Bison v. Primrose

705 So. 2d 249, 1997 WL 772126
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket30011-CA
StatusPublished
Cited by5 cases

This text of 705 So. 2d 249 (Bison v. Primrose) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bison v. Primrose, 705 So. 2d 249, 1997 WL 772126 (La. Ct. App. 1997).

Opinion

705 So.2d 249 (1997)

Becky BISON, Plaintiff-Appellant,
v.
Donald PRIMROSE, et al., Defendants-Appellees.

No. 30011-CA.

Court of Appeal of Louisiana, Second Circuit.

December 10, 1997.

*250 C. William Gerhardt & Associates by C. William Gerhardt, for Plaintiff-Appellant.

Jerald N. Jones, City Attorney, Terri Anderson-Scott, Assistant City Attorney, for Defendant-Appellee, City of Shreveport.

Walter F. Johnson, III, Shreveport, for Defendant-Appellee, Donald Primrose.

Before MARVIN, STEWART and CARAWAY, JJ.

STEWART, Judge.

The plaintiff, Becky Bison, appeals the judgment of the trial court dismissing her claim. The plaintiff urges that the trial court erred in holding that her injury was not caused by a hole in which her horse stumbled, and that the hole did not pose an unreasonable risk of harm, that the defendants had no prior notice of the hole. Additionally, the plaintiff asserts that the trial court erred in failing to award general and special damages to the plaintiff. We affirm.

FACTS

On January 16, 1993, the plaintiff, Becky Bison, (Ms. Bison) was riding her horse, Decka, on the grounds of C. Bickham Dickson Park, in Shreveport, Caddo Parish, Louisiana. Ms. Bison boarded her horse at the park's stables. Decka was at full run when she stepped into a grass-covered hole or depression and threw Ms. Bison to the ground. Ms. Bison sustained injuries as a result of the fall.

The park is owned by defendant, the City of Shreveport, a municipality of the State of Louisiana, and was under lease to defendant Donald Primrose, d/b/a D & R Stables, Inc., at the time of plaintiff's injury.

A bench trial was held on October 14-15, 1996, before Judge Leon L. Emanuel, III, First Judicial District Court, in Shreveport, Caddo Parish, Louisiana. The court held that there be judgment in favor of the defendants, the City of Shreveport and Donald Primrose, and against the plaintiff, Becky Bison, who failed to prove by a preponderance of evidence that the hole in question posed an unreasonable risk of harm. The plaintiff's claim was dismissed at her cost.

A HOLE DID NOT POSE AN UNREASONABLE RISK OF HARM PLAINTIFF'S INJURY WAS NOT CAUSED BY A HOLE

An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless the finding is clearly wrong. Lewis v. State, Through DOTD, 94-2370 (La. 4/21/95), 654 So.2d 311; Stobart v. State, Through DOTD, 617 So.2d 880 (La. 1993); Lebeaux v. Newman Ford, Inc., 28,609 (La.App. 2 Cir. 9/25/96), 680 So.2d 1291. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Lewis v. State, Through DOTD, supra; Stobart v. *251 State, Through DOTD, supra; Lebeaux v. Newman Ford, Inc., supra.

In assignment of errors numbers one and three, plaintiff asserts that the trial court was manifestly erroneous in holding that a hole or depression did not pose an unreasonable risk of harm and erred in not holding that plaintiff's injury was caused by a hole or depression in which her horse stumbled.

The plaintiff's claim is rooted in La.C.C. Art. 2317 which 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 ...

The strict liability imposed by La. C.C. Art. 2317 requires the plaintiff to prove that the vice or defect of the thing is a condition which poses an unreasonable risk of harm to others and that the damage resulted from this vice. A determination of whether a thing presents an unreasonable risk of harm should be made "in light of all relevant moral, economic, and social consideration." Boyle v. Board of Sup'rs, Louisiana State University, 96-1158 (La. 1/14/97), 685 So.2d 1080, 1082; Celestine v. Union Oil Co. of California, 94-1868 (La. 4/10/95), 652 So.2d 1299, at 1304 quoting Entrevia v. Hood, 427 So.2d 1146 (La.1983). Once the plaintiff proves the elements of La.C.C. Art. 2317, the owner or guardian responsible for the person or thing can escape liability only if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an act of God.

"The obligation placed by article 2317 upon a landowner to maintain his land free from defects does not encompass every injury that happens to occur on his land. Not every minor imperfection or irregularity can be said to be patently dangerous (defective) or to create an unreasonable risk of injury within the parameters of La.C.C. Arts. 2315 and 2317." Maxwell v. Board of Trustees for State Colleges & Universities, 96-1207 (La.App. 3 Cir. 3/19/97), 692 So.2d 641. See Socorro v. City of New Orleans, 579 So.2d 931, (La.1991) Burris v. Insured Lloyds, 417 So.2d 511, 514 (La.App. 3d Cir. 1982). In the absence of a showing of an unreasonably dangerous condition of the thing, there is no duty owed by the owner of the thing under either strict liability or negligence. Oster v. DOTD, 582 So.2d 1285 (La. 1991); White v. Louviere, 95-610, (La.App. 3 Cir. 11/2/95), 664 So.2d 603. The court's duty is to decide which risks are unreasonable. A trial court's finding of whether a condition presents an unreasonable risk of harm is a factual determination which will not be reversed absent manifest error. Maxwell v. Board of Trustees for State Colleges & Universities, supra at 645.

In determining whether a thing poses an unreasonable risk of harm under La.C.C. Art. 2317, many factors are considered, including: (1) the probability of risk occurring, (2) the gravity of the consequences if it does, and (3) the burden of adequate precautions. Verrett v. Cameron Telephone Co., 95-610, (La.App. 3 Cir. 7/2/82), 417 So.2d 1319, 1325-1326, writ denied, 422 So.2d 164 (La.1982). Other related considerations include the social priorities attached to the particular conduct, the degree of culpability assignable to each party's conduct, the economic ability of the parties, their relationship to the instrumentality of injury, the foreseeability of the particular injury had the defect been known, the location of the incident, and the voluntariness or deliberateness with which the victim encounters the risk-creating thing. Verrett v. Cameron Telephone Co., supra at 1326.

In Maxwell v. Board of Trustees for State Colleges & Universities, 96-1207 (La.App. 3 Cir. 3/19/97), 692 So.2d 641, the plaintiff filed suit alleging that she was injured as the result of a fall caused by an allegedly hazardous condition on a state university campus. The Third Circuit Court of Appeal held that the trial court manifestly erred in finding that the area surrounding the sidewalk where the student fell presented unreasonable risk of harm. The sidewalk and curb area enjoy a high societal utility, and the condition in question—difference in surface height in area between sidewalk and curb— did not present risk of harm greater than any risk one might reasonably expect to encounter when walking across a college campus. *252 Maxwell v. Board of Trustees for State Colleges & Universities, supra at 646-647.

Likewise in Boyles v. Board of Supervisors, 96-1158, (La.

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Cite This Page — Counsel Stack

Bluebook (online)
705 So. 2d 249, 1997 WL 772126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bison-v-primrose-lactapp-1997.