Lillie JACOBS
v.
CITY OF BUNKIE and/or Town of Bunkie.
Supreme Court of Louisiana.
*15 Dannie P. Garrett, III, Paul A. Holmes, Baton Rouge, Counsel for Applicant.
Richard P. Ieyoub, Attorney General, Angie Rogers LaPlace, Baton Rouge, John Taylor Bennett, Candyce Catherine Gagnard, Marksville, Counsel for Respondent.
KIMBALL, J.[*]
Lillie Jacobs was injured on February 11, 1993, in a single-car accident within the city limits of Bunkie, Louisiana when a sink hole in the street caved in beneath the tire of the pickup truck she was driving. Mrs. Jacobs filed suit against the City under Civil Code Articles 2315 and 2317. The Twelfth Judicial District Court held the 1995 constitutional amendment to Article XII, Section 10(C), was nоt curative or remedial, and therefore, could not be applied retroactively to the instant case. Further, finding that La. R.S. 9:2800 stood in conflict with Article XII, Section 10(A) prior to the amendment, the trial court declared the statute unconstitutional and awarded damages to the plaintiff. We affirm.
I.
On February 11, 1993, Lillie Jacobs was driving a pickup truck down Holly Street in Bunkie, Louisiana. As she proceeded through the intersection of Holly and Vine Streets, a sink hole caved in under the right front tire of the truck she was driving. As a result of the impact, Mrs. Jaсobs sustained an injury to her wrist. Mrs. Jacobs filed suit against the City of Bunkie on February 22, 1994.[1]*16 She alleged that the City was liable for her injuries under the theories of strict liability and negligence.[2] The City answered and plead as an affirmative defense the "limitations of liability for public bodies" under La. R.S. 9:2800. Plaintiff then amended her petition to assert the unconstitutionality of the notice provision La. R.S. 9:2800.[3]
Louisiana R.S. 9:2800 "Limitation of liability for public bodies," provides in pertinent part:
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its сare and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts which infer actual knowledge.
* * *
The first trial in this case was held September 28, 1995, in which the trial judge, Harold J. Brouillette, specifically found that "the City of Bunkie had no notice of this defect," as would be required for plaintiff to recover under La. R.S. 9:2800. However, the judge observed that the first circuit in Rhodes v. State Through Dept. of Transp. and Development, 941758 (La.App. 1 Cir. 5/5/95),
(A) No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.
(B) Waiver in Other Suits. The legislature may authorize other suits against *17 the state, a state agency, or a political subdivision. A measure аuthorizing suit shall waive immunity from suit and liability.
(C) Procedure; Judgments. The legislature shall provide a procedure for suits against the state, a state agency, or a political subdivision. It shall provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which judgment is rendered.
Based upon the pronouncements in Rhodes and Chamberlain, the trial court found La. R.S. 9:2800 to be "an unconstitutional violation of Article XII, paragraph 10(A) of the Louisiana Constitution, in that it is a partial sovereign immunity application." Holding "9:2800 is unconstitutional as it relates to this case," the trial court did not allow the City a defense under the statute. Therefore, because the plaintiff established the traditional elements of strict liability under Article 2317, that the street was in the custody of the City, presented an unreasonable risk of harm, and caused plaintiff's injury, the court awarded damages against the City totaling $12,433.42.
The City appealed the judgment to the third circuit, and on May 29, 1996, the appellate court dismissed the City's appeal and remanded the case to the district court due to a "procedural flaw;" the plaintiff failed to notify the Attorney General of her attack on the constitutionality of the statute pursuant to La.Code of Civ. Proc. art. 1880.[4]
While the case was on appeal to the third circuit, the legislature passed Acts 1995, No. 1328 which proposed a constitutional amendment to Article XII, § 10(C) allowing the legislature to limit the liability of the state. Moreover, the legislature also passed Acts 1995, No. 828 in which La. R.S. 9:2800 was reenacted in the same form originally enacted in 1985. The newly reenacted statute was to become effective upon the adoption of the constitutional amendment and share its effective date. The proposed constitutional amendment was submitted to the people of the state in the general election on October 21, 1995. The people approved the measure and it became part of the constitution effective November 23, 1995.
