
    Fred PETERSON v. JEFFERSON PARISH.
    No. 95-CA-711.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 1997.
    Rehearing Denied July, 17, 1997.
    
      Hans Joseph Liljebert, Assistant Parish Attorney, Parish of Jefferson, Harahan, for defendant-appellant.
    Andre’ P. Guichard, New Orleans, for plaintiff-appellee.
    A. Bruce Netterville, Gretna, for plaintiff-appellee.
    Before GAUDIN, BOWES and GRISBAUM, JJ.
   JiGRISBAUM, Judge.

On the original hearing of this matter, the defendant-appellant, the Parish of Jefferson (the Parish), filed a reply brief with this Court in which it raised, for the first time, the issue that the plaintiff-appellee, Fred Peterson, failed to establish that, at the trial court level, the Parish had actual or constructive notice of the pothole as required by La.R.S. 9:2800.

On the motion of appellee, this Court struck the appellant’s reply brief pursuant to Rule 2-12.6 of the Uniform Rules of the Courts of Appeal, stating that the brief failed to strictly confine itself to rebuttal points raised in appellee’s brief. We, therefore, held that appellant’s argument that appellee failed to meet the notice requirement was beyond our scope of review. We now reconsider that decision.

hit is the opinion of this Court that we should always adhere to our procedural vehicles, which are in place to ensure the orderly flow of this Court’s docket. However, the procedural realm is but one element of a case. At times, the substantive arena must prevail over the procedural. This is one such time.

It is clear from a review of the record that the notice requirement of La.R.S. 9:2800 was not met as is required by law. Appellee was the only witness to testify at trial. There was absolutely no evidence offered as to either actual or constructive notice of the pothole to the Parish.

As such, the appellee failed to carry his burden of proof at trial and did not establish his cause of action against the appellant. Accordingly, the judgment of the trial court is hereby reversed.

REVERSED ON REMAND.

liBOWES, Judge,

concurring.

I concur with the result reached by the majority on this second remand. However, I do so for the reasons espoused in my two previous dissents to the two prior opinions. There I declared my opinion that the issue of notice was central, and indeed essential, to the disposition of the case — and this finding must be made by this Court whether or not there exists a rebuttal brief. Peterson v. Jefferson Parish, 95-711 (La.App. 5 Cir. 10/29/96), 683 So.2d 878.

As I stated in my original dissent under either of the theories available to plaintiff in the present ease, those of strict liability or negligence, Peterson is required to prove actual or constructive notice of a defect or unsafe condition in order to prevail. Peterson v. Parish of Jefferson, 95-711 (La.App. 5 Cir. 2/27/96), 668 So.2d 1386. La.R.S. 9:2800; and, indeed, on its final remand to this Court, the Supreme Court agreed that the notice issue is an element of the cause of action that the plaintiff must prove.  