When a person is injured by the poor or defective condition of public property (such as a cracked sidewalk or a pothole in the roadway), he or she may be able to recover from the municipality responsible for maintaining the property. Under Louisiana law, actions in against city governments for require the plaintiff to show the following: (1) the thing that caused the injury to the victim was under the city’s control; (2) the thing was defective due to a condition that created an unreasonable risk of harm to the victim; (3) the city had notice of the defect, yet did not take corrective action within a reasonable period of time; and (4) the defect was a cause in fact of the victim’s injury. LSA-R.S. 9:2800.
Ordinarily, the notice requirement means that someone must have reported the problem to the city (“actual notice”) or the defect must have existed long enough for it to have been discovered as part of the city’s regular maintenance operations (“constructive notice”). This is often a significant hurdle for injured victims, as dangerous conditions are frequently overlooked by the public and the victim generally has no information about whether the condition existed long enough that the city should have discovered the problem.
However, the law provides an alternative:
“The requirement of notice to the municipality is inapplicable to a case where the dangerous condition is attributable to negligent acts of the city or its employees.” Whatley v. City of Winnfield, 802 So. 2d 983 (La. Ct. App. 2d Cir. 2001).
Thus, if a victim can show that the unsafe condition was the result of the city’s negligence, he or she does not have to prove the city had notice at all.
The Whatley case gives an example of how a victim was able to avoid the requirement of showing notice. In that case, Janie Whatley was walking near the corner of Lafayette and Abel Streets in Winnfield. While walking she tripped and fell over the cover of a water meter that was built into the sidewalk. Because the cover had come ajar, the meter provided an obstacle that ultimately led to Whatley’s injury. At trial, the City of Winnfield argued it was not responsible for Whatley’s injuries because the city had no notice of the open meter cover. The court dismissed Whatley’s case, and she appealed.
The Court of Appeals, in reviewing the evidence at trial, concluded that it was more likely than not that the city’s negligence had caused the dangerous condition. The court specifically noted that the meter cover could only be opened with a special key that only city employees had. Because city employees were the only people capable of having opened the meter, the court found a likelihood that the fall occurred as a result of an employee’s negligence in failing to properly secure the cover. In its holding, the court found that “when the municipality creates the defective condition by its own substandard conduct, it is presumed to have knowledge of the hazardous condition.” As a result, the court deemed the issue of notice “inapplicable” to Whatley’s case and ruled that her complaint should not have been dismissed by the trial court (Whatley, 802 So. 2d at 986).
As the Whatley case demonstrates, recovering from a municipality for injuries arising from improperly maintained public property can be a challenge. An injured person should take care to consult counsel who knows Louisiana law and can help obtain a fair recovery.
If you have been injured due to unsafe conditions in your city, call the Berniard Law Firm toll-free at 1-866-574-8005.