On January 29, 1997, after notifying the Attorney General's Office, the hearing on remand from the third circuit was held before Judge Ted R. Broyles, ad hoc, concerning the constitutionality of La. R.S. 9:2800. The City filed a motion for involuntary dismissal in which it argued that while the case was on appeal, the constitution was amended, and that this amendment cured any constitutional infirmity in La. R.S. 9:2800. In support of this proposition, the City cited a footnote found in this Court's case of Matherne v. Gray Ins.Co., 95-0975 (La.10/16/95),
Judge Broyles held that the 1995 constitutional amendment was not curative or remedial, and therefore, could not be applied retroactively to the instant case. Adopting the earlier reasoning and conclusions of Judge Brouillette as his own, Judge Broyles declared La. R.S. 9:2800 unconstitutional and affirmed the damage award against the City. From this judgment the City has appealed directly to this Court pursuant to LA. CONST. art. 5 § 5(D).[5]
II.
Initially, we must determine whether Judge Broyles was correct in his ruling that the amendment to Article XII, § 10(C) is not curative or remedial and cannot be applied retroactively to plaintiffs case. In order to determine whether the constitutional provision may apply to the instant case, we must initially resolve whether Section C, as amended, is a self-executing provision. Substantively, amended Article XII, Section 10(C) provides that the legislature "may" by law "limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages." LA. CONST. art. XII, § 10(C).
The characterization of a constitutional provision as `self-executing' or not, is generally only a conclusion as to whether the сonstitutional intent is to provide a presently effective rule, by means of which the right given may be enjoyed and protected and the duties imposed may be enforced without supplementary legislation. 1 Cooley's Constitutional Limitations, pp. 165-172 (8th Ed., 1927; Carrington, ed.); 16 C.J.S. `Constitutional Law' ss 48-60; 16 Am.Jur.2d, `Constitutional Law', Sections 93-100.
Student Government Ass'n of Louisiana State University and Agr. and Mechanical College, Main Campus, Baton Rouge v. Board of Sup'rs of Louisiana State University and Agr. and Mechanical College,
In Chamberlain, we applied this principle by examining the old Article XII, Section 10, parsing each subsection. Chamberlain,
Section 10(A) sets forth the "fundamental premise" that "[n]either the state, a state agency, nor a political subdivision *19 shall be immune from suit and liability in contract or for injury to person or property." As Section 10(A) sets forth a mandatory prohibition against sovereign immunity in tort and contract suits, it is a self-executing constitutional provision. Section 10(A)'s self-executing nature is evidenced further by the marked difference in function and wording from nonself-executing provisions such as Sections 10(B) and 10(C), which both allocate powers to the legislaturе, the former to consent to suit in matters other than contract and tort, and the latter to establish procedures for such suits and to provide the method for enforcing such judgments.
Chamberlain,
Thus, constitutional provisions that are not self-executing allocate power to the legislature requiring the legislature to enact supplemental legislation to carry the rule into effect. The new amendment to Section 10(C) uses the permissive language "the legislature by law may limit ... the... liability of the state." The use of this language and the function of the provision indicates that it does not establish a presently effective rule; rather, the provision empowers the legislature to enact a rule limiting the state's liability. Because the provision does not establish a presently effective limit on the state's liability but allocates the power to enact one "by law" to the legislature, we find the provision not self-executing. As Section 10(C) is nonself-executing, it requires supplemental legislation to carry its edict into effect.
The legislature provided this supplemental lеgislation in Acts 1995, No. 828, which amended and reenacted several statutes providing for limitations on the state's liability.[6] It was in this Act that the legislature reenacted La. R.S. 9:2800 without change. As we have already established, the provision limits the circumstances under which the state may be held liable for damage-causing things in their custody to those instances wherein the state had actual or constructive knowledge of the defect. Thus, the newly reenacted statute carries into effect the new provisions of Article XII, Section 10(C) by allowing thе legislature to limit by law the circumstances in which the state will be liable. Thus, we find that La. R.S. 9:2800's limit upon the state's liability is within the legislature's new power "to provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability." Therefore, the statute provides a permissible limitation on the state's liability under the amended Article XII, § 10(C).
