text:
    Henry TAUZIN, d/b/a Mo’s Buster Brown Shoes, et al. v. R. G. CLAITOR, et al.
    No. 14994.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.
    Rehearing Denied Aug. 24, 1982.

      Lewis O. Unglesby and Keith D. Jones, Baton Rouge, for plaintiffs-appellees Henry Tauzin d/b/a Buster Brown Shoes, Fred H. Russ, Jr. and Lois K. Russ d/b/a Sew & Sew Fabrics, Anthony A. Bordelon d/b/a Borde-lon Sewing Center and Tri-J Enterprises, Inc.
    Cordell H. Haymon, Baton Rouge, and Mack E. Barham, New Orleans, for defendants-appellants Robert C. Claitor and R. G. Claitor Realty Co.
    Joseph E. Juban, Baton Rouge, for third party defendants-appellees Juban Properties, Inc., and Ray A. Juban.
    Before LEAR, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit for damages in contract and tort by the tenants of a small shopping center in Baton Rouge, Louisiana, Henry Tauzin d/b/a Mo’s Buster Brown Shoes, Anthony A. Bordelon d/b/a Bordelon Sewing Center, and Tri-J Enterprises, Inc. (hereinafter referred to as Tri-J), against their lessors, R. G. Claitor and R. G. Claitor Realty Company, a partnership in commen-dam (hereinafter referred to as Claitor and Claitor Realty). Claitor and Claitor Realty filed a reconventional demand against their tenants for unpaid rents. After a trial by jury on June 8-12, 1981, there was judgment on the main demand in favor of Tauz-in for $40,000.00, Bordelon for $20,000.00 and Tri-J for $55,000.00. There was judgment by the trial judge in favor of Claitor and Claitor Realty on the reconventional demand for unpaid rents against Tauzin for $27,432.00 (36 months at $762.00), against Bordelon for $4,752.00 (9 months at $528.00), and against Tri-J for $2,989.00 (6.7 months at $447.50). Claitor and Claitor Realty took this suspensive and devolutive appeal.

I. FACTS

In 1970, Claitor, the Kroger Company (hereinafter referred to as Kroger), and Ray Juban (hereinafter referred to as Ju-ban), owned three adjacent parcels of property denominated Parcels 1, 2 and 3, respectively, and executed a written Reciprocal Agreement for developing these properties jointly into a shopping center on Perkins Road in Baton Rouge, Louisiana. This Reciprocal Agreement provided in part that each owner granted to the other the right of access to and use of the common areas of the properties for use by pedestrians and vehicular traffic and for the parking of automobiles by the customers, employees and tenants in the shopping center. It also called for Juban to build a fifteen foot driveway along the eastern edge of Parcel 3.

By two separate acts of sale in 1971 and 1974, Claitor acquired Lot 8 which is adjacent to and east of Parcel 3. Claitor constructed two buildings on Lot 8 and the building closest to Perkins Road contained several stores which faced the parking lot on Parcel 3. Claitor furnished his proposed plans for the development of this property to Juban Properties, Inc. and its tenant on Parcel 3, T G & Y Stores Company. At that time counsel for Juban, apparently on behalf of Juban Properties, Inc., indicated in writing that he did “not object to such use of the fifteen (15) foot driveway by Mr. Claitor provided such use is acceptable...” to the T G & Y Company. TG&Y replied that it did not consider construction of the building and parking facilities by Claitor on Lot 8 as a violation of their lease agreement for the store.

Effective August 1,1974, Tri-J Enterprises, Inc. leased 1504 square feet of building space from Claitor on the Lot 8 premises for $447.50 per month, Robert C. Rogers d/b/a The Hobby Hut leased 1786 square feet at a rental of $528.00 per month, and Jasmin, Inc., a corporation owned by Mohammed Jasmin and Henry Tauzin which did business under the trade name of Mo’s Buster Brown Shoes, leased 3001 square feet for a monthly rental of $762.00. Each of these leases was for five years with an option to renew for an additional five years.

Apparently at the end of 1974 or the beginning of 1975, a dispute commenced between Claitor and Juban over the use of the driveway on the eastern edge of Parcel 3 and the use of the Parcel 3 parking lot by tenants and customers from Lot 8. Juban, through his attorney, offered to allow use of the driveway and parking lot to Claitor, his tenants, and their customers, for $250.00 per month. Claitor made a counteroffer for the use of and access to Parcel 3 by paying a pro rata share of the maintenance costs of the premises. Apparently, negotiations broke down, and in 1975 Juban Properties, Inc., as owner of Parcel 3, filed a suit for declaratory judgment against Claitor, as owner of Lot 8, seeking to establish its right to construct a fence along the property line separating Parcel 3 and Lot 8. Claitor defended this suit on the grounds that rights of use and access were created by the Reciprocal Agreement and by verbal agreements between he and Juban. Claitor did not advise his tenants of the dispute with Juban over the access to or use of Parcel 3, nor did he advise them of the pending litigation for authority to construct the fence at this time.

In 1976 Claitor filed suit against Juban, individually, alleging that Juban Properties, Inc. was seeking court authority to erect the fence in question in violation of the Reciprocal Agreement between Claitor, Ju-ban and Kroger and in violation of verbal agreements between Juban and Claitor. Claitor sought damages in the form of attorney fees for defending the declaratory judgment suit and for injuries to his business interests in the form of loss of profits and rents.

On May 9, 1977, and effective January 1, 1977, Henry Tauzin, individually, bought the business known as Mo’s Buster Brown Shoes from Jasmin, Inc. and Jasmin, Inc. assigned the lease of the premises to him with the written consent of Claitor. Effective February 1, 1977, Robert C. Rogers subleased the premises occupied by The Hobby Hut to Anthony Bordelon d/b/a Bordelon Sewing Center with the verbal consent of Claitor. Claitor did not advise either Tauzin or Bordelon of the dispute over the use of Parcel 3 or the pending suit for declaratory judgment at this time.

On March 3, 1977, the declaratory judgment suit went to trial and resulted in a decision in favor of Claitor and denying the right of Juban Properties, Inc. to construct the fence. Juban Properties, Inc. appealed to this court and on December 28,1977, we reversed the trial court and rendered judgment in favor of Juban Properties, Inc. authorizing the construction of the fence. Juban Properties, Inc. v. Claitor, 354 So.2d 672 (La.App. 1st Cir. 1977). We ruled that the terms of the written Reciprocal Agreement were not applicable to Lot 8 and by implication ruled that there was no binding verbal agreement between Claitor and Ju-ban. Claitor sought supervisory writs from the Louisiana Supreme Court which were denied on March 27, 1978. Juban Properties, Ltd. v. Claitor, 356 So.2d 440 (La.1978).

On June 9, 1978, Juban Properties, Inc. erected a chain link fence between Parcel 3 and Lot 8. This construction prompted immediate complaints from the tenants on Lot 8. Several days later, Claitor Realty and Mr. and Mrs. Claitor, individually, filed suit against Juban, Juban Properties, Inc. and the lessee of Parcel 3 seeking a judgment recognizing their right to use of and access to Parcel 3 and seeking an injunction to require removal of the fence. The lessee filed an exception of no cause of action which was sustained. Juban and Juban Properties, Inc. filed motions for summary judgment which were granted by the trial court on the grounds that the fence was constructed pursuant to a final judgment and did not create a cause of action in favor of the plaintiffs. This court affirmed in an unpublished opinion which adopted the trial court’s reasoning. On September 28, 1979, the Louisiana Supreme Court granted the writs sought by the plaintiffs. R. G. Claitor’s Realty v. Juban, 375 So.2d 947 (La. 1979). On January 28, 1980, the Louisiana Supreme Court affirmed the rulings of the trial court and this court. R. G. Claitor’s Realty v. Juban, 391 So.2d 394 (La.1980). A rehearing was granted and the original decree was reinstated on October 20, 1980, on the grounds that the suit was properly the subject of a plea of res judicata.

Because of the presence of the chain link fence between Lot 8 and Parcel 3, Tauzin and Tri-J stopped paying their monthly rent in June of 1978, and Bordelon stopped paying his rent in July of 1978. On December 4, 1978, Claitor and Claitor Realty served notices of eviction on the tenants of Lot 8 who were not paying their rent. This suit was filed on December 6, 1978, and the rents which were due under the leases were deposited into the registry of the court by court order. Bordelon left the leased premises in March of 1979, four months prior to the end of the primary term of the lease. Tri-J left the leased premises on or about February 19,1979, five and one-half months prior to the end of the primary term of the lease. Tauzin did not leave the leased premises and was still there at the time of the trial.

In 1979 while the suit by the Claitor group against the Juban group to remove the fence was pending in the Louisiana Supreme Court, an amended petition was filed in the 1976 suit by Claitor against Juban, individually, adding R. G. Claitor Realty as a party plaintiff and Juban Properties, Inc. as a party defendant. This amended petition further alleged a reciprocal oral agreement between the parties for the use of Parcel 3 and Lot 8 by their owners, occupants and customers; that Claitor developed Lot 8 in reliance upon this oral agreement; and that the erection of the fence was a breach of this oral agreement by Juban and Juban Properties, Inc. This amended petition sought damages for negligence, intentional wrongdoing and in contract. At the same time in the instant case, Claitor and Claitor Realty filed a third party demand against Juban and Juban Properties, Inc. for indemnification for any amounts for which they may be cast in favor of the tenants alleging essentially the same thing that was alleged in the amended petition in the 1976 Claitor-Juban suit. Ju-ban and Juban Properties, Inc. filed motions for summary judgment in the 1976 Claitor-Juban suit and to the third party démand by Claitor and Claitor Realty against them in the instant suit. These summary judgments were granted in the trial court on the ground that the issues contained therein were res judicata,. These judgments were affirmed by this court on the date of this decision under separate docket numbers.

