Hebert v. Town of Ville Platte

373 So. 2d 229, 1979 La. App. LEXIS 2908
CourtLouisiana Court of Appeal
DecidedJune 29, 1979
DocketNo. 7060
StatusPublished
Cited by2 cases

This text of 373 So. 2d 229 (Hebert v. Town of Ville Platte) 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
Hebert v. Town of Ville Platte, 373 So. 2d 229, 1979 La. App. LEXIS 2908 (La. Ct. App. 1979).

Opinions

GUIDRY, Judge.

This is a tort suit brought against the town of Ville Platte for damages sustained by plaintiff when he drove his automobile over a manhole cover in that town and was injured. The manhole cover lifted up as plaintiff’s automobile proceeded across it lodging in the undercarriage of the automobile, which circumstance caused the car to come to a sudden stop throwing plaintiff into the steering wheel. As a result of the impact, plaintiff suffered a fracture of the sternum, cardiac contusion, and other minor injuries. The trial court found that res ipsa loquitur applied to establish a prima facie case of negligence against defendant and that defendant had failed to rebut such prima facie showing. Accordingly, the trial court rendered judgment in favor of plaintiff for the sum of $13,917.82. Defendant has perfected this appeal. Plaintiff has answered the appeal seeking an increase in the award. We affirm.

The undisputed facts giving rise to this suit may be summarized as follows: On February 14, 1978, plaintiff, Lonise Hebert, was driving his 1956 Mercury automobile at a rate of about 15 to 20 miles per hour in an easterly direction on West Pine Street in Ville Platte, Louisiana. Suddenly, and without apparent reason, his vehicle came to a stop, thrusting him into the steering wheel. When plaintiff got out of his car to see what had happened, he saw that one section of a manhole cover located in the street was lifted off the manhole. The section had apparently become lodged in the undercarriage of his car, causing it to stop.

The manhole cover in question consists of two half-inch thick steel metal plates (each 15" wide and 48" long). The plates have re-enforcement rods throughout and fit on angle irons set into concrete. They are flush with the blacktopped surface of the street. Each plate weighs approximately 95 to 100 pounds, and they sit side by side when in their proper positions.

The hole which these plates cover houses two pumps. The record reveals that these pumps are inspected twice daily, once around 7:30 a. m. and once around 3:30 p. m. The accident in question occurred at about 8:30 a. m., or approximately one hour after the morning inspection. Although the manhole cover need not be lifted at each inspection, as the pump readings may be obtained from gauges located approximately 24 feet away from the manhole, part of the inspection process does include looking at the manhole cover to make certain that it is in a secure position. The manhole has been in its present position since approximately 1949.

The trial court, invoking the doctrine of res ipsa loquitur, found that plaintiff established a prima facie case of negligence against defendant which was not rebutted, and consequently found liability on the part of the town of Ville Platte.

In the case of Valentine v. Kaiser Aluminum & Chemical Corp., 205 So.2d 757 (La. App. 1st Cir. 1967), our brethren of the First Circuit discussed the proper application of res ipsa loquitur, stating:

“. . the applicability of this rule of evidence must be determined at the conclusion of the trial of each case wherein its application is urged. If the evidence of the circumstances surrounding the accident is of such a character as to justify a conclusion by reasonable men that, as a [231]*231whole, the cause of the accident was more likely due to a lack of the exercise of due care or the omission of some duty on the part of the defendant than some other outside agency, and the plaintiff has shown that the agency or instrumentality causing the injury was under the control of defendant, or about which he had a superior knowledge, then the doctrine is applicable and the defendant becomes burdened with the onus of proving his own lack of fault. See generally Lykiardopoulo v. New Orleans & C. R. Light and Power Company, 127 La. 309, 53 So. 575; Larkin v. State Farm Mutual Automobile Ins. Co., 233 La. 544, 97 So.2d 389; Langlinais v. Geophysical Service. Inc., 237 La. 585, 111 So.2d 781; D’Allesandro v. Edsar Murray Supply Company, La.App., 185 So.2d 34; Fruge v. Trahan. La.App., 194 So.2d 478.” at p. 760.

See also, McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La.1972); King v. King, 253 La. 270, 217 So.2d 395 (La. 1972); King v. King, 253 La. 270, 217 So.2d 395 (La.1968); Malone, Res Ipsa Loquitur and Proof by Inference, 4 La.Law Review 70.

We agree with the trial court that the doctrine of res ipsa loquitur is applicable under the circumstances of the instant case. Further, we determine that the record supports the conclusion that the most plausible explanation for the occurrence of the accident is the lack of due care or the omission of some duty on the part of defendant’s employees who were charged with the duty of inspecting and maintaining the manhole cover properly positioned on its frame. We reach this conclusion for the following reasons.

There is no dispute that plaintiff was in no way contributorily negligent in causing the accident. He was simply driving along at a reasonable rate of speed, when a section of the manhole cover lifted up, caught in the undercarriage of his car and caused it to come to a sudden stop. Unquestionably, such an event should not have happened in normal use of the manhole cover. The only possible explanations for the occurrence of the accident would be that either the two steel plates comprising the cover were not properly positioned on their frame, or the cover or frame itself was defective.

The record completely negates the possibility that the manhole cover or the frame on which it rested was defective. Defendant’s employees testified that they inspected the cover shortly before the accident and found nothing physically wrong with it. The cover was again inspected after the accident, and again found to be nondefec-tive. Such a conclusion is further supported by the fact that the manhole cover and frame had been continuously in use for some thirty years without mishap and that after the accident the same steel plates were replaced over the manhole, apparently without incident since. We further note that this accident is not one which would not have happened in the absence of a defective manhole cover. The record reveals that if the steel plates were not properly sitting in their frame, they could lift up despite the non-defective state of the plates or frame. Cf. Marquez v. City Stores Company et al., 371 So.2d 810 (La.1979). We find no evidence in the record to support a conclusion that the cover or frame was defective. In light of this conclusion, we need not consider the effect of LSA-C.C. Article 2317 as explained in Loescher v. Parr, 324 So.2d 441 (La.1975), or whether if such did apply under the instant facts, plaintiff’s recovery would be barred in light of our holding in Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3rd Cir. 1977), writ denied 354 So.2d 1379 (La.1978), where we found that the rule of strict liability imposed by Article 2317 as explained in Loescher v. Parr, supra, could not be applied against public bodies or municipalities absent notice and a reasonable opportunity to repair.

Having eliminated a defect in the plates and/or frame as a plausible reason for the occurrence of the accident, we reach the conclusion, as aforestated, that the most plausible explanation for the occurrence of [232]*232the accident was the negligence of defendant’s employees.

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Bluebook (online)
373 So. 2d 229, 1979 La. App. LEXIS 2908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hebert-v-town-of-ville-platte-lactapp-1979.