AMY, Judge.
The plaintiff contends that she slipped on a sidewalk outside the Evangeline Parish Medicaid Office and was injured as a result. The plaintiff and her husband filed suit against the owner of the building, the Evangeline Parish Police Jury, and the lessee of the building, the State of Louisiana, Department of Health and Hospitals. The lease between the Police Jury and the State contained an indemnity provision, and the plaintiffs filed a petition for declaratory judgment seeking a determination of whether the Police Jury would be responsible for damages pursuant to the indemnity provision or whether the State was responsible for damages because its employees assumed responsibility for the sidewalk. The trial court found that the State failed to notify the Police Jury about the condition of the sidewalk and that the State was liable for the plaintiff's injuries. The trial court also dismissed the Police Jury from the litigation. The State appeals. We affirm in part, reverse in part, and remand for further proceedings.
According to the petition, Reba Campbell was walking on the sidewalk adjacent to the Evangeline Parish Medicaid Office when she slipped on a black or greenish area of the sidewalk and fell. Mrs. Campbell alleges that she was injured as a result. Both Mrs. Campbell and her husband, Brent Campbell, filed suit against the Evangeline Parish Police Jury, as the owner of the Medicaid Office building, and the State of Louisiana, Department of Health and Hospitals, as the lessee of the building. In its answer, the State asserted a cross-claim against the Police Jury on the basis that the lease between the State and the Police Jury provided that the Police Jury indemnify the State for any damages assessed due to the Police Jury's negligence and that the lease required the Police Jury to maintain the sidewalks.
Thereafter, the plaintiffs filed a petition for declaratory judgment, seeking a determination of the rights of the parties under the lease, specifically whether the Police Jury was responsible under the provisions of the lease or whether the State had assumed responsibility for the sidewalks due to the actions of its employees. There was a hearing on that issue, at which the State's request for involuntary dismissal was denied. Subsequently, the trial court found that, although the Police Jury was responsible for maintaining the building, the State had not notified the Police Jury about this particular problem. Further, the trial court found that the State "did not take sufficient steps to insure the safety of its patrons who frequented or used the Medicaid offices[.]" Thus, the trial court determined that the State was responsible to the plaintiffs for Mrs. Campbell's injuries. The trial court also granted the Police Jury's oral motion for judgment as a matter of law and dismissed the Police Jury from the suit.
The State appeals, assigning as error:
The plaintiffs requested a declaratory judgment addressing whether the State or the Police Jury was liable to the plaintiffs for Mrs. Campbell's injuries.
Thus, the function of a declaratory judgment is to establish the rights of the parties or to express the court's opinion on a question of law without ordering any relief. MAPP Constr., LLC v. Amerisure Mut. Ins. Co., 13-1074 (La.App. 1 Cir. 3/24/14), 143 So.3d 520. "Trial courts are vested with wide discretion in deciding whether or not to grant or refuse declaratory relief." In re Interment of LoCicero, 05-1051, p. 4 (La.App. 4 Cir. 5/31/06), 933 So.2d 883, 886. However, where the judgment would terminate an uncertainty or controversy which gave rise to the proceeding, the trial court must render a declaratory judgment. Id. See also La.Code Civ.P. art. 1876. Accordingly, the appellate court is limited to a determination of whether the trial court abused its discretion in its grant of or refusal to render a declaratory judgment. Id.
Although the trial court's determination about whether to issue a declaratory judgment is subject to the abuse of discretion standard, the judgment itself is still subject to the appropriate standard of review—questions of law are reviewed de novo and questions of fact are subject to the manifest error/clearly wrong standard of review. See Ranger Ins. Co. v. Shop Rite, Inc., 05-452 (La.App. 5 Cir.1/17/06), 921 So.2d 1040.
Here, the first issue the trial court was called upon to resolve was whether the indemnification term of the lease agreement between the State and the Police Jury was implicated. In order to resolve this issue, the trial court necessarily had to determine a) under what circumstances the Police Jury was responsible for maintenance of the sidewalk outside the Medicaid building, and b) whether the Police Jury was negligent in that maintenance.
Further, we note that "[w]hen a trial court's interpretation of a contract is not based upon any factual findings, but, rather, is based upon a review of the contract's language, the manifest error standard of review does not apply." Derouen v. Nelson, 09-467, p. 3 (La.App. 3 Cir.3/10/10), 32 So.3d 1079, 1082. Here, our review of the record indicates that, although the trial court made findings of fact in applying its interpretation of the contract to the issue of whether the indemnification clause of the contract was implicated herein, the trial court's interpretation of the lease was made based on a review of the contract's language.
