text:
    R & R CONTRACTING & DEVELOPMENT COMPANY, INC. v. The CITY OF BATON ROUGE THROUGH the CITY COUNCIL, et al.
    No. 14661.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Ernest L. Johnson, Baton Rouge, for plaintiff-appellant R & R Contracting & Development Co., Inc.
    William H. Cooper, Baton Rouge, for defendant-appellee East Baton Rouge Parish Housing Authority.
    Stephen R. Wilson, Asst. Parish Atty., Baton Rouge, for defendants-appellees City of Baton Rouge, Parish of East Baton Rouge, the City Council and Parish of East Baton Rouge Council.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Plaintiff appealed from the dismissal of his suit against the East Baton Rouge City and Parish Councils (Council), the council members individually, and the East Baton Rouge Parish Housing Authority (Authority) to require approval of a bid proposal for a housing project.

The issues are the necessity of Council approval on housing project locations, the duty of the Authority to send plaintiff’s proposals to the United States Department of Housing and Urban Development (HUD), the scope of judicial review of the Council’s decision and the failure of the Council and council members to file an answer in this proceeding.

We affirm.

In response to the Authority’s advertisement, plaintiff submitted two bid proposals for the construction of low rent housing, denominated the Winbourne proposal and the Silverleaf proposal. A third proposal, the Monte Sano proposal, was submitted by another bidder. The Authority selected the latter and the Council approved the site.

HUD rejected the Monte Sano site and advised the Authority to consider the other two sites. After the Authority eventually approved both, the Council refused to approve either and again recommended the Monte Sano proposal. The Authority sent the Monte Sano proposal to HUD. At the time of trial, no reply had been received.

Plaintiff asked for injunctive and declaratory relief and a writ of mandamus and alleges irreparable injury, arbitrary and capricious rejection of its proposals and discrimination based on its minority ownership. The defendants filed exceptions of improper use of summary proceedings, no cause or right of action, and improper service of citation, all of which were referred to the merits. The Authority was the only defendant who filed an answer.

At the hearing on the preliminary injunction, plaintiff was allowed to try the case on the merits. At the close of the hearing the trial judge rendered a directed verdict dismissing plaintiff’s suit. In oral reasons, he held that there had been no showing of irreparable harm and since the Authority and Council had already approved the Monte Sano site, there was nothing to enjoin. La.R.S. 40:451(C)(12) required approval of site locations by the Council before any contract or letter of intent could be issued and there was no abuse of authority or duty.

Plaintiff first argues that the Authority should have sent its two proposals to HUD after it approved them, rather than referring them to the Council for approval. Although approvals or disapprovals by the Authority are subject to final acceptance by HUD, the site of the proposal must be approved by the Council before contracting or issuing a letter of intent to contract to purchase from a developer. La.R.S. 40:451(C)(3 and 12).

HUD had examined plaintiff’s proposals when the three proposals were initially sent to it. We see no reason why the Authority had to send the same proposals to HUD a second time after the Council had failed to approve those sites.

Plaintiff’s argument that a contractual relationship existed between the Authority and the plaintiff upon approval of plaintiff’s proposals has no merit. The law specifically requires acceptance by HUD and approval of site by the Council as a prerequisite to any contract.

Plaintiff argues that by not filing answers, the Council and council members agreed with all of the allegations of plaintiff’s petition. Defendants were ordered to respond to a “show cause” order for the issuance of a preliminary injunction. In such a summary proceeding, no answer is required. La.C.C.P. Art. 2593.

When an exception is filed and referred to the merits, an answer must be filed within ten days after the referral. La.C.C.P. Art. 1001. The numerous exceptions filed by the defendants were referred to the merits when the rule on the preliminary injunction began. The trial judge rendered a final judgment at the rule with no objection from the plaintiff. We find no merit in plaintiff’s argument.

Plaintiff also argues that the Council by requiring the Authority’s minutes to be submitted to it is attempting to circumvent Article VI, Section 16 of the 1974 Louisiana Constitution which provides for consolidation of local government subdivisions. Although the point was not clear from the testimony, it seems the Council reviews the minutes of the Authority as a method of approving the site of proposals for housing projects pursuant to the legislative mandate of La.R.S. 40:451(C)(12). We find no merit in plaintiff’s argument.

Plaintiff questions the standard of judicial review of decisions made by the defendant Council and the failure of the trial judge to allow the plaintiff to question fully the defendant council members on their reasons for not approving plaintiff’s sites.

The judiciary will not interfere with the acts of a public body when there has been no showing of invasion of private rights, manifest oppression, fraud or gross abuse of power. Lafourche Parish Water Dist. v. Carl Heck Engrs., Inc., 346 So.2d 769 (1st Cir.) writ denied 349 So.2d 873 (La.1977). The court will not substitute its judgment for the good faith decision of a public administrative agency absent a showing of unfair, illegal or arbitrary conduct. Budd Const. Co., Inc. v. City of Alexandria, 401 So.2d 1070 (3rd Cir.) writ denied 404 So.2d 1262 (La.1981).

Testimony from the council members indicated that one reason for disapproval of the Winbourne site was that it was located in a floodplain. There was also testimony that the Silverleaf site was improperly zoned, although council members were not certain they knew this at the time the vote was taken. One member testified that he voted for the Monte Sano site because it was located in his former district and the people there were in favor of it.

Evidence received on proffer adds nothing to plaintiff’s case; it merely gives more reasons why plaintiff’s proposal was voted down.

Several members specifically testified that the minority ownership of the plaintiff corporation in no way entered into their decision. Many were not even aware of the minority ownership.

Mandamus will lie to compel performance only when there is no element of discretion and the act is purely ministerial. Clarco Pipeline v. Parish of East Baton Rouge, 383 So.2d 1296 (1st Cir.) writ denied 386 So.2d 355 (La.1980). The act of the Council in approving sites for housing is a discretionary function. Although approvals or disapprovals of the Authority are subject to final acceptance by HUD, there is no mandatory duty upon the Authority to return all three proposals to HUD for the second time when they can only get Council approval on one. We find no error.

We affirm the dismissal of plaintiff’s suit by the trial court. Costs are to be paid by the plaintiff.

AFFIRMED.

      . In State ex rel. Guste v. City of New Orleans, 363 So.2d 678 (La.1978), the Supreme Court upheld a judgment on the merits under similar circumstances.

      . La.R.S. 40:451(C)(3 and 12):
      “3. The authority shall review and evaluate all proposals, on an impartial basis, and may approve or disapprove any one or more of the proposals. The authority shall retain as part of its records all proposals received in response to each invitation. The authority shall prepare a statement setting forth the factors which contributed to the selection of the developer(s) and this statement shall be held available for public inspection. All approvals or disapprovals are subject to final acceptance by the appropriate federal agency.”
      “12. No letter of intent to contract to purchase from a developer and no contract to purchase from a developer shall be executed by the authority until the local governing body shall have approved the location of the proposed development. ‘Local governing body’ as used in this section shall mean the governing authority of an incorporated municipality if the proposed development is located within the limits of such a municipality, otherwise ‘local governing body’ shall mean the governing authority of the parish wherein the proposed development is located.”

      . La.C.C.P. Art. 1001:
      “A defendant shall file his answer within fifteen days after service of citation upon him, except as otherwise provided by law.
      When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.
      The court may grant additional time for answering.”


source: Caselaw Access Project

author: ELLIS, Judge:

license: Public Domain

text:
    James Erwin “Red” BRAMBLETT v. Chapin E. WILSON. J. R. “Jim” BRAMBLETT v. Chapin E. WILSON.
    Nos. 14663, 14664.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Roy S. Lilley, Metairie, for plaintiffs-ap-pellees James Erwin “Red” Bramblett and J. R. “Jim” Bramblett.
    Steve Le Blanc, Baton Rouge, for defendant-appellant Chapin E. Wilson.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

These two consolidated actions arise out of the same transaction. James Erwin “Red” Bramblett and his son, J. R. “Jim” Bramblett, were partners in a business dealing with welding equipment repair, and manifold repair and construction. On August 31, 1978, they entered into a contract by virtue of which they dissolved their partnership, each receiving one-half of the assets. They then sold an undivided 51 per cent interest in the said assets to Chapin E. Wilson, except for their interest in the property on which the business was located. Thereafter, a corporation, The Red Bram-blett Co., Inc., was formed to operate the business, with Wilson owning 51% of the stock and the Brambletts the other 49%.

The sale to Wilson was made for $30,-000.00. Wilson paid $3,750.00 cash to each of the Brambletts, and each received two promissory notes: one for $3,750.00, payable six months from date; and one for $7,500.00, payable five years from date, with interest to be paid annually.

The agreement contains this provision: “The parties hereunto acknowledge said note shall be paid from Chapin E. Wilson’s bonuses or shares of the profits of THE ‘RED’ BRAMBLETT CO., INC. which shall be formed by the parties hereunto contemporaneous with the execution of this agreement.”

Friction developed between Red Bram-blett and Wilson, and, in early June, 1980, both of the Brambletts left the employ of The Red Bramblett Co., Inc. Red Bram-blett testified that he was fired by Wilson. Jim Bramblett testified that he left The Red Bramblett Co., Inc. the day after “Mr Wilson cancelled [his father’s] contract and took him off the Board of Directors and invited me to take his place.” Wilson testified that the Brambletts “walked out” on him.

