
    Gracie BESSARD, Plaintiff-Appellee, v. STATE of Louisiana, DOTD, et al., Defendant-Appellant.
    No. 93-507.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 9, 1994.
    Writ Denied July 5, 1994.
    
      Elbert Lee Guillory, Opelousas, for Grade Bessard.
    Gregory Paul Touchet, Lafayette, for State DOTD et al.
    Kevin Wade Trahan, Abbeville, for City of Abbeville.
    Before DOUCET, YELVERTON, KNOLL, COOKS and WOODARD, JJ.
   JjWOODARD, Judge.

This personal injury action for damages arises out of an accident which occurred at the intersection of Charity Street (Louisiana Highway 14) and Gertrude Street in Vermilion Parish.

FACTS

On December 9, 1990, Grade Bessard was transported to St. Theresa Catholic Church by her daughter. After the services ended, Mrs. Bessard left Church and headed toward her daughter’s car which was parked beyond Charity Street. She walked down the sidewalk adjacent to the Church and abutting the east side of Gertrude Street. Photographs show this sidewalk intersects and ends at the sidewalk which parallels Charity Street, forming a T. The Charity Street sidewalk, however, extends to the Gertrude Street curb. As Mrs. Bessard walked toward the intersection, she was joined by Ada Johnson. When the two women reached the end of the Gertrude Street sidewalk, they continued straight ahead, walking over the Charity Street sidewalk and onto a grassy area between the sidewalk and the Charity Street curb. After the traffic cleared, Mrs. Bessard attempted to cross Charity Street. She tripped and fell when her foot caught in broken concrete curbing. Mrs. Bessard testified 12that she measured the hole where she fell by putting her hand in it and that the depth of the hole was four or five inches. Photographs introduced into evidence, supported Mrs. Bessard’s estimate. We attach hereto plaintiffs exhibit number three for reference.

As a result of her fall, Mrs. Bessard sustained considerable injuries to her knee and ankle. She filed suit January 31, 1991 against the State of Louisiana, through the Department of Transportation and Development (DOTD) and the City of Abbeville. The City of Abbeville subsequently filed a Motion for Summary Judgment. The trial court granted the'Motion; finding that the City was not responsible for the maintenance or repair of a state highway.

The trial court subsequently found the state 100% liable for the Mrs. Bessard’s accident and resulting injuries. On appeal, DOTD submits, inter alia, that: (1) the condition of the curb did not pose an unreasonable risk of harm to the plaintiff; (2) the plaintiff fell due to her own negligence; and (3) the trial court erred in awarding plaintiff damages for future medical expenses and miscellaneous expenses.

LIABILITY OF DOTD

The owner, or person having custody, of immovable property has a duty to keep such property in a reasonably safe condition. He must discover any unreasonably dangerous condition on his premises and either correct the condition or warn potential victims of its existence. This duty is the same under the strict liability theory of La.C.C. art. 2317 as under the negligent liability theory of La.C.C. art. 2315. Usually the difference in proof between these theories of liability is that under La.C.C. art. 2315, it must be shown that the owner, or person in custody, either knew or should have known of the risk, whereas under La.C.C. art. 2317, a claimant is relieved of proving the defendant’s knowledge of the risk. Clement v. State, Department of Transportation and Development, 528 So.2d 176 (La.App. 1st Cir.), writ denied, 532 So.2d 157 (La.1988). However, La.R.S. 9:2800 provides that even under a strict liability theory, when the defendant is a public entity, the plaintiff must prove that the defendant had actual or constructive knowledge of the vice or defect and failed to remedy it within a ^reasonable time. Under either theory of liability (when the defendant is a state entity), the plaintiff has the burden of proving that: (1) the property which caused the damage was in the “custody” of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises (breach of the duty); (3) the defendant had actual or constructive knowledge of the risk; and (4) that the defect in the property was a cause in fact of the resulting injury. In both negligence and strict liability cases, the reasonableness of the risk is determined by balancing the probability and magnitude of the risk against the utility of the thing. Under either theory of liability, the court must decide if the risk which causes the injury is within the ambit of protection of the duty.
DOTD has a duty to maintain public highways in a reasonably safe condition and remedy conditions that make the roadway unsafe. The duty to remedy arises from knowledge of an unsafe condition on the highway. Before DOTD may be held liable for an accident caused by a hazardous or dangerous condition, it must be shown that it had actual or constructive notice of the condition and a sufficient opportunity to remedy the situation or at least warn motorists of its presence, and failed to do so.