The lease between the State, as lessee, and the Police Jury, as lessor, was entered into evidence at trial and provides both that the Police Jury is responsible for maintenance of the building, including the exterior and parking areas, and that the Police Jury "shall be responsible" for damages that are the result of the Police Jury's negligence in maintaining the property. Specifically, with regard to maintenance and notification, the lease provides that:
The lease further provides that:
With regard to the Police Jury's responsibility for maintenance and repairs, the lease provides that:
The State contends that the trial court erred in interpreting the lease provisions to require that the State identify dangerous conditions and notify the Police Jury about them for repair. The trial court found that the lease required the Police Jury to correct any problems once they were reported to the Police Jury by State employees. We also note that the provisions of the lease require the Police Jury to remedy any maintenance problems reported by the State within thirty days and that, if the Police Jury failed to do so, the lease permits the State to repair those problems on their own. Further, we observe that the lease provides that the Police Jury is responsible for any damages that are a result of the Police Jury's negligence in properly maintaining the premises.
Thus, the heart of the dispute is whether the Police Jury was negligent in its maintenance of the building exterior such that the indemnification portion of the lease would be implicated. The liability of public entities for damages caused by the condition of buildings within their care and custody is delineated by La.R.S. 9:2800, which states, in relevant part:
Thus, in order to recover from a public entity for damages caused by a thing, the plaintiff must prove 1) custody or ownership of the defective thing by the public entity; 2) that the defect created an unreasonable risk of harm; 3) that the public entity had actual or constructive notice of the defect; and 4) that the public entity failed to take corrective action within a reasonable time. Chambers v. Village of Moreauville, 11-898 (La. 1/24/12), 85 So.3d 593. In determining whether a condition is unreasonably dangerous, the trier of fact should balance the gravity and risk of harm against the cost and feasibility of repair. Id.
With regard to defective sidewalks, there is no fixed test for determining whether a defect is unreasonably dangerous; instead, the determination requires "the consideration of whether or not the sidewalk was maintained in a reasonably safe condition for persons exercising ordinary care and prudence." Id. at 598. Although public entities are responsible for maintaining their sidewalks in a reasonably safe condition, they are neither required to maintain the sidewalks in perfect condition nor are they the insurers of pedestrians' safety. Id.
In this matter, the testimony and evidence submitted at the trial was that Mrs. Campbell slipped and fell on a black or greenish substance on the sidewalk when she was travelling from the health unit to the Medicaid office. According to Mrs. Campbell, after she turned a corner on the sidewalk, she slipped on some "slime" that had accumulated near a flower bed. After she managed to get up, she went into the Medicaid building and informed an employee that she had fallen.
Ms. Ruby Fontenot also testified. According to Ruby, she was the senior employee in the office on the day that Mrs. Campbell fell. After she was informed that Mrs. Campbell had slipped on the sidewalk, she took pictures of Mrs. Campbell and filled out an incident report. Ruby testified that she did not see anything visible on Mrs. Campbell's person that indicated that she had fallen. According to her testimony, Ruby was not aware of anyone else that had slipped. Ruby stated that she went outside to investigate the area where Mrs. Campbell said she fell and that she saw an area on the sidewalk that was black but did not appear to be slippery. Further, Ruby stated that there were no periodic inspections of the sidewalk and that it was rare for State employees to go on that side of the building. Ruby testified that she had not called the Police Jury about the sidewalk.
Another State employee, Deborah Fontenot,
With regard to slippery substances on the exterior of the building, Deborah testified that she was not aware of any slip and falls since the Medicaid office moved into the building in 1998. However, she did testify that she once slipped, although apparently did not fall, on a dark substance in a gutter. Deborah testified that she contacted the Police Jury about the substance and was told to pour bleach on it. According to her testimony, pouring bleach on the substance fixed the problem, although it would come back occasionally. Deborah further testified that she put bleach around the gutters on the front of the building until she ruined an outfit because of the bleach, and Mr. Deville told her that the maintenance person would take care of it. However, Deborah testified that she did not put bleach on any black areas because they were dry. Deborah testified that she did not think the black areas were hazardous or posed a threat to anyone.
Mr. Deville, an employee of the Police Jury, testified that whenever repairs were needed at the Medicaid building, a State employee would contact him, and he would ensure that the appropriate technician was sent to repair the problem. According to Mr. Deville, this was normally accomplished by a phone call, not in writing. When he was informed about Mrs. Campbell's fall, he had a janitor go to the Medicaid building and clean the sidewalk, and he inspected the area later. Mr. Deville testified that the substance appeared to be mildew and that it apparently occurred as a result of a drip in the gutter. According to Mr. Deville, there was another area near the downspouts that was similar to this one; Mr. Deville directed the janitor to "keep an eye" on that area. Mr. Deville thought he subsequently sent someone to clean the gutters. Mr. Deville also testified that someone went out every two weeks from March to October to mow the grass and maintain the exterior.
When asked whether he thought the State should have notified him about the mildew area, Mr. Deville was unsure. He testified that he wouldn't have considered the spot a problem or a "big issue," but, when he put his foot on it, he could see that it was "kind of slippery" and that someone had actually slipped on it. Mr. Deville also testified that he never directed anyone from the State to buy bleach and correct a problem themselves.
