Municipality Must Have Notice of a Defect in a Public Walkway to be Liable for Injuries

To win a case, a plaintiff must prove the elements of his or her legal claim, or cause of action. Each cause of action is comprised of certain required elements. For example, in a breach of contract claim, a plaintiff must prove the following elements: duty, breach, causation, and damages. In Louisiana, a resident can sue a municipality for failing to repair a defect in a public street or walkway. In a recent case, the Third Judicial District Court for the Parish of Union (“Court”) discussed the elements required to prevail in such a claim.

At issue in Carol Smithwick and Glenn Smithwick, Individually and as the Administrators of the Estate of the Minor Child, Carsen Smithwick v. City of Farmerville, Community Trust Bank, CTB Financial Corp. and First United Bank, was whether the plaintiffs proved that the City of Farmerville (“City”) had actual or constructive notice of a public way defect – an essential element of the cause of action. Plaintiff Carol Smithwick waited one afternoon for her son at a school bus stop, which encompassed an intersection between two city streets. Ms. Smithwick sustained injuries when she stepped onto the shoulder of one of the streets and tripped on a shallow depression. Seeking $6.2 million in damages, Ms. Smithwick claimed the injury to her right ankle from the fall caused a medical complication in her right knee.

In dismissing the suit, the trial court concluded that the plaintiffs could not prove that the City had constructive or actual notice of a defective condition even though the hole, which caused Ms. Smithwick’s injuries, presented an unreasonable risk of harm. On appeal, the Court affirmed the trial court’s judgment. According to the Court, a municipality will be held liable for injuries from a defect in the condition of a public way if it had actual or constructive notice of the defect. A municipality has actual notice of a defect or condition if one of its agents or employees had a duty to keep the area in good repair or to report defective or dangerous conditions. Constructive notice is proven if a plaintiff can show a defective condition existed for a considerable amount of time and reasonable diligence by the municipality would have resulted in its discovery.

The plaintiffs argued that the City had actual notice of the depression because one of its maintenance personnel, who trimmed the area at issue, stated at a deposition that he knew of the shallow depression. However, the hole described by the employee was in an area different from the location of the depression in question. The plaintiffs also argued that the City had constructive notice of the defect because the City’s personnel trimmed and/or mowed the area during the growing season twice a month. However, the Court disagreed and found the argument speculative since the area had not been trimmed since 2004 and there was no evidence establishing that the hole existed since that time.

Accordingly, the Court concluded that the plaintiffs failed to show the City had actual or constructive notice of the defective condition. Moreover, the Court reasoned that throughout the school year, the area was used as a school bus stop and no other parent or child noticed or was injured by the depression.

Smithwick v. City of Farmerville illustrates how important it is to seek competent legal counsel to discuss whether you have a viable claim, which includes whether there is evidence proving each element of a cause of action. Our lawyers can help save you time and money.

Call the Berniard Law Firm at 1-866-574-8005 to speak to an attorney.

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