II. BREACH OF CONTRACT AND DUTY IN TORT

Contracts legally entered into have the effect of laws on those who have formed them. La.C.C. art. 1901. Tauzin, Bordelon and Tri-J have identical lease agreements with Claitor and Claitor Realty. The pertinent portions of these leases are as follows:

“1. PREMISES. Lessor leases to Lessee and Lessee leases from Lessor those certain premises consisting of a storeroom measuring approximately 1504 square feet center line to center line being constructed at 3751 Perkins Road according to Claitor’s East floor plan dated 5/22/74 attached herewith and made a part of this lease.
* * * $ * *
“17. COMMON FACILITIES. Landlord agrees there shall be joint use of sidewalks, driveways and parking area for automotive and pedestrian traffic to and from entire premises. Tenant agrees that it and its employees will not use the first row of parking adjoining buildings on entire premises, which are reserved for joint use of customers only. Tenant and employees will park only in lot behind (north of) Animal Health Clinic. ******
“27. COMMON AREA MAINTENANCE. On January 1st of each year, Tenant shall pay Landlord an annual parking lot maintenance fee for preceding year of $150.00 total (part years to be on pro rata basis).
******
“THIS LEASE embodies the entire contract of the parties hereto and shall not be altered, changed or modified in any respect, except by an instrument of equal dignity. . . . ”

The tenants contend “that Claitor chose to allow the tenants to suffer irreversible damage rather than reveal to the tenants that he had earlier misrepresented his ownership of the property.” The thing actually leased to each tenant is a specified amount of space in the building constructed by Claitor on Lot 8. Attached to each lease is the building floor plan. However, the lease agreements also provide for the joint use of the common sidewalk, driveway and parking areas on the “entire premises” and the tenants pay an annual parking lot maintenance fee of $150.00. There are no attachments to the leases showing the location or extent of the sidewalks, driveway and parking areas available to the tenants on the “entire premises”. The courts are bound to give legal effect to all contracts according to the true intent of the parties. The intent is to be determined by the words of the contract when these are clear, explicit and lead to no absurd consequences. La. C.C. art. 1945. Where the contract is clear and unambiguous, it cannot be varied, explained or contradicted by parole evidence. The meaning and intent of the parties to the contract in such cases must be sought within the four corners of the instrument. La.C.C. art. 2276; White v. Rimmer & Garrett, Inc., 340 So.2d 283 (La.1976); Breaux v. May, 392 So.2d 1089 (La.App. 3rd Cir. 1980); Mathieu v. Nettles, 383 So.2d 1337 (La.App. 3rd Cir. 1980). However, when there is uncertainty or ambiguity as to the provisions of a contract or the intent of the parties, parole evidence is admissible to clarify the ambiguity and to show the true intent. Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981). Heritage Square Investments v. Trouard, 406 So.2d 309 (La.App. 3rd Cir. 1981). The trial judge correctly determined that the leases were ambiguous concerning exactly what were the “entire premises” and what sidewalks, driveways and parking areas were subject to joint use and he properly allowed parole evidence on these issues. See Bond v. Green, 401 So.2d 639 (La.App. 3rd Cir. 1981).

James G. Harris, III, one of the owners of Tri-J, testified that Claitor did not tell him that he or his customers could park on Parcel 3, that he did not know Parcel 3 belonged to Juban Properties, Inc., that Claitor told him that he and his employees were to park behind the Animal Health Clinic in accordance with the lease provision, that he assumed that he and his customers had parking rights on Parcel 3, and that Claitor did not tell him that he couldn’t park on Parcel 3. Anthony Bordelon testified that Claitor made no representations to him concerning parking one way or the other on Parcel 3. Henry Tauzin testified that Claitor never told him anything about where to park or about parking on Parcel 3. Claitor testified that the intent of paragraph 17 was to permit joint use of the sidewalks, driveways and parking areas located on Lot 8 “and that I had permission from Mr. Juban for them to use the rest of it.” The evidence further shows that the tenants and customers of Lot 8 used the parking area on Parcel 3 from August 1, 1974 until Juban Properties, Inc. constructed the fence on June 9, 1978.

Because the jury rendered a general verdict and was not required to utilize a special verdict form, all factual disputes in this case are presumed to have been resolved by it in favor of the plaintiffs. Steele v. St. Paul Fire & Marine Insurance Company, 371 So.2d 843 (La.App. 3rd Cir. 1979); Brown v. Hartford Insurance Company, 370 So.2d 179 (La.App. 3rd Cir. 1979); Bolden v. New Orleans Public Service, Inc., 349 So.2d 377 (La.App. 4th Cir. 1977). Under either factual version set forth above, there is no evidence that Claitor made improper misrepresentations to the tenants concerning his ownership of Parcel 3. The three tenants testified that no misrepresentations concerning parking on Parcel 3 were made to them. James G. Harris, III specifically testified that he assumed that parking rights on Parcel 3 were granted by the lease. Under Claitor’s version, the tenants had permission from Mr. Juban to use Parcel 3. There is no evidence in the record to show that the tenants made inquiries concerning the ownership of Parcel 3. There is no evidence that any of the tenants checked the public records of East Baton Rouge Parish to determine the limits of Lot 8 or Parcel 3. There is no evidence of record to show that Claitor at anytime showed any maps to the tenants indicating the location of the boundary between Parcel 3 and Lot 8. If the jury in this case determined that Claitor made improper misrepresentations concerning the ownership and/or right to use of and access to Parcel 3, such conclusion was clearly wrong. Arceneaux v. Do-mingae, 365 So.2d 1330 (La.1978).

The tenants assert that Claitor had a duty to advise them of the dispute with Juban and Juban Properties, Inc. over the access to and use of the driveway and parking facilities on Parcel 3. A review of the lease ■ agreements indicates that nowhere contained therein is there an obligation by the lessors to consult with the tenants concerning constructions on adjoining properties. Each lease agreement specifically provides that it is the entire contract between the parties and cannot be modified except by an instrument of equal dignity. No such instrument has been produced. Even if there were such an obligation, the breach of such would cause no damage to the tenants under the facts of this case. Juban Properties, Inc. lawfully constructed the fence. Juban Properties, Inc. v. Claitor, supra. Claitor and Claitor Realty had no enforceable right to use the driveway and parking facilities of Parcel 3. R. G. Claitor’s Realty v. Juban, supra. Even if the tenants would have joined in the litigation, the result would have been the same. Even if it is assumed that Juban granted gratuitous permission to use Parcel 3, his revocation of that permission does not create a cause of action in favor of the tenants unless that permission was part of the lease agreement. Lemoine v. Devillier, 189 So.2d 694 (La.App. 3rd Cir. 1966).

The tenants máintain that Claitor owed them a “duty to protect the plaintiffs from the erection of the fence.... ” A review of the lease agreements reveals that there is no provision contained therein which requires the lessors to judicially contest constructions on property adjoining Lot 8 which would be harmful to the tenants’ use of their leased premises. In any event, Claitor vigorously litigated and opposed the right of Juban and Juban Properties, Inc. to erect the fence. In the original case by Juban Enterprises, Inc. for the declaratory judgment for authority to construct the fence, Claitor was successful in the trial court but lost on appeal in this court. Claitor filed suit individually against Juban to enforce purported written and verbal agreements which he claimed authorized access to and use of the Parcel 3 premises. Claitor has pushed that claim to a conclusion in this court. Claitor and Claitor Realty filed a suit to enjoin the construction of the fence and obtain its removal and litigated that suit to the Louisiana Supreme Court. Under these circumstances, Claitor and Claitor Realty certainly used the court system extensively in attempting to protect their interests and those of their tenants. If the jury concluded otherwise, it was clearly wrong.

The tenants assert that “the utter lack of available parking” is a hidden vice or defect under La.C.C. art. 2695 entitling them to damages. The thrust of the tenants’ complaint is that they have been denied free access to and use of Parcel 3 by the construction of the fence: We do not agree that the fence lawfully constructed on adjoining property is a vice or defect in the thing leased by Claitor and Claitor Realty to the tenants. Paragraph 17 of the leases does not require any specific amount, type or location of parking facilities. The leases do not require the lessors to secure off-premises parking rights for the tenants.

There is evidence of record to indicate that customers still park on Parcel 3 and walk around the fence to come to stores on Lot 8. In addition, parking is provided on Lot 8. The record reflects that there are ten paved parallel parking spaces in front of the leased premises, thirteen between the leased premises and the Animal Health Clinic, and an additional thirteen on the paved portion of the parking lot located behind the Animal Health Clinic. The evidence shows that pursuant to the zoning regulations of the City-Parish of East Baton Rouge that one parking space is required for every two hundred feet of floor area of a building. The building in which the leased premises are located contains 10,-133 square feet, and thus 51 parking places are required for that building. The site development plan submitted by Claitor to the Department of Public Works for the City-Parish of East Baton Rouge shows 55 proposed parking spaces to accommodate the construction of the building in which the tenants are located. Apparently, thirty-six of the parking spaces are paved and the remaining parking spaces are unpaved. Article 2695 is not applicable to these facts and circumstances.

It is our opinion that this ease is controlled by the provisions of La.C.C. art. 2699 which provides as follows:

“If, without any fault of the lessor, the thing cease to be fit for the purpose for which it was leased, or if the use be much impeded, as if a neighbor, by raising his walls shall intercept the light of a house leased, the lessee may, according to circumstances, obtain the annulment of the lease, but has no claim for indemnity.”

