Plaintiff's Claim Against Building Lessor Slips Away Due to Failure Of Building Lessee to Notify Lessor Of Mildew on Sidewalk Where Plaintiff Fell.
Reba Campbell brought a negligence action against the Evangeline Parish Police Jury (building lessor) and the State of Louisiana, Department of Health and Hospitals (building lessee) for injuries she sustained as a result of slipping on a mildewed sidewalk outside of the Evangeline Parish Medicaid Office. The State asserted a cross-claim against the Police Jury, claiming that its lease required the Police Jury to maintain the sidewalks and to indemnify the State for any damages assessed due to the Police Jury's negligence. Campbell filed a petition for declaratory judgment seeking a determination of whether the Police Jury would be responsible for damages pursuant to the indemnity provision.
The trial court determined that although the lease required the Police Jury to maintain the building and to correct any problems with the building once State employees reported them to the Police Jury, the State had not notified the Police Jury about the problem with the sidewalk. Therefore, the trial court held that the State was solely responsible for the plaintiff’s injuries because it did not take sufficient steps to insure the safety of its patrons. The State appealed, arguing that the trial court erred in interpreting the lease provisions to require that the State identify dangerous conditions and notify the Police Jury about them for repair.
The Louisiana Third Circuit Court of Appeal observed that in addition to requiring the State to identify dangerous conditions and notify the Police Jury about them for repair, the lease also rendered the Police Jury responsible for any damages resulting from its negligence in properly maintaining the premises. Therefore, the Third Circuit reasoned that the heart of the dispute was whether the Police Jury had activated the indemnification clause of the lease through negligent maintenance of the building. In addressing the liability of both the Police Jury and the State, the Third Circuit looked to Louisiana Revised Statute 9:2800 (pdf) andCivil Code article 2317 (pdf). Together, those provisions provide that a public entity is responsible for damages caused by a thing if (1) the public entity had custody or ownership of the defective thing, (2) the defect created an unreasonable risk of harm, (3) the public entity had actual or constructive notice of the defect, and (4) the public entity failed to take corrective action within a reasonable time.
The Third Circuit agreed with the trial court’s determination that Campbell had satisfied these elements with regard to her claim against the State but not with regard to her claim against the Police Jury. The Third Circuit determined that the State had not notified the Police Jury about the defective portion of the sidewalk. As a result, the Third Circuit found that the notice requirement of La.R.S. 9:2800 was not satisfied and the indemnity provision of the lease was inapplicable.
Take-Away: According to Louisiana law, a public entity can only be held liable for a defective building that it has in its custody or control if the entity has notice of the defect.
This article was co-authored by Mike Boyd, a summer associate at Irwin Fritchie Urquhart & Moore LLC.