Willie Mae Ambrose v. City of New Iberia

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1197

WILLIE MAE AMBROSE

VERSUS

CITY OF NEW IBERIA

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 99,514
HONORABLE WILLIAM D. HUNTER, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

S. Marie Johnson
P.O. Box 14103
New Iberia, LA 70562
(337) 560-5088
COUNSEL FOR PLAINTIFF/APPELLANT:
Willie Mae Ambrose

Karen Day White
Louisiana Municipal Association
700 North Tenth Street
Baton Rouge, LA 70802
(225) 332-7631
COUNSEL FOR DEFENDANT-APPELLEE:
City of New Iberia

COOKS, Judge.

Plaintiff, Willie Mae Ambrose, appeals the trial court’s judgment dismissing

with prejudice her suit against the City of New Iberia for damages suffered as the

result of a fall.

FACTS AND PROCEDURAL HISTORY

On December 4, 2001, Plaintiff alleged she tripped when her shoe became

lodged in a broken portion of street curbing along Louisiana Highway 675, also

known as Hopkins Street, in New Iberia, Louisiana. Plaintiff sought medical

attention that same day at a local hospital, discovering she sustained a Grade II

femoral neck fracture of the left hip. She underwent surgery to repair the fracture on

December 5, 2001. Plaintiff alleged, six years after the accident, she still suffers from

a noticeable limp and experiences weakness in the injured area.

On November 27, 2002, Plaintiff filed a Petition for Damages against the City

of New Iberia, through the Department of Public Works (the City). The petition was

amended to include the State of Louisiana, through the Department of Transportation

and Development (DOTD). Eventually, Plaintiff and DOTD filed a joint motion,

which was granted, dismissing DOTD from the lawsuit.

Plaintiff’s suit against the City proceeded to a bench trial. The trial court found

Plaintiff failed to meet her burden of proof under La.R.S. 9:2800 and dismissed her

suit with prejudice. Specifically, the trial court found Plaintiff failed to establish the

City had actual or constructive knowledge of the defect in question. Plaintiff moved

for a devolutive appeal of that judgment, which was granted by the trial court.

ANALYSIS

We recognize that La. R.S. 9:2800 requires actual or constructive notice of the

defect as a prerequisite to claims against public entities such as the City for damages

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caused by the condition of things within its care and custody. La.R.S. 9:2800

provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2317
for damages caused by the condition of buildings within its care and
custody.

B. Except as provided for in Subsection A of this Section, no
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.

As such, the plaintiff must prove (1) the defendant owned or had custody of the

thing that caused the damage; (2) the thing was defective in that it created an

unreasonable risk of harm to others; (3) the defendant had actual or constructive

knowledge of the defect or unreasonable risk of harm and failed to take corrective

action within a reasonable time; and (4) causation. Wilson v. City of New Orleans,

95-2129 (La.App. 4 Cir. 4/3/97), 693 So.2d 344, writ denied, 97-1701 (La. 10/13/97),

703 So.2d 613. A municipal authority is deemed to have constructive notice if the

defect existed for such a period of time that by exercise of ordinary care and

diligence, the municipal authority must have known of its existence, and the

municipal authority had a reasonable opportunity to guard the public from injury by

remedy of the defect. Dawson v. City of Bogalusa, 95-0824 (La.App. 1 Cir.

12/15/95), 669 So.2d 451.

An appellate court may not overturn a jury’s finding of fact “in the absence of

‘manifest error’ or unless it is ‘clearly wrong.’” Stobart v. State, Department of

Transportation and Development, 617 So.2d 880, 882 (La.1993). Even if the court

of appeal believes that its own findings are more reasonable, the finder of fact’s

“reasonable evaluations of credibility and reasonable inferences of fact should not be

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disturbed upon review where conflict exists in the testimony.” Id. “Thus, where two

permissible views of the evidence exist, the factfinder’s choice between them cannot

be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883.

The record establishes Hopkins Street and its curbing are owned and

maintained by DOTD. That right of way extends beyond the curbing to the back of

the sidewalk, and DOTD’s engineering directives impose a duty on it to maintain and

repair the sidewalks adjacent to Hopkins Street. The City had an agreement with

DOTD to perform grass cutting and litter abatement along the sidewalks of Hopkins

Street. There was no agreement for the City to maintain or repair the roadway,

curbing or sidewalks. Mark Delcambre, the City’s Assistant Public Works Director,

testified the City would occasionally undertake minor repair work on the sidewalks

and the neutral ground if there were complaints. Michael Moss, a civil engineer for

DOTD, noted DOTD’s directives technically require it to maintain the sidewalks

within its right of way. Despite this directive, Moss stated DOTD has historically

shirked its duty in performing repairs on sidewalks, which are usually undertaken by

the local authorities. Moss stated that “[i]t’s understood by every local governing

body that they are responsible for maintenance of sidewalks within state right-of-

way.” Moss noted the curbing such as that which allegedly caused the injury is

considered part of the roadway, and DOTD would be responsible for its maintenance.

However, Plaintiff argues the jurisprudence reveals the owner of a thing is not

always its custodian. Liability is imposed based on custody or garde, not just

ownership. Under La.C.C. art. 2317, strict liability is based on the relationship

between the parties with custody and the thing posing an unreasonable risk of harm

to others. The article imposing liability is based on custody and not ownership.

