There are some circumstances under which states and local governments are immune from liability. For example, in most states a state or local government is immune in relation to the normal acts of governance. However, what things a government can be liable for is defined by the state constitution and state legislation. The government can limit its liability in any responsible and constitutional manner possible. In Louisiana, as it pertains to civil liability, state and local government liability is dealt with in La. R.S. 9:2800. In pertinent part this provision states:
“…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 had a reasonable opportunity to remedy the defect and has failed to do so.”
This provision clearly describes the liability imposed on a Louisiana government in the case that the governmental entity owns and operates property. The types of property can range from sidewalks, roads, public educational institutions, and many other types of property. The essential aspect of when the governmental entity can be liable is based on actual or constructive knowledge and an opportunity to remedy the defect after acquiring the knowledge. Courts have taken great care in defining actual and constructive knowledge. The Louisiana Supreme Court has defined actual knowledge as knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property in repair or report any defects to the proper authority. The Louisiana Supreme Court has defined constructive knowledge as it is defined in La. R.S. 9:2800, as the existence of facts that infer knowledge. What is crucial is understanding the scope of the definition of constructive knowledge. For example, an absence of a plan to inspect does not confer constructive knowledge on a governmental entity. In the past, plaintiffs have brought claims that attempted to expose local governments to liability based on the governmental entity’s lack of a procedure to inspect publicly owned property on a regular basis.
In a relatively recent case, Graham v. The City of Shreveport, the plaintiff, Mrs. Graham was walking on a portion of sidewalk in the 1400 block of Claiborne Avenue when she tripped and fell on an uneven portion of the sidewalk. Mrs. Graham complained that her wrist was hurting and later, on the day of the incident, she went to the hospital where she was diagnosed with a sprained wrist. Mrs. Graham’s family went to the scene of the incident and took a number of photographs that showed the portion of the sidewalk that was elevated and allegedly caused Mrs. Graham to trip and injure herself. At trial, Mrs. Graham argued that she was injured as a result of the City’s negligence in not maintaining that portion of the sidewalk. Representatives of the city discussed the program initiated by the City called the Citizen Contact and Response (CCAR). The purpose of CCAR was to compile a list of complaints by citizens concerning issues with public property. The City representatives admitted that there was no procedure in place to continuously check public property. Public property was checked and fixed solely on the basis of reports in the CCAR. There was no prior report of an incident where Mrs. Graham had allegedly tripped and fell. Mrs. Graham argued that the City’s liability is rooted in 9:2800. However, the facts of the case show why the City is not liable. The City had no actual knowledge of the defect on Claiborne Avenue. As the City’s employees stated, no repair was performed on property where there was no report of a defect. The search of the CCAR found that there was no incident reported. Further, because the Louisiana Supreme Court has already ruled that a lack of procedure to inspect does not infer constructive knowledge, this could not be used as a basis in Mrs. Graham’s case. After the City received the complaint of Mrs. Graham’s injury, the defect was discovered and fixed promptly. Constructive knowledge may also have been inferred if a major enough defect existed for a long period of time. The facts in Mrs. Graham’s case show that the sidewalk was barely raised, so this exception did not apply to Mrs. Graham’s case.
If you have been injured by the negligence of a public entity, you have potential rights against the wrongdoer.
Please call the Berniard Law Firm to speak to an attorney who may be able to help.