverse party’s
claim, action, or defense. Thereafter, if the adverse party
fails to produce factual support sufficient to establish that
he will be able to satisfy his evidentiary burden of proof at
trial, there is no genuine issue of material fact.

Nonetheless, “despite the legislative mandate that summary judgments are now

favored, factual inferences reasonably drawn from the evidence must be construed in

favor of the party opposing the motion, and all doubt must be resolved in the

opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049,

1050.

Louisiana Revised Statutes 9:2800(C) provides in part:

[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.

Thus, to prevail against the City, Mr. Laird must be able to prove the City’s

ownership or custody of property that is defective because it creates an unreasonable

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risk of harm; the City’s actual or constructive knowledge of the defect; the City’s

failure to take corrective action within a reasonable time; and causation. See Toston

v. Pardon, 03-1747 (La. 4/23/04), 874 So.2d 791.

The City supported its motion with Mr. Staehle’s affidavit, in which he stated

that the storm drain was “prefabricated” and “of standard construction” and that the

City did not construct or alter it in any way. Mr. Laird then produced the expert

opinion of a mechanical engineer who stated that the grate covering the storm drain

was defective because it was not supported by a perimeter flange and, further, that the

actual configuration of its support, i.e., two metal bars welded to an angle iron, was

inevitably subject to catastrophic failure. In his deposition, Mr. Staehle agreed that

the obvious cause of Mr. Laird’s accident was one of the two metal bars coming loose

from the angle iron, as shown in photographs taken shortly after the accident.

Assuming without discussion that Mr. Staehle’s affidavit was sufficient to meet

the City’s burden of proof as the movant for summary judgment, we find that

Mr. Laird has met his burden of showing that a genuine issue of material fact exists

as to whether the storm drain’s grate support was defective. The City has shown that

it did not alter a “prefabricated” storm drain of “standard construction.” Mr. Laird,

however, has presented expert opinion evidence that the storm drain’s original

construction was defective due to lack of a proper grate support, i.e., a perimeter

flange, and that this defect created an unreasonable risk of harm because the grate,

after exposure to the elements over time, would inevitably fail catastrophically.

Mr. Staehle’s affidavit does not address the design problem identified by

Mr. McPhate, and in his deposition, Mr. Staehle recognized that the design proposed

by Mr. McPhate is superior to the actual construction of the storm drain. Mr. Staehle

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also acknowledged that he was unaware of any other storm drain in the City with this

particular configuration and that a storm drain added within five feet of the one in

question was constructed with a perimeter flange.

As the supreme court recognized in Willis, 775 So.2d at 1051, “when the party

opposing the summary judgment motion submits expert opinion evidence that would

be admissible and that is sufficient to allow a reasonable juror to conclude the

expert’s opinion on a material fact more likely than not is true, the court should deny

the summary judgment motion.” (In Willis, the supreme court concluded that the

plaintiff in a products liability action defeated summary judgment by producing an

engineer’s affidavit that established the existence of an alternative seatbelt design.)

In the present case, we find that Mr. Laird, through expert opinion and lay testimony,

has shown that a genuine issue of material fact exists as to whether the storm drain

created an unreasonable risk of harm.

In support of its motion on the issue of constructive notice, the City points to

Mr. Laird’s deposition testimony, in which he stated that he walked across the same

storm drain approximately one week before the accident and that it seemed to support

him “pretty steady.” Mr. Laird opposes the motion on this issue with Mr. McPhate’s

affidavit, in which he states that the absence of a perimeter flange was obvious upon

casual inspection due to “obvious vertical distortion of the grate,” and with

Mr. Staehle’s deposition testimony that city workers would have performed

maintenance on that particular storm drain before the accident. Mr. Laird also points

out that Mr. Staehle testified that the last time he would have observed that storm

drain was when he inspected another one constructed nearby.

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Louisiana Revised Statutes 9:2800(D) provides: “Constructive notice shall

mean the existence of facts which infer actual knowledge.” Constructive notice may

be shown by facts demonstrating that the defective condition existed for such a period

of time that the public body would have discovered and repaired it, had the public

body had exercised reasonable care. Truelove v. Bissic, 32,883 and 32,884 (La.App.

2 Cir. 3/1/00), 754 So.2d 377, writ denied, 00-950 (La. 5/26/00), 762 So.2d 1109.

Lack of plan for periodic inspections does not impute constructive knowledge. Jones

v. Hawkins, 98-1259 (La. 3/19/99), 731 So.2d 216.

In the present case, Mr. Laird has produced evidence that the storm drain was

originally constructed in the 1980s without a perimeter flange and that this condition

was obvious upon casual inspection. He has further shown that residents nearby had

previously complained about this storm drain’s performance, after which the City

determined that the drain was not working properly because a grassy area to the south

of the sidewalk (in which the storm drain was located) was higher than the sidewalk.

To correct this problem, the City constructed another storm drain—with a perimeter

flange—only four to five feet south of the preexisting drain. Mr. Staehle stated in his

deposition that he would have inspected the new drain after its construction. That

inspection would also have been the last time he viewed the drain into which

Mr. Laird fell.

In Johnson v. City of Winnfield, 37,939 (La.App. 2 Cir. 12/10/03), 862 So.2d

433, the plaintiff was injured when a manhole cover suddenly shifted as he stepped

on it. The record contained testimony that, although a manhole cover would not “rust

out,” it could become unstable if it was dislodged from its outer ring. As in the

present case, the city did not have a routine inspection policy, but workers were

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instructed to report any problems they noticed. A maintenance worker testified that

he would have inspected this particular manhole approximately two weeks before the

accident, after a private contractor had worked on the main sewer line from that

location. On that record, the appellate court found no error in the conclusion that the

city had actual or constructive knowledge that the manhole cover was unstable.

In the present case, the City investigated a problem with this storm drain,

determined that another drain four to five feet to the south of the existing one was

needed, and constructed the second drain in the area with a perimeter flange support.

According to Mr. Staehle, he would have inspected the newly-constructed drain

sometime after its completion. Under these circumstances, we find that a genuine

issue of material fact exists as to whether the City should have discovered, either in

the investigation of the drainage problems with this drain or in the inspection after the

second drain was completed, that the drain into which Mr. Laird fell was not

constructed with a perimeter flange.

Decree

For the above reasons, the judgment of the trial court dismissing Plaintiff’s suit

on summary judgment is reversed, and the case is remanded for proceedings

consistent with this opinion. Costs of this appeal are assessed to Defendant-Appellee,

the City of Oakdale.

REVERSED AND REMANDED.

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