Plaintiff brought this suit for personal injuries allegedly sustained by him as a result of defects in the sidewalk in front of No. 1150 South Thirteenth Street in Baton Rouge. The suit was originally brought against Mrs. Corine Vicaro, individually and as usufructuary of the Estate of Sam Vicaro, and the heirs of Sam Vicaro, the owners of property involved; Vicaro's public liability insurer, The Travelers Insurance Company; the City of Baton Rouge; and the Parish of East Baton Rouge. In addition Mrs. Fannie G. Loria and the United States Fidelity and Guaranty Company were made parties defendant, but subsequently that suit was dismissed as to these last two defendants.
Subsequently, the Vicaros and Travelers Insurance Company compromised plaintiff's suit for the sum of $1000.00 and suit was dismissed insofar as these defendants were concerned on June 12, 1959 with prejudice. In the agreement of settlement the plaintiff specifically reserved all of his rights against the City of Baton Rouge, and the Parish of East Baton Rouge.
The City of Baton Rouge and the Parish of East Baton Rouge then filed a motion for a summary judgment based on the fact that the liability of the City of Baton Rouge and the Parish of East Baton Rouge, if any, was secondary and the primary liability rested upon the defendant, Mrs. Vicaro and her insurer. The motion alleges that the only negligence set out against the City of Baton Rouge, and the Parish of East Baton Rouge, or either of them, was the failure to discover and report the defect in the sidewalk which was caused by the action of the other defendant, Vicaro. It further alleges that the compromise agreement and the dismissal of the suit insofar as the primary obligor was concerned released the City of Baton Rouge, and the Parish of East Baton Rouge whose liability, if any, was only secondary.
The district court sustained the motion for summary judgment and dismissed plaintiff's suit insofar as the City of Baton Rouge, and the Parish of East Baton Rouge were concerned.
From this judgment the plaintiff prosecutes this appeal.
Plaintiff appellant's complaint is that the district court erred in its interpretation of two points of law, namely:
(1) That the primary liability for the injury to plaintiff appellant rested on the abutting property owner and her insurer, and that the liability of the City of Baton Rouge and the Parish of East Baton Rouge was secondary.
(2) That the release of the party primarily liable releases one secondarily liable notwithstanding a reservation of rights of the party granting the release.
The allegation of negligence which the lower court accepted as true for the purpose of the motion for summary judgment are contained in the following allegations of plaintiff's petition.
It has been the long standing jurisprudence of this state that the plaintiff is bound by his solemn declaration of record. See Himel v. Connely, 221 La. 1073, 61 So.2d 876; Droddy v. Southern Bus Lines, La.App., 26 So.2d 761.
While the question of the procedure upon a motion for summary judgment is not at issue Article 966 of the LSA-Code of Civil Procedure provides in part:
This brings us to the question of the primary liability of the abutting property owner for damages arising from any special use made by him creating a hazard on a sidewalk in front of his property.
The law of this state appears to be well settled to the effect that a municipality is responsible to persons injured as a result of defective streets or sidewalks. The obligation of maintenance and repair rests upon the municipality and its failure to discharge said duties constitute negligence whenever the municipality has actual or constructive notice of the defects causing the injury. See Brown v. Parish of East Baton Rouge, La.App., 126 So.2d 173; Toppi v. Arbour, La.App., 119 So.2d 621; Brantley v. City of Baton Rouge, La.App., 98 So.2d 824; Betz v. Limongi, 46 La.Ann. 1113, 15 So. 385.
This rule is recognized in Volume 63 C.J.S. Verbo Municipal Corporations § 796, page 109. This Section reads as follows:
It is equally well settled that ordinarily an abutting owner is not responsible in damages for injuries caused by a defective sidewalk if the defect occurs through normal deterioration or in the ordinary course of events but an abutting owner is responsible to third persons for injuries occasioned by defects created or caused by his using the street or sidewalk for some special purpose or undertaking. (See Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239; Legg v. Palozzola, La. App., 51 So.2d 151; Green v. Chotin, La. App., 159 So. 760; Rock v. American Construction Co., 120 La. 831, 45 So. 741, 14 L.R.A.,N.S., 653.
