52 So. 3d 1068
La. Ct. App.2010Background
- Ms. Scott injured when a bus pull cord/clamp malfunctioned and struck near her eye on an LCG bus.
- Ms. Scott claimed LCG had or should have had notice of the pull cord defect and clamp.
- LCG conducts visible daily bus inspections and a 12,000-mile maintenance inspection; pull cords are tested for operation.
- Mechanic found the cord did not break but came loose from the clamp (cable vice) and the bus was returned to service.
- LCG investigated post-accident and noted one prior pull cord malfunction over 26 years and two post-accident malfunctions on buses from a different manufacturer; these did not establish notice or create a genuine material fact.
- Trial court granted summary judgment for LCG; on appeal, issues include notice, common carrier status, and other incidents evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there actual or constructive notice of the defect? | Scott contends constructive notice. | LCG maintains no notice. | No genuine issue; no constructive notice found. |
| Is LCG a common carrier with a higher duty of care? | Scott argues higher duty as common carrier. | 9:2800 controls; common carrier not applicable to raise standard. | 9:2800 controls; no higher common-carrier duty applied. |
| Do other pull-cord incidents create a material fact? | Prior incidents suggest defect risk. | Incidents occurred later or involve different manufacturers; no material fact. | No material fact; cannot defeat summary judgment. |
Key Cases Cited
- Ambrose v. City of New Iberia, 11 So.3d 34 (La.App. 3 Cir. 2009) (constructive notice requires facts inferring knowledge; lack of inspection plan does not establish notice)
- Jones v. Hawkins, 731 So.2d 216 (La. 1999) (lack of inspection plan does not prove actual knowledge; need other facts)
- Unwired Telecom Corp. v. Parish of Calcasieu, 903 So.2d 392 (La. 2005) (legislation is the superior source of law; custom cannot abrogate)
- Gray v. American National Prop. & Cas. Co., 977 So.2d 839 (La. 2008) (de novo standard for appellate review of summary judgment)