Matt v. CoxMatt v. Cox
This is a personal injury action for damages sustained when Mrs. Matt stepped into an open water meter box and fell. From a judgment dismissing their suit as to all defendants, plaintiffs appeal as to two defendants. We affirm.
LIABILITY OF C & C FARMS
The water meter box was located on property the Matts subleased from C & C Farms.1 Plaintiffs sought recovery based on the lessor‘s warranty imposed by the Civil Code.
The lessor guarantees the lessee against all the viсes and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not аrise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.
The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.
Although C & C Farms was not the owner of the premises, but rather was the Matts’ sublessor, we believe that the agreement by which Mr. Matt was to maintain the property absolved C & C Farms from liability for injuries unless C & C Farms had failed to remedy a defect within a reasonable time of notice thereof.
The language оf Civil Code article 2695 is all inclusive. It imposes liability on the lessor, but
Before the enactment of
Where third persons were involved, however, the lessee‘s assumption of responsibility was not а defense for the owner. See Klein v. Young, 163 La. 59, 111 So. 495, 499 (1926).2 It was this third party gap that the Legislature closed in 1932 with
Having concluded that
LIABILITY OF THE WATERWORKS
Plaintiffs seek recovery from Terrebonne Parish Waterworks District 3 under a theory of strict liability,
In dеciding whether something presents an unreasonable risk of harm, the court must weigh the magnitude and the probability of the injury against the burden of preventing the injury. Entrevia v. Hood, 427 So.2d at 1150. The third circuit declined to impose strict liability in a case similar to the instant case. In Goodlow v. City of Alexandria, 407 So.2d 1305 (La. App.3d Cir.1981), plaintiff was injured when his autоmobile struck an open sewer manhole. The court noted that there was no evidence of any imperfection in the manhole itself or in the cover. The plaintiff‘s claim was based merely on the fact that the cover was missing. The fact that a thing creates a hazard does not necessarily mean it is defective within the meaning of strict liability. Entrevia, 427 So.2d at 1149; Goodlow, 407 So.2d at 1307. There must be proof of an unreasonable risk of harm. “Unreasonable” is the key word. The plaintiff must show that the risk created by the thing was unreasonable under all the circumstances.
We believe that under the circumstances presented here, the risk was not unreasonable. The open water meter box did present a risk of harm to anyone walking in the Matts’ yard. According to the testimony of Mr. Matt and his brother, the hole was five to six inches wide, nine to ten inches long, and four to six inches deep. Mrs. Matt fell as she was walking across her yard toward her mobile home, and her injury was diagnosed as a lumbar sprain. She testified that when she fell, she wrenched her back, and that even after еxtensive medical treatment for the three years between the injury and the trial, she was still in pain and was unable to resume her normal activities.
On the other hand, the water system of Terrebonne Parish, including the water meter boxes, is a necessity. The Waterworks offers a service to the residents of the area without deriving any profit therefrom. It is always possible that thieves or vandals might remove water meter box covers. Or some vehicle, perhaps even a lawn mower, might strike the cover and knock it off.
Althоugh the record reflects that the Waterworks kept replacement covers in stock, and that replacement is a very simple process, we are not prepared to impose upon the Waterworks the duty of constant inspection of meter boxes for missing covers. Considering the burden that would be placed on the Waterworks if it were required to constantly monitor meter boxes for missing covers, the risk was not an unreasonable one. We note, however, that if the Waterworks had failed tо replace a missing cover within a reasonable time after being notified thereof, another question entirely, one of negligence, would be presented.
For the foregoing reasons, the judgment of the trial court is affirmed at appellants’ cоsts.
AFFIRMED.
SAVOIE, J., agrees in part and dissents in part and assigns reasons.
SAVOIE, Judge, dissenting, in part.
I respectfully dissent, in part.
LIABILITY OF THE WATERWORKS
Under a theory of strict liability, under
In the present case, the trial court found that strict liability did not apply in that the water meter was not in the custody of the Waterworks. I would hold this finding to be erroneous.
The next element in proving a claim in strict liability is whether the meter box occasioned an unreasonable risk of harm to another. The Waterworks relies on Baker v. Sewerage and Water Board, 466 So.2d 720 (La.App. 4th Cir.1985), claiming that the missing cover was not an inherent defect in the thing. In Baker, supra, the cover was to a valve box instead of a meter bоx. The cover was 8½ inches in diameter and 3 5/8 inches thick. Because of its weight, it was difficult to remove, often requiring a special tool. That type of cover was only removed to cut off water to customers and not carried in defendant‘s general invеntory.
The Court in Baker, supra, found that the missing cover was not a strict liability defect. Under the circumstances the Court concluded that the risk of someone moving the heavy cover when weighed against the necessity of water facilities did not present an unreasonable risk of harm. I find Baker, supra, to be distinguishable.
In the present case, there is no testimony indicating that the covers are extremely heavy. On the contrary, a representative of the Waterworks testified that at the time of the accident, it was a policy to keep replacement covers on the Waterworks trucks. The ease of replacing the cover when compared to the possible harm of someone stepping on the meter box makes an open meter box an unreasonable risk. I therefore find thе second element of strict liability present in this case.
I also find the third element of strict liability present in this case. There is testimony that Mrs. Matt complained of back pain when her husband and brother-in-law helped her out of the hole. There was testimony that Mrs. Matt‘s leg was bleeding. I would find, therefore, that there was proof of injury caused by the defect.
To rebut plaintiff‘s prima facie case in strict liability, there are three defenses available. The custodian can escape liability by showing that the harm was сaused by the fault of the victim, by the fault of a third party, or by an irresistible force. Swain v. Sewerage and Water Board of New Orleans, 413 So.2d 233 (La.App. 4th Cir.1982); and Loescher, supra. The record contains no evidence of any of these defenses. As such, I find defendant has failed to rebut plaintiff‘s prima facie case.
For the above and foregoing reasons I respectively dissent.