Goudchaux v. State Farm Fire & Cas. Co.

407 So. 2d 1317, 1981 La. App. LEXIS 5661
CourtLouisiana Court of Appeal
DecidedDecember 16, 1981
Docket8542
StatusPublished
Cited by16 cases

This text of 407 So. 2d 1317 (Goudchaux v. State Farm Fire & Cas. Co.) 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
Goudchaux v. State Farm Fire & Cas. Co., 407 So. 2d 1317, 1981 La. App. LEXIS 5661 (La. Ct. App. 1981).

Opinion

407 So.2d 1317 (1981)

Leopold GOUDCHAUX, Plaintiff-Appellant,
v.
STATE FARM FIRE & CASUALTY COMPANY, Defendant-Appellee.

No. 8542.

Court of Appeal of Louisiana, Third Circuit.

December 16, 1981.
Rehearing Denied January 29, 1982.

*1318 Fuhrer & Flournoy, Philip G. Hunter, Alexandria, for plaintiff-appellant.

Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Alexandria, for defendant-appellee.

Before FORET, SWIFT and LABORDE, JJ.

*1319 FORET, Judge.

Leopold Goudchaud (Plaintiff) brought this tort action to recover damages for personal injuries he suffered while using a sewer auger[1] at the residence of William J. Wood (Wood). State Farm Fire & Casualty Company (State Farm), Wood's homeowners liability insurer, was named defendant.

The trial court rendered judgment in favor of State Farm rejecting plaintiff's demand. Plaintiff appeals from that judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding (a) that the sewer auger was not in the custody of Wood at the time the accident occurred and/or (b) that there was no defect or vice in that machine;

(2) Whether the trial court erred in failing to find Wood guilty of actionable negligence for which State Farm should be held liable to plaintiff.

FACTS

The accident giving rise to this action occurred on January 26, 1980, in Alexandria, Louisiana. Wood rented the sewer auger from the Rent-It Company (Rent-It) in Alexandria and brought it to his residence to clear the sewer lines serving his home. He had been using the machine for a couple of hours when plaintiff came over to borrow a tach-dwell meter for use in servicing plaintiff's automobile. Wood lent him the meter and plaintiff proceeded to work on his automobile in Wood's driveway. Meanwhile, Wood resumed the task of cleaning his sewer lines. Approximately fifteen to twenty minutes later, Wood called out to plaintiff to come over and help him. Wood had removed a glove he was wearing and told appellant that he had injured his hand using the machine. They examined Wood's hand to see if any bones had been fractured.

Wood then asked plaintiff to help him finish cleaning the sewer line as it was getting late. Plaintiff agreed and had been operating the machine for between three to five minutes when the accident occurred. Apparently, the cutting head of the machine struck some solid object causing the steel cable to twist violently. In doing so, it severed the distal phalanx of plaintiff's left ring finger. A search of the sewer line failed to produce that portion of plaintiff's finger. Plaintiff was brought to the emergency room of a local hospital where the wound was treated.

Plaintiff instituted this action alleging that Wood was strictly liable for the injuries suffered by him. In the alternative, plaintiff alleged that Wood had been negligent in several respects and that this negligence resulted in his injury. State Farm has agreed to pay all of plaintiff's medical expenses resulting from the accident. Thus, all plaintiff seeks is an award for general damages.

The action was tried by the trial court which returned a judgment in favor of State Farm and against plaintiff, who was granted a devolutive appeal from the trial court's judgment.

STRICT LIABILITY

Plaintiff contends that Wood should be held strictly liable to him for the injuries he suffered under the provisions of LSA-C.C. Article 2317 and/or LSA-C.C. Article 2322.

LSA-C.C. Article 2317 provides, in pertinent part:

*1320 "Art. 2317. Acts of others and of things in custody
Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. ...."

For recovery under LSA-C.C. Article 2317, a plaintiff must show: (1) that the thing which caused the injury was in the care or custody of the defendant/owner; (2) that a vice or defect existed in the thing; and, (3) that the vice or defect caused the injury. A vice or defect is defined as one which creates an unreasonable risk of injury to another. Loescher v. Parr, 324 So.2d 441 (La.1975); Reinhard v. City of New Orleans, 371 So.2d 286 (La. App. 4 Cir. 1979).

We note at the outset that plaintiff has cited to this Court a line of jurisprudence characterized by the decision in Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971), in support of his contentions. These cases are inapposite to the issues before us as they concern the liability of a manufacturer of a defective product. Here, plaintiff has brought no action against the manufacturer of the sewer auger.

The first inquiry in making a determination of strict liability for damages caused by a defect in a thing is whether the thing was in the care or custody of the defendant at the time the accident occurred. Loescher contains the following quote concerning this issue of the care or custody of a thing on 324 So.2d 449, Footnote 7:

"7. In Verlander, We are Responsible..., 2 Tulane Civil Law Forum, No. 2, p. 64 (1974), which contains a perceptive and thorough analysis of the French, Quebecois, and Louisiana interpretations, it is suggested: "[T]he things in one's care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them. This relationship will ordinarily be associated with ownership, but the guardianship will also belong to the bailee, the lessee, the usufructuary, the borrower for use and the repairmen, among others. It will not belong to the agent or the mandatory, the employee or the servant, or to anyone else for whom there is a responsible principal. The owner may transfer the guardianship by transferring the thing to another who will bear such a relationship to the thing as to himself have the care of it. He may also lose the care of this thing, principally by the theft of the thing." (Emphasis ours)

Plaintiff contends that the sewer auger was in the care or custody of Wood at the time that the accident occurred. The trial court found that it wasn't, and we agree.[2] Liability under LSA-C.C. Article 2317 arises from the legal relationship of the person sought to be held liable to the thing which creates an unreasonable risk of injuries to others because it is defective. The fault of the person thus liable is based upon his failure to prevent the thing for which he is responsible from presenting such unreasonable risk of injury to others. Loescher v. Parr, supra; Shipp v. City of Alexandria, 395 So.2d 727 (La.1981); Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Morgan v. Hartford Accident & Indemnity Company, 402 So.2d 640 (La.1981).

The evidence shows that Wood had rented the sewer auger a couple of hours before the accident occurred. Wood, himself, *1321 used the machine during that period of time. This rental and use for a short period of time are the only existing elements of Wood's relationship to the machine. It is Rent-It, rather than Wood, which has the responsibility of maintaining the things it offers to rent on a short term basis to the general public. Rent-It is the entity that has direction and control over those things and it derives benefits from them.

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407 So. 2d 1317, 1981 La. App. LEXIS 5661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goudchaux-v-state-farm-fire-cas-co-lactapp-1981.