The jurisprudence which imposes liability upon the abutting owner when his special use of the sidewalk causes or creates the defect is founded upon the principle that such special use by the abutting owner carries the obligation of preventing unsafe or dangerous conditions from developing as a result thereof. The abutting owner utilized a public sidewalk for some particular private undertaking and thereby caused a dangerous condition to exist and is said to have actually created and maintained a nuisance creating liability to third persons injured thereby.
In the case of Arata v. Orleans Capitol Stores, supra, cited by the judge the following pertinent language was used:
The principle handed down in the Arata case, supra, is in accordance with the general rule which is stated in Volume 63, C.J.S. Verbo Municipal Corporations § 857, page 212:
Our consideration of the decisions of our own state which have held an abutting owner liable in damages for injuries to a third party in those instances wherein the owner caused or created the defect involved reveals that none of said authorities have directly
In Smith v. City of Baton Rouge et al., 166 La. 472, 117 So. 559, plaintiff therein sued the defendant city and a waterworks company in solido for the death of plaintiff's three year old son who was drowned in a water filled hole dug in the street by the defendant waterworks company. The trial court rendered judgment in favor of plaintiff against the waterworks company, but rejected plaintiff's claim against the city. On appeal the Court of Appeal affirmed the judgment in favor of the City and reversed the trial court's finding of liability on the part of defendant waterworks company.
Upon review of the judgment of the Court of Appeal, the Supreme Court reversed the judgment of the Court of Appeal in favor of defendant waterworks company and rendered judgment against said defendant in plaintiff's favor. Plaintiff did not press its claim against the defendant municipality in either the Court of Appeal or the Supreme Court conceding there was no claim against the defendant municipality.
In Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239, the plaintiff sued defendants, City of New Orleans, Orleans Capitol Stores, Inc., and the latter's insurer, for damages to plaintiff's son injured while riding a bicycle on a public sidewalk. All defendants filed exceptions of no cause of action based on the ground the petition affirmatively showed contributory negligence on the part of plaintiff's minor child. The trial court sustained defendants' exceptions and on appeal the Court of Appeal affirmed the judgment of the trial court. Writs were applied for and granted by the Supreme Court which tribunal held that the petition did not affirmatively show the minor child involved was guilty of contributory negligence and remanded the case to the trial court for hearing on the merits. In the course of its opinion, the Supreme Court reviewed at length the law of this state which holds that an owner is not liable for injuries caused by the dangerous condition of a sidewalk unless he creates or causes the condition, but that generally a municipality is responsible for dangerous defects amounting to a trap. The court further held that under the allegations of plaintiff's petition whether or not the defects were dangerous was a matter of fact to be determined after hearing the evidence. With respect to defendants, Capitol Stores, Inc., and its insurer, the court held the allegations sufficient to state cause of action against said defendants. The court did not consider the issue of primary or secondary liability.
Legg v. Palozzola et al., La.App., 51 So.2d 151, was an action in which defendant Palozzola, his insurer and the City of New Orleans were sued for injuries sustained by a fall on a tile sidewalk installed by an owner in front of his business establishment. On behalf of the abutting owner and his insurer, exceptions of no cause of action were filed and sustained by the trial court from which judgment, plaintiff appealed. In reversing the judgment of the trial court, the Court of Appeal held that the law of this state does not impose upon an abutting owner the obligation of repairing or maintaining streets or sidewalks. The court held that the allegations of the petition brought plaintiff's case within the exception to the foregoing rule proclaimed in Green v. Chotin, La.App., 159 So. 760, to the effect that one obstructing a sidewalk or creating a dangerous condition with respect thereto is liable for injuries thereby occasioned. The issue of solidary liability or whether the liability of the owner is primary and that of the municipality secondary was not discussed.