There is ample evidence of record to show that the use of Lot 8 as a shopping center is much impeded by the restriction of access to and from Parcel 3 caused by the construction of the fence. We find the raising of a fence to obstruct access and limit the use of Lot 8 to be analogous to the raising of a wall by an adjoining landowner to intercept the light on a leased house. No act of Claitor or Claitor Realty contributed to the erection of the fence and, in fact, they vigorously opposed its construction.

The tenants are not entitled to damages but are entitled to obtain the annulment of their leases. That is apparently what the trial court allowed Tri-J and Bordelon to do because he only cast them for rents up to the time that they left the leased premises, even though that occurred several months prior to the end of the primary terms of the leases. Claitor and Claitor Realty did not contest that ruling in this appeal. Tauzin has elected to remain on the leased premises and did not raise the issue of annulment on appeal.

III. CONCLUSION

For the foregoing reasons, it is our opinion that the judgment of the jury against Claitor and Claitor Realty for damages in tort and contract is clearly wrong and is reversed. Judgment is rendered herein in favor of Claitor and Claitor Realty and against Tauzin, Bordelon and Tri-J dismissing their petitions with prejudice. Tauzin, Bordelon and Tri-J are cast for all costs of this appeal and the costs in the trial court are to be divided equally between the parties plaintiff (one-half) and the parties defendant (one-half).

REVERSED AND RENDERED.

      . Tauzin, Bordelon and Tri-J did not appeal the judgments against them and" they are final. The unpaid rents have been deposited into the registry of the court. The parties stipulated in the trial court that the judgments against Tauz-in, Bordelon and Tri-J shall not become execu-tory until such time as the judgments against Claitor and Claitor Realty become final.

      . At some time after this contract was executed, Juban transferred Parcel 3 to Juban Properties, Inc.

      . Prior to the trial in the suit for declaratory judgment, Claitor conveyed various interests in Lot 8 to the trustee of four trusts he created in favor of his children and to R. G. Claitor Realty Company, a family partnership composed of Claitor, his wife and the trusts.

      . “Art. 2695. The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.”

      . There is no evidence in the record to show how many parking spaces are required for the Animal Health Clinic.

      . The reporter’s comment under Article 2699 indicates that there was an error in the English translation of the French text and the word “fault” in the opening clause should be “act”.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Shirley McNAMARA, Secretary, Department of Revenue and Taxation, State of Louisiana, Plaintiff-Appellee, v. OILFIELD CONSTRUCTION COMPANY, INC., Defendant-Appellant.
    No. 82-50.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      Young & Burson, I. Jackson Burson, Jr., Eunice, for defendant-appellant.
    Riley Boudreaux, Jr., Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a case arising under the revenue and taxation provisions of Title 47 of the Louisiana Revised Statutes. Plaintiff, Shirley McNamara, appearing in her official capacity as Secretary of the Department of Revenue and Taxation (hereinafter referred to as the State), filed suit against defendant Oilfield Construction Company, Inc., (hereinafter referred to as Oilfield), alleging that Oilfield failed to remit certain sales — use taxes due the State for the period of January 1, 1974, through October 31, 1977, in the amount of $56,767.61. Plaintiff also alleges that Oilfield owes, for the same period of time, $3,370.50, in occupational license taxes. Additionally, the State alleges that interest at the rate of seven (7%) percent per annum is due on all amounts. Oilfield reconvened seeking return of $119,-420.75 in rental taxes which it alleges has been paid on the identical items on which the State claims sales — use taxes are due.

Oilfield is an oilfield service contractor engaged in the sale, rental, and repair of board roads. Its business also includes the preparation and cleanup of drill sites, and the leasing and/or sale of cattleguards, boards, and signs. Oilfield purchases substantial quantities of lumber, nails, cattle-guards, and various other materials necessary in the construction of passageways to an oilwell drill site. It then enters into an initial ninety day lease agreement with a drilling company for the on-site construction of the board road which is used for ingress to and egress from the drill site. At the end of the initial ninety day lease period the lessee drilling company has the option to renew the rental of the board road for an additional ninety days, renewable at thirty day intervals. Upon expiration of the subsequent ninety day rental period, the lessee may keep the board road at no additional cost or may require its removal by Oilfield at Oilfield’s cost.

Between January 1,1974, and October 31, 1977, Oilfield’s practice was to take a tax credit for sales — use taxes paid on items it purchased when remitting sales — use and rental taxes it collected to the State. The State in its suit alleges that the credits claimed were prohibited under the State’s tax laws. Oilfield contrarily contends that the various credits are authorized and properly taken. The State further alleges that Oilfield owes an assessment for occupational license taxes for its retail sales and rental business. Oilfield argues that the retail sales and rental aspects of its business do not require it to obtain a separate occupational license inasmuch as its oilfield contractor’s license encompasses these activities. The trial court found in favor of the State and against Oilfield, holding Oilfield liable for all taxes and interest allegedly due to the State except for sales — use taxes arising out of purchases from in state vendors and sales — use taxes of signs purchased for resale. Oilfield’s reconventional demand was dismissed. From this judgment Oilfield appeals and the State has answered the appeal. The issues presented on appeal concern:

(l)(a) Whether or not the Department of Revenue and Taxation is required first to seek collection of sales — use taxes from the sellers before proceeding against the purchasers; and

(1)(b) Whether or not the State has carried its burden of proof that the taxes are still owing when its audit reveals that there was no separate accounting for taxes on the sales receipt representing the purchases that Oilfield made.

(2) Whether or not particular transactions of Oilfield are exempt from taxation;

(3) Whether or not the State may separate Oilfield’s contractor’s business into three separate occupations in order to collect three separate occupational license taxes; and

(4) Are the state laws as written constitutional?

ISSUE 1

The trial judge in reasons for judgment held:

. in those instances where in-state taxable purchases have been made, it is the duty of the State first to seek collection from the seller, who, had he not collected from the purchaser, is entitled to recover from the latter all such sums under LSA, R.S. 47:304. It is also my opinion that in this case the plaintiff having been unable to show that the tax was unpaid although not separately billed, has failed in its burden of proof necessary for recovery of those alleged tax deficiencies from the defendant.”

On appeal Oilfield contends that before proceeding against the purchaser for sales — use taxes allegedly due, the State must:

(1) First seek collection from the out of state vendor whose duty it is to collect said tax and;

(2) Prove that no tax for the items purchased has been remitted by the seller to the State.

In answer to Oilfield’s appeal the State addresses the same issue, but claims that the same standard applies whether purchases are made from in state or out of state sellers. The State contends that regardless of whether the items purchased from in state or out of state vendors, it (the State) has the right to first proceed against the purchaser, if it so desires, for taxes due. Secondly, the State claims that no additional proof is needed establishing that a particular vendor or seller failed to remit sales— use taxes collected, when an audit of vendee reveals that the sales — use taxes due on the items purchased were not paid.

[I] We agree with the State and its contention that regardless of whether a seller is in state or out of state the right to proceed directly against the in state purchaser or user is the same. We have found no distinction under our law, nor has any been cited to us.

In Collector of Revenue v. J. L. Richardson Company, 247 So.2d 151 (La.App. 4th Cir. 1971); writ refused, 258 La. 915, 248 So.2d 586 (1971), the issue of the State’s right to proceed directly against the purchaser was addressed as follows:

“... The question has been raised as to whether the State is precluded from assessing and collecting a sales tax against the purchaser when the dealer or seller could be held personally liable where he neglects, fails, or refuses to collect the tax. LSA-R.S. 47:304 provides:
‘The tax levied in this Chapter shall be collected by the dealer from the purchaser or consumer, except as provided for the collection of the tax on motor vehicles in R.S. 47:303, as amended.
$ * s}« $ * sf:
Dealers shall, as far as practicable, add the amount of the tax imposed under this Chapter in conformity with the schedule or schedules to be prescribed by the collector pursuant to authority conferred herein, to the sale price or charge, which shall be a debt from the purchaser or consumer to the dealer, until paid, and shall be recoverable at law in the same manner as other debts. Any dealer who neglects, fails or refuses to collect the tax herein provided, shall be liable for and pay the tax himself.
sjc ‡ sj< sfc s}:
Any dealer who fails, neglects, or refuses to collect the tax herein provided, either by himself or through his agents or employees, shall, in addition to the penalty of being liable for and paying the tax himself, be fined not more than one hundred dollars, or imprisoned for not more than three months, or both.’
The provision placing the responsibility on the seller or dealer to collect the tax from the purchaser does not preclude the State from proceeding against the purchaser. The tax is due to the State at the time that the sale is consummated; and if the seller fails to collect this tax, the State has a right to proceed directly against the purchaser.
R.S. 47:306(A)(5) in reference to collection of sales tax due states:
‘For the purpose of collecting and remitting to the state the tax imposed by this Chapter, the dealer is hereby declared to be the agent of the state.’ (Emphasis added.)
If the dealer in collecting a sales tax from the purchaser is acting in its capacity as an agent for the State, it would seem logical to assume that the State as Principal should not be precluded from collecting the tax directly from the purchaser and not through its agent.
Additionally, LSA-R.S. 47:2(4) Subsection 4 in defining taxpayer states:
“ ‘Taxpayer’ means any person liable to pay a tax or file a return under any provision in which the word ‘taxpayer’ appears, regardless of whether such person has paid any tax or filed the required return. (Emphasis added.)”

Thus, Oilfield as purchaser of goods, if found liable to pay the taxes, is by definition a taxpayer. Certainly the State may proceed directly against the taxpayer who owes back taxes. In view of these statutes, and in the absence of any express prohibition to the contrary, we find that the State has the right to proceed directly against the purchaser as an alternative remedy to that provided for in La.R.S. 47:304, supra, whether the vendor be in state or out of state.