After the above events, The Red Bram-blett Co., Inc. was given notice to move from the property, and did so. The Bram-bletts then went into business for themselves at that site, doing what they had done before the sale to Wilson.

During the time that the Brambletts were employed by The Red Bramblétt Co., Inc., Wilson received no bonuses or dividends from the company. He did, however, pay the two $3,750.00 notes when due, and the interest due in 1979 on the two $7,500.00 notes, out of his own or borrowed funds. When he failed to pay the interest due on the two $7,500.00 notes in 1980, these two suits were filed to collect the full amount thereof, under a provision in each note reading as follows:

“Any failure on the part of the maker or makers to pay any installment of this note, or the interest thereon, promptly when due, shall, ipso facto, and without any demand or putting in default, cause this note and each and every installment thereof, to become immediately due and exigible.”

Wilson answered, denying liability, alleging there was a failure of consideration; that the notes were to be paid only out of his share of profits and bonuses; and that there had been only losses since the plaintiffs left the company. He reconvened in each case for the $600.00 in interest paid on the $7,500.00 notes, and for $4,500.00 of the $7,500.00 already paid to each party.

After trial on the merits, judgment was rendered in favor of plaintiff in each case, and the reconventional demand was dismissed in each case. From the judgment, defendant has appealed suspensively.

In this court, defendant claims that the court below erred in not finding a failure of consideration; in failing to give defendant the benefit of the “clean hands” doctrine; in misconstruing the contract; in failing to consider the substantial losses of The Red Bramblett Co., Inc.; and in finding that Red Bramblett had been fired.

Relative to failure of consideration, Wilson testified that the Brambletts had an excellent reputation in their field, and that their service to The Red Bramblett Co., Inc. was the major consideration in his purchase of control of the company. It is his position that there was, therefore, a failure of consideration when the Brambletts left the employ of The Red Bramblett Co., Inc.

An employment contract for an indefinite period of time is terminable at the will of either party. Baynard v. Guardian Life Ins. Co., Etc., 399 So.2d 1200 (La. App. 1st Cir. 1981). There is no evidence in the record of any agreement on the part of plaintiffs to remain in the employment of The Red Bramblett Co., Inc. for any period of time. Mr. Wilson got what he paid for at the inception of the contract. It is unfortunate that he and Mr. Red Bramblett could not get along, but the termination of the employment contract, and its consequences, are eventualities against which Mr. Wilson could have protected himself by contract. Mr. Wilson’s expectations, which he apparently communicated to no one, are not a legal basis for finding that the departure of the Brambletts constituted a failure of consideration for the promissory notes sued on. In the light of the foregoing, it is immaterial whether the Brambletts quit or were fired.

Mr. Wilson next complains that he should have been given the benefit of the “clean hands” doctrine, because plaintiffs left his company, set up competing companies, and solicited the business of the customers of The Red Bramblett Co., Inc. It is questionable that the so-called “clean hands” doctrine, an equitable common law theory, has any application in our civilian jurisdiction. See Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972). In any event, however, plaintiffs had every right to terminate their employment with The Red Bramblett Co., Inc., and were not restricted by a non-competition agreement from going into business for themselves. There is no basis for finding improper conduct on the part of the plaintiffs. The fact that The Red Bramblett Co., Inc. allegedly suffered substantial losses as a result is of no legal consequence.

Finally, defendant asserts that he cannot be made to pay the notes from any source other than bonuses or his share of the profits of The Red Bramblett Co., Inc., relying on the language allegedly to that effect In the agreement between the parties, which is hereinabove quoted. The trial judge found the provision to be ambiguous, because it did not say that the notes should be paid solely from Mr. Wilson’s bonuses or share of the profits. He therefore heard parol testimony as to the intent of the provision. Red Bramblett testified that the provision was included so as to insure that any profits or bonuses accruing to Mr. Wilson would be used to pay off the notes, and not to limit the source of the payments, should there be no profits. The record reveals that Mr. Wilson drew no profits or bonuses from the corporation, but that he made payments on other notes, which he gave pursuant to the agreement, out of his own funds, and made a payment of interest on the notes sued on herein from the same source. Under those circumstances, we think the trial judge correctly resolved this issue.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


author: SAVOIE, Judge.

text:
    INTERNATIONAL INDEMNITY CO. v. Cheryl FORREST.
    No. 14665.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Writ Denied June 4, 1982.
    Daniel J. Dziuba, Baton Rouge, for plaintiff-appellant Intern. Indem. Co.
    Norman L. Haymer, Jr., Baton Rouge, for defendant-appellee Cheryl Forrest.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

In this case, the Appellant, International Indemnity Company, (International), contests the District Court’s dismissal of its breach of contract action against its insured, Cheryl Forrest.

On September 27, 1979, Cheryl Forrest was at the wheel of her automobile on Florida Boulevard, in the City of Baton Rouge, waiting to make a left-hand turn into a gas station when she was struck from the rear by a car driven by Mr. Percy Brown. Brown was uninsured. Forrest had in full force and effect a policy of uninsured motorists coverage conformable to R.S. 22:1406 D, which provides in pertinent part:

“No automobile liability insurance covering liability ... shall be delivered or issued for delivery in this state . . . unless coverage is provided therein ... for the protection of persons insured thereunder who are legally entitled to recover damages from owners of uninsured or under-insured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom . . . R.S. 22:1406, subd. D(l)(a).”

Upon learning that Brown was uninsured, Forrest made demand upon International for payment for her personal injuries under the policy. Since the policy provided coverage for personal injuries only and not for property damage, she filed a lawsuit against Brown for the damage to her car and its contents.

On January 25th, 1980, Forrest took a default judgment against Brown in the City Court of Baton Rouge in the amount of $1,245.50.

On May 16th, 1980, Forrest received from the insurer $2,789.71 in settlement of her personal injury claim (she had suffered a whiplash injury), executing in return for this sum a full release and subrogation in favor of International. The subrogation and its associated warranty are the hub on which this case turns.

“I do also now and hereby conventionally SUBROGATE to said aforenamed insurance company all the rights-actions, privileges and claims for damages because of bodily injury, sickness or disease, including death resulting therefrom, I have or may have against the owner, operator or user, and against all persons and organizations and insurers responsible for the operation, maintenance or use of the uninsured automobile involved in said accident, and do fully substitute said afore-named insurance company in my place and stead as subrogee to my said rights, actions, privileges, and claims against said parties, to the full extent of the aforesaid payment by said insurance company to me.” (Emphasis ours)
“I warrant to you that I have made no settlement of all or any part of the aforesaid rights, actions, privileges and claims with any person or organization whatsoever. This Release and Subrogation Agreement contains the entire agreement between me on the one hand, and the aforesaid insurance company, on the other hand, relating to the Uninsured Motorist Protection Coverage under said insurance policy, and the terms hereof are contractual and not a mere recital.”

Armed with the subrogation rights set out in this text, International filed suit in City Court of Baton Rouge against Brown, only to be met with an exception of res judicata, Brown maintaining that the previous suit brought against him by Forrest (the judgment wherein had been satisfied by garnishment of his wages) had entirely settled the matter. This exception was maintained. International took no appeal from the dismissal of its suit. Instead, it filed the present suit against Forrest, claiming that she had breached her warranty to them by destroying their subrogation rights through prosecution of the earlier suit and, therefore, was bound to return the $2,789.71 previously paid to her. The district court dismissed this case on an exception of no right of action and it is that disposition which we presently affirm.

First, we note that Forrest has faithfully complied with the letter of the subrogation and warranty agreement that she signed. By its terms, she transferred to International only her bodily injury claim and warranted that she had “made no settlement of all or any part” of that claim. This was perfectly true, since the only settlement she had made up to that time was the judgment she had obtained for her property damage.

Nevertheless, International claims that by bringing suit against Brown only on the property damage claim, Forrest divided her cause of action in violation of Code of Civil Procedure Article 425, thereby losing her own right to proceed on the personal injury claim and prejudicing International’s claim equally in violation of her warranty.

C.C.P. Art. 425 provides:

“An obligee cannot divide an obligation due him for the purpose of bringing separate actions on different portions thereof. If he brings an action to enforce only a portion of the obligation and does not amend his pleading to demand the enforcement of the full obligation, he shall lose his right to enforce the remaining portion.”

There are cases holding that an obligation is not “divided” within the meaning of C.C.P. Art. 425 when separate suits are brought seeking property damages and for personal injuries arising out of the same incident; Sutterfield v. Firemans Fund Am. Ins. Co., 344 So.2d 1159. (La.App. 4th Cir. 1977); cf. Quarles v. Lewis, 226 La. 76, 75 So.2d 14 (1954) overruled on other grounds in Ugulano v. Allstate Ins. Co., 367 So.2d 6 (La.1978); but see Thigpen v. Guarisco, 197 So.2d 904 (La.App. 1st Cir. 1967).

Whatever the correct view of this matter, it seems to us to have been premature for the insurance company to have filed suit against its own insured after receiving an adverse decision at the trial level without taking an appeal.

