
    Doyle R. PATRICK, for Anthony Patrick v. Charlene INCAPRERA, and First of Georgia Insurance Company.
    No. 11871.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 1982.
    Rehearings Denied May 19, 1982.
    
      Giraud, Cusimano, Yerderame & Loev, Thomas L. Giraud and Robert M. Loev, New Orleans, for plaintiff-appellee.
    Turner & Young, Emile L. Turner, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA, GARRISON, KLIEBERT and BAILES, JJ.
   BAILES, Judge.

This is an appeal by defendants, Charlene Incaprera, and her public liability insurer, First of Georgia Insurance Company, from the judgment of the trial court rendered on the verdict of the jury which tried the case.

This tort action arises from an injury which the minor, Anthony Patrick, age fifteen years, sustained to his right foot on August 30, 1977 while cutting grass on the vacant lot of ground owned by defendant, Charlene Incaprera. The situs of the accident was adjacent to the home property of the plaintiff who resides at 3412 West Loyola Drive in the city of Kenner, Louisiana.

This lot had been owned by Mrs. Incap-rera since the 1960s. She maintained no regular schedule for the physical care of the lot. However, from time to time during her ownership when called on by the City of Kenner weed department she would pay the cost of cutting the grass and weeds. The record shows that the lot was last cut on August 17, 1977 which was thirteen days prior to the accident. Mr. Greg Cantrell, the contractor who cut the grass the last time, appeared as a witness with his records which verified the date of the last cutting.

It appears that on the morning of the accident Anthony Patrick, after cutting his own yard, moved over to the adjoining In-caprera lot to cut what was referred to as a buffer strip six to eight feet wide next to the Patrick fence. His testimony explains his version of how the accident occurred:

“Q. All right. Let’s talk about how the accident occurred. You are pushing, and you are pushing along, and then what happened?
A. I was pushing along, normal pace. And the lawn mower struck something. I don’t know what it was, struck something; kicked up at an angle, say like the lawn mower would be sitting like this (indicating) kicked like this. I was coming down, you know, when you come down like that (indicating); and the lawn mower just hit it and the blade struck my foot right at the seam of my shoe.
Q. You’re pushing it, and you are certain that the blade hit something?
A. I assume the blade hit something, yes.
Q. Could it have been the front of the cover?
A. It may have been, I don’t know. It happened so fast, I really didn’t get to stop and look. I was worried about bleeding to death right there.
Q. When you were pushing this particular lawn mower, and it struck something, did it go up?
A. No, it didn’t go up. It sort of like it hit and it kind of like, you know, when something jumps back — it happened so fast, it just went — it just jumped back a little, and went up like that (indicating). And I walked into it.”
(T-181, Lines 13-29; T-182, Lines 1-12)
Q. Are you saying that your right foot went underneath?
A. It didn’t go underneath, It was sort of like it went up, and then when I was finally — it happened so fast that it just struck my foot. I just let go of the lawn mower, and I hopped to the car.
Q. Isn’t there a safety device on the back of that lawn mower?
A. Yes, and somehow it kicked up. I don’t know how, but it did kick up.
Q. And it came back, is that what your testimony is?
A. Just a little.
Q. And you still had your hands on the handle?
A. Yeah. It happened so fast, I really didn’t have time to let go of it.
Q. You are sure that it kicked back and it didn’t just go up, and you put your foot underneath?
A. Yes, sir.”
(T-182, Lines 25-29; T-183, Lines 1-16)

The plaintiff’s theory of recovery for the injuries sustained by young Patrick is that he was an invitee on the premises because he was there to perform a service for the benefit of the owner, that to a person of such status the owner is required to use ordinary care in maintaining the premises in a reasonable condition for such use by the invitee as is consistent with his purpose. Plaintiff argues that there is sufficient evidence to find that Mrs. Incaprera had not maintained her property in a “reasonably safe condition” for the use of a grass cutter.

Further, the plaintiff argues that if the invitee status is ignored and attribute a “licensee” status to young Patrick “Mrs. Incaprera’s reckless omissions and utter disregard for the safety of her neighbors represents a clear violation of the duty owed to a licensee.”

The plaintiff’s argument and analysis of the status of the injured is the traditional approach to the question of liability. However, the Supreme Court in the case of Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (1976) found the invitee-licensee-trespasser classification as defined in the common law to be of little help in applying Louisiana Civil Code Article 2315.

It appears indisputable that the cause in fact of Anthony Patrick’s injury was the presence of uncut grass growing on the Incaprera lot. Had there been no grass or weeds on this lot there would have been no occasion for Anthony to mow the buffer strip next to the Patrick fence.

According to the holding of Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (1976), a finding that the defendant’s conduct was the cause in fact of plaintiff’s injury, singularly, does not establish liability. In addition, it is necessary to determine and find that the landowner breached a legal duty imposed to protect the injured party against the risk involved.

