Foster v. Unopened Succession of Smith

874 So. 2d 400, 2004 La. App. LEXIS 1274, 2004 WL 1118717
CourtLouisiana Court of Appeal
DecidedMay 20, 2004
DocketNo. 38,386-CA
StatusPublished
Cited by3 cases

This text of 874 So. 2d 400 (Foster v. Unopened Succession of Smith) 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
Foster v. Unopened Succession of Smith, 874 So. 2d 400, 2004 La. App. LEXIS 1274, 2004 WL 1118717 (La. Ct. App. 2004).

Opinion

| WILLIAMS, Judge.

The defendant, State of Louisiana, Department of Transportation and Development (DOTD), appeals a judgment in favor of the plaintiff, Tommy Foster. The trial court assessed 70% fault to DOTD for causing the accident, 15% fault to the defendant, Unopened Succession of Lester Glenn Smith (“Succession of Smith”) and 15% fault to plaintiff. The court awarded plaintiff damages of $19,970.37, an amount reflecting the parties’ proportional fault. For the following reasons, we reverse in part, affirm in part and render.

FACTS

On August 22, 1997, Tommy Foster drove to the parking lot of the Best Western Motel in Winnfield, Louisiana, to mail [402]*402a letter. While walking toward the mailbox in front of the motel, Foster briefly looked around when he heard a voice. As he turned forward and took another step, Foster tripped on a pipe protruding from the ground and fell, injuring his nose, face, hands and knees.

During the period from 1982 to 1984, DOTD had expanded a state highway and constructed a concrete curb along the roadway. At the time of the accident, the pipe extended from under the curb marking the edge of DOTD’s right of way and out over the property owned by the Succession of Smith and used by Kwik Cheek of Winnfield, Inc. d/b/a Best Western Motel of Winnfield (“Best Western”).

Following the accident, Foster was transported to the Winn Parish Medical Center complaining of injuries to his nose, face, hands and knees. The x-rays of Foster’s nose were read by a radiologist, who did not find any | ^evidence of a nasal fracture. On September 2, 1997, Foster saw his family physician, Dr. Randolph Williams, with a complaint of pain and tenderness in his nose. Dr. Williams reviewed the x-rays and opined that Foster had sustained a non-displaced fracture of the nasal septum. When Dr. Williams saw Foster on September 27, 1997, the appearance of his nose had improved. However, Foster continued to feel tenderness around the bridge of his nose for approximately three months.

Almost two years later, in May 1999, Foster sought treatment with Dr. James Pate, an ear, nose and throat specialist, complaining of nasal congestion, sinusitis, facial swelling and pain. After an examination, Dr. Pate diagnosed Foster with a deviated nasal septum and hypertrophic turbinates and recommended surgery. Dr. Pate performed nasal septal surgery with partial removal of Foster’s turbinate tissue. Dr. Pate last saw Foster on May 19,1999.

Subsequently, the plaintiff, Tommy Foster, filed a petition for damages against the defendants, Succession of Smith, Best Western and DOTD. After a trial, the court issued written reasons for judgment finding that the pipe protruding from the ground presented a hazardous condition resulting from DOTD’s highway construction. The trial court found that DOTD knew or should have known about the dangerous condition and was negligent in failing to remove the pipe. The court further found that the negligence of the property owner and the plaintiff also contributed to the accident. The trial court allocated 70% fault to DOTD in causing the accident, 15% fault to the Succession of Smith and 15% fault to plaintiff.

|aThe trial court found that as a result of the accident, the plaintiff had sustained a fractured nose that aggravated his existing sinus condition and required nasal surgery by Dr. Pate. The court awarded plaintiff medical expenses of $7,499.22 and general damages of $9,000 for past and future pain and suffering, $3,500 for mental anguish, $2,000 for loss of intellectual or physical enjoyment and $1,500 for permanent disability.

The trial court rendered judgment in favor of plaintiff against DOTD in the amount of $16,445.49 and against the Succession of Smith in the amount of $3,524.88, reducing the damage award by the percentages of fault. The court assessed the defendants “with all costs herein, including expert witness fees.” DOTD appeals the judgment. Answers to the appeal have been filed by plaintiff and by Succession of Smith and Best Western.

DISCUSSION

DOTD contends the trial court erred in assessing 70% fault to the state in causing [403]*403the accident. DOTD argues that it is not liable because the evidence failed to show that the state knew of the alleged hazard.

In order to recover against a public entity for damages due to a defective condition, the plaintiff must prove by a preponderance of evidence: (1) the thing that caused the damages was in the defendant’s custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) the defendant possessed actual or constructive notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of the plaintiffs harm. LSA-R.S. 9:2800; Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216; Long v. State DOTD, 37,422 (La.App.2d Cir.11/24/03), 862 So.2d 149. Proof by a preponderance of evidence means that, when taken as a whole, the evidence shows that the fact or cause sought to be proven is more probable than not. Whatley v. City of Winnfield, 35,132 (La.App.2d Cir.12/5/01), 802 So.2d 983.

A court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The task of a reviewing court is to assess whether the fact finder’s resolution of conflicting evidence was reasonable in light of the record as a whole. Fowler v. Wal-Mart Stores, Inc., 30,843 (La.App.2d Cir.8/19/98), 716 So.2d 511.

Prior to trial in the present case, the parties stipulated that DOTD’s “right of way line” was the edge of the concrete curb and that the pipe protruded “from under the right of way over the property of Glenn. Smith.” A former DOTD employee, Carlton Bennett, estimated that the state had built the concrete curb marking the edge of the highway right of way sometime between the years of 1982 and 1984. Bennett testified that he took photographs of the accident scene in April 2002 and that the pipe appeared to extend “underneath ... the concrete curb toward the highway.” Bennett stated that he had not visited the accident scene prior to that time. He did not say that the pipe was placed there by the state or indicate how long the pipe may have been present in that location.

The plaintiff testified that while he was walking toward the mailbox | Bon the day of the accident, he heard someone yelling and turned his head to look. As he, was turning back around, he tripped on the, pipe and fell. The plaintiff stated that the pipe was sticking out from under the curb and that the next day he took photographs at the scene from inside his vehicle. He testified that when he returned to the area at a later date, the pipe had been cut back closer to the curb and that he observed what appeared to be electrical wires inside the pipe. Plaintiff stated that he placed a 12-inch long piece of metal all the way into the pipe, which extended underneath the curb toward the highway. Plaintiff testified that although he had previously used the same mailbox several times, he had not walked along the particular path where the pipe was protruding until the day of the accident.

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874 So. 2d 400, 2004 La. App. LEXIS 1274, 2004 WL 1118717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-unopened-succession-of-smith-lactapp-2004.