DeLaughter v. West Jefferson Levee District

646 So. 2d 506, 94 La.App. 4 Cir. 0064, 1994 La. App. LEXIS 3114, 1994 WL 668112
CourtLouisiana Court of Appeal
DecidedNovember 30, 1994
DocketNo. 94-CA-0064
StatusPublished
Cited by3 cases

This text of 646 So. 2d 506 (DeLaughter v. West Jefferson Levee District) 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
DeLaughter v. West Jefferson Levee District, 646 So. 2d 506, 94 La.App. 4 Cir. 0064, 1994 La. App. LEXIS 3114, 1994 WL 668112 (La. Ct. App. 1994).

Opinion

11ARMSTRONG, Judge.

This is an appeal by the plaintiff from a summary judgment in a personal injury case. The plaintiff alleges that she was injured on certain property that was in the custody of the defendants because the property was in an unreasonably dangerous condition. The defendants moved for summary judgment on the ground that the property was not in an unreasonably dangerous condition. The trial court granted the defense motion and the plaintiff appealed. We agree with the trial court and affirm.

The plaintiff, Stephanie DeLaughter, was riding her horse on a portion of a levee which she alleges was in the custody of the defendants, the West Jefferson Levee District and the City of New Orleans by and through the Public Belt Railroad Commission. Her daughter, Stacie DeLaughter, was riding near her. The specific portion of the levee on which she was riding was the “batture” and she was riding near the river side “toe” of the levee. The “toe” is the bottom of the slope of the levee and the “batture” is the area of land between the river side toe and the river itself.

The plaintiffs horse stumbled and, as a result, the plaintiff fell off of her horse and was injured. The next day, the plaintiffs daughter, Stacie, and her husband, Thomas, went to the scene of the plaintiffs fall to retrieve some ropes that had been left there. They found a line of scattered pieces of broken concrete near the toe of the levee where the |2plaintiff had fallen. The pieces of broken concrete were approximately four to six inches in diameter. The pieces of broken concrete were not readily visible from horseback as they were in grass approximately four to six inches high.

It is the plaintiffs theory that her horse stumbled on one of the pieces of broken concrete. She argues that the presence of the pieces of broken concrete, particularly in four to six inches of high grass, made the levee unreasonably dangerous. She sued the defendants alleging that they had custody of the levee and that the defendants were liable in negligence and/or strict liability. (The plaintiffs husband, Thomas, also sued the defendants for loss of consortium but, for the sake of simplicity, we will refer only to “the plaintiff.”)

The defendants’ motion for summary judgment was based on the argument that the mere presence of the pieces of broken concrete, even in four to six inch high grass, did not make the levee unreasonably dangerous. Solely for purposes of their motion for summary judgment, the defendants conceded that they had custody of the levee and that the pieces of broken concrete caused the [508]*508plaintiffs horse to stumble, which in turn caused her to fall. The trial court’s judgment, granting the defense motion, states that “the presence of a concrete rock or stone on undeveloped batture land did not constitute a defect or unreasonably dangerous condition for which liability may be imposed on either Public Belt or Levee District.”

When we review on appeal a trial court’s summary judgment, we use the same criteria as applied by the trial courts to determine whether summary judgment is appropriate. Williams v. City of New Orleans, 621 So.2d 3 (La.App. 4th Cir.1993); Hartford Accident & Indemnity Co. v. Illinois Central Gulf Railroad Co., 598 So.2d 1107 (La.App. 4th Cir.), writ denied, 605 So.2d 1148 (La.1992). Summary judgment should be granted if the pleadings, depositions, other discovery on file and affidavits show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.Proc. art. 966. When a motion for summary judgment is made and properly supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.Proc. art. 967.

bin the present case, there is no dispute about the dispositive facts. Indeed, the crucial facts as to the accident itself, and the condition of the levee (the pieces of broken concrete in the grass), are presented in the deposition testimony of the plaintiff herself, her husband and her daughter. The issue in this case is as to the proper legal conclusion to be drawn from those facts.1

In order for the defendants to be held liable to the plaintiff under either strict liability or negligence theories, the plaintiff must prove that (1) the defendants had custody of the levee; (2) the levee was in an unreasonably dangerous condition (had a “defect”); and (3) the unreasonably dangerous condition (the “defect”) caused the plaintiffs injury. See Oster v. Department of Transportation and Development, 582 So.2d 1285 (La.1991). The essential difference between the negligence and strict liability theories is that, for strict liability, the defendants need not be shown to have had knowledge or notice of the unreasonably dangerous condition. Id. With regard to public entities, the strict liability action has been statutorily modified to require notice of the unreasonably dangerous condition before liability may be imposed. La.R.S. 9:2800. In the present case, the defendants have conceded, solely for purposes of their motion for summary judgment, that they had custody of the levee and that the stones and/or pieces of broken concrete caused the plaintiffs horse to stumble. There is some disagreement in the briefs as to whether the defendants had notice of the stones and/or pieces of broken concrete. However, the notice issue is of no consequence in the present case because the basis of the trial court’s decision, and the dispositive issue for our own decision, is the issue of whether the broken pieces of concrete, with the grass they were in, constituted an unreasonably dangerous condition.

Broken pieces of concrete are used in the construction of levees and are referred to as “rip-rap.” Rip-rap was placed on portions of the levee to prevent erosion of the levee byUthe river and was then covered with dirt. It appears that the pieces of broken concrete that the plaintiff encountered were rip-rap that had been uncovered and exposed by the rise and fall of the river. Rip-rap also is used in the maintenance of the levee, to fill potholes on the top of the levee, and it is possible that the pieces of broken concrete the plaintiff encountered were rip-rap that had rolled down the slope of the levee to the toe. In any event, rip-rap is a necessary and [509]*509normal part of the construction and maintenance of the levee.

The fact that a condition produces an injury, and therefore presented a danger, does not mean that the condition was unreasonably dangerous. In other words, property owners are not obligated to remove every conceivable danger on their property but, instead, must avoid unreasonable danger to others or face liability. Oster v. Department of Transportation and Development, 582 So.2d 1285 (La.1991); Socorro v. City of New Orleans, 579 So.2d 981 (La.1991). Determining whether a condition presents an unreasonable danger involves not only weighing the likelihood and severity of possible harm against the utility of the condition at issue, but also moral, social and economic factors as well as the ideal of justice. Oster, supra; Socorro, supra; Landry v. State of Louisiana and the Board of Commissioners of the Orleans Levee District, 495 So.2d 1284 (La.1986).

We believe that the Supreme Court’s Oster and Socorro

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Bluebook (online)
646 So. 2d 506, 94 La.App. 4 Cir. 0064, 1994 La. App. LEXIS 3114, 1994 WL 668112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delaughter-v-west-jefferson-levee-district-lactapp-1994.