III.
Together, Article XII, Section 10(C) and La. R.S. 9:2800 became effective November 23, 1995. On that date, the plaintiff's case was on appeal to the third circuit which remanded the case on May 29, 1996. The trial on remand was held January 29, 1997. Thus, we must now examine whether the new law may be applied to the instant case which had not come to final judgment on the effective date of the new law.
As a general rule, a court must apply the law existing at the time of its decision.
[A]n appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered. *20 Segura v. Frank, 93-1271, p. 15-16 (La.1/14/94),630 So.2d 714 , 725 (internal citations omitted).
Thus, if, as in this instance, a case is on appeal when the law is changed, the appellate court should apply the law as it exists at the time of its decision, unless retroactive application of the law is impermissible. We must determine therefore whether the new law at issue in this case is capable of retroactive аpplication.
Generally, new laws which are procedural or interpretive may apply retroactively to a cause of action which arose prior to the law's effective date; however, laws which are substantive in nature may only apply prospectively "[i]n the absence of contrary legislative expression." La. Civ.Code art. 6; Aucoin v. State Through Dept. of Transp. and Development, 97-1938, 97-1967, p. 9 (La.4/24/98),
Initially, we seek to determine whether the legislature expressed an intent that the new law apply retroactively. Sudwischer v. Estate of Hoffpauir, 97-0785, p. 8 (La.12/12/97)
As the legislature did not express its intent concerning the retroactive or prospective application of La. R.S. 9:2800, we must classify the law as either substantive, procedural or interpretive. Sudwischer, 97-0785, p. 9,
Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Interpretative laws are those which clarify the meaning of a statute and are deemed to relate back to the time that the law was originally enacted. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws.
Sudwischer, 97-0785, p. 9,
In considering the above definitions, we find that La. R.S. 9:2800 alters the government's duty under Civil Code article 2317, and it is substantive. This conclusion is supported by an earlier decision of this Court in which we considered the nature of the same statute after it was initially enaсted in 1985. In Landry v. State, Bd. of Levee Comm'rs of the Orleans Levee Dist.,
As we noted in our previous opinion in this case, the Legislature has recently acted to limit the liability of the State and its political subdivisions for things which they own. Act 454 of 1985 (R.S. 9:2800) greatly limits the liability of the State and its political subdivisions as regards liability under La. Civil Code art. 2317. Since the statute changes the substantive law of Louisiana it applies *21 prospectively. This case arosе before the statute became effective, therefore the law is not relevant to our consideration.
Landry v. Bd. of Levee Comm'rs of the Orleans Levee Dist.,
The "new" La. R.S. 9:2800 is identical to the former statute as the legislature simply reenacted the identical provision without change. Thus, we find, as we did in Landry, that the statute creates a substantive change in the law. As the new law is substantive, it may only be applied prospectively to causes of action, which arise after the effective date shared with the constitutional amendment, November 23, 1995.[8] Because plaintiff's cause of action arose prior to November 23, 1995, and the new law cannot be applied retroactivеly, we agree with Judge Broyles' decision that the constitutional amendment cannot be retroactively applied to the instant case. Therefore, because retroactive application of the new law is not permissible, the new law as changed during the pendency of this case cannot be applied.
IV.
Having found that the constitutional amendment and the reenacted statute cannot be applied to the instant case, we must now consider whether La. R.S. 9:2800 was unconstitutional under old Article XII, § 10, a dеtermination upon which both trial judges based the City's liability.
Judge Brouillette supported the determination that La. R.S. 9:2800 was unconstitutional in part, upon the reasoning of the first circuit, which declared the statute unconstitutional in Rhodes v. State Through Dept. of Transp. and Development,
However, in Chamberlain v. State Through Dept. of Transp. and Development,
The Chamberlain reasoning is consistent with this Court's earlier rulings on sovereign immunity under the 1974 Louisiana Constitutiоn, prior to the 1995 amendment. In 1978, this Court held La. R.S. 13:4521, which granted an exemption to the State from ordinary court costs, unconstitutional because the statute relieved the State of part of its liability in the suit on a contract in direct conflict with Article XII, § 10, declaring that the State has no immunity from suit or liability in contract. Segura v. Louisiana Architects Selection Board,
A few years later, in Jones v. City of Baton Rouge-Parish of East Baton Rouge,
V.
