Franatovich v. St. Bernard Parish Government

88 So. 3d 1169, 2011 La.App. 4 Cir. 1128, 2012 WL 955502, 2012 La. App. LEXIS 367
CourtLouisiana Court of Appeal
DecidedMarch 21, 2012
DocketNo. 2011-CA-1128
StatusPublished
Cited by1 cases

This text of 88 So. 3d 1169 (Franatovich v. St. Bernard Parish Government) 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
Franatovich v. St. Bernard Parish Government, 88 So. 3d 1169, 2011 La.App. 4 Cir. 1128, 2012 WL 955502, 2012 La. App. LEXIS 367 (La. Ct. App. 2012).

Opinion

CHARLES R. JONES, Chief Judge.

LThe Appellant, St. Bernard Parish Government, seeks review of the judgment of the district court finding that it was 90% at fault for causing the accident of the Appellees, Eleanor T. Franatovich wife of/ and Darryl Franatovich, by creating an unreasonable risk of harm in a vacant lot. Finding that the district court did not error, we affirm the judgment of the district court.

[1172]*1172At dusk one evening in March 2002, the Franatoviches drove to the home of a relative to attend a party in Violet, Louisiana, in their pickup truck. Mr. Franatovich drove the vehicle while Mrs. Franatovich rode in the passenger seat. Upon reaching the destination, Mr. Franatovich turned off Packenham Road into a grass covered lot, where he had previously parked on several occasions. The front of the Franatoviches’ truck then abruptly fell into a four (4) or five (5) foot deep hole, which Mr. Franatovich testified that he had never previously encountered. The hole was dug by maintenance workers employed by the St. Bernard Parish Government (“St. Bernard”) in January 2002, to correct a drainage problem in the area.

As a result of the accident, Mrs. Frana-tovich sustained severe injuries. A few months before the accident, she had surgery on her lumbar spine from which she li>was recovering well prior to the accident. However, after the accident, the pain in her lower back and legs greatly worsened, and she sought treatment for the new symptoms. Extensive treatment and three (3) more spine surgeries were required as a result of her accident injuries. She sustained permanent physical damage as a result of the accident.

The Franatoviches filed suit against St. Bernard in March 2003. Trial was held in November of 2010. The district court determined that Mr. Franatovich did not see the hole because it was obscured by high grass; the area was poorly lit; and the hole was not clearly marked. The district court found that the hole dug by St. Bernard was an unreasonably dangerous defect that caused the accident of the Frana-toviches. The court further held that St. Bernard was 90% at fault for the accident and attributed 10% of fault to Mr. Frana-tovich for driving into an open hole. The district court awarded damages stemming from the accident solely to Mrs. Franato-vich. St. Bernard was ordered to pay $112,500.00 in general damages; medical expenses in the amount of $104,222.71; and $1,090.80 for vehicle repairs. From the judgment of the district court, St. Bernard timely filed the instant appeal and raises four (4) assignments of error on appeal:

1. The district court committed legal error in failing to analyze and apply La. R.S. 9:2798.1, granting St. Bernard immunity for its discretionary acts regarding the Parish drainage system;
2. The district court committed legal error by failing to apply a risk-utility analysis in determining whether the ditch which was serving a vital public function was unreasonably dangerous;
|s3. The district court clearly erred in finding Darryl Franatovich only 10% at fault, where the evidence established that he drove into an open and obvious roadside ditch in broad daylight when he voluntarily left the roadway to enter an undeveloped grassy area burdened with the Parish’s servitude of drainage; and
4. The district court erred in finding that Mrs. Franatovich’s injuries were causally related to the accident at issue, rather than her degenerative achondroplasia and spinal steno-sis.1

The first assignment of error raised by St. Bernard is that the district court committed a legal error in failing to [1173]*1173analyze and apply La. R.S. 9:2798.1,2 granting St. Bernard immunity for its discretionary acts regarding the Parish drainage system. St. Bernard argues that the district court committed an error of law in not applying La. R.S. 9:2798.1 to the case at hand. St. Bernard argues that the omission of the statute from the reasons for judgment of the district |4court evidences the court did not consider its statutory immunity. Thus, St. Bernard argues that the district court committed a legal error in not considering the immunity, and thus, we should not accord any special weight to the findings of the district court. St. Bernard argues that we are empowered to review the legal issue of immunity de novo, and render a judgment on the record. Snearl v. Mercer, 99-1738, pp. 27-28 (La.App. 1 Cir. 2/16/01), 780 So.2d 568, 584.

St. Bernard further argues that Louisiana courts such as the Fifth Circuit in Fossier v. Jefferson Parish, 07-926 (La.App. 5 Cir. 4/15/08), 985 So.2d 255, and Marino v. Parish of St. Charles, 09-197 (La.App. 5 Cir. 10/27/09), 27 So.3d 926, have frequently held that decisions regarding a parish’s drainage system are not mandated by law, but are rather based on social, economic, and political safety considerations. Thus, St. Bernard argues a parish is immune from liability for discretionary acts pertaining to its drainage system. St. Bernard explains that the January 10, 2002 ditch work was reported by St. Bernard as “skimming the ditch”, which consisted of making necessary repairs and/or maintenance to the roadside to restore proper drainage in the community. St. Bernard argues that its decision to skim the ditch involved elements of judgment and choice.

St. Bernard argues that Calvin Kelone, Jr., a St. Bernard Assistant Foreman who supervised a heavy equipment crew at the time of the accident, testified that his crew was dispatched to the ditch in question in order to address complaints of standing water, trash in yards, and to make repairs necessary to remove blockage and restore proper drainage. Mr. Kelone testified that his crew noticed a large amount of trash in the ditch, and located a blockage of mud in | .^between two mis-matched culvert pipes, which they in turn “dug out” using a backhoe to restore proper drainage. St. Bernard argues that it was required to place a new culvert or underground duct where this particular ditch [1174]*1174was dug; therefore, it is clear that the “void” in question was an open roadside ditch necessary to accept water off of the roadway. The Parish argues that decisions made in connection with the ditch involved elements of judgment and choice; meaning that its actions were discretionary. Thus, St. Bernard maintains that the district court erred as a matter of law in not applying the statutory immunity to this matter.

The Franatoviches argue that the immunity that St. Bernard seeks to apply is not applicable to this matter because the decision of the Parish to dig a hole in order to make a drainage repair was an operational decision. They argue that the cases cited by St. Bernard are distinguishable from the matter sub judice. For instance, in the Fossier case, the Franatoviches argue that Jefferson Parish was sued because the homes of Jefferson Parish citizens were flooded by Tropical Storm Isidore. Jefferson Parish was sued for an alleged defective drainage system. In Marino, the homes of citizens of St. Charles Parish were also flooded by heavy rainfall, which accumulated due to a backed-up parish drainage system. They argue that in these cases the holdings of the Fifth Circuit, in applying the statutory immunity, were based upon the particular facts before the court and a review of the drainage systems under the social and economic considerations made by the parishes.

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Bluebook (online)
88 So. 3d 1169, 2011 La.App. 4 Cir. 1128, 2012 WL 955502, 2012 La. App. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franatovich-v-st-bernard-parish-government-lactapp-2012.