We are reinforced in this conclusion by the equitable consideration that until very recently it was thought that an insurance company in the position of International here, had no right to enforce a conventional subrogation agreement with its insured. In Niemann v. Travelers Ins. Co., 368. So.2d 1003 (La.1979), our Supreme Court held “the subrogation clause of the contract (is) illegal” (at 1008) and this court, in a subsequent case, held that “Niemann holds that a UM (Uninsured Motorist) insurer has neither a legal nor conventional right of subrogation against the tortfeasor”. (Pace v. Cage, 394 So.2d 1274 (La.App. 1st Cir. 1981).

The Supreme Court granted writs in Pace and a hearing was pending when Bond v. Commercial Union Assur. Co., 407 So.2d 401 (La.1981) was decided (on rehearing) in November. That case held that nothing in Niemann prevented uninsured motorist insurers from acquiring conventional subro-gation rights from their insureds against tortfeasors such as Brown.

However, the court in Bond (supra) reiterated its holding in Southern Farm Bureau Casualty Insurance Co. v. Sonnier, 406 So.2d 178 (La.1981), as follows:

“Subrogation cannot injure the insured, however, if he has been paid but in part for his damages, he may exercise his right for what remains due in preference to his insurer, La.C.C. Art. 2162;” (Bond v. Commercial Union Assurance Co., supra, at page 408, footnote 1).

Had International Indemnity Co. paid all of Cheryl Forrest’s damages, it would have been completely subrogated to her claim against the uninsured tortfeasor, but when International Indemnity Co. paid only part of the damages, bodily injury, it received only a partial subordinate subrogation. The object of the uninsured motorists statute is to promote whole recovery of damages for Cheryl Forrest. This is accomplished by giving Cheryl Forrest, who has been only partially compensated for her loss, a lawful cause of preference over the insurer for payment out of the debtor’s property.

For the above and foregoing reasons, the judgment of the lower court is affirmed. Appellant is to pay all costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Timothy BULLARD, et ux. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF HIGHWAYS.
    No. 14668.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Roger M. Fritchie, Baton Rouge, for plaintiffs-second appellant.
    Owen M. Goudelocke, Baton Rouge, for Dept, of Transp. and Development-first appellant.
    John C. Miller, Baton Rouge, for Howard Needles and Tammen & Bergendoff.
    Randall Theunissen, Lafayette, for J. B. Talley & Co.
    Robert A. Hawthorne, Jr., Baton Rouge, for Barnard & Burke.
    William C. Kaufman, III, Baton Rouge, for St. Paul Fire & Marine-third appellant.
    Paul Marks, Jr., Baton Rouge, for Emp. Commercial Union Ins. Co. of America.

      Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is a suit for wrongful death and survival action brought by Timothy Bullard and Anna Marie Murphy Bullard, the father and mother of their deceased son, Michael Bullard, who was mortally injured on February 23, 1977, when a large, dead tree, which was standing in the median of Interstate 10, fell and struck the vehicle of Michael Bullard. At the time, Bullard was traveling in a westerly direction on said highway in West Baton Rouge Parish, Louisiana, while in the course and scope of his employment with Acadian Hills Country Club. As a result of the tree falling onto his vehicle, Bullard sustained such severe and painful injuries that he died 65 days after the accident, at the age of 27 years, survived by his parents and two brothers. His parents brought the instant action seeking damages. Initially, only the State of Louisiana, through the Department of Transportation and Development, Office of Highways, as owner of the property comprising the interstate highway, the median and the tree, was named as defendant. Subsequently, plaintiffs supplemented their petition to name as additional defendants the consulting engineers on the project for the particular section of the highway, Barnard & Burke and Howard, Needles, Tarn-men & Bergendoff (a joint venture of the engineering firms of Barnard & Burke, a partnership, and Howard, Needles, Tammen & Bergendoff, also a partnership); the aforesaid two engineering firms; and the contractor who constructed that particular portion of the highway, J. B. Talley & Company, Inc.

The State filed third party demands against the construction company and its bonding company, Employees Commercial Union Insurance Company of America, and against the consulting engineers; Talley also third partied the State and the consulting engineers; the said engineers third partied the State and the contractor Talley; and St. Paul Fire & Marine Insurance Company intervened to recover on the claim paid by them as workmen’s compensation carrier for the deceased’s employer, Acadi-an Hills Country Club.

After trial on the merits, the trial court rendered judgment on April 3, 1981, in favor of the plaintiffs in the amount of $528,354.91 against the State. In addition, judgment was rendered in favor of all other defendants and the third party demands were dismissed. The intervention of St. Paul, the workmen’s compensation carrier, was recognized in the amount of $25,322.54 by preference and priority out of the plaintiffs’ award.

From this judgment, the State has appealed. The plaintiffs also appealed insofar as the judgment rejected the demands against the consulting engineers and the contractor and insofar as it failed to grant the plaintiffs the quantum they had sought. St. Paul also appealed the dismissal of the consulting engineers and contractor.

The evidence shows that the large tree which struck the Bullard vehicle was located near the edge of the natural median area between the two eastbound lanes and the two westbound lanes of I — 10. The tree in question was visibly rotten or defective. The photographs in evidence show a large portion of the trunk of the tree to be rotten. The physical evidence, along with the expert testimony presented leaves no doubt “that the fall of the tree was the result of its defective and decayed condition,” as the trial court found. The evidence further establishes that the tree was owned by and in the custody of the State at the time of the accident.

Consequently, under the codal doctrine of strict liability for things in one’s custody, LSA-C.C. art. 2317, as interpreted by Loescher v. Parr, 324 So.2d 441 (La.1975), the State must be held liable. In Loescher, supra, our Supreme Court concluded that the owner and custodian of a tree was liable to third persons for damages occasioned by its falling. The Court determined that del-ictual responsibility did not necessarily depend upon negligent acts, but upon “fault,” and that the owner or custodian of a thing which causes unreasonable risk of injury to others is at fault. The Court further stated that the owner or custodian is not exculpated from liability simply because the tree was caused to fall by wind which was not so abnormal as to be unforeseeable. In the instant case the State has not shown that the damage was caused by the fault of the victim, or by the fault of a third person, or by an irresistible force. Here, as in Loescher, the wind, although high and gusty, was not so abnormal as to be unforeseeable. On appeal, the liability of the State is not questioned. See Scott v. State, Department of Transportation and Development, 392 So.2d 482 (La.App. 1 Cir. 1980), writ denied, 396 So.2d 921 (La.1981). In Scott, we stated that strict liability under LSA-C.C. art. 2317 as interpreted in Loescher v. Parr, supra, applied to governmental agencies, such as the Department of Transportation and Development.

On the question of the liability of the consulting engineers, the record reflects that in the original suit the plaintiffs alleged that the consulting engineers were responsible for the defective design and construction of the highway by designing and constructing it in such a manner that it impeded the natural flow of ground water, thereby allowing a lake-like body of water to form in the area of the natural setting median during periods of rainy weather, which standing water promoted the deterioration of the tree which fell, causing the accident in question.

The contention that the drainage, or lack of drainage, caused the tree to fall is not substantiated by the evidence. The record fails to show a causal link between any periodic flooding and the falling of the dead tree. Both the chief project engineer and the interstate engineer testified that the roadway had no significant effect on the drainage in this area. It was a low-lying area before construction of the roadway and it was the same afterwards. There was no evidence that the particular tree which fell and struck the Bullard vehicle died or rotted due to exposure to excessive water or flooding.

Another claim made by the plaintiffs was that the consulting engineers were negligent in designing the highway in that wider recovery zones between the traveled portion of the highway and the tree line of the median should have been allowed. As to this issue, the record contains no evidence showing that the consulting engineers failed to follow accepted standards of interstate highway construction. Moreover, the consulting engineers had no responsibility for the designation of trees to be removed as hazards and those which should remain in the natural setting.

In contending negligent construction, the plaintiffs stated that J.B. Talley & Company failed to fulfill its contractual obligation to remove from the natural setting any trees which might constitute a hazard to the traveling public when it allowed the tree in question to remain in the median. In denying that it had any such duty or obligation, Talley introduced the State publication entitled “Standard Specifications for Roads and Bridges” which governs the activities of a general contractor as to its obligations on construction of public roadways, to support its argument that it was the duty of the State’s project engineer to select which trees were to be removed and which were to remain. The project engineer confirmed in his testimony that it was his duty to designate the trees. It was not the duty of the general contractor to make such designation.

The trial court awarded the sum of $528,-354.91 to the two parents. The Department contends this is excessive. The plaintiffs contend that it is inadequate.