Boudreaux v. Farmer, 604 So.2d 641, 650-651 (La.App. 1 Cir.1992).

There is no dispute that DOTD had custody of the curb in question. The issues are whether the curb and conditions of the area surrounding the curb (1) created an unreasonable risk of harm; i.e. whether the property was defective; (2) caused plaintiffs injuries; and (3) whether the DOTD had knowledge of the defect.

In its well written reasons for judgment, the trial court stated the following:

Evidence adduced at trial substantiates that two large cracks in the curb caused Ms. Bessard to fall onto her knees into Charity Street.
No warning signs were posted at the defective curb. According to testimony of the DOTD district and parish supervisors, the curb in question is in the custody and control of defendant, Louisiana Department of Transportation and Development. DOTD inspected this highway, including curbs, every two week (sic.) prior to this accident. Therefore, this court holds that DOTD had constructive notice of this defect. The curb in question is La mountable curb, which by its very design is meant to be used by pedestrians exiting their automobiles. The State of Louisiana owes these pedestrians a duty of care to keep curbs in repair so as not to cause injury. This court holds that this curb posed an unreasonable risk of harm and further, that Graeie Bessard acted as an ordinary, prudent pedestrian as she approached the curb. She prudently looked up to observe the traffic on Charity Street and when she stepped forward, her foot became lodged into the defective curb, resulting in the accident.

In Stobart v. State Through DOTD, 617 So.2d 880, 882 (La.1993) the supreme court found:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

After a thorough review of the record, we find no manifest error in the trial court’s ruling.

EXPENSES

DOTD argues that the trial court erred in awarding future medical expenses to plaintiff in the amount of $8,500.00 and $2,500.00 for miscellaneous expenses. The plaintiff must prove, by a preponderance of evidence, the damages caused by the tortfea-sor’s fault. Proof is sufficient to constitute a preponderance when it shows that the fact sought to be proved is more probable than not. Veazey v. State Farm Mutual Auto Ins., 587 So.2d 5 (La.App. 3 Cir.1991). Medical testimony in the record shows plaintiff will have continued pain and will need continued physical therapy in the future. The record also supports plaintiffs need for pain medication in the future. The record clearly shows that plaintiff does not drive and thus has had to take taxis to health care providers and will have to take them in the future as she continues her physical;; therapy. There is also in the record evidence of plaintiffs expenses for paying others to run necessary errands for her while she was immobilized. Thus, again, we do not find manifest error in the trial court’s award for medical and mis-eellaneous expenses. This assignment of error also lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the defendant, DOTD.

AFFIRMED.

DOUCET, J., dissents and assigns reasons.

YELVERTON, J., dissents for the reasons assigned by Judge DOUCET.

I iDOUCET, Judge,

dissenting.

I respectfully dissent from the majority opinion herein.

As explained by the majority’s quotation from Boudreaux v. Farmer, 604 So.2d 641, 650-651 (La.App. 1 Cir.), writ denied, 605 So.2d 1373, 1374 (La.1992), DOTD has a duty to maintain public highways for the use of motorists. The duty owed by the DOTD to pedestrians using highways is about the same as that owed to motorists using sidewalks.

Mrs. Bessard had a safe sidewalk for her use. She did not have to take a shortcut across grass to a curb some distance away from her ear. That curb at that place was not there for her use as a pedestrian, but rather, was there to facilitate drainage and motoring use of the roadway. The DOTD should not be burdened with the staggering duty of being responsible to pedestrians for every inch of curbing dn every highway in the state where a pedestrian might choose to walk.

Further, the record shows that the curb did not present an unreasonable risk of harm.