Finally, Paul David Coleman, an expert hired by the State, testified about the slip resistance of the parking lot and what he considered a comparable spot to where Mrs. Campbell's accident occurred. Mr. Coleman testified that he used a machine designed to measure the slip resistance of a surface to determine the friction co-efficient of the surface. According to Mr. Campbell, anything that has a friction co-efficient of 0.5 or above is considered slip-resistant. A "very slippery" surface would have a friction co-efficient of 0.17. Mr. Coleman testified that the area where the accident occurred had been cleaned, so he tested an area near the gutters that had signs of fungal growth and an area in the parking lot that was grimy, wet, and oily-looking. According to his testimony, all of the surfaces he tested were slip resistant when both dry and wet, including the spot near the gutters.
Given this evidence, the trial court found that the Police Jury was responsible for remedying problems on the Medicaid building premises after those problems were reported to the Police Jury by the
The trial court's judgment and reasons for judgment concluded that the State was "liable" for Mrs. Campbell's damages. Thus, the trial court must have necessarily found that the State had custody of the sidewalk, that the defect was unreasonably dangerous, that the State had actual or constructive notice of the defect, and that it failed to take corrective action within a reasonable time. Our review of the record indicates that the parties apparently did not contest whether the State had custody of the sidewalk.
After reviewing the record, we find no error in the trial court's apparent conclusion that Mrs. Campbell satisfied the elements required by La.R.S. 9:2800 with regard to her premises liability claim against the State. The evidence presented at trial was that Mrs. Campbell was on premises leased by the State when she slipped on a mildew or moldy substance that had accumulated on the sidewalk as a result of a leak in the gutter. See Trahan v. Acadiana Mall of Delaware, 14-232 (La.App. 3 Cir.10/1/14), 149 So.3d 359. Further, the evidence suggested that the substance developed over a period of time and that it was easily remedied by applying bleach to the area. Cf. Chambers, 85 So.3d 593. We note that, although the State's expert testified that he did not find an area in the parking lot that was not slip-resistant, he was unable to test the actual surface upon which Mrs. Campbell slipped.
We further find no error in the trial court's determination that the indemnity provisions of the lease were not implicated because the State did not notify the Police Jury about the defective portion of the sidewalk. As previously discussed, the lease requires the Police Jury to make repairs within thirty days of notification by the State, and, if the Police Jury fails to do so, the State is permitted to make the repairs itself under the terms of the lease. Further, the Police Jury is only responsible for damages to the State's patrons when the Police Jury was "negligent." Here, the record indicates that the trial court found that there was no notification by the State to the Police Jury that repairs were needed. Thus, the notice requirement of La.R.S. 9:2800 was not satisfied.
Accordingly, we find that the State's assignments of error concerning the trial court's interpretation of the lease and application of those findings as to liability and indemnification are without merit.
The State also assigns error to the trial court's denial of the State's motion for judgment as a matter of law asserted at the close of the plaintiffs' case. Pursuant to La.Code Civ.P. art. 1672(B),
Finally, the State argues that the trial court erred in dismissing the Police Jury. We find merit to this contention. At the close of the trial on the petition for declaratory judgment, the trial court requested that the parties submit additional briefs concerning their positions. At that time, the Police Jury made an oral motion for judgment as a matter of law, which was initially granted by the trial court. The State objected on the basis that the matter before the court was the petition for declaratory judgment, and the trial court directed the Police Jury to file an appropriate motion. However, the record does not contain a written motion submitted by the Police Jury seeking dismissal. Instead, the trial court's written reasons for judgment and accompanying judgment state that the Police Jury is dismissed from this case.
Louisiana Code of Civil Procedure Article 1871 states, in relevant part, that "[c]ourts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. . . . [T]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Conventional judgments embody two elements—the ascertainment or declaration of rights and a specific award of relief. MAPP Constr., 143 So.3d 520. See also La.Code Civ.P. art. 1871, Official Revision Comments. A declaratory judgment only embodies the former. Id. Accordingly, a declaratory judgment that makes a specific award of relief goes beyond the scope of a declaratory judgment. Id.
This is not to say that a party may not seek further relief based upon a declaratory judgment. To the contrary, La.Code Civ.P. art. 1878(A) expressly provides that "[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper." However, Article 1878(A) also requires that "the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith." Additionally, an award of supplemental relief may be appropriate where the pleadings stipulate the supplemental relief sought. State through La. Riverboat Gaming Comm'n v. La. State Police Riverboat Gaming Enforcement Div., 95-2355 (La.App. 1 Cir. 8/21/96), 694 So.2d 316.
Our review of the record reveals that the judgment in this matter awards relief in the form of a dismissal. However, that relief was not requested prior to the hearing, and the State, an adverse party, was not given the opportunity to show why that relief should not be granted. Accordingly, we reverse the trial court's judgment insofar as it dismisses the Police Jury from this action and remand for further proceedings consistent with this opinion.
For the foregoing reasons, the trial court's judgment is affirmed as to the declaration that the State of Louisiana, Department of Health and Hospitals is liable for the injuries suffered by the plaintiff, Reba Campbell. The portion of the trial court's judgment dismissing the Evangeline Parish Police Jury is reversed and remanded for further proceedings. Costs of this matter are assessed equally to the State of Louisiana, Department of Health and Hospitals; the Evangeline Parish Police Jury; and the plaintiffs, Reba Campbell and Brent Campbell.