In Shelton the Supreme Court said on page 410:

“ * * * * The duty of a landowner is not to insure against the possibility of an accident on his premises, but rather to act reasonably in view of the probability of injury to others. Thus the landowner is not liable for an injury resulting from a condition which should have been observed by an individual in the exercise of reasonable care or which was as obvious to a visitor as to the landowner. Alexander v. General Accident Fire and Life Assurance Corp., [98 So.2d 730] supra; Crittenden v. Fidelity and Casualty Co., 83 So.2d 538 (La.App.2d Cir. 1955).”

We find the plaintiff’s injury was brought about through his own negligence. He was attempting to cut the grass and weeds with a lawnmower and while doing so apparently struck some object the identity of which escapes this record thus causing the light machine to be thrown rearward into his foot. It was the lawnmower which caused the injury, and it was young Patrick who brought the mower onto the Incaprera lot. He was familiar with the premises, he and his father having cut the grass in this particular area on previous occasions. We find that the defendant, Charlene Incap-rera, breached no duty she owed Anthony Patrick. The injury was caused by the negligent operation of the lawnmower.

In argument before this court, the plaintiff, through his counsel, contends the facts indisputably establishes that the lot owned by Mrs. Incaprera was a “garbage dump, a cesspool, a place infested with snakes and rodents . . . ”; that defendant Incaprera breached the duty owned to the plaintiff; and that such condition presented an undue risk of harm to him.

Even assuming, arguendo, that the defendant breached the duty of keeping her premises safe from the undesirable qualities attributed to it, the injury to young Patrick did not arise from the risk encompassed within the duty breached. Shelton v. Aetna Casualty & Surety Company, supra.

Accordingly, for the foregoing reasons, the judgment appealed is reversed and the demands of the plaintiff are rejected at his cost.

REVERSED AND RENDERED.

GARRISON, J., dissents with written reasons.

GARRISON, Judge,

dissents and assigns reasons.

I respectfully dissent from the majority opinion on the ground that this case is not one in negligence, but one in strict liability on the part of the landowner for loss occasioned as a result of that ownership. The landowner knowingly allowed a dangerous condition to continue to exist after numerous warnings by the adjoining property owners. In the course of attempting to conserve and protect their own property, the adjoining property owners incurred the loss. Thus, the loss incurred arose out of a predial servitude under C.C. Arts. 651, 656, 667, and most important, Art. 688, which provides:

“A landowner has the right to demand that the branches or roots of a neighbor’s trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor.
“A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.”

In the instant appeal, it is obvious that the overgrowth interfered with the adjoining property owners’ enjoyment of their property. Ronald Blackwelder, whose property also bordered on the vacant lot, testified to the condition of the vacant property and the landlord’s knowledge thereof:

“I called her and I told her that it was a cesspool, that the grass was high; that the rats and the mosquitos were coming out. I told her that. I also told her that if my little girl fell into it and drowned, that she was going to have problems. And she hung up on me.
“Q. And did you do anything personally to alleviate the problem which was caused by the lot between your house and the Patricks?
“A. Yes, sir, I did. My fence was right on the borderline. I went out there with a shovel and tried to dig some of the dirt to pack it around my fence. It kept falling into her property — her property, and on my side, her property right now is down about three feet. At that time, it was down more. There is water that just stands along the whole area, almost a hundred and thirty feet deep. Along the whole edge there is just water and mud and swash, mosquitos and rats.
******
“A. There are rats on it, there are snakes on it. There was mosquitos and they are imbedded. It’s a cesspool is what it is. We are getting rats in our house. Before it was mice, now it is rats. There was one that run in my stove last night. Now, there is no other empty property around. My dog died from the snake coming out of that — crawling up out of that empty lot.”

Under the doctrines of Canter v. Koehring, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), great weight is given to the credibility determinations and factual findings of the trier of facts, in this instance, the jury, because of its ability to observe the demeanor of the witness. This court is bound to uphold those findings and credibility determinations when, upon a full and independent review of the record, the appellate court cannot find that the trier of fact was manifestly erroneous. In the instant appeal, I cannot conclude that manifest error exists. I also find, as did the jury, that the landowner was given notice of the defective and dangerous condition of the premises on several occasions.

C.C. Art. 2316 provides as follows:

“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

Additionally, C.C. Art. 2317 provides:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody -”

The test to be applied to determine landowner liability under C.C. Arts. 2316 and 2317 is, whether in the management of his property, the landowner acted as a reasonable man in view of the probability of injury to others. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976); Davis v. Moreau, 381 So.2d 1297 (La.App. 4th Cir., 1980).

In the light of the evidence presented we cannot disagree with the jury’s verdict that the defendant failed to act as a reasonable man in the light of the probability of injury due to the deplorable condition of the lot. Defendant’s property was literally an accident waiting to happen.  