The trial judge, in his written reasons for judgment, made the following comments as his reasons for the award:

“Dr. Hanchey, a neurosurgeon who treated Michael Bullard, testified that the decedent sustained two fractured cervical vertebra and a broken neck in addition to serious bruises, lacerations and facial injuries. Dr. Hanchey said the decedent suffered much pain but ultimately died of the ‘Beta negative’ strain of pneumonia.
******
“The plaintiffs, in the principal demand, also prayed for an award of TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) for each day Michael Bullard endured pain and suffering as result of the injuries he sustained. Upon reviewing the testimony of Dr. Hanchey, who said that medication for pain had to be kept at a minimum, and particularly that of Luca Barbato, who stated Michael Bul-lard slept most of each day, the Court is led to believe that toward the end of Michael Bullard’s days on earth his level of pain was low and therefore he was able to sleep. The Court, basing its decision solely on the testimony and evidence presented at the trial, feels an award of THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00) a day for pain and suffering, for a total of ONE HUNDRED NINETY FIVE THOUSAND DOLLARS AND NO CENTS ($195,000.00), is a just and adequate award.
“The plaintiffs, in the principal demand, also prayed for SEVEN HUNDRED THOUSAND DOLLARS AND NO CENTS ($700,000.00) for wrongful death. The Court, with prior jurisprudence in mind, is of the impression such an award would be excessive. In Williams v. State Farm Mut. Auto Ins. Co., 349 So.2d 1275 (La.App. 1st. Cir. 1977), writ denied 351 So.2d 175 (La.1977), the First Circuit held an award of FIFTY THOUSAND DOLLARS AND NO CENTS ($50,000.00) to each parent, for the death of a 21-year-old, who was the only child, for whom both parents professed the deepest love and affection and whose mother testified that he was her whole life, was not excessive. This was the highest award heretofore granted; however, while the Court does feel that SEVEN HUNDRED THOUSAND DOLLARS AND NO CENTS ($700,000.00) would be excessive in the light of the prior jurisprudence, an award equal to or slightly less than that given in Williams, supra, would be an injustice. The testimony of Timothy Bul-lard, father of the decedent and that of the decedent’s brothers, showed the family relationship to be uncommonly close and loving and the loss of Michael Bul-lard an unbearable family tragedy. The fact that Michael Bullard’s mother was terminally ill with cancer at the time of the accident, though not in itself compen-sable, and could not attend her son’s funeral only added to her personal sorrow. “It was brought out at the trial that because of Mr. Timothy Bullard’s profession, the family had to move from place to place quite often. Since the family never stayed very long in one locale, relationships with people outside the family were seldom developed and as a result the members of the Bullard family depended a great deal on one another for companionship and comradery so common among friends. It was also brought to the Court’s attention that since Mr. Timothy Bullard’s occupation as a geologist kept him away from his family for periods of time, he made up for the absence by frequently taking the family on camping trips. This close and loving family relationship continued after the children reached adult age and left the family home. Michael Bullard became a professional golfer for a local country club and he and his father and brothers spent much time together playing the game. Mr. Timothy Bullard testified that since Michael Bullard’s death he has not been able to play the game or even look at a golf course without remembering his son and becoming depressed. He also testified that his wife seemed to have lost the will to live after her son died. To reiterate, the Court is most aware of the prior decisions concerning awards for wrongful death [see Bond v. Jack, 387 So.2d 613 (La.App. 3rd Cir. 1980); Brandon v. State, Department of Highways, 367 So.2d 137 (La.App. 2d Cir. 1979); and Marceleno v. State, Department of Highways, 367 So.2d 882 (La.App. 2d Cir. 1978)]; however, an award of ONE HUNDRED FIFTY THOUSAND DOLLARS AND NO CENTS ($150,000.00) to each parent for the wrongful death of Michael Bullard under the circumstances, is not only justified but is required in the face of all the evidence presented at trial.”

We now turn to a consideration of the issue of quantum. For the loss of love and affection, the trial court awarded the sum of $150,000 to each parent for the wrongful death of Michael Bullard. We accept the factual findings of the trial court, as quoted above; but we think an award of this magnitude was an abuse of discretion under the circumstances of this case. LSA-C.C. art. 1934(3). The award is inordinately disproportionate to awards heretofore made in similar cases.

In Knotts v. State, Department of Highways, 395 So.2d 419 (La.App. 3 Cir. 1981), writs denied, 400 So.2d 669, 670 (La.1981), the court found that awards of $75,000 to each parent for the loss of “an unusually gifted, bright, intelligent and talented 11-year-old girl” were “somewhat generous but they are within the very broad discretion accorded trial court judges in fixing awards.” The child was “her mother’s constant companion and a combination sister, tutor, teacher, nurse and loving sibling to her 3-year-old, afflicted brother.”

An award of $50,000 was made to each parent for the loss of their 21 year old son, residing with them but making no financial contribution for support, in Williams v. State Farm Mutual Automobile Insurance Company, 349 So.2d 1275 (La.App. 1 Cir. 1977), writs denied, 351 So.2d 175 (La.1977). The trial judge was impressed with the “profundity of their loss”; both parents expressed “deepest love and affection” for their son.

In Lapoint v. Breaux, 395 So.2d 1377 (La. App. 1 Cir. 1981), writ denied, 399 So.2d 611 (La.1981), the court, taking into consideration that the parents of an 18 year old boy were “very fond of their child, and his loss was a great blow to them”, awarded $50,000 to each parent. The son also contributed to his parents’ support, for which they were granted an additional sum of $30,000.

In Walker v. St. Paul Insurance Companies, 343 So.2d 251 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 61 (La.1977), the court reduced a jury award of $107,512 to $40,000 for each parent for the loss of a major child, not living with his parents or contributing to their support.

In Youngblood v. Oil Well Chemical Company of Louisiana, 352 So.2d 316 (La.App. 4 Cir. 1977), the court affirmed an award of $40,000 to the mother of an 18 year old girl, who helped at home and helped with the other children.

In Gunter v. Wiley, 325 So.2d 654 (La. App. 3 Cir. 1975), the court affirmed an award of $40,000 to each parent for each child killed in a vehicular accident (a boy, age 14; a girl, age 10). The record showed that the parents established “a community of interest, love, and affection”.

In Foster v. Houston General Insurance Company, 407 So.2d 759 (La.App. 2 Cir. 1981), the court affirmed an award of $40,-000 to the mother of a 17 year old mentally retarded son for loss of love and affection.

Other awards, while not used for achieving uniformity, do serve as aids in determining whether a particular award is so out of line as to be an abuse of discretion. Walker v. St. Paul Insurance Companies, 343 So.2d 251 (La.App. 1 Cir. 1977), writ denied, 345 So.2d 61 (La.1977).

Considering the guidelines for appellate review of damage awards, as enunciated in Reck v. Stevens, 373 So.2d 498 (La.1979), and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), we find that the trial court’s awards in the instant case are of such a magnitude and are so substantially higher than in other similar cases (being twice as high as the highest award in the cited cases) as to be an abuse of discretion. We believe, taking all factors into consideration, that the highest award that can be granted at this time to a parent for the loss of a child is the sum of $100,000.

Accordingly, for the foregoing reasons, we modify the awards made in this case by reducing them to the sum of $100,000 for each parent, and amend the judgment to reflect this reduction. In all other respects the judgment is affirmed. Costs of this appeal are assessed against the State of Louisiana, Department of Transportation and Development in the amount of $15,-079.58.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Employees Commercial Union Insurance Company of America’s motion for summary judgment was granted by the trial court, but this Court reversed the judgment on appeal. Bullard v. State, Department of Transportation and Development, 394 So.2d 626 (La.App. 1 Cir. 1980).

      . Upon the death of Mrs. Bullard, her two surviving sons, Timothy Bullard, II and Dennis Bullard, were substituted as parties.

      . LSA-C.C. art. 2317 provides:
      “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . In Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La. 1980), the Supreme Court held that public bodies may be found liable for damages for things in their custody, and that where delictual responsibility is based on legal fault under LSA-C.C. art. 2317, rather than on negligence, the fact of whether a public body had knowledge of the existence of the danger is irrelevant. See also Garrison v. State, Through Department of Highways, 401 So.2d 528 (La.App. 2 Cir. 1981).


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    Joseph F. HIRSTIUS v. LOUISIANA MATERIALS COMPANY, INC.
    No. 14669.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Writ Denied June 4, 1982.

      Richard L. Muller, Mandeville, for plaintiff, appellee.
    Elton T. Harvey, III, New Orleans, for defendant, appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   ELLIS, Judge:

This is a suit for damages for personal injuries brought by Joseph F. Hirstius against Louisiana Materials Company, Inc. Mr. Hirstius was injured while working aboard the floating shell dredge Greenville in Lake Pontchartrain, which is a navigable body of water. This case is brought under the Federal Maritime Law and the Jones Act, 46 U.S.C. § 688, and may be brought in state court under the “Saving to Suitors” clause of the Judiciary Act of 1789, 28 U.S.C. § 1333. Trial was held on the merits, without a jury, and judgment was rendered in favor of plaintiff and against defendant for $284,335.90, with interest from date of judicial demand. According to the reasons for judgment, the award was composed of $75,000.00 for disability, past and future pain and suffering, and future medical expenses; $41,279.20 for lost wages, less a $6,943.30 stipulated credit; and $175,-000.00 for future economic loss. From this judgment, defendant has appealed.

In this court, defendant claims that the trial court erred in failing to reduce the award because of plaintiff’s own negligence, and alleges that the award is otherwise excessive or erroneous in a number of respects.

The record reveals that plaintiff was an experienced dredge boat engineer, and was employed by defendant on July 18, 1977, as a chief engineer on board the shell dredge Greenville. As such, plaintiff was in charge of the operations and maintenance of the mechanical equipment and appurtenant spaces of the dredge. Under ordinary circumstances, he was to be assisted by an oiler in the engine room.

