Enola Wiltz, Et Ux. v. Abc Ins. Co.

• Court: Louisiana Court of Appeal
• Decided: February 9, 2011
• Docket: CA-0010-1107
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 10-1107

ENOLA WILTZ, ET UX.

VERSUS

ABC INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 70305 HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

BILLY HOWARD EZELL JUDGE

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Shannon J. Gremillion, Judges.

AFFIRMED.

James L. Pate Sara Rodrigue Laborde & Neuner P.O. Box 52828 Lafayette, LA 70505-2828 (337) 237-7000 Counsel for Defendants/Appellees: City of Breaux Bridge Illinois Union Insurance Company James Harvey Domengeaux Domengeaux, Wright, Roy & Edwards P. O. Box 3668 Lafayette, LA 70502-3668 (337) 233-3033 Counsel for Plaintiffs/Appellants: Enola Wiltz Wallace Wiltz EZELL, JUDGE.

Enola Wiltz and her husband Wallace filed suit against the City of Breaux

Bridge and its insurer for injuries she sustained when she stumbled over a one-fourth

to one-half inch beveled crack in the sidewalk as she was walking toward City Hall.

The trial court found that there was no unreasonably dangerous condition in the

sidewalk and that there was no evidence to demonstrate that the City had knowledge

about the crack in the sidewalk. The Wiltzes appealed.

FACTS

On June 13, 2005, Mr. and Mrs. Wiltz brought their son Hubert to City Hall so

he could renew his driver’s license. He had not been driving due to a surgical

procedure. They arrived before 8:00 a.m. Mr. Wiltz parked on the side next to the

main entrance. The door was not open, so Mrs. Wiltz and Hubert walked around to

another entrance near the police station. Meanwhile, Mr. Wiltz went to get the car

to move closer to the police station entrance.

Hubert was walking behind his mother on the sidewalk when she stumbled but

did not fall. She stopped walking and told Hubert that she had hurt her back and leg

when she stumbled. They noticed the crack in the sidewalk which they claim caused

sixty-seven-year-old Mrs. Wiltz to stumble. As a result of this incident, Mrs. Wiltz

has incurred medical bills in the amount of $95,095.61.

The Wiltzes filed suit against the City and its insurer, Illinois Union Insurance

Company. A bench trial was held on December 4, 2009. The trial court took the

matter under advisement and issued written reasons for ruling on January 13, 2010.

The trial court ruled that “[p]laintiff did not submit sufficient evidence to demonstrate

that the crack in the sidewalk created an unreasonable risk of harm.” The trial court

further found that “there was no evidence to demonstrate that the City knew or should

1 have known about the crack in the sidewalk.”

The Wiltzes appealed, claiming that the trial court was clearly wrong in failing

to find that “a beveled cracked sidewalk, covered and disguised by grass growth on

a major sidewalk leading directly into the main organ of commerce for the City

causing plaintiff’s accident and injuries did not create an unreasonable risk of harm.”

DISCUSSION

Whether the beveled crack in the sidewalk presented an unreasonable risk of

harm is subject to the manifest error standard of review. Biagas v. City of Eunice, 98-

108 (La.App. 3 Cir. 10/21/98), 721 So.2d 491, writ denied, 98-2886 (La. 1/15/99),

736 So.2d 209. Therefore, after reviewing the record, we must find that there is no

factual basis for the trial court’s ruling and that the finding was clearly wrong. Id.

The issue is whether the trial court’s conclusion was reasonable. Id.

Louisiana Revised Statutes 9:2800 provides for the liability of public entities

caused by the condition of things within its care and custody. The Wiltzes had to

prove that (1) the City owned or had custody of the sidewalk that caused the damage;

(2) the sidewalk was defective in that it created an unreasonable risk of harm to

others; (3) the City had actual or constructive knowledge of the defect or

unreasonable risk of harm and failed to take corrective action within a reasonable

time; and, (4) Mrs. Wiltz’s injuries were caused by the defect. Pryor v. Iberia Parish

Sch. Bd., 10-23 (La.App. 3 Cir. 6/16/10), 42 So.3d 1015.

“Under these provisions, the City, as the owner of a public right of use over the

sidewalk, has the duty to ensure the public’s use and possession of the sidewalk.”

Graham v. City of Shreveport, 44,994, p. 4 (La.App. 2 Cir. 1/27/10), 31 So.3d 526,

530, writ denied, 10-440 (La. 4/30/10), 34 So.3d 294.

[A] municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonable safe, but the maintaining of them in

2 perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury.

For determining what is a dangerous defect in sidewalk . . . there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonable (sic) safe condition for persons exercising ordinary care and prudence.

Boyle v. Bd. of Sup’rs, Louisiana State Univ., 96-1158, p. 4 (La. 1/14/97), 685 So.2d

1080, 1082 (quoting White v. City of Alexandria, 216 La. 308, 314-15, 43 So.2d 618,

620 (1949)).

In determining whether a thing creates an unreasonable risk of harm, all

relevant moral, economic, and social considerations must be weighed. Boyle, 685

So.2d 1080.

In Boyle, the supreme court found that a one-half inch to over one inch crack

which was located in a high traffic area did not present an unreasonable danger. In

Biagas, 721 So.2d 491, this court found that a one to one-and-a-half inch “lip” did not

present an unreasonable risk of harm.

The Wiltzes argue that the one-fourth to one-half inch crack in the present case

presented an unreasonable risk of harm because it was significantly covered with

grass in a highly-traveled area. The Wiltzes also argue that the trial court incorrectly

found that the City’s sidewalks are inspected on a regular basis.

Jack Delhomme, mayor of the City, testified that he was told about the accident

when he got to work that morning. He had not had any complaints about the sidewalk

before the accident and was not aware of any accidents before Mrs. Wiltz’s incident.

After the accident, he contacted the director of public works, who smoothed out the

crack and filled it in. Mr. Delhomme further testified that the City does not employee

anyone specifically to check sidewalks.

3 Rita George, an assistant city clerk who has worked for the City for thirty-three

years, testified that she had not heard of anyone complain about cracks in the

sidewalk.

Pictures of the crack were taken on the day of the incident and were introduced

into evidence. There is some type of weed growing out of the middle of the crack,

but the edges of the crack are visible.

We cannot say the trial court committed manifest error in concluding that this

crack was not unreasonably dangerous. Pictures indicate that the weeds only covered

a small part of the crack. Furthermore, weeds growing in the middle of a sidewalk

is an indication in itself that there is an open area in that part of the sidewalk. There

was no testimony whatsoever that anyone had complained about this crack in the

sidewalk. As soon as the City was notified of this incident, it immediately repaired

the crack.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed against Enola and Wallace Wiltz.