As we noted in Chamberlain, and in accord with our reasoning in Jones, and Segura, "the legislature is as powerless as the courts to engrаft exceptions onto the `unequivocal' constitutional mandate. Accordingly, Section 10(A)'s unequivocal, self-executing waiver of sovereign immunity as to suit and liability in contract and tort cases constrains the legislature and the courts from imposing limitations on this constitutional right to sue the state." Chamberlain,
Thus, the legislature can no more amend the constitution by statute than could the court in Jones. Because La. R.S. 9:2800 requires the plaintiff to prove that the government defendant had "actual or constructive knowledge of the defect" in a strict liability action for a damage-causing thing under Civil Code article 2317, the 1985 legislature attempted to engraft "substantive *23 requirements that would curtail, abridge, impair or burden" onto the constitutional right to sue the State in tort with this statute. Therefore, La. R.S. 9:2800, prior to Acts 1995, 1328 and 828, was an impermissible legislative act limiting the state's liability in direct conflict with Article XII, Section 10(A)'s unequivocal waiver of sovereign immunity.
Accordingly, both Judge Brouillette and Broyles were correct in declaring the statue unconstitutional under the pre-amendment constitution. We find that La. R.S. 9:2800 was unconstitutional until Acts 1995, No. 1328 and 828 became effective on November 23, 1995. Further, the law cannot be applied to pending cases asserting causes of action which arose prior to its effective date as the law is substantive and cannot be applied retroactively. For the foregoing reasons we affirm the trial court judgment in favor of Mrs. Lillie Jacobs against the City of Bunkie.
NOTES
Notes
[*] KNOLL, J. recused, not on panel. See Rule IV, Part 2, Section 3.
[1] The City filed an exception of prescription, which the court overruled finding that the City acknowledged the obligation thereby interrupting the one year prescriptive period by making payments to Mrs. Jacobs for medical bills as well as property damage to the truck she was driving.
[2] Since 1980, a tort action against a government entity as the owner or custodian of a defective "thing" could be based upon two distinct theories of liability, negligence under Civil Code Article 2315 or strict liability under Civil Code Article 2317. Jones v. City of Baton Rouge-East Baton Rouge Parish,
[3] This statute would effectively eliminate the distinction between the traditional strict liability action under Civil Code Article 2317 and the negligence action under Article 2315 against a government owner of a damagecausing thing, as the provision adds to the "strict liability" cause of action the requirement that a claimant prove "actual or constructive knowledge."
[4] Art. 1880. Parties
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In a proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard. If the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.
La.Code Civ. Proc. Art. 1880 (emphasis added).
[5] LA. CONST. Art. 5 § 5(D) provides the right of direct appeal to this Court when a statute had been declared unconstitutional.
Appellate Jurisdiction. In addition to other appeals provided by this constitution, a case shall be appealable to the supreme court if (1) a law or ordinance has been declared unconstitutional....
[6] Acts 1995, No. 828 amended and reenacted La. R.S. 13:5106; and reenacted La. R.S. 9:2798.1, La. R.S. 9:2800, La. R.S. 13:5112 and 5114, La. R.S. 29:23.1, and La. R.S. 42:1441.1 through 1441.4. relative to limits of public liability.
[7] But See Section 3 of Acts 1997, No. 315, § 1 of which amended LSA R.S. 23:1031, Employee's right of action; joint employers, extent of liability; borrowed employees.
The provisions of this Act shall be apрlied prospectively only and shall not apply to any cause of action arising prior to the effective date of this Act.
[8] In so far as Ayers v. Brazell, 27756 (La.App. 2 Cir. 12/6/95),
[9] The court of appeal found an abuse of discretion in the trial court's denial of plaintiff's motion for a new trial and since the record was complete reviewed the case de novo. Rhodes v. State Through Dept. of Transp. and Development, 94-1758,