Jolly v. Sewerage & Water Board of New Orleans

802 So. 2d 897, 2000 La.App. 4 Cir. 1878, 2001 La. App. LEXIS 2771, 2001 WL 1512939
CourtLouisiana Court of Appeal
DecidedNovember 21, 2001
DocketNo. 2000-CA-1878
StatusPublished

This text of 802 So. 2d 897 (Jolly v. Sewerage & Water Board of New Orleans) 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
Jolly v. Sewerage & Water Board of New Orleans, 802 So. 2d 897, 2000 La.App. 4 Cir. 1878, 2001 La. App. LEXIS 2771, 2001 WL 1512939 (La. Ct. App. 2001).

Opinions

| Judge MAX N. TOBIAS, JR.

In this personal injury case, the defendant, the Sewerage and Water Board of New Orleans (“S & WB”), appeals from a trial court judgment in favor of the plaintiff, James Jolly. In rendering judgment, the trial court held the S & WB 100% at fault for the injuries sustained by the plaintiff when he fell into a hole at a S & WB work site. It awarded the plaintiff $75,000.00 in general damages and $12,700.44 in medical expenses.

On appeal, the S & WB argues the trial court erred in finding it at fault in causing the accident. Specifically, it claims the trial court faded to consider the evidence that the S & WB employees had secured the work site by placing wooden planks, barricades, yellow caution tape, and lights on and around the hole to warn persons of the hazard. It also argues that the trial court failed to consider the plaintiffs medical records that indicated he was intoxicated when he was admitted into the emergency room following the accident.

On 7 August 1996, the plaintiff called the S & WB to report a depression in the sidewalk in front of his home at 3222 Bau-din Street. The following day a |3S & WB work crew inspected the site, conducted a dye test and discovered a broken sewer line and sewer house connection. Several days later, on 13 August 1996, the S & WB work crew returned to the site and excavated a portion of both the street and sidewalk in front of the plaintiffs house to make the needed repairs. The excavation left a hole measuring approximately six feet deep in front of the front gate to the plaintiffs yard; approximately two feet of ground lay between the front gate and the edge of the hole. The excavation work did not obstruct the gate to the plaintiffs driveway, which was a few feet from the front gate. Because problems at the main sewer station prevented the S & WB from completing the repairs, on 14 August 1996, the work crew placed wooden planks, barricades, caution tape and lights in and around the hole to secure the site until they could return to finish the job.

At trial, the plaintiff testified that he and his nephew, Robert Trapani, were returning to his home between 12:30 and 1:00 a.m. on 19 August 1996, after purchasing hamburgers. Rather than enter his yard through the unobstructed driveway gate, the plaintiff attempted to enter through the front gate. As he walked on the grassy area between the front gate and the hole, the ground beneath him collapsed, causing him to fall into the hole. Mr. Trapani called the emergency medical technicians, who pulled the plaintiff from the hole and transported him to Charity Hospital, where he remained until 20 August 1996. The plaintiff denied that he was drunk or had been drinking the night of the accident.

l.gMs. Moya Malbrue, the plaintiffs next door neighbor for twenty-two years, testified that she had witnessed the accident. According to her, the plaintiff was attempting to open his front gate when “he went down” into the hole. She empha[900]*900sized that he did not stumble or trip. Ms. Malbrue testified that she had never known the plaintiff to drink, and that he did not appear to be drunk the night of the accident. On direct examination, Ms. Mal-brue testified that she complained to the S & WB workers that the hole posed a hazard because it was not completely covered. She also denied that any barricades were in place at the excavation site at the time of the accident. However, on cross-examination, Ms. Malbrue clarified that barricades were in place on the street but not on the sidewalk. She also admitted that the S & WB workers had placed yellow caution flags and tape around the hole.

Mr. Trapani corroborated the plaintiffs testimony that the ground beneath him collapsed as he approached his front gate. As a result, the plaintiff fell into the hole, hit his head on an exposed pipe, and was rendered unconscious. He testified that his uncle did not drink on the night of the accident. Reviewing defense exhibits 1-10, photographs of the excavation site taken the day after the accident, Mr. Trapani testified that they did not depict the excavation site as it existed the night of the accident. He denied that barricades were in place on the sidewalk at the time. He did acknowledge that two barricades with lights were on the street and the area was marked with yellow tape. He also testified that several wooden planks were placed over the hole near the street.

|4Michael Phillips, a Supervisor 1 and equipment operator for the S & WB, testified that he and several other S & WB employees started to repair the sewer line and sewer house connection in front of the plaintiffs Baudin Street house. He testified that they were unable to complete the job, so they secured the excavated area by placing four barricades around the site, one on each end of the sidewalk and two in the street. They marked the area using yellow caution tape, which was connected to the barricades. The two street barricades had attached flashing lights. He testified that the workers dumped seven yards of sand at the site, placed eight wooden planks over the hole and surrounding area, and placed a- six foot long, six-inch diameter pipe over the wooden planks. Mr. Phillips reviewed the defense photographs and testified that they did not depict the site as his crew left it on the 14 August 1996. According to him, the photographs indicated that the barricades had been moved, and three yards of sand and six boards were missing. Also, the pipe was moved to the plaintiffs driveway. He further testified that when he and the other S & WB workers returned on 20 August 1996 to complete the repair job, the site was no longer intact. The barricades were not in place, and some of the sand and several wooden planks were missing. Clearly, the site had been altered.1 Mr. Phillips also recalled seeing the plaintiff exit his yard by way of the driveway gate on one occasion while at the job site.

Clarence Plains, Emergency Water Inspector for the S & WB, testified that he received a call in the early morning of 19 August 1996 that someone had fallen | «¡into a hole at the S & WB work site on Baudin Street. He immediately went to the site, arriving at 1:57 a.m. He inspected the site and found it completely secure. According to him, the barricades, lights, caution tape, and boards were all in place. Because the site was completely secure, Mr. Plains called the S & WB dispatcher to verify the complaint. The dispatcher reiterated that [901]*901someone reported that a man fell into the hole. Mr. Plains re-inspected the site and found it secure. On cross-examination, he reviewed defense exhibits 1-6 and testified that they did not depict the site as it existed at his inspection the morning of 19 August 1996.

It is well settled that an appellate court should not disturb a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the absence of reasons for judgment and after reviewing the evidence in the record, we cannot say the trial court was clearly wrong in determining the S & WB was at fault in causing the plaintiff’s accident. The testimony from the plaintiff, two eyewitnesses, and S

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Bluebook (online)
802 So. 2d 897, 2000 La.App. 4 Cir. 1878, 2001 La. App. LEXIS 2771, 2001 WL 1512939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jolly-v-sewerage-water-board-of-new-orleans-lactapp-2001.