Clement v. State ex rel. Department of Transportation & Development

528 So. 2d 176, 1988 La. App. LEXIS 1197, 1988 WL 49373
CourtLouisiana Court of Appeal
DecidedMay 17, 1988
DocketNo. CA870432
StatusPublished
Cited by19 cases

This text of 528 So. 2d 176 (Clement v. State ex rel. Department of Transportation & Development) 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
Clement v. State ex rel. Department of Transportation & Development, 528 So. 2d 176, 1988 La. App. LEXIS 1197, 1988 WL 49373 (La. Ct. App. 1988).

Opinions

LANIER, Judge.

This is a suit for damages in tort alleging a cyclist got the wheel of her bicycle caught in a defective grating on a public bridge, was thrown to the deck of the bridge and sustained injury. Made defendants were the Iberville Parish Police Jury (Parish) and the State of Louisiana, through the Department of Transportation and Development (DOTD). The Parish and its insurer, Hartford Accident and Indemnity Company (Hartford), answered and filed a third party demand against DOTD for indemnity or contribution, asserting the bridge was designed and constructed by DOTD and DOTD was liable for any defects in it. The cyclist compromised her [178]*178claims against the Parish and Hartford for $18,500 and dismissed them as parties defendant in the suit. DOTD filed a third party demand against the Parish and Hartford, asserting the Parish had the custody and garde of the bridge at the time of the accident, the Parish agreed to indemnify the State in the operation of the bridge and DOTD was entitled to indemnification or contribution. The trial court rendered judgment in favor of the cyclist against DOTD for $89,637.06 and dismissed both third party demands. DOTD took this de-volutive appeal.

FACTS

On May 5, 1984, at approximately 3:30 p.m., Peggy Granger Clement was riding her bicycle in a westerly direction on the Bayou Grosse Tete bridge in Iberville Parish, Louisiana, when the front tire of the bicycle fell in a gap between sections of the bridge gratings. This caused the bicycle to stop suddenly. Mrs. Clement was thrown over the bicycle’s handlebars. She landed on her face on the bridge surface and sustained injuries.

At the request of the Parish, the Bayou Grosse Tete bridge was designed by DOTD and built by it in 1968. The bridge connects Sidney Road on the east side of the bayou with Louisiana Highway 77 on the west side of the bayou. The plans for the bridge called for concrete approaches on each end with a middle span made of steel grate flooring welded in place. The steel grating was installed in four sections, running the length of the span. There were to be three one-inch gaps between the four lengthwise sections.

On or about August 15, 1968, the Parish received a copy of a letter from DOTD’s project engineer to DOTD’s district engineer, advising that all work on the bridge had been completed according to plans and specifications and that the bridge would be ready for final inspection on August 19, 1968. The Parish did not inspect the bridge. On October 15, 1968, the Parish enacted the following resolution:

RESOLUTION
WHEREAS, the Police Jury of the Parish of Iberville hereby solicit certain, extra ordinary (sic) construction and improvements by the Department of Highways of the State of Louisiana, which construction and improvements is (sic) not in conformity with the general and established standards of the Department of Highways of the State of Louisiana and that in order to secure construction and improvements by the Department of Highways of the State of Louisiana: NOW, THEREFORE, BE IT RESOLVED that the Police Jury of the Parish of Iberville, State of Louisiana, does hereby agree to be solely responsible for the management of traffic and maintenance upon the bridge and approaches designed as follows:
GROSSE TETE BRIDGE & APPROACHES (GROSSE TETE BRIDGE STATE PROJECT NO. 713-20-87, ASPHALT APPROACHES FURNISHED BY THE IBERVILLE PARISH POLICE JURY WHICH MEETS THEIR REQUIREMENTS.
and does hereby agree to hold harmless the Department of Highways of the State of Louisiana from any and all claims of whatever kind or nature which may arise or may have arisen as a result of the construction and improvements solicited hereby and does forever release and discharge the Department of Highways of the State of Louisiana from any such claim as may have arisen or may hereafter arise or be asserted as a result of such construction.

The Parish has not received any complaints about the gratings on the bridge, and the gratings have not been removed or modified since the bridge was built.

LIABILITY OF DOTD

(Assignment of Error Number 1)

DOTD contends the trial court committed error in finding it liable because (1) the Parish was solely responsible for the bridge pursuant to its resolution; (2) it was not foreseeable that a cyclist would fall in a gap in the bridge; (3) Mrs. Clement had [179]*179the burden of showing the bridge was not constructed pursuant to the design standards in effect in 1968, and she failed to do so; (4) DOTD had no duty to reconstruct the bridge to modern standards; and (5) the gaps in the bridge did not constitute unreasonable risks of harm. Mrs. Clement asserts the ruling of the trial court is correct because (1) DOTD, as the owner of the bridge, is strictly liable for her injuries pursuant to La.C.C. art. 2317; and (2) “even if the State was not the owner of the bridge, their construction of same renders them totally responsible from (sic) harm resulting from their negligence in performing that construction” because the gaps in the bridge were wider than the one inch specified in the bridge plans, and this deviation from the plans resulted in a dangerous condition for cyclists which caused her injury-

DOTD’s Liability Under La. C. C. Art. 2317

In Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141, 1143 (La.App. 1st Cir.), writ denied, 435 So.2d 429 (La.1983), appears the following:

The owner, or person having custody, of immovable property has a duty to keep such property in a reasonable safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. ... This duty is the same under the strict liability theory of La.C.C. art. 2317 as under the negligent liability theory of La.C.C. art. 2315. ... The difference in proof between these theories of liability is that under La.C.C. art. 2315, it must be shown that the owner, or person in custody, either knew or should have known of the risk, whereas under La.C.C. art. 2317, a claimant is relieved of proving the defendant's scienter. ... Under either theory of liability, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the “custody” of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises (breach of the duty); and (3) that the defect in the property was a cause in fact of the resulting injury. In both negligent and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. ... Under either theory of liability, the court must decide if the risk which causes the injury is within the ambit of protection of the duty.

The parties herein did not request reasons for judgment pursuant to La.C.C.P. art. 1917, and the trial court did not give reasons for judgment. Thus, we do not know the evidentiary facts or the legal theory upon which the trial court judgment is based. In this posture, we are unable to give the usual deference attributed to decisions of triers of fact at the trial level. Bloxom v. Bloxom, 512 So.2d 839 (La.1987).

As indicated above, to recover under La.C.C. art. 2317, Mrs.

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Bluebook (online)
528 So. 2d 176, 1988 La. App. LEXIS 1197, 1988 WL 49373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clement-v-state-ex-rel-department-of-transportation-development-lactapp-1988.