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Cunningham v. City of Shreveport8/9/2005
Before BROWN, STEWART, GASKINS, PEATROSS, and MOORE, JJ.
GASKINS, J., concurs without reasons.
PEATROSS, J., dissents with written reasons.
STEWART, J., dissents for reasons assigned by J. Peatross.
Although finding that an unreasonably dangerous condition existed for which the City of Shreveport was responsible, the trial court nonetheless denied plaintiff's personal injury claim against the City, based upon its conclusion that the City had no actual or constructive knowledge of the defect. Finding error, we reverse and remand.
Facts and Procedural History
This accident occurred on January 17, 2003, when plaintiff, John Cunningham, who was taking his mother, his 16-year-old son, and his son's girlfriend to see a play at the Shreveport Little Theater, stepped in a hole eight inches deep. Due to pain, Cunningham left the play and went to Schumpert Hospital where he was treated in the emergency room for two broken ribs and lower back trauma. Made defendant in this action was the City of Shreveport. The trial was bifurcated with the question of liability being considered first.
The hole that Cunningham stepped in was located in the neutral ground between the public road and the public sidewalk commonly referred to as a banquette. A handicapped parking space is located directly in front of the Shreveport Little Theater. When a car is legally parked in this space, it blocks the handicap ramp and sidewalk leading to the theater entrance. The night that Cunningham fell, a car blocked the sidewalk. Cunningham, who was crossing the street, had to move around the front of the parked car and cross the unlit banquette area in order to reach the sidewalk leading to the theater.
A City water meter is located in this neutral area. A hole was dug down to the City's water line, and the meter connected that line to the Theater's line. The meter was eight inches below the surface. A small concrete slab with a metal cover in the middle was to be laid over the hole level with the surface of the ground. The City inspected all water meter installations. This meter is read monthly to determine the amount of water used by the Theater. To do so, a meter reader has to pull back the cover and peer down into the hole to read the meter. There was no evidence presented as to how this meter was specifically installed. Presumably, the cover was either improperly or not laid on the surface or it was removed later. The hole in this case was uncovered and obscured by grass and darkness.
According to Lonny Fouts, Assistant Superintendent for Field Operations with the City's Department of Water and Sewerage, " t one time the City of Shreveport Water Department read meters. We contracted it out around 2000 to Port City (Utilities)." He further testified that the City was responsible for the water meter site and any uncovered hole "over two inches" was hazardous because someone could be injured if they stepped into it.
The trial court made the following findings:
The evidence from plaintiff established that the accident occurred at dark when plaintiff stepped onto the banquette area out of the street. The evidence shows that the area of the water meter cover in the banquette area was approximately 8 inches below grade at the time of this incident. The testimony from the city personnel was that the city would repair any hazard which they saw and that they would repair any water meter cover that was 2 inches below grade. The evidence clearly established that the water meter and cover were the responsibility of the City of Shreveport. To have an 8 inch depression in the banquette area in front of a theater
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