Plaintiff testified that, when he began work, the engine room space was extremely dirty, and that he immediately began cleaning it, and repainting the deck. However, by the time of the accident, he was less than half finished. On the day of the accident, July 28, 1977, the dredge was not in operation because the engine had been running hot, and repairs were being made. On board were the captain, his assistant, named Joe Crowe, two mechanics, and plaintiff. There was no oiler, because Crowe, who had been the oiler, had been promoted, and his former position had not been filled.

The deck of the engine room is about 35 inches below the main deck of the dredge. The main engine sits on the bottom of the dredge, and has a walkway on either side of it, which is either 26V2 or 34‘/a inches below the engine room deck. At the time of the accident, there were no steps leading from the engine room deck to the walkway.

On the day of the accident, plaintiff was engaged in cleaning the air filters which are located at the front end of the main engine. Each filter is about two feet square, and weighs, when clean, about 35 pounds. He had completed cleaning one of the filters and was carrying it back to replace it on the engine. Plaintiff was attempting to step down from the engine room deck to the walkway with his left foot, when he slipped and fell, injuring his left knee. He was not sure what caused him to fall, but assumed it was oil or grease on the walkway.

In this court, defendant no longer disputes the unseaworthiness of the dredge, but claims that the award should be reduced because of plaintiff’s own negligence. It is alleged that plaintiff was the person primarily responsible for the condition of the engine room so that he must have been aware of the oil or grease on the walkway; that he was an experienced engineer, and should have realized that the manner in which he was carrying the filter down to the walkway was dangerous; that there were less dangerous ways of doing the job of which he should have been aware; and that he could have called for help from the other personnel aboard.

In answer to the above, plaintiff testified that he had not been on the job long enough to get the engine room cleaned up, and that others who were cleaning the oil filters had spilled oil on the walkway on the day of the accident. He further stated that the deck of the engine room was so cluttered that he could not put down the filter before climbing down to the walkway without running the risk of having it fall or become dirty, and that he felt he had no alternative but to do what he did. He further testified that the other personnel on board had jobs of their own to do, and that he had been told that Crowe was no longer available to him as an assistant.

We find that the trial judge correctly resolved the issue. Plaintiff’s injury was caused, not by his inattention or negligence, but by the conditions under which he was working. His choice of an awkward method of getting the filter from the engine room deck to the walkway was dictated by the condition of the vessel, the cluttered condition of the engine room deck, and the other work which was being carried out at the same time. We find no negligence on plaintiff’s part.

As to the award, defendant makes several complaints. First it is argued that the award of $75,000.00 for past and future pain and suffering, disability and future medical expense is erroneous because it was based in part on the finding by the trial court that the treating physician stated that plaintiff would at some future time require a total knee replacement. Defendant correctly points out that the doctor’s testimony was that a total knee replacement was a possibility in the future, but not recommended at the time of the deposition. The record further reveals, however, that plaintiff’s knee condition, which has existed since July 28, 1977, has been and is painful and that plaintiff is disabled to perform any kind of active employment. There seems little likelihood that plaintiff will improve, or that he will be without pain in his knee in the future. Under those circumstances, we find the award to be appropriate, despite the minor error of fact made by the trial judge.

The other three assignments of error as to the award are that the judge erred in considering inflation as a factor in computing future economic loss; that the judge miscalculated the plaintiff’s gross wages on which the award was based; and that the judge erred in awarding pre-judgment interest.

On the question of economic loss, the record shows that plaintiff was born on May 4, 1924, and had a fifth grade education. There is no serious dispute that he is totally and permanently disabled to do work of any reasonable character because of his knee injury. His earnings record shows that he earned $16,026.00 in 1973, $15,567.00 in 1974, $15,472.00 in 1975, $6,697.00 in 1976, and $4,569.00 in 1977, the year of his injury. We are satisfied that the decline in income between 1975 and 1976 is due to circumstances which were unrelated to plaintiff’s earning capacity.

Two expert witnesses testified for plaintiff. Edward I. Robbins, an actuary, using plaintiff’s pay in his job with defendant as a base, computed plaintiff’s annualized gross wages to be $15,979.05, and his annualized net wages to be $13,639.46. Assuming an annual rate of productivity and inflation of from 7% to 13%, and an annual interest rate of 8% or 12%, Mr. Robbins arrived at gross lost wages from July 28, 1977, to March 28, 1980, of from $51,675.00 to $58,335.00, and net lost wages of from $44,108.00 to $49,794.00. His best estimates were $54,286.00 for gross lost wages and $46,337.00 for net lost wages, which assumes a 10% productivity and inflation factor and 9% interest rate. His estimates of future economic loss varied from $139,-029.00 to $206,171.00 based on gross wages and from $118,673.00 to $175,984.00 based on net wages, assuming the same variations in the productivity and inflation rates and the interest rates. His best estimates of future economic loss, based on a 10% productivity and inflation rate and a 9% interest rate, were $228,919.00 based on gross wages and $195,402.00 based on net wages.

Dr. Melville Wolfson, a forensic economist, using the same earnings figures as did Mr. Robbins, computed plaintiff’s annualized gross wage as $15,197.00 and his annualized net wage as $12,709.00. Dr. Wolfson, assuming that the inflation rate would be 7% and the interest or discount rate would be 10%, computed future economic loss to be $134,927.00. Using a 5% discount and 7% inflation rate, he computed future economic loss at $170,000.00. Dr. Wolfson computed plaintiff’s lost wages to be $38,787.00, without allowing any increase for inflation.

The trial judge adopted Mr. Robbins’s figure of $15,979.05 as plaintiff’s gross earning capacity per year at the time of the injury. From the income tax returns, he figpred plaintiff’s average income tax liability to be $399.00. He therefore assigned a net earning capacity of $15,500.00 to plaintiff.

Using this as a base, he awarded plaintiff $41,209.20 as lost wages from July 28, 1977, when he was injured, until the time of trial, on March 17 and 18, 1980.

He was of the opinion that the expert testimony justified an assumption that the interest or discount rate would affect the rate of inflation by approximately l'/2%. He then stated:

“Therefore, recognizing the problems in forecasting an individual’s exact worklife expectancy and in forecasting precisely the discount rates and the rate of inflation over that expected worklife, this Court finds that a lump sum award of ONE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($175,000) fairly represents Mr. Hirstius’ lost earning capacity as adjusted to reflect the effect of inflation and of a discount to present value.”

Defendant’s first argument is that the trial court erred in its finding of plaintiff’s annual earning capacity at the time of the accident. It is argued that the proper way to ascertain this figure would be to average plaintiff’s income from 1973 until the time of the accident. We disagree. Plaintiff is entitled to be compensated for his disability based on his earning capacity as of the time of the accident.

Next, defendant contends that the court erred in considering inflation as a factor in computing the economic loss. The Fifth Circuit Court of Appeals, en banc in Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir. 1975), cert. denied 423 U.S. 839, 96 S.Ct. 68, 46 L.Ed.2d 58 (1975), held that the effect of future inflation was not to be included as a factor when calculating future damages. However, the circuits are divided as to whether the effect of inflation is a proper factor to be considered. In Norfolk & W. Ry. Co. v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), a case under the Federal Employers’ Liability Act, the Supreme Court approved the consideration of inflation in fixing awards for future economic loss. In this state, in Rains v. Diamond M. Co., 396 So.2d 306 (La.App. 3rd Cir. 1981); writ refused, 399 So.2d 623 (La.1981), the court held, in a case under the Jones Act and General Maritime Law, that inflation and cost of living increases were proper factors for consideration in determining future economic loss. We agree with this decision, and find no error in the holding of the trial judge in this respect.

Defendant further complains of the award of interest from date of judicial demand rather than from the date of judgment. It is true that in a Jones Act ease, interest may be awarded only from the date of the judgment. However, plaintiff’s case is brought under the General Maritime Law as well, and in such cases, the award of pre-judgment interest is discretionary with the trial court. We find no abuse of discretion in the award of pre-judgment interest in this case. Melancon v. I.M.C. Drilling Mud, 282 So.2d 532 (La.App. 1st Cir. 1973); writ refused, 283 So.2d 769, 771 (La.1973); Hebert v. Diamond M Co., 385 So.2d 410 (La.App. 1st Cir. 1980); writ denied, 390 So.2d 203 (La.1980).

The judgment appealed from is affirmed, at defendant’s cost.

AFFIRMED.


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    LAWRENCE W. FARRIS, INC., etc. v. HUGHES-TURNER CONSTRUCTION CO., INC.
    No. 14671.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Stephen C. Riedlinger, Baton Rouge, for plaintiff-appellant Lawrence W. Farris, Inc.
    Stacey Moak, Baton Rouge, for defendant-appellee Hughes-Turner Const. Co., Inc.
    William R. Aaron, Baton Ro.uge, for plaintiff-appellee Altex Ready Mix Concrete Corp.

