LEGAL CORNER: Is my wreck on an unfinished highway my fault? - KPLC 7 News, Lake Charles, Louisiana

LEGAL CORNER: Is my wreck on an unfinished highway my fault?

(Source: KPLC) (Source: KPLC)
(KPLC) -

Submit your questions to news@kplctv.com. Civil matters only, please.

QUESTION: Recently, there was a lot of highway construction being done on a specific section of the interstate near my home. during night hours there are no visible markers alerting where work is being done or which directions to take. while driving at night 2 weeks ago i proceeded down a detour and because there was no signs or guidance i wrecked my vehicle into an unfinished part of the highway, is this my fault?

ANSWER: Louisiana is a comparative fault state. What that means is that the court will consider whether either party was negligent or whether both parties were negligent. After considering the evidence presented, if the court determines that the contractor had knowledge of the defect and had an opportunity to remedy the defect, then he could be held to be 100% at fault. If evidence shows that the driver could have done anything differently to prevent the accident, then the driver could be assessed a degree of fault. 

LA R.S. @ 9§2800.68. Comparative fault A. An action by an individual user pursuant to R.S. 9:2800.64 is governed by the application of comparative fault as provided in Civil Code Article 2323. Comparative fault attributable to the individual user shall not bar recovery but shall reduce the award of compensatory damages proportionally, according to the amount of fault attributable to the individual user. B. The defendant shall have the burden of proving the comparative fault of the plaintiff, which shall be shown by clear and convincing evidence. According to LA R.S. @ 9:2800 (limitation on liability for public bodies) , no person shall have a cause of action based solely upon liability imposed under civil code article 2137 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which has caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has had a reasonable opportunity

QUESTION: I own a lot of horses and occasionally I allow different people to come out and ride them. If one of the riders were to get injured, am I liable?

ANSWER: (RS 9:2795.7 et seq) Any person, whether amateur or professional, who engages in an equine activity, is considered a Participant, whether or not a fee is paid. As such, the sponsor, be it a professional, or any other person, shall not be liable for an injury or the death of a participant resulting from the inherent risks of equine activities., Therefore, no participant or participant's representative shall make any claim, maintain any legal action or recover damages from an equine activity sponsor for injury, loss, damage, or death of the participant resulting from any of the inherent risks of equine activities. 

Nothing in Subsection B of this Section shall prevent or limit the liability of an equine activity sponsor, an equine professional, or any other person if the equine activity sponsor, equine professional, or person either:(1) Provided the equipment or tack, and knew or should have known that the equipment or tack was faulty, and such equipment or tack was faulty to the extent that it did cause the injury.(2) Failed to make reasonable and prudent efforts to determine the ability of the participant to engage safely in the equine activity and to safely manage the particular equine based on the participant's representations of his ability.(3) Owned, leased, rented, or otherwise was in lawful possession and control of the land or facility upon which the participant sustained injuries because of a dangerous latent condition which was known or should have been known to the equine activity sponsor, equine professional, or person and for which warning signs have not been conspicuously posted.(4) Committed an act or omission that constitutes willful or wanton disregard for the safety of the participant, and that act or omission caused the injury.(5) Intentionally injured the participant. D. Nothing in Subsection B of this Section shall prevent or limit the liability of an equine activity sponsor or an equine professional under liability provisions as set forth in the Louisiana Products Liability Act, R.S. 9:2800.51 through 2800.59.E. Every equine professional and every equine activity sponsor shall post and maintain signs which contain the warning notice specified in Subsection F of this Section. Such signs shall be placed in a clearly visible location on or near any stable, corral, or arena where the equine professional or the equine activity sponsor conducts equine activities. The warning notice specified in Subsection F of this Section shall appear on each sign in black letters, with each letter to be a minimum of one inch in height. Every written contract entered into by an equine professional or by an equine activity sponsor for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional's or the equine activity sponsor's business, shall contain in clearly readable print the warning notice specified in Subsection F of this Section.F. The signs and contracts described in Subsection E of this Section shall contain the following warning notice: "Under Louisiana law, an equine activity sponsor or equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to R.S. 9:2795.3.G." Failure to comply with the requirements concerning warning notices provided in this Section shall prevent an equine activity sponsor or equine professional from invoking the privilege of immunity provided by this Section.

QUESTION: My home has a stream running as one of the property lines. Can I use the water from that stream as my source of water to irrigate my property?

ANSWER: Yes you can. Louisiana law states that the owner of an estate which borders on running water may use it as it runs for the purpose of watering his estate or for other purposes. However, you cannot stop it or give it another direction and you must return it to its ordinary channel where it leaves your estate.” Now, to determine whether permission to drain the water must be procured from both owners, the court must first consider what actual rights the owners of the property adjacent to the stream hold.

While the owners of estates bordering running water may use the water as provided above, water that is running in a water body, whether navigable or not, is a public thing subject to public use. As this Office has noted on several occasions, running water is a public thing of value that belongs to the people of the State of Louisiana, which will be discussed in more detail below. Now, whether permission to drain the water must be procured from both owners, we must first consider what actual rights the owners of the property adjacent to the bayou hold. In considering the law provided above, it is clear that a riparian owner may access and “use” the running water for his estate, but the water remains a public thing owned by the State under Louisiana law. In Buckskin Hunting Club v. Bayard, the Third Circuit Court of Appeal explained that: [t]he obligations arising from water being a public thing requires the owner through whose estate running waters pass to allow water to leave his estate through its natural channel and not to unduly diminish its flow; however, this does not mandate that landowner allow public access to waterway.In Buckskin Hunting Club and People For Open Waters, Inc., the primary issue was public access to private canals that held running water. The Third Circuit has consistently held that “[n]o public rights to use of a canal located on private property arise from the fact that water flows through [the] channel.” Civil Code ART 657 (estates bordering on running water) says ‘ the owner of the estate bordering on running water may use it as it runs for the purpose of watering his estate or for other purposes.

Disclaimer: The information furnished in this answer is general and may not apply to some situations. All legal situations are unique. No one should rely to their detriment on these answers. Anyone with a potential legal problem should seek the advice of a licensed attorney before taking any action or inaction. The answers provided are not intended to be specific legal advice and no attorney-client relationship is created between the SWLA Law Center and the viewers of KPLC-TV.

Copyright 2018 KPLC. All rights reserved.

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