Carter v. City of Houma

536 So. 2d 573, 1988 WL 126166
CourtLouisiana Court of Appeal
DecidedNovember 22, 1988
DocketCA871248
StatusPublished
Cited by1 cases

This text of 536 So. 2d 573 (Carter v. City of Houma) 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
Carter v. City of Houma, 536 So. 2d 573, 1988 WL 126166 (La. Ct. App. 1988).

Opinion

536 So.2d 573 (1988)

Carlus CARTER
v.
CITY OF HOUMA, Parish of Terrebonne, Wickes Lumber, Inc. and Unknown Manufacturer.

No. CA871248.

Court of Appeal of Louisiana, First Circuit.

November 22, 1988.

*575 Robert H. Butler, II, New Orleans, for plaintiff and appellee, Carlus Carter.

Sidney Hardy, New Orleans, for defendant, Wickes Lumber Co.

Robert Talley, Baton Rouge, for defendant, the State.

Randall Bethancourt, Houma, for defendant, Terrebonne Parish Police Jury.

Robert P. Cuccia, Houma, for defendant and appellant, City of Houma.

John Lanier, Thibodaux, Liberty Mut. Ins. Co.

Before WATKINS, CRAIN and FOIL, JJ.

FACTS

CRAIN, Judge.

This is an appeal from a judgment finding the City of Houma solely liable in a personal injury action.

On July 22, 1982, Carlus Carter was delivering freight to Wickes Lumber Company in Houma. While walking to the rear of the trailer he stepped on a catch basin drain cover which broke beneath his weight. Carter suffered injuries to his knees and brought an action to recover damages for these injuries. The drain cover is adjacent to Wickes' parking lot on property owned and maintained by the City of Houma (City). The drain cover had been replaced by the City twice prior to the accident because it had broken. After replacing the drain cover the second time, the City drove angle-iron posts at each corner of the drain cover to prevent automobiles from backing over the cover when exiting Wickes. Wickes painted these posts yellow. Automobiles would back into these posts, bending them, and Wickes would straighten them. Eventually the ground became too soft to hold the posts up and two of them fell on the cover. Employees of Wickes carried the two posts to the building. Wickes did not notify the City that two of the posts had been removed. An employee of Wickes noticed that the cover was cracked two days before the accident. At that time the crack was approximately twelve inches long. The same employee noticed that the crack had extended the next day, the day prior to the accident. Other than calling the City of Houma and reporting the cracked cover, Wickes took no precautionary procedures to warn about the damaged cover.

PROCEEDINGS IN THE TRIAL COURT

The question of Wickes' liability was tried before a jury while the question of liability on the part of the City of Houma, the Parish of Terrebonne and the DOTD was heard by the trial judge. The court dismissed the demands against the Parish and the DOTD as no evidence was presented of a duty on the part of either of these parties. The court found that the City was negligent in its maintenance of the catch basin and that it had a duty to protect the members of the public from the risk of harm from the unreasonably dangerous cover. The trial court found no contributory negligence on the part of Carlus Carter. The jury found that Wickes was not liable for the injuries suffered by Carlus Carter. The trial court awarded damages to Carlus Carter totalling $235,360.69. Liberty Mutual Insurance Company, the workman's compensation insurer, was allowed recovery of the benefits and medical expenses paid of $73,059.69. Carlus Carter filed a motion for judgment notwithstanding the verdict (JNOV) in its suit against Wickes, arguing that there were no disputed facts for the jury to decide. The trial judge denied this motion.

The City appeals and assigns as error the failure of the trial court to determine that Carlus Carter was contributorily negligent; that Wickes was solely responsible for the accident and that the damage awards for pain and suffering and for loss of past and future wages were excessive. Carlus Carter appeals and assigns as error the failure of the trial court to find Wickes liable, the denial of the motion for JNOV and the award of damages as inadequate.

The issues for review are whether Wickes Lumber, Inc. can be held liable for an injury that occurred as a result of an accident on abutting property; whether *576 Carlus Carter was contributorily negligent in the accident; and the sufficiency of the damages awarded.

FAULT OF CARTER

The City and Wickes allege that Carlus Carter was solely or contributorily at fault in the accident. They argue that he failed to observe where he was walking and would have seen the cracked cover had he looked. The only evidence of the condition of the cover was from Charles Foret, an employee of Wickes. Mr. Foret stated that he noticed "a little crack" in the cover when he walked to pick up some wood nearby. In its Reasons for Judgment the trial court found:

This Court further finds that there was no contributory negligence on the part of the plaintiff. The presumably solid and firm metal surface was indeed cracked and weak. Catch basin covers are designed to support weight and to be walked upon. The defect in this particular cover thus became a hidden trap for the plaintiff. There was no unreasonable action on the part of the plaintiff which contributed to his injury.

We find no error in this conclusion.

FAULT OF THE CITY OF HOUMA

In dealing with this issue the trial court stated as follows:

The evidence produced by the various parties further showed that this particular catch basin was located within the city limits and on the right of way of a city street. The cover was cracked and its damaged condition had been reported to the City by Wickes personnel at least two days before the accident. Additionally, this was at least the third time the cover on this particular catch basin had become cracked. The City repaired or replaced the cover on each occasion when it had cracked previously. On one occasion, city workmen erected four protective posts around the cover in an effort to prevent traffic from rolling over the cover. However, the City was aware that two of the posts had been missing for a considerable number of months prior to this accident. The City made no effort to replace the protective posts.
Although the plaintiff has proceeded against the City under the theory of negligence (LSA-C.C. Art. 2315) and the theory of strict liability (LSA-C.C. Art. 2317), it is unnecessary to consider the latter as this Court finds for a fact that the City was negligent in its maintenance of this particular catch basin. The City was negligent because it knew of the cracked condition of the cover, it had been notified in sufficient time to correct the hazard, and it had a duty to protect the members of the public who used its roadways and shoulders from risk of harm from the unreasonably dangerous cracked cover. Having failed to so remedy the situation, the City is liable to the plaintiff for the injuries which he sustained.

We find no error in this conclusion. These findings by the trial court are findings of fact. Findings of fact by a trial court will not be disturbed on review absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record supports the findings of the trial court and we find no manifest error.

FAULT OF WICKES

The City argues that it was error on the part of the trial court to fail to determine that Wickes was solely at fault for the accident. The case against Wickes was tried before a twelve-person jury and they were found free of liability for the accident. Findings of fact by the trial court will not be disturbed on review absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). A review of the record reveals evidence which supports the factual finding of the jury that there is no fault on the part of Wickes.

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Bluebook (online)
536 So. 2d 573, 1988 WL 126166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-city-of-houma-lactapp-1988.