Johnson v. City of Winnfield

862 So. 2d 433, 2003 WL 22900964
CourtLouisiana Court of Appeal
DecidedDecember 10, 2003
Docket37,939-CA
StatusPublished
Cited by9 cases

This text of 862 So. 2d 433 (Johnson v. City of Winnfield) 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
Johnson v. City of Winnfield, 862 So. 2d 433, 2003 WL 22900964 (La. Ct. App. 2003).

Opinion

862 So.2d 433 (2003)

Jonathan JOHNSON, Plaintiff-Appellee,
v.
CITY OF WINNFIELD, Defendant-Appellant.

No. 37,939-CA.

Court of Appeal of Louisiana, Second Circuit.

December 10, 2003.

*435 Stamey & Miller, by J. Mark Miller, Joseph B. Stamey, Natchitoches, for Appellant.

R. Stuart Wright, Natchitoches, for Appellee.

Before GASKINS, DREW and MOORE, JJ.

MOORE, J.

The City of Winnfield appeals a judgment finding that one of its manhole covers posed an unreasonable risk of harm, that the city was negligent for allowing the condition to occur, that the plaintiff was not comparatively negligent, and awarding $15,000 in general damages. Finding no manifest error, we affirm.

Factual Background

The plaintiff, Jonathan Johnson, worked as a stock clerk at Kaye's Food Market (formerly known as Troy's) on West Court Street in Winnfield. On the afternoon of July 10, 2001, he was carrying three bags of groceries to the car for a customer, Mrs. Sharp. Mrs. Sharp had parked in the store's lot right next to a manhole owned by the city for its sewer system, but neither she nor Johnson had noticed the manhole cover by the car's rear passenger door.

When he was about to place the bags in the back seat, Johnson stepped on the manhole cover. It suddenly shifted or gave way, and his right leg fell into the hole. He described making a "big fall" as the cover "flipped up." Mrs. Sharp did not see him step on the cover, but saw that he "went down" and his leg was in the hole, above the knee. Mrs. Sharp also testified that she had shopped at the store for 25 years and never noticed anything wrong with the manhole.

Johnson was taken to Winn Parish Medical Center and diagnosed with a strained right knee, a hematoma to the knee, and a sprained right ankle. He missed 3½ months of work, had to use crutches for three months, and testified that his knee still swells when he puts pressure on it.

Immediately after the accident, the store manager, Kenneth Bustin, lifted the cover so Johnson could extricate his leg. Bustin described the cover as "worn on the bottom from erosion," with the "little lip * * * around the bottom, that sits in the hole, that part was worn off." Bustin slid the cover back onto the manhole and then tried to stand on it; "it just tilted up a little." Bustin added that he had worked at the grocery store for 23 years, never noticing anything wrong with this manhole. Bustin phoned the city to report the accident.

A city maintenance worker, Hugh Goods, responded to the call. He testified that when he arrived, the cover looked "fine"; he tried walking across it, "and it didn't pop up on me." Nonetheless, he replaced the cover with a new one. He explained that manhole covers are not very mobile, weighing over 100 lbs. and usually requiring two city workers to move. He had never seen one "rust out," but admitted that if someone had lifted it and not replaced it securely in the ring, it would be unsteady.

Goods also testified that shortly before Johnson's accident, a private contractor had used this manhole to run a sewer line from the old Dairy Queen to the main sewer line. On cross examination by the city's attorney, he admitted that he had inspected the manhole after that job was complete.

The city's supervisor of water and sewerage, James Waters, testified that manhole covers "don't rust out." He admitted that heavy traffic can damage the ring in *436 which the cover fits, leaving the cover loose, but he felt this was unlikely in a store parking lot. The city's director of public works, Bill Kelly, testified a manhole cover is 115 lbs. of cast steel that does not rust, and requires two men to move; the cover and ring are "dovetailed together" like a "cork in a bottle." He admitted that heavy trucks driving over a manhole at high speed can cause the cover to bounce up. Kelly also testified that a private contractor had worked on the sewer line "within a couple of months" before Johnson's accident, and that the city usually inspected the work of such contractors on the main sewer line. Neither Waters nor Kelly knew what became of the this cover after Goods removed it from the manhole.

