Scott v. Lafayette Consolidated Government-Risk Management Division

52 So. 3d 1068, 10 La.App. 3 Cir. 716, 2010 La. App. LEXIS 1642, 2010 WL 4967708
CourtLouisiana Court of Appeal
DecidedDecember 8, 2010
DocketNo. 10-716
StatusPublished
Cited by3 cases

This text of 52 So. 3d 1068 (Scott v. Lafayette Consolidated Government-Risk Management Division) 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
Scott v. Lafayette Consolidated Government-Risk Management Division, 52 So. 3d 1068, 10 La.App. 3 Cir. 716, 2010 La. App. LEXIS 1642, 2010 WL 4967708 (La. Ct. App. 2010).

Opinion

THIBODEAUX, Chief Judge.

| Willie Mae Scott suffered injuries when the chime pull cord on a bus owned and operated by Lafayette Consolidated Government (“LCG”) came loose and struck her near her eye. Ms. Scott argues that LCG had or should have had notice of the poor condition of the chime pull cord and the attached clamp that served to secure the cord. Ms. Scott also argues that although LCG is a public entity, it operates a public bus system, thereby making it a “common carrier” and subjecting it to a higher duty of care. The trial court granted LCG’s motion for summary judgment, and Ms. Scott appeals. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether:

(1) LCG had actual or constructive notice of the pull cord’s defect;
(2) LCG is a common carrier, thereby subjecting it to a higher duty of care; and,
(3) the existence of other alleged incidents of pull cord failure creates a genuine issue of material fact.

II.

FACTS AND PROCEDURAL HISTORY

LCG owns and operates public transit buses in the city of Lafayette. The buses are visibly inspected by the drivers at each shift change, and a full physical maintenance inspection is performed every 12,000 miles. Specifically, the pull cords, the part at issue in this case, are inspected each day to ensure that the chime operates, and the cords are continually tested throughout the day when pulled by passengers. At the 12,000 mile inspection, the pull cords are inspected for “operation and | ¡Junction.” The mechanics physically pull on the cables and check the clasps holding the cable to ensure that the chime and light work. LCG does not test the amount of weight the pull cords can withstand.

In August 2006, Ms. Scott was a passenger on an LCG bus when she suffered an accident. Specifically, Ms. Scott was sitting at or near the front of the bus when another passenger pulled the cord to signal a stop. The cord came loose from the bus and struck Ms. Scott near her eye, requiring her to seek medical treatment. Ms. Scott testified that prior to the accident, she did not notice anything unusual about the bus or that it needed repairs. She also testified that she was unaware of any complaints concerning the pull cord on the bus. Following the accident, LCG examined the pull cord and repaired it. LCG’s mechanic noted that the cord itself did not break and was not frayed. Instead, the pull cord came loose from the cable vice, which is similar to a clamp. The mechanic was able to place the bus back into service using the same cord.

After Ms. Scott’s accident, LCG conducted an investigation and sought information about other accidents, if any, involving pull cords. Regina Melton, Transit Assistant Supervisor for LCG, recalled one incident in the previous twenty-six (26) [1070]*1070years where a pull cord broke, but she could not remember the date or the circumstances surrounding the event. Gillig, the manufacturer of the bus Ms. Scott rode, reported no other incidents involving pull cords on any of its other buses. LCG’s investigation revealed two other incidents where pull cords came loose, but those incidents occurred after Ms. Scott’s accident and involved buses produced by a different manufacturer.

Ms. Scott filed suit against LCG seeking damages sustained as a result of the accident. LCG moved for summary judgment, asserting that Ms. Scott could |snot prove actual or constructive notice of the defect pursuant to La.R.S. 9:2800. The trial court granted LCG’s motion, and Ms. Scott appeals.

III.

LAW AND DISCUSSION

Standard of Review

“When an appellate court reviews a district court judgment on a motion for summary judgment, it applies the de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat. Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). “The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Constructive Notice

To prevail on her claim, Ms. Scott must prove that LCG had actual or constructive notice of the alleged vice or defect with the pull cord. Here, Ms. Scott alleges that LCG had constructive notice.

Under La.R.S. 9:2800(D), “[Constructive notice shall mean the existence of facts which infer actual knowledge.” “A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care ... the municipal authority must have known of its existence, and ... |4had reasonable opportunity to guard the public from injury by remedy of the defect.” Ambrose v. City of New Iberia, 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11 So.3d 34, 37.

Passengers repeatedly used the pull cord in question on the day of Ms. Scott’s accident. No one complained about the functionality of the cord at any time prior to Ms. Scott’s accident. Indeed, Ms. Scott testified that she did not notice anything out of the ordinary with the bus, and she knew of no complaints about the pull cord. Nothing in the record indicates that LCG had constructive notice of the faulty pull cord.

Despite her own testimony that she observed nothing amiss with the LCG bus on the date of the accident, Ms. Scott alleges that LCG had a duty to do more. Specifically, she asserts that LCG had a duty to conduct tests to ensure that the pull cords on LCG buses could at least withstand a certain level of force or exertion. Ms. Scott contends that “[i]t is simply negligent for a common carrier to not test these cords and clamps to ensure that they can at least withstand a certain, standard, predetermined level of force or exertion.” Ms. Scott fails to quantify, however, the amount of force or exertion a pull cord [1071]*1071should be able to withstand. We disagree with Ms. Scott’s reasoning.

Notably, this court has stated that “[l]ack of plan for periodic inspections does not impute constructive knowledge.” Laird v. City of Oakdale, 04-767, p. 7 (La.App. 3 Cir. 11/10/04), 886 So.2d 1262, 1267. Moreover, the supreme court addressed this issue in detail in Jones v. Hawkins, 98-1259, 98-1288 (La.3/19/99), 731 So.2d 216. In Jones, the plaintiffs sought to impose liability on the city of Shreveport for failing to possess a plan to inspect conditions at a particular intersection. The second circuit held that “the trial court committed manifest error |swhen it found a lack of notice of the defect on the City’s part because ‘the absence of any program on the city’s part to inspect and discover the condition implies knowledge.’ ” Id. at 218. In Jones, the supreme court disagreed and explained:

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52 So. 3d 1068, 10 La.App. 3 Cir. 716, 2010 La. App. LEXIS 1642, 2010 WL 4967708, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-lafayette-consolidated-government-risk-management-division-lactapp-2010.