Warwick Apartments Baton Rouge v. State ex rel. Department of Transportation & Development

633 So. 2d 895, 93 La.App. 1 Cir. 0162, 1994 La. App. LEXIS 771, 1994 WL 86177
CourtLouisiana Court of Appeal
DecidedMarch 11, 1994
DocketNo. 93 CA 0162
StatusPublished
Cited by1 cases

This text of 633 So. 2d 895 (Warwick Apartments Baton Rouge v. State ex rel. Department of Transportation & Development) 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
Warwick Apartments Baton Rouge v. State ex rel. Department of Transportation & Development, 633 So. 2d 895, 93 La.App. 1 Cir. 0162, 1994 La. App. LEXIS 771, 1994 WL 86177 (La. Ct. App. 1994).

Opinion

FOGG, Judge.

In this action to recover damages due to the flooding of The Warwick Apartments, issues concerning HabiHty and damages are raised on appeal. For the following reasons, we affirm the judgment of the trial court.

FACTS

The Warwick Apartments were constructed at 8001 Jefferson Highway in the City of Baton Rouge in the late 1970’s. Adjoining the apartment complex property to the southeast is a tract of land having the street address of 8009 Jefferson Highway (the adjacent property). Brandon Street is immediately to the south of the adjacent property and runs perpendicular to Jefferson Highway.

Prior to the construction of The Warwick Apartments, a swale ran across the apartment complex property and the adjacent property. The Warwick Apartments were constructed over this low-lying stretch of land. The swale emptied, both before and after the construction of The Warwick Apartments, into an earthen ditch beneath the Brandon Street bridge, which is located near [897]*897the southeast comer of the adjacent property.

A partnership known as Warwick Apartments Baton Rouge (Warwick) purchased The Warwick Apartments in the fall of 1976 and has owned and operated it continually since that time. At the time Warwick purchased the complex, Jefferson Highway was a two-lane roadway, and the adjacent property was vacant, except for a small building near Jefferson Highway.

The area experienced flooding as early as 1959. Lindsay Landreneau, former co-owner of The Warwick Apartments, testified that between 1976 and 1980 some flooding occurred every two to three years, affecting six to nine apartments. Linda Sheridan, an engineer for the City of Baton Rouge, testified that flood claims were filed by The Warwick Apartments in May of 1980, December of 1982 and April of 1983.

In 1984, Washauer Development Corporation 1 (Washauer) acquired the adjacent property and began development of a shopping center. Architect James G. Howell was retained to design that portion of the structure that was above the ground; Engineer Ronald K. Ferris was retained to design the subsurface construction. Washauer intended to construct the shopping center buildings over the natural drainage servitude that existed along the swale; however, local ordinances prohibited building over ‘a natural drainage servitude. This difficulty was overcome when Ferris successfully urged the local authorities to revoke the servitude as to the swale. The revocation was conditioned on the dedication of a new servitude of drainage around the rear of the adjacent property. The new servitude of drainage was implemented by the construction of a forty-two inch subsurface pipe running along the rear of the adjacent property. In December of 1985, the adjacent property was sold by Washauer to a corporation known as The Commons at Jefferson, Inc. (The Commons), which substantially completed the construction of the shopping center by January of 1986.

During the construction of the shopping center, the height of the adjacent property was raised to a level approximately two feet higher than that of the apartment complex property. Additionally, a parking lot was built on the property. A cement wall, approximately two feet high, located near the property line of the shopping center property and the apartment complex property constituted the end of the parking lot. This wall acted as a retaining wall in that it prevented water from flowing from the apartment complex property onto the adjacent property. Additionally, there were no adequate provisions by which water draining off the apartment complex property could reach the forty-two inch subsurface pipe running along the rear of the adjacent property.

In 1986, The Warwick Apartments experienced at least three floods in which eighteen units were damaged. By July of .1987, inlets, which channeled water draining off the apartment property into the subsurface drainage, were installed along the retaining wall. Thereafter, such flooding occurred less frequently. In February of 1988, seventeen units flooded; in August of 1988, fifteen units flooded.

In 1989 and 1990, the State of Louisiana, through the Department of Transportation and Development (DOTD), widened Jefferson Highway to make it four lanes. As part of the project, DOTD replaced the open ditch along Jefferson Highway with a pipe which ran along the highway, channeling the runoff water to the outfall area beneath the Brandon Street bridge. DOTD constructed the pipe in such a manner that its outfall end, which was located beneath the Brandon Street bridge, was substantially buried. The widened highway was sloped so that its lowest point was in front of the one of the driveways for The Warwick Apartments.

In 1990, the apartment complex experienced three floods in which four or fewer units were damaged. In 1991, two floods occurred, one in which three units were damaged and one in which eighteen units were [898]*898damaged. Eighteen units were again damaged by flooding in March of 1992.

Warwick initiated this action for damages of $2,250,000 due to the flooding of The Warwick Apartments. Named as defendants were DOTD; City of Baton Rouge and the Parish of East Baton Rouge, through the Department of Public Works (City-Parish); Washauer; The Commons; Ferris and Associates Engineering, Inc. (Ferris, Inc.); James G. Howell; James G. Howell, Architect, A Professional Corp. (Howell, Inc.); State Farm Fire and Casualty Company (State Farm); and Great American Surplus Lines Insurance Company (Great American). Howell, Howell, Inc., Washauer, Great American, State Farm and The Commons were voluntarily dismissed, ' with prejudice. Therefore, the remaining defendants at . trial were City-Parish, Ferris, Inc. and DOTD. After a five day trial, the trial court rendered judgment, setting the sum to which plaintiff was damaged at $200,000 and allocating fault as follows: 60% to The Commons, 30% to City-Parish, and 10% to DOTD. Since The Commons was previously dismissed from the suit, the court reduced the damages as to the remaining defendants and found DOTD and the City-Parish to be solidarily liable for the sum of $80,000. Warwick, DOTD and City-Parish appealed.

ISSUES

On appeal, Warwick contends the trial court erred in its apportionment of fault among the parties, in awarding $200,000 for the depreciation value of the property due to the flooding, in failing to award any amount for inconvenience plaintiff suffered as a result of the flooding, and in failing to award damages for plaintiffs loss of past rental income caused by the flooding. DOTD argues that the trial court erred in assessing 10% fault against it. City-Parish asserts that the trial court erred in its assessment of fault and in its assessment of damages.

LIABILITY

The trial court based its assessment of fault on a determination that The Warwick Apartments were originally constructed in a low-lying area and that The Warwick Apartments’ flooding problems, which predated plaintiffs purchase of the property, were increased by the following three factors: the construction of the shopping center with inadequate drainage; the City-Parish’s approval of faulty plans for the construction of the shopping center “without really scrutinizing them”; and the widening of Jefferson Highway by DOTD with inadequate drainage.

On appeal, City-Parish and DOTD seek to have the amount of fault assessed against them reduced, contending that the flooding that occurred after 1987 was due to natural factors unrelated to them.

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790 So. 2d 759 (Louisiana Court of Appeal, 2001)

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633 So. 2d 895, 93 La.App. 1 Cir. 0162, 1994 La. App. LEXIS 771, 1994 WL 86177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warwick-apartments-baton-rouge-v-state-ex-rel-department-of-lactapp-1994.