Goods, Waters and Kelly all testified they had never received any complaints regarding this manhole cover. By stipulation, all five city operators also testified they never received a single call about it. Mayor Deano Thornton testified the only complaint about this manhole had been regarding sewer fumes around 1995. The city's employees agreed there was no policy or procedure for routine inspection of all manholes. However, if city employees working near a manhole notice a problem, they are supposed to report it.

Action of the Trial Court

After trial in February 2003, the district court rendered written reasons for judgment. The court accepted Bustin's testimony that the manhole cover had "a lot of corrosion and wear on the lip and the lip would not fit securely." The court found this was a dangerous condition that was not apparent to the naked eye. The court then accepted Goods's testimony that a week prior to the accident work was done on the Dairy Queen on the front of the strip mall; however, "no maintenance check or inspection of the manhole cover by any city employee during or after the work was completed for the Dairy Queen." The court found that despite having actual knowledge of the work being performed in the manhole, the city failed to inspect it, and this constituted negligence. The court rejected, however, Goods's testimony that he saw nothing wrong with the manhole cover immediately after the accident. The court further found that Johnson was not at fault.

The court awarded medical expenses of $3,153.93 and lost wages of $3,800.00, amounts not contested on appeal. The court then found that Johnson sustained not just a sprain or strain but an injury to his ligament, resulting in severe pain for over three months, as well as some residual pain and occasional swelling which would likely persist. Finding Johnson's injuries commensurate with those in Minvielle v. Lewis, 610 So.2d 942 (La.App. 1 Cir.1992), the court awarded general damages of $15,000. The city has appealed suspensively.

Discussion: Constructive or Actual Notice

By its first assignment the city urges the district court erred in finding actual or constructive notice of the defect, a reasonable opportunity to remedy it, and failure to do so, as required by La. R.S. 9:2800 B. The city shows that lack of a plan to inspect its property does not impute constructive knowledge of defects. Jones v. Hawkins, 98-1259 (La.3/19/99), 731 So.2d 216. The city also shows that none of the 10 persons charged with fielding complaints ever received any regarding this manhole cover. Further, the city contends that the court should not have rejected Goods's testimony that he inspected the cover when the Dairy Queen work was complete, about one week before the accident, and found nothing wrong with it. Finally, the city argues that in *437 cases involving water meter covers, courts usually find the plaintiffs failed to prove the condition had existed long enough to impute knowledge of a defect to the municipalities. Prudhomme v. City of Iowa, XXXX-XXXX (La.App. 3 Cir. 2/9/00), 758 So.2d 275; Lemoine v. Jefferson Parish Dept. of Water, 94-440 (La.App. 5 Cir. 11/29/94), 646 So.2d 1194; Salone v. Jefferson Parish Dept. of Water, 94-212 (La. App. 5 Cir. 10/12/94), 645 So.2d 747; Kammerer v. Sewerage & Water Bd. of New Orleans, 93-1232 (La.App. 4 Cir. 3/15/94), 633 So.2d 1357,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tanner v. Lafayette City-Parish Consol. Gov't
273 So. 3d 382 (Louisiana Court of Appeal, 2019)
McClelland v. City of Shreveport
108 So. 3d 810 (Louisiana Court of Appeal, 2013)
Meaux v. Wendy's International, Inc.
51 So. 3d 778 (Louisiana Court of Appeal, 2010)
Graham v. City of Shreveport
31 So. 3d 526 (Louisiana Court of Appeal, 2010)
Lawrence v. City of Shreveport
948 So. 2d 1179 (Louisiana Court of Appeal, 2007)
Johnson v. BASTROP
936 So. 2d 292 (Louisiana Court of Appeal, 2006)
Cunningham v. City of Shreveport
908 So. 2d 1214 (Louisiana Court of Appeal, 2005)
Laird v. City of Oakdale
886 So. 2d 1262 (Louisiana Court of Appeal, 2004)
Richard Rodney Laird v. City of Oakdale
Louisiana Court of Appeal, 2004

Cite This Page — Counsel Stack

Bluebook (online)
862 So. 2d 433, 2003 WL 22900964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-city-of-winnfield-lactapp-2003.