Russell v. City of New Orleans, Department of Property Management

732 So. 2d 66, 98 La.App. 4 Cir. 0927, 1999 La. App. LEXIS 738, 1999 WL 112334
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1999
DocketNo. 98-CA-0927
StatusPublished
Cited by6 cases

This text of 732 So. 2d 66 (Russell v. City of New Orleans, Department of Property Management) 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
Russell v. City of New Orleans, Department of Property Management, 732 So. 2d 66, 98 La.App. 4 Cir. 0927, 1999 La. App. LEXIS 738, 1999 WL 112334 (La. Ct. App. 1999).

Opinion

I,LANDRIEU, Judge.

The City of New Orleans (City) filed a third party demand against the Orleans Parish School Board (School Board), seeking indemnity for damages sustained by plaintiff, Wilberina Russell, in an accident at the Municipal Auditorium. From the trial court judgment rendered in favor of the City, the School Board appealed. We reverse the trial court’s judgment.

As was the customary practice, each year the School Board entered into several lease agreements with the City to lease the Municipal Auditorium and the Theatre of Performing Arts for various high school graduation ceremonies. The standard lease agreement contained an indemnity provision whereby the School Board' agreed to indemnify, defend and hold harmless the City from all claims resulting from injury or death or property loss by the School Board, the City or any third party on the leased premises during the existence of the lease. It also contained a provision requiring the School Board to provide a public liability insurance policy in which both the City and School Board were named insureds. Each year, instead of providing the liability insurance policy, the School Board would send a letter to the City stating that it was self-insured.

In this particular case, the School Board and the City agreed that the School Board would lease the Municipal Auditorium for the Cohen High School 1 ¡¡.graduation ceremony scheduled for May 30, 1988. The City sent the standard written lease to the School Board for the appropriate signatures, but due to an oversight by Superin[68]*68tendent Everrett Williams’ newly hired administrative assistant, the lease was never signed and returned to the City. The School Board also failed to provide the City with its letter of self-insurance. Nevertheless, the School Board paid the necessary fees, secured the date and the ceremony took place as scheduled.

The evening of the ceremony, Ms. Russell was descending the balcony stairs when the heel of her left shoe became lodged in a two-inch crack in a step. As a result, she fell and sustained severe leg injuries. On May 19, 1989, Ms. Russell filed suit against the City. More than four years later, on June 25,1993, the City filed a third party demand against the School Board for indemnity under the lease agreement.

The parties stipulated that plaintiff fell and sustained injuries. The City admitted at trial that the two-inch crack in the step on which plaintiff fell was the result of ruin. While both parties stipulated to the total amount of plaintiffs damages, neither party stipulated to liability. Following a trial, the trial judge rendered judgment in favor of the City, ordering the School Board to indemnify the City for the total amount to be paid to plaintiff. The judgment also reserved the City’s right of reimbursement for expenses it incurred in defending the personal injury suit.

In its first assignment of error, the School Board argues the City failed to prove the two-inch crack in the step constituted an unreasonable risk of harm.

In his reasons for judgment, the trial judge failed to specifically address whether the crack posed an unreasonable risk of harm. Nonetheless, he concluded |3the School Board had to indemnify the City for plaintiffs damages. In view of the parties’ stipulations, we can only conclude the trial judge found the two-inch crack in the step posed an unreasonable risk of harm. We cannot say this finding is clearly wrong.

Next, the School Board argues the trial court erred in finding the City was entitled to indemnification under the lease agreement.

As a defense to the City’s third party demand, the School Board argued that the indemnity provision was invalid because the lease was never signed and returned to the City. The City, however, offered the testimony of several School Board employees, including Superintendent Williams, to explain the School Board’s failure to sign and return the lease for the 1988 Cohen High School graduation ceremony. These witnesses also testified as to the City and School Board’s annual practice of entering into the lease agreements for the various high school commencement exercises. With the exception of the 1988 Cohen High School lease, the City introduced into evidence the signed standard lease agreements for several other 1987, 1988 and 1989 high school graduation ceremonies, in addition to the School Board’s receipts indicating it had paid the requisite fees. Based on this evidence, the trial judge concluded, “[t]he dates were reserved, the lease was sent and received by the Orleans Parish School Board, the dates were used, and the money was sent the same as agreed. This court feels all parties agreed.”

Leases may be made by either written or verbal contract. La. Civ.Code. Art. 2683. To be valid, a contract of lease must have three essential elements, the thing, the price and the consent. La. Civ. Code 2670. When negotiating parties agree that a final lease agreement will be reduced to writing, then that agreement is |4an integral part of the contract itself, and until the agreement is reduced to writing there is no contract and either party may retract or refuse to abide by what had been orally agreed upon. See Martin v. Schluntz, 589 So.2d 1208 (La.App. 4 Cir. 1991). However, if a verbal lease includes all essential elements and the parties act upon it, neither may withdraw on the pretext that the lease was not reduced to writing. See City of New Orleans v. Cher-[69]*69amie, 509 So.2d 58 (La.App. 1 Cir.1987), writ denied, 512 So.2d 463.

After reviewing the evidence in the instant case, we cannot say the unsigned written lease agreement constituted a valid written lease contract in which all provisions therein were binding on the parties. The evidence, however, is sufficient to prove the existence of an oral lease between the City and School Board. To the extent there was a valid oral contract, we find the parties were bound with regard to the general terms of a lease only, i.e., the object of the lease, the lease price, the date(s) and duration of the lease. This would not include an onerous provision such as an indemnity clause.

Nonetheless, for the purposes of argument only, we will address the issue of whether the indemnity provision in the standard lease required the School Board to indemnify the City for claims arising out of strict liability under La. Civ.Code art. 2317.

The Louisiana Supreme Court decided that a contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is to be strictly construed, and that such a contract will not be construed to indemnify an in-demnitee against losses resulting to him through his own negligent acts, unless such an intention is expressed in unequivocal terms. Polozola v. Garlock, 343 So.2d 1000 (La.1977).

In Soverign Insurance Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986), the Court considered whether a similar rule of contractual interpretation should be applied to determine if a contract provides indemnity against an indemnitee’s strict liability under La. Civ.Code article 2317 for damage to a third person caused by an unreasonably dangerous thing in the in-demnitee’s custody. The Court stated:

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Bluebook (online)
732 So. 2d 66, 98 La.App. 4 Cir. 0927, 1999 La. App. LEXIS 738, 1999 WL 112334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-city-of-new-orleans-department-of-property-management-lactapp-1999.