Thomas v. City of St. Martinville

611 So. 2d 678, 1992 La. App. LEXIS 3936, 1992 WL 372137
CourtLouisiana Court of Appeal
DecidedDecember 14, 1992
DocketNo. 91-1275
StatusPublished
Cited by2 cases

This text of 611 So. 2d 678 (Thomas v. City of St. Martinville) 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
Thomas v. City of St. Martinville, 611 So. 2d 678, 1992 La. App. LEXIS 3936, 1992 WL 372137 (La. Ct. App. 1992).

Opinion

STOKER, Judge.

In the trial court the plaintiffs recovered personal injury damages caused by smoke filling their home as a result of sewer testing operations conducted by the defendant, the City of St. Martinville, Louisiana (City). The defendant appealed. The City undertook to test the City’s main sewer lines by injecting smoke into the system. On appeal, the City makes no issue of its failure to warn the plaintiffs of the testing operations. Rather, the City asserts that the plaintiff, Mary Jane Thomas, was at fault in maintaining her sewer lines, because if there were flaws in the plaintiff’s own sewer system leading from the main line into plaintiff’s home, then smoke would likely escape into the house.

ASSIGNMENTS OF ERROR

The defendant City assigns only two errors; (1) the failure of the trial court to find that Mary Jane Thomas was herself at fault which would require assigning a percentage of fault to her, and (2) the award of damages to each of the several plaintiffs is excessive.

COMPARATIVE FAULT

The evidence establishes that homeowners in St. Martinville are responsible for installing and maintaining sewer lines from the City’s main line into their homes. The evidence also convinces us that, if during smoke testing operations in residential areas, as were being conducted by the City in this case, smoke enters a house, such is indicative of some fault in the homeowner’s private plumbing system. Illustrative of such faults are untrapped drains, a break in a line, or a dry trap. It stands to reason that there was some fault in the sewer system serving the Thomas property.

For the reasons given above, we conclude that the trial judge erred in holding that defendant failed to prove comparative fault on the part of Mary Jane Thomas. (Only the homeowners were at fault in this case, namely, Mary Jane Thomas and her husband, Jerome Thomas, Jr. The latter asserted a loss of consortium claim in this case which the trial judge rejected on a motion for a “directed verdict”; Mr. Thomas did not appeal.)

In applying the “Watson Factors”, Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985), we apportion the fault in this case to assign 95 percent to the City and 5 percent to Mrs. Thomas. Obviously, the smoke testing operation conducted by the City was certain to result in flooding the Thomas dwelling. Had the City given the plaintiffs advanced warning, their emotional distress would have been [680]*680minimized. Also, it is possible that some of the physical damages could have been avoided. Moreover, the technology involved is one in which the City is far more knowledgeable than the average homeowner. Although the homeowner is responsible for proper installation of his sewer system from the point where it leaves the main line, seldom do such persons possess the expertise necessary to appreciate the technology involved. If a public body chooses to utilize the smoke injection method fo.r testing its own lines, it runs the risk of subjecting some home occupants to such untoward results as occurred. Balancing the utility of the City’s objectives against the risk created by the means adopted, we conclude that the defendant City must bear almost full responsibility for the damages caused.

DAMAGES

The trial judge awarded $20,000 in general damages to Mary Jane Thomas and $2000 each to her two daughters, Jerrie Thomas and Jennifer Thomas, and to Jer-rie’s minor son, Brandon Thomas. In its formal judgment the trial court awarded damages for medical expenses without specifying the amount.

Mary Jane Thomas

We affirm the $20,000 award to Mary Jane Thomas, although we find that it is on the high side.

Mary Jane testified that she walked into her house and encountered smoke. She testified that she “went crazy” and started “hollering and screaming.” Mary Jane stated that she believed that her house was on fire and that her children were in danger. She testified that she had to wake up Jennifer, Jerrie and Brandon, and that she had difficulty waking up Jerrie and Brandon.

Mary Jane testified that after she left the house, she saw a city worker laughing, and that the city workers then told her about the smoke testing procedure. Mary Jane testified that she could not catch her breath and was throwing up.

Mary Jane went to the emergency room following the incident. She saw Dr. Kenneth Fournet, with complaints of shortness of breath, chest pains, and stomach pains. The nurse’s notes state, among other things, that Mary Jane was very anxious. Dr. Fournet testified that the physical exam revealed expiratory wheezes and evidences of bronchial spasm in both lung fields. Her carbon monoxide level was less than five percent (normal range for nonsmokers is less than two percent and for smokers is less than six percent; Mary Jane is a nonsmoker).

Dr. Fournet diagnosed Mary Jane as having smoke inhalation and hyperventilation and treated her with medication. Mary Jane saw Dr. Fournet again on February 3, at which time she asked to see a gastroen-terologist. Dr. Fournet did not see her again for these injuries.

Mary Jane saw Dr. Gerald Elias, a general practitioner, on January 30, 1988, the day after the incident. At that time, Mary Jane complained of problems with her chest and breathing. Dr. Elias stated that Mary Jane was very anxious. Dr. Elias testified that her examination was unremarkable except for tension and anxiety. He treated her with medication.

Mary Jane saw Dr. Robert Martinez, a neurologist, on March 3, 1988, complaining of headaches which started at the back of her head and neck and radiated to the front. Mary Jane told Dr. Martinez that she had experienced these headaches for about a month since the incident, and that they would persist throughout the day unless she took some sort of medication. Mary Jane also complained of nausea, impaired vision, tingling in her hands and feet, nervousness, short temper, and fatigue, among other things. Dr. Martinez testified that Mary Jane’s neurological examination on this day was normal.

Dr. Martinez also ordered various tests including an EEG, CT scan, x-rays of her neck, and an MRI, which were normal.

Dr. Martinez saw Mary Jane again on June 10, 1988 on follow up. At that time he was of the opinion that Mary Jane was having posttraumatic stress headaches. [681]*681Dr. Martinez confirmed a diagnosis of post-traumatic stress syndrome at that time.

Dr. Martinez continued to see Mary Jane who continued to have various complaints consistent with posttraumatic stress syndrome. Dr. Martinez treated Mary Jane with medication and recommended that she see a psychologist.

In his deposition of April 16, 1991, Dr. Martinez testified that he believed that Mary Jane was still suffering from post-traumatic stress syndrome, but that her condition had improved significantly. He believed that Mary Jane was a credible person.

Dr. Frank Friedburg, a clinical psychologist, confirmed this diagnosis of posttrau-matic stress syndrome.

Defendant points out that the evidence reveals that Mary Jane had the physical and emotional problems prior to the smoke testing incident and that she was involved in a slip and fall accident after the smoke testing incident. For these reasons defendant contends her problems are not attributable or at least wholly attributable to that incident.

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

Related

Morrison v. Kappa Alpha Psi Fraternity
738 So. 2d 1105 (Louisiana Court of Appeal, 1999)
Jeffery v. Thibaut Oil Co.
652 So. 2d 1021 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
611 So. 2d 678, 1992 La. App. LEXIS 3936, 1992 WL 372137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-city-of-st-martinville-lactapp-1992.