Burton v. Housing Authority of New Orleans, Inc.

623 So. 2d 243, 1993 La. App. LEXIS 2719, 1993 WL 316504
CourtLouisiana Court of Appeal
DecidedAugust 19, 1993
DocketNo. 92-CA-1757
StatusPublished
Cited by2 cases

This text of 623 So. 2d 243 (Burton v. Housing Authority of New Orleans, Inc.) 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
Burton v. Housing Authority of New Orleans, Inc., 623 So. 2d 243, 1993 La. App. LEXIS 2719, 1993 WL 316504 (La. Ct. App. 1993).

Opinion

ARMSTRONG, Judge.

Plaintiff Marcel Burton was bitten by a rat while visiting in a housing project apartment owned by defendant Housing Authority of New Orleans (“HANO”) and occupied by third party defendant Carolyn Howard and her children. Burton sued HANO for negligence pursuant to Louisiana Civil Code Article 2315 and for strict liability pursuant to Louisiana Civil Code Articles 2317 and 2322. HANO denied liability, pleaded comparative fault of Burton and made a third party demand against Ms. Howard for contribution or indemnity. Following a bench trial, the trial court found HANO not hable and dismissed Burton’s suit. The trial court’s single-sentence reasons for judgment state: “The duty owed to plaintiff, Marcel Burton, did not extend to seeing he was not bitten by a rat.” It is from this judgment that Burton now appeals. For the reasons that follow, we reverse and render judgment in favor of Burton.

The record reflects that at the time Burton was bitten, the Howard apartment was infested with rats. This had been reported by Ms. Howard to HANO. One of Ms. Howard’s children twice had been bitten by rats and that had occurred several months or a year prior to Burton’s being bitten. The rats entered Ms. Howard’s apartment through holes in the walls, floor and ceiling. The rat holes had been present when Ms. Howard moved into the apartment and had been reported to HANO when Ms. Howard’s child was bitten. Both the rat infestation and the rat holes had existed for several months or perhaps a year prior to Burton’s being bitten. Aso, it appears that HANO knew of the rat infestation and the rat holes several months or a year prior to Burton being bitten.

For the sake of simplicity we will analyze HANO’s liability to Burton only in terms of strict liability under Louisiana Civil Code Articles. 2317 and 2322 although, in view of HANO’s knowledge of the rat infestation and the rat holes, a similar analysis of HANO’s liability could be made in terms of negligence under Louisiana Civil Code Article 2315. See generally, e.g., Oster v. Dept. of Transportation and Development, 582 So.2d 1285, 1288 (La.1991) (in property owner liability eases, strict liability differs from negligence in not requiring that defendant knew or should have known of unreasonably dangerous condition). Accord Hunt v. City Stores, 387 So.2d 585, 588 (La.1980). In order to establish HANO’s liability, Burton must show: (1) HANO had custody of Ms. Howard’s apartment; (2) Ms. Howard’s apartment had a “vice” or “defect” — i.e. an unreasonably dangerous condition; and (3) the unreasonably dangerous condition caused Burton’s injury. Oster, 582 So.2d at 1288 (Civil Code Article 2317); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990) (Civil Code Aticles 2317 and 2322).

[246]*246The first element, custody of Ms. Howard’s apartment, is clearly met because HANO is the owner of the apartment. When the owner of an unreasonably dangerous thing transfers physical possession to another, the owner continues to have “custody” (or “garde”, to use the French term which is translated imperfectly into English as “custody”) within the meaning of Civil Code Article 2317. Ross v. LaCoste de Monterville, 502 So.2d 1026, 1029-32 (La.1987). Similarly, the duty imposed upon the owner of a building by Civil Code Article 2322 is “non-delegable”, Olsen v. Shell Oil Co., 365 So.2d 1285, 1293-94 (La.1979), and the owner’s liability under Civil Code Article 2322 continues even if the building or a part of it is leased. Klein v. Young, 163 La. 59, 111 So. 495, 497 (La.1926). Accord Hopkins v. Travasos, 569 So.2d 1056, 1059 (La.App. 3rd Cir.1990) (following Klein). See also Womack v. Housing Authority of New Orleans, 508 So.2d 936 (La.App. 4th 1987) (owner of apartment was held liable under Civil Code Article 2322 although apartment was occupied by others).

The second element, that Ms. Howard’s apartment contained a “vice” or “defect” — i.e. an unreasonably dangerous condition — also is clearly met. The rat infestation and the rat holes had existed for several months and perhaps a year prior to Burton being bitten and so constituted a relatively permanent condition susceptible to being considered a “vice” or “defect” in the apartment itself within the meaning of Civil Code Articles 2317 and 2322. Compare Mitchell v. Travelers Ins. Co., 464 So.2d 404, 406 (La.App. 1st Cir.1985) (“temporary presence” of rice on floor of supermarket for less than fifteen minutes is not a defect for purposes of Civil Code Article 2317); McKinnie v. Dept. of Transportation and Development, 426 So.2d 344, 346-47 (La.App. 2d Cir.1983) (“temporary presence” of ice or water on road is not a defect for purposes of Civil Code Article 2317), writ denied, 432 So.2d 266-67 (La.1983).

The issue thus becomes one of whether the rat infestation and the rat holes created an unreasonably dangerous condition.

Although courts, including this court, have described the unreasonable risk of harm criterion as requiring the court to balance the likelihood and magnitude of harm against the utility of the thing, the balancing test required by the unreasonable risk of harm criterion does not lend itself well to such neat, mathematical formulations. In addition to the likelihood and magnitude of the risk and the utility of the thing, the interpreter should consider a broad range of social, economic, and moral factors including the cost to the defendant of avoiding the risk and the social utility of the plaintiffs conduct at the time of the accident.
In essence, the unreasonable risk of harm analysis is similar to the duty-risk analysis which is performed in a negligence case. 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. See Socorro v. City of New Orleans, 579 So.2d 931 (La.1991) (because an owner cannot be held responsible for all injuries resulting from any risk, the court’s duty is to decide which risks are unreasonable). Just as in a negligence analysis, a court utilizing an article 2317 strict liability analysis must determine whether the codal duty imposed upon a custodian of the thing was placed upon him to prevent the type of accident involved in the case before the court. Landry v. State of Louisiana and the Board of Levee Commissioners of the Orleans Levee District, 495 So.2d 1284 (La.1986); Entrevia v. Hood, 427 So.2d 1146 (La.1983), (Lemmon, J., concurring). The court must carefully consider all the circumstances surrounding the particular accident under review to determine whether allowing recovery to the particular plaintiff involved, for damages occurring in the particular manner in which the plaintiff was injured, is desirable from the standpoint of justice and the social utility of the conduct of the respective parties.

Oster, 582 So.2d at 1289. See also Sistler, 558 So.2d at 1112-13. The likelihood of the risk of rat bites in Ms. Howard’s apartment is manifest — one of Ms. Howard’s children twice had been bitten by rats prior to Burton’s being bitten. The magnitude of the [247]*247risk of rat bites (i.e., the severity of the consequences if rat bites occur) also is substantial as the apartment is intended for use as a residence and is occupied by a mother and her seven children. The rats might not present such a serious risk in, for example, an industrial setting. Of course, rat infestation and rat holes have no social utility.

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623 So. 2d 243, 1993 La. App. LEXIS 2719, 1993 WL 316504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-housing-authority-of-new-orleans-inc-lactapp-1993.