      Lawrence J. Springer, Thomas A. Rayer, New Orleans, for defendant-appellee Shil-stone Testing Laboratory.
    H. Bruce Shreves, New Orleans, for defendant-appellee A nerican Fidelity Fire Ins. Co.
    Davis A. Gueymard, Baton Rouge, for defendant-appellee Tricou, TRW.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This case arises out of a contract for the construction of a large metal warehouse building on a concrete slab. On May 2, 1977, while a portion of the slab was being poured, it began to rain heavily so the unfinished slab of concrete was covered over with plastic sheets and left for the night. By morning, when the rain had stopped, the concrete had hardened. Some portions had been washed away by the rain and there were irregularities in the texture and levelness of the remaining surface. It will be necessary to describe the intervening events in some detail but it is enough to say now that the slab was rejected by the owners and work was shut down on the project for several weeks until ultimately a new cement sub-contractor overlaid the objectionable slab.

The general contractor, L. W. Farris, Inc. (Farris) recovered damages in the amount of $19,907.61 against the original cement sub-contractor, Hughes-Turner Construction Co., Inc. (Hughes-Turner), based on the trial court’s finding that the slab had a defective surface which could not be satisfactorily repaired. Farris’ claim against the owners (TRW Co.) was dismissed. By this appeal, Farris attacks the money judgment in his favor against Hughes-Turner, arguing that the slab was not so defective as to justify the owners’ rejection of it, and that the owners, therefore, should pay his damages which, he alleges, are much greater than $19,907.61. Only in the case that this court upholds the finding below that the slab was defective does Farris defend the judgment he now possesses against Hughes-Turner, in which case he asks that it be increased.

On May 2, 1977, acting against the advice of the general contractor and the owners’ representative, who said that the weather report predicted rain, the cement sub-contractor on the job, Hughes-Turner, poured a section of cement slab, their work being interrupted in mid-afternoon by the onset of heavy rain which continued throughout the night.

Next morning, an attempt was made to put a smooth finish on the surface of the slab by grinding it with a mixture of sand and concrete and water. But the owners’ representative on the job, Mr. Benjamin Franklin Hayes, told the Hughes-Turner people that they were wasting their time because he would not accept the slab finished in that manner — that they must either tear out the slab and start over or suggest an acceptable alternative method of repair.

It was shown at trial that Mr. Hayes does not have an engineering degree and had limited experience with cement work prior to this job. He had worked on a project in Alaska where the surface of a repaired slab crumbled under heavy use and this was the basis of his initial opinion that the grinding method used by Hughes-Turner would not produce a strong enough bond to the existing concrete to support a surface durable under the heavy use expected for a warehouse floor.

There was positive testimony from Dean McKee of the L. S. U. Engineering School that it is not at all unusual in climates such as we have in Baton Rouge for unfinished cement slabs to be rained on. He testified that “there are floor hardeners, finishing compounds, these epoxy-type compounds, anything that can be put on the surface to give you good, durable wearing surface.”

He testified, however, that the quality of the bond between the new surface and the old would depend on the skill of the cement finisher, and when shown photographs of the repairs actually attempted' by Hughes-Turner, he testified that it was plain that a good bond had not been obtained and that the work was “not acceptable”.

At any rate, two days after the pour, Ben Hayes formally rejected the sand, dry cement and water method of repairing the slab and demanded that Farris “remove the rejected slab of concrete as soon as possible or furnish me with an alternate recommendation that will meet standard construction specifications as well as my own approval.” (Ex. P-4)

By letter of May 17th, Hughes-Turner formally proposed use of a liquid floor hardener. (Ex. P-51) But on May 24, Mr. Tricou, one of the owners, was still demanding removal of the whole slab. (Ex. P-71)

Initially, it appears that the general contractor supported the position of Hughes-Turner, that the slab did not need to be replaced. As late as June 8th, more than a month after the pour, Farris maintained that the slab was acceptable. (Ex. TRW-9) However, on June 13th, the results of core tests conducted on the slab by Shilstone Testing Laboratories became available to the parties and these were interpreted by Farris (quite erroneously, it now appears) to show that the slab was too weak for its intended purpose. (Ex. TRW-1) This report changed the position of Farris, which, by letter of June 15, acknowledged the slab was defective. (Ex. TRW-4)

Dean McKee’s testimony contains a lucid explanation of the meaning of the test just mentioned and it does not appear that any party to this litigation now seriously maintains that the slab was not strong enough. Complaints about the slab are now limited to its surface characteristics and Farris has returned to its earlier position that the slab could have been repaired.

Following the June 15th letter, however, Hughes-Turner was effectively off the job. Another cement contractor was brought in who overlaid the existing slab and the warehouse has been completed and is occupied by its owners. The decision to overlay the slab rather than make further attempts to repair its surface cannot be conscionably attacked by Farris now, since that decision was Farris’ own suggestion, stimulated, apparently, by its own mistaken interpretation of the Shilstone report. Hughes-Turner, which would be in a better position to contest this point, has not appealed the judgment against it. We decline to find the owners liable to their general contractor for actions taken with that contractor’s concurrence. In this posture of the case, the district court’s finding that the surface of the slab was defective and could not be repaired is not erroneous.

Similarly, we affirm the district court’s finding that damages for lost profits and loss of business reputation were not proven. The only witnesses on these subjects were L. W. Farris, himself, and his son-in-law. It appears that the son-in-law obtained several contracts which, he said, Farris would have obtained and would have made a profit on were it not for the loss of bondability caused by being put in default on this project. There is no way to tell whether he would have had these jobs or not and no way to tell whether, obtaining them, he would have profited by them. The son-in-law acknowledged that, though not the general contractor, Farris had worked, and presumably been paid, on some of these very projects.

Any loss of profits is purely speculative. There was no responsible testimony supporting any loss of business reputation.

Costs will be taxed to the appellant.

AFFIRMED.


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    ALTEX READY-MIXED CONCRETE CORPORATION v. HUGHES-TURNER CONSTRUCTION CO., INC.
    No. 14672.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      William R. Aaron, Baton Rouge, for plaintiff-appellee Altex Ready-Mixed Concrete Corp.
    Davis A. Gueymard, Baton Rouge, for defendant-appellant George E. Tricou, Jr.
    Stacey Moak, Baton Rouge, for defendant-appellee Hughes-Turner Const. Co., Inc.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This is a companion case to Lawrence W. Farris, Inc. Versus Hughes-Turner Construction Co., Inc., 413 So.2d 615 (La.App.) and Baton Rouge Steel Versus Lawrence W. Farris, et al., 413 So.2d 619 (La.App.). The three cases arise from the same construction project and were consolidated for trial. We decide all three cases this same date, though, since they involve different issues, they are reported separately.

In this case, a cement supplier, Altex, recovered a judgment in the amount of $15,474.58 and 25% attorney’s fees for unpaid cement invoices against the cement contractor, Hughes-Turner. The owner, George Tricou, was also cast in judgment for the sum of $15,474.58 but was not cast for attorney’s fees. There is no dispute concerning the amount of the unpaid bill. By this appeal, Mr. Tricou argues that he is not liable as owner, since he provided, though he failed to record on the public records, a bond to protect suppliers.

L.S.A.-R.S. 9:4808 permits a person desiring to construct a building to escape personal liability for the debts incurred by the contractor on the job by providing a surety bond sufficient in amount to cover the prospective costs of the construction. But,

“. . . if no bond has been furnished or recorded .. . but the contract has been timely recorded, the owner shall be personally liable ...”

Here, it is agreed all around that the owners’ attorney filed in the public record and recorded the construction contract. A surety bond intended to fulfill the requirements of 9:4806 was purchased and filed with the contract. The attorney neglected, however, to instruct the Clerk of the records office to file and index the bond separately, so the bond has not been “recorded”, as that term is commonly understood.

By this appeal, the owner, George Tricou, who was found liable for the cement bill on account of the above oversight, complains that since the purpose of the recordation requirement is just to put prospective suppliers on notice that the owner has provided a bond for costs and will not be personally liable for them, he should not be personally liable, whether the bond was recorded or not, where the supplier had actual knowledge of its existence. Tricou argues that since Altex knew of the existence of the bond, as to them, the bond was “constructively recorded”. This “constructive recordation”, it is argued, meets the requirements of the statute. No precedents are cited for recognition of the proposed principle of “constructive recordation”. Ordinarily, if a principal employs an agent to perform work for him, he will be liable for such debts as the agent incurs while acting within the scope of his employment. The statute in question is in derogation of this ancient and well-understood principle of the law of agency and must be strictly complied with in order to be effective. The judgment of the trial court holding the owner, George Tricou, and the sub-contractor, Hughes-Turner, liable in solido for the Al-tex invoice total of $15,474.58 is affirmed.

Altex answered the appeal, complaining of the trial court’s failure to find Tricou liable for attorney’s fees. The judgment below, as before stated, casts Tricou and Hughes-Turner in solido for the sum of the Altex account. Additionally, the court below casts Hughes-Turner for the 25% attorney’s fee provided by the contract between Altex and Hughes-Turner to be paid in case a collection suit were necessary. L.S.A. 9:4806 provides that the owner who fails to provide a proper bond,

“shall be personally liable ... to the same extent as is the contractor ...”

In accordance with the statute, the owner, Tricou, should have been cast for the 25% attorney’s fee solidarily with Hughes-Turner.

Costs will be taxed to the appellant.

The judgment is amended, accordingly.