_[2_The court in Orleans Parish School Bd. v. New Orleans, 585 So.2d 643, 646-647 (La. App. 4 Cir.), writ denied, 589 So.2d 1069 (La.1991), reasoned as follows when presented with the question of whether a risk was unreasonable where a pedestrian slipped and fell on a crack in the street.

Every imperfection or crack in a street is not a legal defect. The claimant must prove that under the circumstances there was an unreasonable risk of harm which resulted in the damage. Kent v. Gulf States Utilities Company, 418 So.2d [493] at 493 [ (La.1982) ]; Marziale v. Maney, 529 So.2d [504] at 504 [(La.App. 4 Cir. 1988) ].
The fact that a pedestrian falls in the street does not mean that the street’s condition amounts to an unreasonably dangerous defect. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981). In order to qualify as a defect, the imperfection or crack in the street must constitute a dangerous condition or pose an unreasonable risk of injury to a prudent person who exercises ordinary care under the circumstances. A pedestrian has a duty to see that which should be seen in order to determine whether his path is clear. Williams v. Orleans Parish School Board, 541 So.2d 228 (La.App. 4th Cir.1989); Hines v. Department of Transportation and Development, 503 So.2d 724 (La.App. 3rd Cir.1987), writ denied 505 So.2d 1151 (La.1987); Vamado v. Sanders, 477 So.2d 1205 (La.App. 1st Cir.1985), writs denied 481 So.2d 630 (La.1986). See also Montgomery v. City of New Orleans, 537 So.2d 1230 (La.App. 4th Cir.1989).
The location of the street, the victim’s familiarity with the area, the size and nature of the hole or imperfection, and the victim’s use of ordinary care must be considered. See Clairmont v. City of New Orleans, 492 So.2d 1247 (La.App. 4th Cir. 1986), writ denied 496 So.2d 1048 (La. 1986); Carrv. City of Covington, 477 So.2d 1202 (La.App. 1st Cir.1985), writ denied 481 So.2d 631 (La.1986). Each case is determined by its own circumstances.

Certain facts adduced at trial were not given sufficient weight by the majority.

Appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the trial court’s findings, but mandates reviewing the entire record with an eye to determining whether the finding is reasonable in the context of all the facts. Arceneaux v. Domingue, [365 So.2d 1330 (La. 1978) ] supra; Watson v. State Farm Fire & Cas. Co., 469 So.2d 967 (La.1985).

White v. McCoy, 552 So.2d 649, 655 (La.App. 2 Cir.1989).

I aViewing the record as a whole it is clear that Mrs. Bessard’s fall resulted from her own carelessness.

Mrs. Bessard’s testimony indicated that she was very familiar with the area. She lived in the neighborhood and had been a member of St. Theresa Parish for eight years. She walked to church several times a week. Additionally, she was driven there by her daughter several times a year and would walk from the ear.

The majority opinion would lead one to believe that Mrs. Bessard had no safe route to get to the street. To the contrary, the photograph introduced into evidence clearly shows the existence of a sidewalk which takes one safely to the street. After Church services, Mrs. Bessard ignored that sidewalk which would have taken her safely to a point where she could have crossed the street. She left the sidewalk and crossed a grassy area to get to the curb. She admitted she would have seen the crack had she been looking where she was going rather than looking at traffic. Ada Johnson, who was walking with Mrs. Bessard, stated that the cracks in the curb were visible from a distance of three feet. Raywood Vincent, a DOTD employee, stated that the curb showed only a minor imperfection.

The record reflects that the curb was not designed for pedestrian use. Mr. LeBlane, the DOTD engineer, stated that the curb was designed for drainage and vehicular traffic.

As a result, the plaintiff failed to show causation, the breach of an existing duty or that the curb posed an unreasonable risk of harm to her.

The State has thousands of miles of roadways which have great utility value and are vital to the public. The cost to repair every pothole or minor crack would be outrageously high. The probability and gravity of harm posed by the alleged defect in this matter is insignificant.

Orleans Parish School Board, supra, 585 So.2d at 647.

Accordingly, I would reverse the trial court’s judgment finding the DOTD liable in this matter.  