Finally, we feel that the trial court erred in holding that the State did not prove the taxes were not paid by Oilfield’s vendors, and therefore held that it (the State) could not proceed against Oilfield for recovery of the alleged tax deficiency. La. R.S. 47:304(F)(G) outline the procedures to be followed by sellers when collecting sales — use taxes from its purchasers. They provide in part as follows:

La.R.S. 47:304(F):

“No dealer shall advertise or hold out to the public, in any manner, directly or indirectly, that he will absorb all or part of the tax or that he will relieve the purchaser from the payment of all or any part of the tax .... ”

La.R.S. 47:304(G):

“The dealer or seller is permitted and required to state and collect the tax separately from the price paid by the purchaser.”

It appears obvious from even a cursory reading of these Articles that if a tax is collected by the dealer it must be stated separately (on the sales receipt) from the price paid by the purchaser. The dealer is not allowed to “absorb” any of the taxes himself. In view of the above, we feel that the State at least'established a prima facie showing that the taxes due on such sales were not paid. Defendant, having introduced no evidence to controvert this prima facie showing, has not carried its burden of proof. Accordingly, we reverse that portion of the judgment below which denied the State’s recovery of sales tax due on Oilfield’s in state purchases.

ISSUE 2

Oilfield next contends that various purchases it made are exempt from taxation and therefore the tax credit taken was proper. Oilfield suggests that: (a) a board road, fence, and cattle guard are immovable either by destination or by nature, and as such are exempt from the rental tax imposed by La.R.S. 47:302(B); (b) the gates, fences, and lumber they purchased were purchased for resale, therefore La.R.S. 47:301(10) exempts these items from sales— use taxes; (c) certain materials it purchased were used for further processing into tangible personal property for resale and therefore these materials are exempt from taxation under La.R.S. 47:301(10); (d) the sale of cattle guards and other miscellaneous items were “isolated or occasional” sales under La.R.S. 47:301(10) and exempt from taxation as not being retail sales as defined under the aforesaid statute; (e) installation charges are exempt from taxation under 47:301(3).

La.R.S. 47:302(B) provides:

“There is hereby levied a tax upon the lease or rental within this state of each item or article of tangible personal property, as defined herein; ...”

Defendant contends that the board roads, fences, and cattle guards it installs under its lease agreement are exempt from rental tax inasmuch as they are immovable either by nature or by destination.

Article 464 of the Louisiana Civil Code, before revised by Act No. 728 of the 1978 Regular Session of the Louisiana Legislature, defined an immovable by nature as follows:

“Lands and buildings or other constructions, whether they have their foundations in the soil or not, are immovable by their nature.”

Immovability by nature has been characterized as a creation of the law based on practical consideration and on inherent characteristics of the things concerned. The question of whether a building or other construction is an immovable under pre-re-vised Article 464 is left for judicial determination according to prevailing notions in society. Two criteria that are often mentioned in decisions of the Courts are (1) some degree of integration or attachment to the soil, and (2) “some degree of permanency”. Benoit v. Acadia Fuel & Oil Distributors, Inc., 315 So.2d 842 (La.App. 3rd Cir. 1975), writ refused 320 So.2d 550 (1975); Bailey v. Kruithoff, 280 So.2d 262 (La.App. 2nd Cir. 1973); Yiannopoulos, Louisiana Civil Law of Property, Sections 42, 43, 45, and 48; Civil Law Translations, Oubrey & Rau, Property, Section 164.

In LaFleur v. Foret, 213 So.2d 141 (La. App. 3rd Cir. 1968), this Court in discussing Article 464, made the following observations:

“We pretermit whether these structures are, technically, ‘buildings’ instead of ‘other structures’ under Art. 464. We think that, in either event, the test of immobilization must be whether, interpreted by objective manifestations, the outbuilding can be considered as intended to be permanently affixed to the soil.
Taking into consideration both the permanence (or not) of the placement or attachment of the outbuildings and also their actual physical mobility (or not), the trial court concluded that, under contemporary social attitudes, an objective observer could conclude that the larger structures, the two sheds, were intended by the owner to become permanently part of the premises, while the smaller and more mobile doghouses were not. The court accordingly classified the former as immovables by nature which (in the absence of contrary contractual provision) were conveyed to the purchaser with the sale of the soil; the latter as movables to which the seller retained title.” (Footnotes omitted.)

We think that the evidence clearly establishes that the board roads, fences, and cattle guards were not placed with the intention of becoming “permanently” part of the premises. The very nature of the contract between defendant and his lessee bears this out. The board roads were constructed pursuant to a lease agreement which called for the removal of the road, fences, and cattle guards by defendant at the end of the lease period. The mineral lessees, who were under an obligation to restore the land surface back to its original condition, leased Oilfield’s equipment and services only during the duration of drilling. At the end of the drilling operations Oilfield, by the terms of its leases, was required to remove the leased merchandise. If the board roads were leased for ninety days after the initial ninety day lease agreement terminated, the lessee had the option either to keep the road in place or require Oilfield to remove it. Terry Bills and Joel Guichard were accepted by the Court as drilling and production experts, and testified on behalf of Oilfield. According to them, speaking generally of the industry, it is a common practice to permanentize board roads in the basin or marshland areas after termination of the ninety day renewal lease. Hendrick Langley, Oilfield’s co-owner, also testified and approximated that twenty percent of the board roads they placed are permanentized. Regardless, we feel that until a decision was made to “permanently” leave the road in place it did not become an immovable by nature. Besides, there was no showing what percentage, if any, of the board roads in question were actually permanentized during this period. Such being the case, the State is entitled to the rental tax on said roads.

Defendant also contends that the board roads, fences, and cattle guards are immovable by destination.

La.C.C. Article 468, which was in effect during the time in question, provides:

“Things which the owner of a tract of land has placed upon it for its service and improvement are immovable by destination.
Thus the following things are immovable by destination when they have been placed by the owner for the service and improvement of a tract of land, to-wit:
Cattle intended for cultivation.
Implements of husbandry.
Seeds, plants, fodder, and manure.
Pigeons in a pigeon house.
Beehives.
Mills, kettles, alembics, vats, and other machinery made use of in carrying on the plantation works.
The utensils necessary for working cotton, and sawmills, taffia distilleries, sugar refineries and other manufactures.
All such movables as the owner has attached permanently to the tenement or to the building, are likewise immovable by destination.”

Our jurisprudence is well settled that in order for a movable to become an immovable by destination it must be placed on the land by the landowner, not by its lessee. Richardson v. Item Co., 172 La. 421, 134 So. 380 (1931); Globe Automatic Sprinkler Co. v. Bell, 183 La. 937, 165 So. 150 (1935); LaFleur v. Foret, supra. In this case the board roads, fences, and cattle guards were put on the property by the mineral lessee and not the owner, consequently they cannot be considered immovable by designation.

In view of the above, we feel that the trial court correctly held that the board roads, fences and cattle guards were not immovables, therefore not exempt from the rental tax imposed by La.R.S. 47:302(B), supra.

Oilfield next claims that some of the materials it purchased to lease out as board roads, and their accessories, are exempt from sales — use taxes under La.R.S. 47:301(10), as purchases for resale; as materials purchased and used for further processing into articles of tangible personal property for resale; and, as isolated or occasional sales.

La.R.S. 47:301(10) provides in part:

“ ‘Retail sale’, or ‘sale at retail’, means a sale to a consumer or to any other person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector, upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations, shall himself be liable for and pay the tax.
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The term ‘sale at retail’ does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business.”

Although ordinarily Oilfield would be allowed to take a credit for sale — use taxes paid by it on its purchases of items for resale, the trial judge found, and we agree, that the evidence established that the materials in question were stockpiled for use in its rental business, and since “they were not necessarily purchased for resale”, the exception does not apply.

As we understand the aforesaid statute, in order for the “further processing” exception to apply, the materials must be further processed into tangible personal property for sale at retail. Since these materials were further processed into property for rental, we feel that Oilfield is not entitled to a credit under this provision.

The trial judge held that as a matter of fact the sale of certain items by defendant were not “isolated or occasional” sales. In his reasons for judgment he states:

“LSA-R.S. 47:301(10) excludes from sales taxes, ‘an isolated or occasional sale of tangible personal property by a person not engaged in such business.’ In the course of its business, Oilfield Construction Co., Inc., sometimes sold signs, cattle guards, lumber, nails and aluminum gates to the Oilfield industry. Because these sales accounted for less than 1% of its gross revenue and averaged only approximately 2.5 per month, the defendant maintains that it is entitled to the exemption of the above-cited.
Considering the evidence, it is my conclusion that although these sales made up only a small part of the defendant’s total revenues, they were nevertheless, a part of the defendant’s regular business, and therefore, taxable.”

There being ample evidence in the record to support the trial judge’s conclusion, we find no error.

Finally, Oilfield suggests that no tax is due on installation charges and cites La.R.S. 47:301(3) which in pertinent part reads as follows:

“ ‘Cost Price’ means the actual cost of the articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor or service cost, transportation charges, or any other expenses whatsoever, or the reasonable market value of the tangible personal property at the time it becomes susceptible to the use tax, whichever is less.
If the applicable labor charges are not separately stated on the invoice, it shall be presumed that the cost price is the total charge reflected on the invoice.”

Although installation charges are not normally included as taxable services, they are taxable when included in the cost price unless separately billed and accounted for at the time of the installation. La.RS. 47:301(3) supra. In this case, where defendant failed to separately account for the installation charges, plaintiff could properly assess taxes on the whole amount for which Oilfield invoiced its customers.

ISSUE 3

Oilfield proposes that its contractor’s license covers the retail sales and rental aspects of its business. Oilfield contends that the State may not separate a contractor’s business into three separate occupations in order to collect three occupational license tax charges.