Custody, distinct from ownership, refers to a person’s supervision and control (garde)

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over a thing posing an unreasonable risk of harm. Thumfart v. Lombard, 613 So.2d

286, 290 (La.App. 4 Cir.), writ denied, 617 So.2d 1182 (La.1993). Garde is the

obligation imposed by law on the proprietor of a thing, or on one who avails himself

of it, to prevent it from causing damage to others. The fault of the person thus liable

is based upon failure to prevent the thing from causing unreasonable injury to others.

Loescher v. Parr, 324 So.2d 441 (La.1975).

Plaintiff points out the record establishes the City performed repairs to curbing

on Hopkins Street in the past. Thus, she argues the City exercised custody over the

thing which presented the unreasonable risk of harm in this case. It is unnecessary

to reach this issue because, like the trial court, we find Plaintiff’s claim must fail

because the record convincingly establishes that the City lacked actual or constructive

notice of the alleged defect.

La.R.S. 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 exercised

reasonable care. Laird v. City of Oakdale, 04-767 (La.App. 3 Cir. 11/10/04), 886

So.2d 1262. A public body cannot be charged with knowledge of every defect on its

roadways and shoulders, yet, neither can it escape liability by negligently failing to

discover that which is easily discoverable. Brown v. Louisiana Indem. Co., 97-1344

(La. 3/4/98), 707 So.2d 1240. The cases have interpreted constructive knowledge as

meaning the municipal authority “must have had actual notice of the condition or that

its existence continued over a period and, under such circumstances, in the exercise

of due diligence, the parish or municipality would have had notice.” Prudhomme v.

Iowa, 99-1386, p. 5 (La.App. 3 Cir. 2/9/00), 758 So.2d 275, 278, citing Pickens v.

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St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975). The question of whether

or not the public body had actual or constructive notice of a hazardous condition

creating a risk for motorists is a factual issue and is reviewed under the manifest error

standard. Murphree v. Daigle, 02-1935, p. 3 (La.App. 1 Cir. 9/26/03), 857 So.2d 535,

writ denied, 03-2927 (La.1/9/04), 862 So.2d 990.

Plaintiff contends the trial court erred in failing to find she established the City

had constructive knowledge of the defect in the curbing. Plaintiff argues the record,

and in particular the work orders, established “the City, on numerous occasions,

performed various forms of maintenance on [Hopkins Street] – from fixing sidewalks,

filling potholes, to replacing worn down limestone on the neutral ground.” Plaintiff

also points out that the City received approximately forty complaints of this nature

on Hopkins Street in a six-year period. Because of this, Plaintiff maintains this shows

the walkway/curbing in that area were in “a constant state of disrepair.” Plaintiff

testified that a significant portion of the walkways/curbing in the area around her

home were in poor condition.

The trial court found there were no work orders in the time period near the

accident date which indicated any disrepair of the curbing or concrete. The trial court

gave the following oral reasons for finding Plaintiff failed to prove constructive

knowledge on the part of the City:

The plaintiff must prove that the city had actual constructive
knowledge of the defect in the sidewalk and it failed to take corrective
action within a reasonable period of time.

I think the plaintiff relied heavily on the work orders, but there is
no report, nor did Mr. Delcambre testify about reports warning of the
particular defects, which the plaintiff claims caused her injury.

The only report near the time of the accident that occurred on
October 22, 2001, which was an order to cut the grass.

There was also an order completed on July 25, 2001 which the

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City of New Iberia filled pot holes at Hopkins and Main Street.

Since there are no reports of a broken sidewalk, or a broken curb
of this nature to the City of New Iberia, the plaintiff has not proven that
defendant had actual knowledge of the defect. [Plaintiff] had the
opportunity to prove constructive knowledge, but I find that the plaintiff
failed to do so.

After a thorough review, we find the record supports the trial court’s finding.

Although the work orders showed repairs and complaints were made in the general

area of the accident, there were none made in the months preceding the accident,

other than the work order to cut the grass referenced by the trial court. Mark

Delcambre, the Assistant Public Works Director for the City, testified there were no

complaints or prior falls regarding the area where Plaintiff fell. Michael Moss,

DOTD’s engineer, testified DOTD physically inspects Hopkins Street and its curbing

every two weeks and there was no notation of a problem or defect in the curbing

where Plaintiff fell. Mr. Moss also testified there were no complaints or notifications

made to DOTD about any falls in that area prior to Plaintiff’s accident. Further,

Plaintiff testified, although she frequently walked the path she took on the day of the

fall and was aware the sidewalk in that area was “all messed up,” she had never

noticed the area of curbing at issue in this case.

Therefore, we cannot say there is no reasonable factual basis in the record for

the trial court’s finding that the City did not have actual or constructive notice of the

condition of the curbing in question. The absence of evidence establishing notice is

fatal to a plaintiff’s cause of action under La.R.S. 9:2800. Hebert v. Southwest

Louisiana Electrical Corp., 95-405 (La.App. 3 Cir. 12/27/95), 667 So.2d 1148.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of

this appeal are assessed to plaintiff-appellant, Willie Mae Ambrose.

AFFIRMED.

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