AMENDED AND AFFIRMED.

      . See also R.S. 4802, which provides, at the time this case arose, that:
      “The bond shall be attached to and recorded with the contract in the office of the clerk of court or recorder of mortgages.”

        As amended effective January 1, 1982, the pertinent part of R.S. 9:4802 reads:
      “The owner is relieved of the claims against him . .. when notice of the contract with the bond attached is properly and timely filed as required by R.S. 9:4811.”
      New R.S. 9:4811 sets out in detail the required contents of a notice of contract.


text:
    BATON ROUGE STEEL v. Lawrence W. FARRIS, et al.
    No. 14673.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Michael Clegg, Baton Rouge, for plaintiff-appellee Baton Rouge Steel.

      Stephen C. Riedlinger, Baton Rouge, for defendant-appellant Lawrence W. Farris, Inc.
    Stacey Moak, Baton Rouge, for defendants-appellees George R. Hughes and Fred R. Turner.
    H. Bruce Shreves, New Orleans, for defendant-appellee American Fidelity Fire Ins. Co.
    Before ELLIS, PONDER and SAVOIE, JJ.
   SAVOIE, Judge.

This is a companion case to Lawrence W. Farris, Inc. v. Hughes-Turner Construction Co., Inc., 413 So.2d 615 (La.App.) and Altex Ready-Mixed Concrete Corporation v. Hughes-Turner Construction Co., Inc., 413 So.2d 617 (La.App.). All three cases arise from the same construction project, were consolidated for trial, and are decided together on appeal, though they involve different issues of law and fact and are, therefore, reported separately.

In this case, a materials supplier on the job, Baton Rouge Steel, won a judgment in the trial court for $15,864.34 against Farris and his surety, American Fidelity Fire Insurance Co. (American), in solido. The amount of the unpaid bill is not disputed, but Farris complains of being held for a 10% attorney’s fee for which, he says, only the surety can be liable.

Baton Rouge Steel sued on an unpaid bill stated to be the sum of $11,919.10, demanding in addition a 10% attorney’s fee against the surety for failure to pay timely upon demand under L.S.A.-R.S. 9:3902. An extract of the trial court’s written reasons for judgment, filed May 30,1980, finds in favor of Baton Rouge Steel, as follows, to-wit:

“All required notices were timely filed, thereby making the contractor, Lawrence W. Farris, Inc. liable to Baton Rouge Steel for $11,919.10. The surety, American Fidelity Fire Ins. Co., is liable in solido with the contractor.”
“Baton Rouge Steel Co. is also entitled to 10% attorney’s fees from the defendant’s surety. Under L.R.S. 9:3902, Baton Rouge Steel has the right to seek attorney’s fees from the surety when written notice of the claim is made 30 days prior to filing suit.”

The judgment of February 6, 1981, rendered by the trial court purports to be in accordance therewith. An extract of that judgment is, as follows, to-wit:

“In accordance with the written reasons for judgment filed herein on May 30, 1980, IT IS ORDERED that judgment be rendered herein in favor of BATON ROUGE STEEL, INC. and against LAWRENCE W. FARRIS GENERAL CONTRACTOR, INC. and AMERICAN FIDELITY FIRE INSURANCE COMPANY, in solido, in the full amount of Fifteen thousand eight hundred sixty-four and 34/100 ($15,864.34) Dollars.”

The discrepancy between the judgment and the written reasons, therefore, appears to be a mere inadvertence. The written reasons are correct and the judgment will be corrected to conform thereto; that is, there shall be judgment in favor of Baton Rouge Steel and against Farris and American Fidelity Fire Insurance Co., Inc. in the full amount of $11,919.10. In addition, there shall be judgment against American Fidelity Fire Insurance Co., Inc. and in favor of Baton Rouge Steel in the amount of 10% statutory attorney’s fees, pursuant to the provisions of L.S.A.-R.S. 9:3902.

The trial court’s judgment is amended to conform herewith.

Costs will be taxed to the appellee.

AFFIRMED IN PART, REVERSED IN PART.


author: WATKINS, Judge.

text:
    Curtis J. LANDRY d/b/a Curtis Seafood Restaurant v. PIERRE PART NATURAL GAS COMPANY, INC.
    No. 14675.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Jimmie R. Major, Baton Rouge, for plaintiff-appellee.
    Vincent J. Sotile, Donaldsonville, for Pierre Part Natural Gas Co., defendant-appellant.
    Victor A. Sachse, III, Baton Rouge, for South Central Bell Tel. Co., defendant-appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Curtis J. Landry d/b/a Curtis’ Seafood Restaurant to recover damages from Pierre Part Natural Gas Company for loss of use of leased premises and mental anxiety and inconvenience attendant thereto resulting from Pierre Part’s failure to repair a leak in a natural gas line in the immediate vicinity of the leased premises. Pierre Part pleaded prescription and third-partied South Central Bell, which had damaged the outer layer of the pipe in which the leak was ultimately found. South Central Bell pleaded prescription to the third party demand. The trial court originally held prescription had run on the principal demand. We reversed, stating the tort alleged to have been committed by Pierre Part was continuous in nature and hence not subject to the running of prescription so long as the leak was not corrected. (See 344 So.2d 412 (La.App. 1st Cir. 1977)) Upon remand, the trial court, after trial on the merits, rendered judgment for plaintiffs in the sum of $30,000 on the principal demand, and dismissed Pierre Part’s third party demand against South Central Bell, finding Pierre Part’s claim had prescribed. The trial court granted a new trial limited to reargument and reduced the amount of the judgment in favor of Landry to $10,000, and denied the third party claim of Pierre Part against South Central Bell. Pierre Part appealed and Landry answered the appeal seeking an increase to the original sum of $30,000 damages. We affirm the judgment of the trial court.

On September 1, 1970, Landry leased a building known as the “Live Oak Inn” located on Belle River from Mrs. Myrtle L. Cazes for $75.00 per month, the lease to have a primary term five years. The premises were operated as a bar and dance-hall. Landry decided to convert the building into a restaurant and bar, to be known as “Curtis’ Seafood Restaurant”, and to justify the expenditure of money on the premises obtained a new lease commencing April 1, 1973 at $75.00 per month rental for a primary term of ten years. Landry noticed the smell of escaping gas in and around the building about that time but proceeded with the renovation work, which involved adding a large kitchen, adding a wood floor on beams above the original concrete floor, adding partitions, and adding a drop ceiling. The restaurant was opened shortly and drew a large clientele, as Landry was known in the area as a good cook. However, the gas smell persisted, both inside the building and near the front door. Many patrons complained about the smell, and business became very poor as time went by. Finally, in the summer of 1974 Landry closed his restaurant, and later, his bar. Landry continued to live in the restaurant building.

In the summer of 1973, Landry made repeated calls to Pierre Part, which serviced the premises with natural gas and which had a gas pipeline that ran parallel to the restaurant, complaining of the gas odor. Pierre Part sent an employee, Lee Gaudet, to the restaurant and he also smelled gas but was unable to find a leak after applying a soap and water solution to test for leaks, both on the customer’s and on the company’s side of the meter. Landry replaced all his gas pipes but this did not end the gas smell.

Finally, after repeated complaints were made, Pierre Part sent Mr. Tullier of Quality Rentals, an independent contractor, and a crew from that company, to search for the leak by excavating into the ground near the building. Tullier dug a trench around the gas pipeline the entire length of the building and, after applying the soap and water solution, did not find the leak. The crew told Landry they would return the next day, but the crew failed to come back.

Landry contacted a police juror requesting help. Nothing was done to remedy the leak. He then contacted Mr. Dupont, the Public Service Commissioner, but still had no success. The leak persisted.

Finally, Landry employed a lawyer, Mr. Menuet, who wrote Pierre Part. Pierre Part sent Mr. Tullier back to the premises in response to the letter, and he surveyed the situation. The next day, April 28, 1974, Tullier and a man who possessed an instrument used to detect gas leaks returned to the premises. The instrument indicated there was a leak six feet beyond the point where the digging had stopped more than seven months earlier. The earth was dug up and the leak was found. The leak was repaired by placing a collar on the pipe. No gas odor has been detected since the leak was repaired.

It was noticed that near the leak in the gas pipeline was a telephone cable, and that the outer covering of the gas line had been scraped off by the machine used to lay the telephone cable. The telephone cable was shown to have been laid and owned by South Central Bell.

Appellant argues that it was not proved that the leak that was repaired was the cause of the odor in the restaurant. However, a culvert ran from beneath the wood floor of the restaurant (draining the underlying concrete floor) to Belle River and was very near the pipeline at one point. Mr. Robert, President of Pierre Part Natural Gas, admitted that escaped gas frequently follows on the outside of the pipeline from which it escaped. Thus, it is possible for the leak to have caused an odor in the restaurant building. The fact that the odor of escaping gas ceased when the leak was repaired convinces us that the leak in the Pierre Part gas pipeline which was repaired on April 28, 1974 was responsible for the odor. It is obvious from the foregoing recitation of facts that Pierre Part was guilty of gross negligence in failing to take further action to locate the leak when it was first detected. We, therefore, agree with the determination of the trial court in finding Pierre Part liable.