La.R.S. 47:345 clearly provides that more than one license may be required of a single business if the classes are different and gross receipts exceed $5,000.00. The record supports the trial judge’s conclusions that Oilfield was conducting business sufficient to justify a retail dealer’s license under La.R.S. 47:353.1 and a rental license under La.R.S. 47:386 in addition to the license it had as contractor. In view of the above, we affirm the judgment of the district court in favor of the State for the imposition of the occupational license tax charges.

ISSUE 4

Finally, Oilfield challenges the constitutionality of our State tax statutes. We have reviewed the record along with the statutes in question, and we agree with the trial judge that these challenges are without merit.

For the above and foregoing reasons the judgment of the district court is reversed insofar as it denied plaintiff collection of sales tax credited by defendant for in state purchases of goods, and it is hereby Ordered, Adjudged, and Decreed that there be further judgment herein in favor of plaintiff, Shirley McNamara, Secretary, Department of Revenue and Taxation, State of Louisiana, and against defendant, Oilfield Construction Company, Inc., in the amount of $3,201.22, with interest as provided in La.R.S. 47:1601 from the date the taxes were due until paid. Costs on appeal are assessed against defendant, Oilfield Construction Company, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . La.C.C. Art. 468 was subsequently revised by Act No. 728 of the 1978 Regular Session of the Louisiana Legislature.

      . La.R.S. 47:345 provides as follows:
      “Except as otherwise expressly provided herein, any person taxed under this Chapter having one or more places of business shall pay a separate license for each class of business at each place.
      A separate license for each class of business at each place of business shall not be required where any person has taxable annual gross sales and taxable annual gross receipts in an aggregate amount of less than five thousand dollars ($5,000.00), or has only taxable annual gross sales or taxable annual gross receipts in an amount of less than five thousand dollars ($5,000.00). Only one license shall be required for each place of business, which license shall be based upon the classification of business which constitutes the major portion of the taxable annual gross sales or taxable annual gross receipts.”


author: DOUCET, Judge.

text:
    Hilton James VERRETT, Plaintiff-Appellant, v. CAMERON TELEPHONE COMPANY, Defendant-Appellee.
    No. 82-70.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, for plaintiff-appellant.
    Jones, Tete, Nolen, Hanchey, Swift & Spears, William B. Swift, Lake Charles, for defendant-appellee.
    Before FORET, STOKER and DOUCET, JJ.
   DOUCET, Judge.

The plaintiff in this personal injury-electrocution action appeals from an adverse ruling on defendant’s motion for summary judgment. We reverse.

The facts in the case are as follows: Plaintiff, Hilton James Verrett, was employed by Jefferson Davis Electric Cooperative, Inc., which shares poles with defendant, Cameron Telephone Co. Verrett was dispatched to a pole referred to as Pole # 123 on December 3, 1979 to repair a line that had been broken the night before by a passing truck. Although both grounded and energized lines had been broken the night before, only the energized line was connected that evening to allow for temporary service. Plaintiff, an apprentice lineman, arrived at the site with a fellow-employee, Michael Smith, who had been working only three months as a groundman, which is a lineman helper.

Jefferson Davis Electric Cooperative and defendant Cameron Telephone Co. have joint use of the pole in question pursuant to an agreement whereby the latter is granted permission to put its telephone cable on the former’s power poles in the area. Pole # 123 has three energized lines on the upper cross-arm. At the top of the pole is a neutral or ground wire which has a wire attached which is stapled on the opposite side of the pole down to the bottom of the pole and thus serves as a ground. The lower double cross-arm supports an energized line and a neutral line to complete service to the customer. The telephone transmission cable and customer service line is connected to the pole below the aforementioned double cross-arm supports.

The pole in question had no ground between the telephone cable and the power company ground. The record indicates that Cameron Telephone Co. grounds only about three or four poles per mile, whereas Bell Telephone Co. grounds its cable on every pole and warns its employees and the power company employees of the danger created by the grounding. Nevertheless the telephone cable on Pole # 123 did serve as an extremely dangerous ground to a lineman due to its being grounded at poles nearby.

Verrett approached the pole but, before ascending he used a long hot stick to disconnect the hot line clamp which was attached to the overhead energized lines, because he would be working in the vicinity. He then climbed the pole and resagged the broken neutral service line. After he finished connecting the neutral serviceline he observed that one of the hot service lines had a sag, so he attached a come-along to take up the slack and created a pig-tail that hung down from the connection of the cross-arm, when somehow the excess wire came into contact with one of the upper energized lines. Plaintiff claims he was holding the energized line with leather gloves, his left foot was spiked into the dry pole, but unfortunately, his right foot was on the grounded telephone cable. The electrical current, 7,620 volts, traveled through his body and out through his right leg. The groundman below, Smith, observed flames coming out of the plaintiff’s hands and foot. Exactly how the accident occurred is unknown as Smith was not watching at the time and Verrett does not remember precisely what happened at the time of his electrocution. The result of that electrocution is that plaintiff is now a triple amputee.

Verrett claims he did not know the telephone line was grounded and that neither he nor any other Jefferson Davis Electric Cooperative employee had ever been warned by Cameron Telephone Company or anyone else not to place a foot on phone cables. He claims that the lineman who trained him often stepped on phone cables. Had he known and avoided the telephone cable by resting his right foot on the pole, his injuries would have been minor.

Verrett thereafter filed suit against Cameron Telephone Co. alleging fault based upon ordinary negligence pursuant to Civil Code Article 2315 and strict liability under Article 2317. Defendant subsequently filed a motion for summary judgment whereupon the trial judge ruled that the material facts were uncontroverted, that contributory negligence was easily established, and that as a matter of law defendant could not be held strictly liable. Plaintiff appeals.

Preliminarily, it should be noted that a motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Art. 966. Papers supporting the position of the party moving for summary judgment are to be closely scrutinized, while the opposing papers are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981). A summary judgment is not appropriate when it is based upon affidavits and accompanying pleadings and other documentary evidence to establish subjective facts such as motive, intent, good faith or knowledge. Mecom v. Mobil Oil Corp., 299 So.2d 380 (La.App. 3rd Cir. 1974), writ ref. 302 So.2d 308 (La.1974), Fontenot v. Aetna Insurance Co., 225 So.2d 648 (La.App. 3rd Cir. 1969). Only when reasonable minds must inevitably concur is a summary judgment warranted and any doubts should be resolved in favor of a trial on the merits. Cates v. Beauregard Elect. Coop., Inc., 328 So.2d 367 (La.1976); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Clement v. Taylor, 382 So.2d 231 (La.App. 3rd Cir. 1980).

Nor is summary judgment appropriate as a vehicle for the disposition of a case, the ultimate decision in which will be based on opinion evidence or the judicial determination of subjective facts. Butler v. Travelers Ins. Co., 233 So.2d 271 (La.App. 1st Cir. 1970); Smith v. Preferred Risk Mutual Ins. Co., 185 So.2d 857 (La.App. 3rd Cir. 1966).

We note that the accident involved occurred before our comparative negligence statute (Act 439 of 1979) went into effect, therefore, the issue of the statute’s applicability to strict liability claims is not before this court. Furthermore it has not been urged that comparative negligence be applied pursuant to former Civil Code, Article 2323, repealed by Act 431 of 1979, which provided: “The damage caused is not always estimated at the exact value of the thing destroyed or injured; it may be reduced according to circumstances, if the owner of the thing has exposed it imprudently.” cf: Malone, Comparative Negligence — Louisiana’s Forgotten Heritage, 7 La.L.Rev. 125 (1945).

Both parties rely upon the recent Supreme Court decision in Kent v. Gulf States Utilities, 418 So.2d 493, (La.1982), rendered April 30, 1982, in support of their respective arguments. In Kent, a construction worker employed in the building of a new highway came into contact with an electrical line 25' overhead when using a steel rake used to engrave anti-hydroplaning grooves into the highway. The court therein concluded that Gulf States had breached no duty as its lines were insulated by isolation and it was unforeseeable that the construction worker would come into contact with the energized lines using a 30 foot pole. Under the circumstances, Gulf States was not required to take additional precautions. In reaching this result, the court stated, in discussing liability for damages caused by things:

“In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.
In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts. Under strict liability concepts, the mere fact of the owner's relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in custody, and the owner accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another.
“Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing’s presenting an unreasonable risk of harm) is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case.” (emphasis added)
“Accordingly, in a strict liability case in which the claimant asserts that the owner’s damage-causing thing presented an unreasonable risk of harm, the standard for determining liability is to presume the owner’s knowledge of the risk presented by the thing under his control and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner’s conduct, in the light of that presumed knowledge.”
“In the present case Gulf States knew that its lines were “hot” and were not wrapped with insulating material, a condition which presents a grave risk of harm to a person who comes in close proximity to the lines while in contact with the ground or a grounded object. (This risk was indeed a cause-in-fact of Kent’s injury in this case.) Because of Gulf States’ knowledge of the condition of its lines, it is unnecessary in this case to presume any knowledge of a risk of harm created by Gulf States’ lines in this case, and C.C. Art. 2317’s imposition of an absolute duty to discover the risks presented by the thing in its custody is not helpful to the determination of Gulf States’ liability in this case. That liability as custodian of the thing depends on an analysis of the reasonableness of Gulf States’ conduct in protecting persons against harm resulting from the risk of which Gulf States was well aware, which is essentially a negligence determination.”

Kent does not mandate affirmation as suggested by defendant; the case is distinguishable on its facts, the most notable of which is that plaintiff therein was allowed his day in court. Furthermore, Kent was forewarned of the danger immediately prior to his injury whereas Verrett raises the issue of whether the pole should have contained a warning observable before a lineman’s assent upon a pole or whether any warning should have been issued by defendant whatsoever. Additionally, that the cement upon which Kent was standing would serve as a ground was apparent, and the ease of association between the danger presented by a lineman climbing a joint-use pole is greater than the foreseeability of contact with a 30' aluminum rake, as in Kent.