Rock v. American Construction Co. et al., 120 La. 831, 45 So. 741, 14 L.R.A.,N.S., 653, was a suit against Consumer Electric Company (a public utility) and American Construction Co., a contractor engaged by the
In Green v. Chotin, La.App., 159 So. 760, the suit was against the abutting property owner alone who was held liable in damages for plaintiff's injury.
In other jurisdictions there appears some division of authority on the question of whether in those instances wherein both abutting owner and municipality are liable to the injured third party, the liability is that of joint or co-tort-feasors rendering them liable in solido or whether that of the owner is primary and that of the municipality is secondary.
The majority view, however, hold that where there is a liability on the part of both the abutting owner and the municipality, the municipality if called upon to respond in damages may recover over against the abutting property owner. In McQuillin, Municipal Corporations, 3rd Ed. Vol. 19, Sec. 54, 19 we find:
We detect no merit in the argument of learned counsel for plaintiff that the obligations of defendants herein is in solido on the theory that said defendants are co-tort-feasors. To characterize wrongdoers as joint tort-feasors the negligence of each must combine to cause the injury of which the plaintiff complains. In the case at bar the hereinabove quoted paragraphs of plaintiff's petition (which must be accepted as true for purposes of the present discussion) clearly show that the defective condition complained of resulted solely by virtue of certain overt acts of defendant property owner. The only negligency charged to defendant municipality is its alleged
We will next take up the other complaint of the plaintiff appellant, namely, that the lower court erred in holding that the release of a party primarily liable releases one secondarily liable, notwithstanding reservation of rights by the party granting the release. The plaintiff appellant's contention is that the negligence charged to the abutting property owner and to the City-Parish is not the same act of negligence but is in fact composed of separate and distinct incidences or acts of negligence either of commission or omission charged to each of the defendants and a judgment against the several defendants jointly and in solido is prayed for. The acts of negligence complained of by the plaintiff appellant are fully set forth in Articles 6, 7, and 8 of his petition which are hereinabove quoted in this Opinion. Plaintiff contends that there was a joint breach of duty by the defendants, Vicaro, the abutting property owner, and the City-Parish Government. The plaintiff appellant's contention is that it is one of joint and solidary liability for separate and distinct acts of negligence and further argues that release of one alleged joint-tort-feasor does not release the remaining alleged joint-tort-feasors as the release contained a reservation of rights against the remaining tort-feasors. Under the jurisprudence of this state the release of one co-debtor in solido releases all other parties solidarily liable with him unless reservation of rights against the said remaining solidary obligor be especially reserved in the release.
Generally the remission of conventional discharge in favor of one of the co-debtors in solido discharges all others unless the creditor has expressly reserved the right against the latter and the rule applies to obligations ex delicto as well as obligations ex contractu. Evans v. Walker, La. App., 111 So.2d 885. See also Recile v. Southern United Ice Company, 17 La.App. 611, 136 So. 769.
However with regard to obligors primarily and secondarily liable, release of the party primarily liable also releases the secondary obligor notwithstanding any attempted reservation of rights against the latter. The reason for the rule that the release of a party primarily liable also releases his secondary obligor irrespective of an attempted reservation of rights against the party secondarily liable is that if the rule were otherwise the party only secondarily liable would be responsible in damages without having recourse against the person primarily responsible. See Volume 76 C.J.S. Verbo Release § 50, p. 689.
In the recent case of Williams v. Marionneaux, La.App., 116 So.2d 57 (affirmed by the Supreme Court 240 La. 713, 124 So.2d 919), this court held:
We are satisfied that plaintiff's compromise settlement and release of the claim against the abutting property owner also had the effect of releasing the City of Baton Rouge and the Parish of East Baton Rouge notwithstanding the attempted reservation of rights.
For these reasons it is ordered that the judgment of the lower court be affirmed.