The trial court awarded Landry $5,000 for loss of use of the leased premises and $5,000 for inconvenience and mental anxiety. There is very little evidence on which to make a precise determination of the monetary sum lost by Landry as a result of the gas leak. However, he leased the premises for $75.00 a month to operate as a restaurant and bar, spent his own money to renovate the leased premises, and lost a large number of patrons solely because of the odor of escaping gas, which was both disagreeable and frightening to potential patrons, as there had been several gas explosions (for which Pierre Part was not responsible) in the vicinity shortly before. Where damages cannot be exactly calculated, the trial court may fix damages at the sum that in its discretion it determines to be appropriate considering the testimony. Fish v. Martin, 201 So.2d 341 (La. App. 3d Cir. 1967); Kogos v. Rittiner, 228 So.2d 62 (La.App. 4th Cir. 1969), writs refused 255 La. 243, 245, 230 So.2d 93 (1970). We find the sum awarded represents an appropriate exercise of the trial court’s discretion, and decline either to reduce damages, as Pierre Part seeks, or to increase the damage award, as Landry seeks.

The trial court found prescription had run on Pierre Part’s third party demand against South Central Bell. The smell was first reported to Pierre Part in the summer of 1973. The damage to the pipeline resulting from South Central Bell’s laying of the telephone cable was not discovered until April 28, 1974. The third party demand was not filed until January 22, 1975. Although prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, if one fails to use due diligence to determine the tortious cause of injury to oneself, he is subject to the one year prescriptive period provided for actions in tort, even though he is ignorant of the fact that a tort had been committed. Cartwright v. Chrysler Corporation, 255 La. 598, 232 So.2d 285 (1970). As was stated in Cartwright:

“The rule that prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, applies only when such ignorance is not wilful and does not result from negligence, and the doctrine has been limited to cases where the debtor has concealed the fact of the obligation or has committed other acts which tend to hinder, impede or prevent the creditor from ascertaining knowledge of the existence of the debt.” [footnote omitted] (232 So.2d at p. 287)

Thus, despite the fact that Pierre Part did not know of the tortious act of South Central Bell in abrading its pipeline, it is nevertheless subject to prescription on the third party demand if due diligence would have uncovered the tort. Here, had Pierre Part exercised due diligence in locating the leak, when first notified, the prior tortious act of South Central Bell would have been discovered.

In opposition to the plea of prescription, Pierre Part argues that under LSA-C. C.P. art. 1067 one has 90 days to file an incidental demand after the filing of the principal demand. However, that is the case only if the incidental demand is “not barred” at the time the principal demand was filed. The principal demand was filed November 27, 1974 and the incidental demand became barred in the Summer of 1974. For art. 1067 to apply, the claim must be one that is not prescribed. The claim had prescribed in the Summer of 1974, before the third party demand was filed.

Also, Pierre Part argues that its claim is one of indemnity, which does not prescribe until the party seeking indemnity is cast in judgment. However, in order for a claim to be one of indemnity in the case of tortious acts, the party seeking indemnity must be itself free of fault in tort and liable only vicariously or derivatively. Dupree v. Pechinay Saint Gobain Co., 369 So.2d 1075 (La.App. 1st Cir. 1979), writ denied, 371 So.2d 1341 (La.1979). Here Pierre Part itself was a tortfeasor, as it was negligent in its efforts to detect the gas leak in its pipeline. Hence, the claim is not one for indemnity.

Finally, Pierre Part argues that the tort is a continuing tort, and not subject to prescription. Here, however, there were two separate tortious acts, South Central Bell’s act in damaging the gas line, and Pierre Part’s grossly negligent and inadequate acts in searching for the leak. The tort committed by South Central Bell in damaging the line took place only in an instant, and then it was over. The tortious act of South Central Bell was not continuous.

We, therefore, find the trial court to have been correct in holding that prescription bars the third party complaint brought by Pierre Part against South Central Bell.

We affirm the judgment of the trial court in its entirety, at the cost of Pierre Part Natural Gas Company, Inc.

AFFIRMED.


author: COLE, Judge.

text:
    W. O. HANEY v. GENERAL HOST CORPORATION.
    No. 14680.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Joel B. Dickinson, Baton Rouge, for plaintiff-appellant W. 0. Haney.
    Stephen E. Broyles, Baton Rouge, for defendant-appellee General Host Corp.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff-appellant, W. 0. Haney, filed this negligence action against defendant, General Host Corporation, seeking damages for personal injuries. Defendant answered, denying the allegations of negligence and specially pleading the affirmative defense of contributory negligence. After trial, the court gave oral reasons for the judgment it rendered in favor of defendant.

The dispositive issue raised by plaintiff’s appeal is whether or not the trial court erred in finding defendant was neither negligent, nor strictly liable under article 2317 of the Civil Code. Finding no manifest error, we affirm.

The facts as they relate to the issues of liability are, for the most part, undisputed. The incident from which this suit arises occurred on March 1, 1980. On that date, plaintiff went to the Little General Store which is owned by defendant, located at 1024 O’Neal Lane in Baton Rouge, Louisiana, for the purpose of purchasing groceries. Plaintiff’s wife, Edna, accompanied him to the store, which is located approximately one-half mile from plaintiff’s residence.

Once plaintiff and his wife arrived at the store, plaintiff parked the car and went into the store to shop, while his wife remained in the car. While in the store, plaintiff bought enough items to fill two large grocery bags. Plaintiff then carried the bags out the door to the front of the store, where there was a raised “porch” separating the store from the parking lot. As plaintiff was attempting to step down from the “porch,” he encountered an area on the edge of the “porch,” approximately V2 inch to :!/i inch deep, 4 to 5 inches long, and 3 inches wide, which had apparently been chipped away by cars parking against it. When plaintiff placed his right foot in the chipped-out area, he fell, causing his left foot to twist as it landed on the parking area. Plaintiff testified he had worked at the store a few months prior to his injuries.

Besides plaintiff, four other witnesses testified at trial, i.e., Dr. Charles L. Lee, Mrs. Haney, Alton White, and Robin Hayden. Dr. Lee’s testimony related to the diagnosis of plaintiff’s alleged injuries. Mrs. Haney and Mr. White each corroborated plaintiff’s version of the incident. Mr. Hayden, an independent adjuster employed by defendant to investigate the case, testified primarily as to the description of the chipped-out area which caused plaintiff’s fall.

Plaintiff argues the trial court erred in not finding defendant negligent and does not assert possible liability under article 2317. The trial court, however, considered both bases of recovery and concluded plaintiff had not carried his burden under either theory. It found plaintiff could not recover under article 2317 because he failed to prove the existence of a defect, as is required by Loescher v. Parr, 324 So.2d 441 (La.1975), and its progeny. The trial court also reasoned plaintiff could not recover in negligence, because he failed to prove the chipped-out area was an unreasonably dangerous condition which defendant had a duty to discover and correct. See Johnson v. Insurance Company of North America, 360 So.2d 818 (La.1978). Since these conclusions represent factual findings of the trial court, they can not be disturbed unless a review of the entire record indicates they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

It is well settled a landowner has the duty to discover any unreasonably dangerous conditions on his premises and to either correct those conditions or warn potential victims of their existence. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Smith v. Hartford Accident and Indemnity Company, 385 So.2d 858 (La.App. 1st Cir. 1980). Among the factors to be considered in determining whether or not the condition is unreasonably dangerous is the ease with which it may be observed by the potential victim. Smith v. Hartford Accident and Indemnity Company, supra; Poe v. State Farm General Insurance Company, 360 So.2d 634 (La.App. 3d Cir. 1978).

The chipped-out area with which we are concerned seemed to be easily observable. Mrs. Haney testified she was able to see the area from the car in which she was waiting for plaintiff. Mr. White was also able to observe the area without any difficulty. The pictures introduced into evidence show the area should be seen easily by potential victims. Moreover, the chipped-out area was located at the edge of the porch, where a person would have to look down in order to safely step onto the parking lot. It was also established that it was still daylight at the time the accident occurred. Under these circumstances, the trial court was not clearly wrong in finding the chipped-out area was not an unreasonably dangerous condition of which defendant had a duty to warn or correct.

For similar reasons, the trial court was correct in denying plaintiff recovery under article 2317. In an action based upon article 2317 a plaintiff must prove, inter alia, that the thing which caused his injuries is defective, i.e., creates an unreasonable risk of harm to others. Jones v. City of Baton Rouge-Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Loescher v. Parr, supra. The record supports the trial court’s conclusion that the chipped-out area did not create an unreasonable risk of harm. This determination is especially sup-, ported by the case of Shipp v. City of Alexandria, 395 So.2d 727 (La.1981), where the Supreme Court reversed a finding that a small pothole in a street created an unreasonable risk of harm.

Plaintiff also complains the trial court erred in finding him to be contributorily negligent. However, the trial court specifically stated it did not reach the question of affirmative defenses raised by defendant. Having found the trial court was not clearly wrong in concluding plaintiff did not prove his case, we likewise do not address the issue of contributory negligence. And, resolution of the liability issue adverse to plaintiff negates a discussion of his quantum contentions.

The judgment of the trial court is affirmed. Appellant is cast for all costs of this appeal.

AFFIRMED.