The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case. Kent v. Gulf States Utilities, supra. We do not believe the scope of defendant’s duty in this case can be determined by way of summary judgment.

Although the court in Kent held, inter alia, that the transmission of electricity for public consumption was not an ultrahazardous activity rendering the enterpriser absolutely liable “absent fault”, that portion of the opinion is inapplicable to our review inasmuch as appellant has not urged such a basis of liability. Nonetheless in this respect we note that Justice Watson dissented, being of the view that the heavy construction activity in close proximity to the electrical lines rendered the transmission of deadly voltages of electricity an ultrahaz-ardous activity. He emphasized that the question of Gulf States’ liability is a jury question. The logical extension of the Kent case, and division of opinion therein, is that reasonable minds would not inevitably concur, on the facts before the court herein, that a summary judgment is warranted.

Defendant emphasizes its compliance with the National Electric Safety code — vis-a-vis—grounding of telephone lines. However, conduct conforming to industry standards is not prima facie proof of lack of negligence. McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir. 1978); Burley v. Louisiana Power & Light Co., 319 So.2d 334 (La.1975). In fact defendant has cited no case on point relative to the failure of a pole user to warn of its grounding procedures.

Furthermore, defendant’s reliance on Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) is misplaced. The court therein stated:

“Uninsulated electric lines carrying high voltage electricity are extremely dangerous. In some situations there might be recovery for injury in spite of fault on the part of the injured person, but not where, as here, one is hurt while in a place he has no right to be, in an effort to accomplish no lawful purpose, while aware of the danger involved.” (emphasis added)

328 So.2d 367, at 370.

Uncontroverted is that plaintiff had a right to ascend the pole in an effort to accomplish a lawful purpose. Disputed is whether plaintiff was aware of the danger involved. Cates is not apropos.

Similarly, Simon v. Southwest Louisiana Electric Membership Corp., 390 So.2d 1265 (La.1980) is of no aid to defendant. There, suits were brought for wrongful death resulting when pipe used in drilling a water well touched a high voltage line owned by defendants. After trial on the merits, the jury returned verdicts favorable to defendants. The Supreme Court affirmed, stating:

“We recognize that electric companies who utilize and maintain high power lines are required to exercise the utmost care to reduce hazards to life as far as is practicable. Nessmith v. Central La. Electric Co., 257 So.2d 744 (La.App. 3d Cir. 1972), writ den., 259 So.2d 921, 922 (La.1972). If it should be reasonably anticipated that persons may come into contact with electric lines, the operator of those lines is required to insulate them, or to give adequate warning of the danger, or to take other proper and reasonable precautions to prevent injury. Nessmith, supra.” (emphasis added)

390 So.2d 1265, at 1267.

On its facts Simon is clearly distinguishable as the essence of plaintiff’s complaint herein is his right to trial to determine whether defendant should have reasonably anticipated plaintiff’s contact with the grounded telephone cable and what warning was required in light of the danger posed. Reasonable minds may conclude that the economy of not warning such linemen is outweighed by the hazard it presented.

For the same reasons, Williams v. City of Alexandria, 376 So.2d 367 (La.App. 3rd Cir. 1979), writ ref. 378 So.2d 432 (La.1979), wherein a judgment on jury verdict, finding defendant utility owed no duty to warn an injured worker where his contact was not foreseeable, was affirmed, is inapplicable to the case at bar.

See also Nettles v. Bowlin, 386 So.2d 658 (La.App. 1st Cir. 1980) wherein the First Circuit reversed a summary judgment adverse to plaintiff utility apprentice lineman injured when climbing a joint-use pole used by defendant telephone company.

In determining whether a thing poses an unreasonable risk of harm under Civil Code Article 2317 many facts are considered, including: (1) the probability of risk occurring, (2) the gravity of the consequences if it does, and (3) the burden of adequate precautions. Other related considerations include the social priorities attached to the particular conduct, the degree of culpability assignable to each party’s conduct, the economic ability of the parties and their relationship to the instrumentality of injury, the foreseeability of the particular injury had the defect been known, the location of the incident, and the voluntariness or deliberateness with which the victim encounters the risk-creating thing. In light of these principles, upon remand, a reasonable trier of fact might conclude that the probability and gravity of risk is so great, and the relative cost of defendant’s precaution is so minimal, that appellees’ inconsistent grounding procedures, without warning, created an unreasonably dangerous defect.

Dr. Ronald Paul Photen, plaintiff’s expert witness and a professor at Oklahoma State University, testified as follows with regard to the procedure employed by defendant:

“Its [sic] my opinion that the installation is unreasonably dangerous, not just because it’s grounded — although that does provide the danger, having grounded the equipment that can be touched while you’re simultaneously — or being contacted by a high voltage line clearly is a danger. The fact that it would be so easy to warn that this equipment is grounded and there was no warning there is what makes the danger unreasonable. Its [sic] unreasonable because it could so easily be mitigated, the danger substantially reduced, by a simple tag or warning label of some kind.”

Working in the vicinity of high voltage electrical wires is not per se contributory negligence, nor is it an assumption of the risk. Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Harper v. New Orleans Public Service, Inc., 300 So.2d 546 (La. App. 4th Cir. 1974), writ denied 303 So.2d 182 (La.1974); Barrois v. Service Dray age Co., 250 So.2d 135 (La.App. 4th Cir. 1971). Verrett’s knowledge of the properties of electricity does not, of itself, constitute assumption of the risk involved.

Similarly, defendant’s contention, that Verrett’s failure to blanket or insulate the lines above his work bars his recovery as a matter of law, must also be rejected. Mr. Fulton, in affidavit, suggested that plaintiff’s action in this respect could be considered ordinary and reasonable, hence a factual dispute exists in this regard also. Finally, as to appellee’s assertion that the method plaintiff employed to resag the line was contributorily negligent and/or an assumption of the risk, again there is contradictory evidence. (See the affidavit of Mr. Fulton and Dr. Rhoten’s deposition).

The court in Dyson, supra, held, inter alia, that the failure of electrical lineman to wear rubber gloves was not negligence per se, nor was his failure to insulate the energized lines with rubber blankets per se negligence. Here, plaintiff was wearing leather rather than rubber gloves because he claims that rubber gloves were not available. Whether his conduct bars recovery under the circumstances presented must be determined upon trial on the merits.

With respect particularly to defendant’s strict liability defense, we make the following observations. First, however, we note that Kent v. Gulf States Utilities, supra, is not a startling new development in principles of liability and defenses thereto, as suggested by defendant. Although acknowledging that the “distinction between negligence cases and strict liability cases (such as Loescher) has largely been either misunderstood or completely disregarded”, the Kent decision neither overturned nor disapproved of any precedent expressly. The court merely expounded upon and clarified earlier decisions. Accordingly, we look to prior jurisprudence vis-a-vis appellee’s defense.

Under what circumstances a plaintiff’s contributory negligence should bar his recovery in a strict liability case should be developed on a case-by-case basis. Dorry v. LaFleur, 399 So.2d 559 (La.1981). Generally, ordinary contributory negligence is not available as a defense in a strict liability action based on Civil Code Article 2317. Rodrigue v. Dixilyn Corp., 620 F.2d 537 (5th Cir. 1980) per Tate, J. As Professor Stone has stated, contributory negligence is “properly plead only to an action based on negligence”. Stone, 12 Louisiana Civil Law Treatise: Tort Doctrine, Section 56, p. 76. Instead, where the theory upon which recovery is sought is one of strict liability liability may be avoided only upon proof that the damage is caused by (a) fault of the victim, (b) fault of a third person, or (c) an irresistible force. Loescher v. Parr, 324 So.2d 441 (La.1975). Victim fault is not synonymous with contributory negligence, as suggested by defendant. Rather, victim fault is usually in the form of assumption of risk, that is, voluntary and unreasonable use of the product with full knowledge and appreciation of its defect and the danger involved. LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir. 1980); Perkins v. Emerson Electric Co., 482 F.Supp. 1347 (W.D.La.1980); Wilson v. Voss, 361 So.2d 312 (La.App. 1st Cir. 1978); Rodrigue v. Dixilyn Corp., supra. It must be shown that plaintiff voluntarily and unnecessarily exposes himself to a known danger. Tirante v. Gulf States Utilities, 412 So.2d 128 (La.App. 1st Cir. 1982), and cases cited therein. The distinction between negligence and strict liability cases lies in the fact that inability of a defendant to know or prevent the risk is not a defense in a strict liability case but precludes a finding of negligence. Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). Applying the principles hereinabove to the defense asserted we conclude the summary judgment must be reversed.

In conclusion, the reasonableness of plaintiff’s conduct (or lack thereof) must be viewed in light of the hazard created by defendant, and such a determination cannot be made, under the circumstances presented, on a motion for summary judgment. The trial judge erred in substituting the summary judgment remedy for a trial on the merits.

For the reasons assigned, the judgment appealed from is reversed and the case remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STOKER, J., concurs.

      . Also made defendant herein is the telephone company’s liability insurer, Hartford Accident and Indemnity Company.

      . We have been informed that an application for rehearing has, as of the date of this writing, been filed by plaintiff in Kent, thus the decision is not final. Nevertheless we will address the applicability of the decision upon the assumption that its holding remains intact as is presently written.

      “ 5 The theory is that the owner-guardian is regarded as the risk-creator because of his relationship with the thing which presents the risk. As between him and the faultless victim injured as a result of the risk, the owner-guardian theoretically should bear the loss, because he was in the best position to discover the risk and to prevent the injury.” (Footnote by the court in Kent)


author: FORET, Judge. STOKER, Judge,

text:
    Glenda SUMNER, Plaintiff-Appellant, v. FOREMOST INSURANCE COMPANY, Defendant-Appellee.
    No. 82-88.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Rehearing Denied Aug. 30, 1982.

