
    Theresa WILLIAMS, Individually and as Natural Tutrix of Her Minor Child, Cynthia McGee v. PARISH OF EAST BATON ROUGE, Parish Government of East Baton Rouge, the Department of Public Works, Gary D. Plain and XYZ Insurance Company.
    No. 14995.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Walter C. Dumas, Baton Rouge, for plaintiff-appellant Theresa Williams, Individually and as Natural Tutrix of her Minor Child, Cynthia McGee.
    Gary D. Plains, in pro. per.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, for defendant-appellee Parish of East Baton Rouge, Parish Government of East Baton Rouge, the Department of Public Works.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex delicto by Theresa Williams, individually and as natural tutrix of the minor, Cynthia McGee, against the Parish of East Baton Rouge, the Parish Government of East Baton Rouge, and the Department of Public Works (collectively hereinafter referred to as Parish), and Gary D. Plain for personal injuries received by Cynthia McGee and property damages. From a judgment in favor of plaintiff against Gary D. Plain, and dismissing plaintiff’s suit against the Parish, plaintiff has appealed.

FACTS

This accident happened between 4:30 and 5:00 p. m. on September 15, 1977, when Cynthia McGee (13 years of age at the time of the accident) was riding her bicycle near the edge of Hyacinth Avenue in Baton Rouge, and she was struck head-on by a car driven by the defendant, Gary Plain. The trial judge found that Plain lost control of his vehicle when it hit a water-filled pothole in the street. Cynthia McGee received a cut on her right knee, leaving a permanent disfiguring scar, and a broken right leg.

Plain testified that he was returning to his home at the time of the accident; that he was traveling approximately 25 to 30 miles per hour prior to the accident but had slowed down; that the pothole in question was filled with water and he could not distinguish such as a pothole; that two approaching vehicles prevented him from avoiding the pothole; that as he hit the pothole he lost control of his vehicle and it skidded out of control and struck Cynthia McGee; and that the street was dry except for the pothole.

No signs were present along the street warning drivers of potholes or that the street might be slippery.

The investigating officer testified that the street was wet and muddy, and that defendant’s vehicle traveled approximately 170 feet past the point of impact.

The Parish has a program of checking major streets for potholes, of which Hyacinth is one, but at the time of the accident an overlay program was in progress and the patchwork had been allowed to lag. However, even where potholes are patched, heavy rains and traffic can cause a patch to pop out shortly thereafter.

TRIAL COURT

The trial judge found the water-filled pothole to be a defective condition of the road, but concluded that the accident was caused by the fault of the third party, namely Plain.

ISSUES

Plaintiff contends the trial judge was in error in dismissing the Parish from the suit, and that the amount of the award, $27,-803.80, was inadequate.

I

We are of the opinion that the pothole which existed in the case sub judice did not create an unreasonable risk of harm to others so as to constitute a defective thing under La.Civ.C. Art. 2317. Potholes are known to develop and exist in asphalt surfaced roadways. That a pothole existed at this location, had been repaired, and had redeveloped several times was known to the defendant Gary Plain. Additionally, we conclude that those individuals who, like Plain, lived in the neighborhood of the accident, and who traveled this roadway often should be familiar with the potholes that existed in the road surface.

Additionally, we find no breach of a La.Civ.C. Art. 2315 duty on the part of the Parish. The Parish knew potholes developed, and it had a regular maintenance program to correct them. However, it is clear that even though a pothole may be corrected early in the day, rain and traffic can cause a pothole to redevelop later the same day.

Finally, in assuming arguendo that La.Civ.C. Arts. 2315 and 2317 would be found applicable, we agree with the trial judge that the cause in fact of this accident was the failure of Gary Plain to operate his vehicle at a speed commensurate with the conditions of the road surface, to maintain control of this vehicle, and to keep a proper lookout.

II

Cynthia McGee received a cut on her right knee, leaving a permanent disfiguring scar. She also received a broken leg. She was hospitalized for two months, and after discharge from the hospital she was on crutches for approximately one month. At the time of the accident she was a seventh grade honor student active as a cheerleader and in the athletic program of the school. She can no longer participate in these activities because of her injury and presently avoids wearing shorts because of the permanent scar.

Though we find the award granted by the trial judge to be conservative, same does not so shock our conscience as to require us to modify this award.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at plaintiff’s costs.

AFFIRMED.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The record reveals the following facts: Gary D. Plain was proceeding on Hyacinth Avenue, a two-lane street in Baton Rouge, on the afternoon of September 15, 1977. Cynthia McGee was riding her bike in the opposite direction, near the edge of the roadway, but in the same lane that Plain was traveling. The road was wet in some areas, because it had rained the day before; however, the weather was mild at the time of the accident. The speed limit was 30 or 35 miles per hour. Plain approached a curve in the road, traveling approximately 25 to 30 miles per hour. He noticed water in the street and slowed to approximately 10 to 20 miles per hour. There were vehicles in the opposite lane which prevented him from veering away and avoiding the wet area and Cynthia McGee. The water was covering a pothole. When Plain’s vehicle hit the pothole, he lost control, began sliding, and collided with Cynthia McGee and her bicycle. An ambulance was called to render aid and, upon arrival, it also hit the pothole and then skidded, according to Plain.

The Parish street supervisor, at the time of the accident, admitted that the street was not being inspected regularly at this time, as was the normal procedure, due to an overlay project.

The trial judge found that:

. . . the existence of the pothole and the fact that the pothole filled with water after a rainstorm made that section of the road unreasonably dangerous in normal use. Because of the tendency for water to stand in the hole, motorists could not tell that that section of the roadway was damaged. Therefore, the Parish is responsible for any damage caused by the defective condition of the road.

I agree with this conclusion. However, he also found that Charles Plain was guilty of negligence constituting third party fault, so as to exonerate the Parish from liability under Civil Code Art. 2317. These facts are not highly convincing, as to the negligence of Plain. Moreover, if I assume Plain was negligent in the operation of his vehicle and apply the “but for” test of negligence used in Sinitiere v. Lavergne, 391 So.2d 821 (La. 1980), I can reach only one logical conclusion. If Plain had not hit the pothole, described by the trial court to be a defective condition in this road, this accident and the resulting injuries to Cynthia McGee, would not have happened. The pothole was a substantial factor and I would hold the Parish liable as a joint tortfeasor.  