Utility Ground Hole Fall Lawsuit Fails on Lack of “Constructive Notice”

manhole_manhole_cover_cable-scaledIf you fall into a utility box with no cover, one would likely think they can recover for the damages they endured. However, in Louisiana, lawsuits aren’t as easy as you think. For example, is a company responsible for the utility box if it didn’t have “constructive notice” the ground hole cover was defective? The following lawsuit out of New Orleans shows the difficulties encountered when suing a utility company for a ground hole cover fall.

Antoine Perrier fell into a utility ground hole near the intersection of Press Drive and Haynes Boulevard. Perrier filed a lawsuit against Bellsouth Communications in which he alleged a failure to maintain the protective cover over the utility box. Perrier also noted that Bellsouth was liable due to the lack of adequate warnings of the dangerous condition of the utility hole near the busy Boulevard.

Believing they were not liable, Bellsouth filed a motion for summary judgment. Under La. C.C.P. art. 966(B)(2) a court should grant summary judgment when there is no genuine dispute of any material fact. If a plaintiff such as Perrier won’t be able to prove his case at trial then a court will dismiss it. This procedure allows for the efficient use of the court’s time. The summary judgment filed by Bellsouth, in this case, focused on constructive notice.

Constructive notice is a principle tantamount to a trip and fall lawsuit in Louisiana. To have constructive notice, a plaintiff must prove the condition (here, the faulty utility box cover) existed for such a period of time the exercise of reasonable care would have discovered it. La. R.S. 9:2800.6(C)(1)

Bellsouth proved it had no constructive notice of any defect in the summary judgment filing. Bellsouth submitted evidence they were entitled to summary judgment, including (1) they were not the property owners where the incident occurred, and (2) the utility box was located on a public right away the city-owned. They also submitted evidence the city owned it because they cut and maintained the grass surrounding the area.

After Bellsouth established those facts It was up to Perrier to make a positive showing to support his claim with evidence. While Perrier argued Bellsouth had constructive notice because the utility hole and fiber cables were damaged by Hurricane Katrina and failed to repair it. Bellsouth replied they had yet to have prior notice of problems or defects in relation to the utility hole cover. Further, Bellsouth argued the engineering documents used by Perrier to assert no repairs had been made showed the opposite. The records showed Bellsouth performed extensive repairs to fiber cables after hurricane Katrina.

The appellate court agreed that Bellsouth made a case the city-owned and maintained the property by cutting the grass near the utility box. Further, Bellsouth performed care in extensive repairs to the fiber cables after Hurricane Katrina. The appellate court agreed with the trial court there was no genuine issue of material fact as it pertained to Bellsouth having constructive notice the utility ground hole cover was defective. Therefore Perrier’s lawsuit was dismissed.

The Perrier lawsuit shows the complexity of proving a ground hole trip and fall against utility companies. Constructive notice, summary judgment, and other legal maneuvers may sink your case before it gets to trial. Make sure you hire an experienced attorney before filing such lawsuits. 


Written by Berniard Law Firm Writer Brianna Saroli

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