      Thomas & Hardy, Robert W. Thomas, Lake Charles, for plaintiff-appellant.
    Brame, Bergstedt & Brame, John E. Bergstedt, Lake Charles, for defendant-ap-pellee.
    Before FORET, STOKER and DOUCET, JJ.
   FORET, Judge.

Glenda Sumner (plaintiff) brought this tort action to recover damages for personal injuries she suffered in a fall at a mobile home owned by her parents, Mr. and Mrs. Eddie Oliver. Named defendant was her parents’ homeowners liability insurer, the Foremost Insurance Company (Foremost).

Trial of plaintiff’s action resulted in a judgment in favor of defendant and against plaintiff, dismissing plaintiff’s claim with prejudice. We affirm.

Plaintiff appeals devolutively from the trial court’s judgment and raises the following issues:

(1) Whether the trial court committed manifest error in finding no negligence on the part of E. D. Oliver, defendant’s insured;
(2) Whether the trial court committed manifest error in finding that plaintiff was guilty of contributory negligence and/or victim fault; and,
(3) Whether plaintiff is entitled to an award of $25,000.00 in general and special damages for the injuries she suffered.

Because of our decision herein, we preter-mit any discussion of issue # 3.

FACTS

This action arises out of an accident that occurred on June 10, 1980, in a trailer park in Moss Bluff, located in Calcasieu Parish. Plaintiff’s parents owned a mobile home in the park and plaintiff had gone to a drugstore to pick up some medication for them. It was raining at the time and this type of weather had been prevelant for a few days preceding the accident. When plaintiff returned from the drugstore, she noticed a large amount of water standing near the front entrance to her parents’ mobile home. She therefore decided to use the rear entrance.

The rear entrance to the mobile home consisted of a wooden porch, level with the rear door, and a set of three wooden steps used to reach the porch from the ground. Plaintiff had two of her children with her at the time and all three successfully entered the mobile home through the rear entrance. They remained in the mobile home approximately thirty minutes before deciding to leave. They then proceeded through the rear entrance in an attempt to reach plaintiff’s automobile. Plaintiff’s 15-year-old son, Brian, carried his 4-year-old sister down the steps and to the automobile. Plaintiff then began to descend the steps when she fell, either on the first or second step, landing on her buttocks. Plaintiff suffered a ruptured disc in the fall which later required surgery to correct. She still complains of pain in her back and must sometimes take medication, including narcotics, to obtain relief from it.

Plaintiff instituted this action alleging that defendant’s insured was negligent: in failing to warn her of defects in the steps; in failing to correct defects in the steps when he knew or should have known that they existed; in improperly installing the steps; in allowing the steps to remain in a hazardous condition, when he knew or should have known of their condition, and in failing to warn guests in his home of the same; in allowing the steps to lay in a state of ruin and in failing to repair them; in failing to properly install handrails to protect guests; and, other acts of negligence which might be proven upon trial of this matter. Plaintiff also plead the doctrine of res ipsa loquitur and that defendant’s insured was strictly liable to her under the provisions of LSA-C.C. Articles 2317 and 2322.

Defendant answered plaintiff’s original petition denying the allegations of negligence and liability on the part of its insured. In addition, defendant plead the affirmative defenses of contributory negligence and fault of the victim.

ALLEGED NEGLIGENCE OF DEFENDANT’S INSURED

Plaintiff contends that the trial court committed manifest error in finding no negligence on the part of defendant’s insured. We have reviewed the trial court’s reasons for judgment and find that it made an excellent duty/risk analysis of the negligence issue, which we adopt as our own:

“Before a determination of liability can be made, the Court must first inquire as to whether or not there was any causal relationship existing between the harm to the plaintiff and Mr. Oliver’s alleged negligent conduct. Thus, if the plaintiff can show that she probably would not have suffered the injury complained of, but for the conduct of the defendant’s insured, she has carried her burden of proof relative to cause-in-fact. Lear v. United States Fire Insurance Company, 392 So.2d 786 (La.App. 3rd Cir. 1980); Stewart v. Gibson Products Company of Natchitoches Parish Louisiana, Inc., 300 So.2d 870 (La.App. 3rd Cir. 1974); Vid-rine v. Missouri Farm Association, 339 So.2d 877, (La.App. 3rd Cir. 1976), writ denied, 342 So.2d 216 (La.S.Ct.1977); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.S.Ct.1972); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La.S.Ct.1976).
From the evidence presented, the Court finds that the accident would not have occurred but for the defendant’s insured permitting the condition of the steps to exist at the time of the accident. The steps were not secured in any way to the porch and were free-standing which was known to the defendant’s insured. The defendant’s insured had further trenched the area immediately under the steps and permitted a condition to exist from which it could be reasonably foreseen that in time of heavy rain that the area of the ground under the steps could be either washed away or weakened by the additional water being .carried through the area which would cause the steps to possibly give away upon being used by someone going either up or down- the steps. However, the Court’s finding of a causal relationship between the- conduct of the defendant’s insured and the injuries suffered by the plaintiff does not establish the former’s responsibility in damages for such injury. Rather, in addition, before the plaintiff can be permitted to recover for such conduct, it must be established that the conduct complained of constituted a breach of a legal duty imposed to protect against the particular risk involved. Smolinski v. Taulli, 276 So.2d 286 (La.S.Ct.1973); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (La.S.Ct.1970); Lear v. U.S. Fire Insurance Co., supra; Shelton v. Aetna Casualty & Surety Co., supra; Hill v. Lundin & Associates, Inc., supra; Vidrine v. Missouri Farm Association, supra. Thus, to determine the duty owed by the landowner to the plaintiff, it is appropriate to ascertain this duty by examining the particular facts before the Court. In Levert v. Travelers Indemnity Company, 140 So.2d 811 (La.App. 3rd Cir. 1962), the Court stated the duty of a homeowner to an invitee, which the Court analogizes to the plaintiff in this case, on Page 813 as follows, “The duty of an occupier of premises to an invitee is to exercise reasonable or ordinary care for his safety commensurate with the particular circumstances involved. The occupier thus owes a duty to avoid reasonably foreseeable danger to his invitee and to keep his premises safe from hidden dangers in the nature of traps or pitfalls in that they are not known to the invitee and would not be observed and appreciated by him in the exercise of ordinary care. This includes the duty of reasonable prior discovery of such unobservable dangerous conditions of the premises and correction thereof or a warning to the invitee of the danger. On the other hand, the occupier does not invite ... does not insure an invitee against a possibility of an accident. The invitee assumes all normally observable or ordinary risks attendant upon the use of the premises. The occupier is not liable for an injury to an invitee resulting from the danger which is observable or which should have been observed by the invitee in the exércise of reasonable care or from a danger which the invitee should reasonably have appreciated before exposing himself to it.” Lear v. United States Fire Insurance Company, supra, and citations contained therein.
Plaintiff’s own testimony was that she frequently traversed the steps where the accident in question had occurred. Plaintiff further testified that she knew that the steps gave before the accident and that on the day of the accident in question, that in entering the Oliver trailer by the steps that she observed and felt the steps give. Mrs. Sumner further testified on cross-examination that she believed or thought her accident occurred because of the give in the steps when she attempted to descend, but she stated that she could not remember the steps actually moving.
From the evidence presented, the Court finds that the danger presented by the steps which had some “give” in them should have been observed by an individual in the exercise of reasonable care and was as obvious to a visitor as to the landowner. The Court further finds from the evidence that that fact was, in fact, known to the plaintiff before the accident and was, in fact, observed by the plaintiff immediately or shortly prior to the accident and when she used the steps to enter the trailer. For this reason, the Court finds that the conduct of the defendant’s insured does not amount to actionable negligence and that the defendant is not liable to the plaintiff for the injuries which she has unfortunately suffered. All costs in this matter will be taxed against the defendant. A formal judgment will be signed upon presentation.” (emphasis ours.)

ALLEGED CONTRIBUTORY NEGLIGENCE AND/OR ASSUMPTION OF RISK BY PLAINTIFF

Plaintiff contends that the trial court committed manifest error in finding that she was guilty of contributory negligence and/or assumption of the risk such as to defeat her claim against defendant. It appears to us that plaintiff has misconstrued the findings of the trial court.

The trial court, relying on the holdings in the cases of Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La.1976) and Vidrine v. Missouri Farm Association, 339 So.2d 877 (La.App. 3 Cir. 1976), writ denied, 324 So.2d 216 (La.1977), was applying the well-settled jurisprudence to the effect that a 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. The trial court then went on to find that the condition which resulted in plaintiff’s injury was as obvious to her as it was to defendant’s insured, and that this condition had, in fact, been observed by the plaintiff. Thus, the trial court made no finding of contributory negligence and/or assumption of the risk on the part of plaintiff. It simply found that, under the above mentioned jurisprudence, the landowner (defendant’s insured) had breached no duty owed to plaintiff.

ALLEGED STRICT LIABILITY OF DEFENDANT’S INSURED

Plaintiff fails to raise any issue concerning strict liability on the part of defendant’s insured, or the trial court’s neglect to make such a finding, in her specifications of error. However, she does devote some of the argument contained in her brief to this issue, and, in the interest of justice, we will address it.

Plaintiff relies on the provisions of LSA-C.C. Articles 2317 and 2322 in arguing that defendant’s insured is strictly liable to her for the injuries she suffered in the fall. Under the provisions of LSA-C.C. Article 2322, several requirements for the imposition of liability under the article must be met:

1. There must be a building;
2. The defendant must be its owner; and
3. There must be a “ruin” caused by a vice in construction or a neglect to repair, which occasions the damage sought to be recovered.

Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1979); Charpentier v. St. Martin Parish School Board, 411 So.2d 717 (La.App. 3 Cir. 1982).

In the case sub judice, we are concerned with the alleged ruin of a set of steps. It has been held that necessary appurtenances to structures and movables made immovables by attachment, which are defective or have fallen into ruin, also may be included within the term “building” for purposes of the building owner’s delictual responsibility under LSA-C.C. Article 2322. Olsen v. Shell Oil Co., supra; Cothern v. LaRocca, 255 La. 673, 232 So.2d 473 (1970); Dunn v. Tedesco, 235 La. 679, 105 So.2d 264 (1958); Boudoin v. Schwegmann Brothers Giant Supermarket, 371 So.2d 370 (La.App. 4 Cir. 1979).

We find that the steps were a necessary appurtenance to the mobile home and, thus, may be included within the term “building” for purposes of LSA-C.C. Article 2322. We further find that defendant’s insured was the owner of the building. The crucial issue for our determination is whether plaintiff has proved that there was a ruin in the steps, caused by a vice in construction or a neglect to repair, which caused her injuries.

The evidence shows that the steps were in no way attached to the porch, nor were they anchored to the ground in any fashion. In addition, defendant’s insured had dug a ditch under the steps in an attempt to improve the drainage of his property. There was conflicting testimony given by the witnesses as to whether the steps had been in an unstable condition prior to the date of the accident. However, all agreed that the steps were unstable on the day of the accident, i.e., they would wobble.

It is the settled jurisprudence of this State that the word “ruin” as used in LSA-C.C. Article 2322 means the fall or collapse of a more or less substantial component of the structure. Macalusa v. Pitt Grill, Inc., 388 So.2d 97 (La.App. 1 Cir. 1980), writ denied, 392 So.2d 1057 (La.1980); Davis v. Royal-Globe Insurance Companies, 257 La. 523, 242 So.2d 839 (1970); Hornsby v. Ray, 327 So.2d 146 (La.App. 3 Cir. 1976), writ denied, 330 So.2d 293 (La.1976).

It is our opinion that the wobbly nature of the steps fails to constitute the fall or collapse of a more or less substantial component of the mobile home. Thus, we are unable to find the presence of a “ruin” caused by a vice in the construction of or a neglect to repair the mobile home, which caused the injuries suffered by plaintiff.

Plaintiff also contends that defendant’s insured should be held strictly liable for the injuries she suffered under the provisions of LSA-C.C. Article 2317. For recovery under LSA-C.C. Article 2317, a plaintiff must show:

1. That the thing which caused the injury was in the care or custody of the defendant/owner;
2. That a vice or defect existed in the thing; and
3. That the vice or defect caused the injury.

A vice or defect is defined as a condition of a thing which creates an unreasonable risk of injury to another. Goudchaux v. State Farm Fire & Casualty Company, 407 So.2d 1317 (La.App. 3 Cir. 1981), writ denied, 412 So.2d 1114 (La.1982); Loescher v. Parr, 324 So.2d 441 (La.1975); Reinhard v. City of New Orleans, 371 So.2d 286 (La.App. 4 Cir. 1979), writ denied, 374 So.2d 656 (La.1979).

The evidence clearly shows that the steps were in the care or custody of defendant’s insured at the time of the accident. The evidence also shows that a vice or defect existed in the steps, i.e., they were unstable and had a tendency to wobble. A set of steps which is unstable and which can suddenly shift position while being used creates an unreasonable risk of injury to persons attempting to negotiate them. The last element plaintiff must prove in order to recover is that her injuries were caused by the vice or defect.

Plaintiff testified that she fell when she stepped on the first step from the porch, but was unable to recall whether the step had moved or wobbled at that time. However, in a deposition given approximately one year before trial, plaintiff stated that the steps had moved when she had stepped down to the first step and fell. In a statement plaintiff had given to an insurance adjuster, who testified at trial, she claimed that she had slipped on the second step, rather than the top step. Thus, plaintiff gave three different versions of how the accident occurred. The only other person who actually saw plaintiff fall was her father. He testified that plaintiff fell when she stepped onto the top step off of the porch. However, he was also confronted with a statement he had given to the same insurance adjuster. In that statement, plaintiff’s father told the insurance adjuster that plaintiff slipped and fell on the second step, rather than the first one. He also told the insurance adjuster that the steps were solid at the time plaintiff fell, which was contradictory to the testimony he gave at trial, where he claimed the steps were unstable at that time.

We find that plaintiff has failed to prove that her injuries were caused by any defect existing in the steps.

Assuming, arguendo, that plaintiff could prove that her injuries were caused by a vice or defect existing in the steps, we find that defendant has proven the affirmative defense of fault of the victim, which bars plaintiff’s recovery. The record is replete with testimony by plaintiff to the effect that she knew the exact condition of the steps on which she fell prior to the accident. Plaintiff admitted that she was afraid to use these steps because she considered them to be “rickety”. She also admitted that she had used the steps many times in the past, in her deposition, and this was corroborated by the testimony of other witnesses. However, at trial, she testified that she had only used the steps a few times in the past.

Fault of the victim, as that term is used in reference to a defense to strict liability under LSA-C.C. Article 2317, means the conduct of the victim was a substantial factor in causing the injury complained of. Loescher v. Parr, supra. Wilkinson v. Hartford Accident and Indemnity Co., 400 So.2d 705 (La.App. 3 Cir. 1981), reversed on other grounds, 411 So.2d 22 (La.1982), noted that the relationship between “victim fault” under LSA-C.C. Article 2317 and “contributory negligence” under LSA-C.C. Article 2315 has never been clearly enunciated in the jurisprudence.

Kent v. Gulf States Utilities Company, 398 So.2d 560 (La.App. 1 Cir. 1980), affirmed, 418 So.2d 493 (La.1982), noted, on page 569, that:

“Jurisprudential standards for what constitutes victim fault sufficient to relieve a defendant of liability under Article 2317 are in a developmental stage. Loescher tells us fault of the victim must be a substantial fact in bringing about the harm producing incident. This court, in American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir. 1978), writ denied, 356 So.2d 430, 434, 435 (La.1978), equated “substantial factor” with “cause in fact.” Under the facts of Daniel v. Cambridge Mutual Fire Insurance Company, 368 So.2d 810 (La. App. 2d Cir. 1979), writ denied, 369 So.2d 1063 [(La.1979)] the court concluded: “Defendant is exculpated from fault and liability by the fault of the victim, that is, her assumption of risk.” A writ denial in Hebert v. Maryland Casualty Company, 369 So.2d 708 (La.1979), elicited these comments from Justice Tate:
“[T]he fault of the victim that defeats recovery for harm occasioned by strict liability imposable upon a defendant involves a voluntary exposure to the risk with full knowledge and appreciation of the danger. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 140-141. The trier of fact could properly have found that the plaintiff, an experienced horsewoman, had so assumed the risk.
“Although the language of the court of appeal incorrectly suggests that the objective test of contributory negligence rather than the subjective test of assumption of the risk defeats a recovery based on strict liability, the result is correct. See Daniel v. Cambridge Mutual Fire Insurance Co., 368 So.2d 810 (La.App. 2nd Cir. 1979) in which writs were denied this day, for a correct statement of the principles involved.”

We find that plaintiff assumed the risk of her injuries, when she used these steps with full knowledge of their condition to the point that she was afraid to use them. Plaintiff could have used the front entrance to entgr the mobile home, but failed to do so for fear of wetting her feet. We find that this fear provides plaintiff with no excuse for using the rear entrance and steps, which, by her own admission, she knew presented a danger to herself.

For the above and foregoing reasons, the judgment of the trial court is affirmed.

All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I concur in the result reached by the majority in this case. I have reservations concerning the holding that the homeowner, Mr. Eddie Oliver, was not guilty of negligence. In any event, Mrs. Sumner, the plaintiff, assumed the risk which barred her recovery. Doffíemeyer v. Gilley, 384 So.2d 435 (La.1980). Mrs. Sumner knowingly and voluntarily encountered the risk of the wobbly steps causing her to fall or lose her balance. She fully understood and appreciated this risk as well as the inherent danger because of the risk. I also have reservations concerning the majority’s holding that the defendant’s insured was not strictly liable under LSA-C.C. arts. 2317 and 2322. Nevertheless, in view of plaintiff’s complete knowledge of the defective condition of the steps and its propensity to wobble, she was guilty of victim fault. For that reason, she should not recover. Dorry v. Lafleur, 399 So.2d 559 (La.1981).

      . Plaintiff, in wording the first issue raised in her brief, states that the trial court found the defendant guilty of “negligence”, but not “actionable negligence”. We have reviewed the trial court’s reasons for judgment and note that it states therein, “... the Court finds that the conduct of the defendant’s insured does not amount to actionable negligence ... Nowhere does the trial court state that it finds that the defendant’s insured is guilty of negligence. We would prefer to abandon the term “actionable negligence” as we see no need for its use. Either a person is guilty of engaging in negligent conduct, for which he should be held liable for the harm caused by that conduct, or he is guilty of no negligence and liable to no one.

      . As for the issue raised by plaintiff concerning the trial court’s alleged finding that she was guilty of contributory negligence and/or victim fault, we conclude that plaintiff has simply misconstrued the findings of the trial court. This will be explained in the body of our opinion at the appropriate time.

      . The quoted portion of the trial court’s reasons for judgment has been edited for typographical errors.

      . “Art. 2317. Acts of others and of things in custody
      Art. 2317. 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. This, however, is to be understood with the following modifications.”

      . “Art. 2322. Damage caused by ruin of building
      Art. 2322. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”