Article by Ferdinand F. Stone and Andrew Rinker, Jr.
A building in the final stages of construction collapsed, killing three construction workers and injuring two others. The cause of the collapse was an improperly designed roof-to-wall construction that allowed insufficient support for the roof and failed to account for the shrinkage which occurred when the concrete roof cured. The plaintiffs brought an action against the City of Baton Rouge, the Parish of East Baton Rouge, the architect, the construction company, and the prospective tenant. The construction company settled with the plaintiffs, and the action against it was dismissed. The trial court found liability on the part of the city and parish, the architect, and the prospective tenant. The court of appeals reversed the judgment against the prospective tenant, but affirmed as to the other defendants; the Louisiana Supreme Court affirmed this judgment in the case of Stewart v. Schmieder.
The appeal focused on whether the city-parish building officials owed any duty with regard to the construction, inspection, and licensing of buildings; and, if so, to whom that duty was owed. The Baton Rouge Building Code provides that the building inspector has the specific duty, before issuing a building permit, to require the submission of detailed plans and specifications drawn by a licensed architect or civil engineer, and to examine these plans and specifications to determine whether they comply with the laws and ordinances in effect and whether the proposed construction is safe. In addition, the building official was required to inspect the premises for which the permit was issued to ascertain that the provisions of law were being complied with and that the construction was "prosecuted safely." The inspector also had the power to issue such notices and orders to "secure the necessary safeguards during construction." The court found the building official to have been negligent in the performance of the duties established by the building code.
The city-parish defended the suit on the ground that it owed a duty to the public in general but not to any particular individual, and therefore was not liable to the individual plaintiffs. The Louisiana Supreme Court rejected this "public duty" defense as an undesirable vestige of sovereign immunity and held that the municipality and parish were liable for the damages caused by the official's negligent failure to inspect the building plans to ensure they complied with the mandate of the building code.
In Louisiana, Civil Code article 2316 imposes liability in tort upon those who injure others through their negligence: "Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill." For some time, Louisiana courts, interpreting the words "every person," held that these words did not include the government. However, since the Louisiana Supreme Court decision in Board of Commissioners of the Port of New Orleans v. Splendour Shipping & Enterprises Co., the words "every person" include the state, state agencies, and political subdivisions. The Louisiana Constitution of 1974 has incorporated this reading by providing in article 12, section 10, that "[n]either the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property."
Louisiana has not, as some other states have done, replaced sovereign immunity by legislation delimiting areas in which the sovereign is not subject to tort liability. In fact, it is doubtful whether such action could be taken by legislation in the face of the constitutional provision. Hence, in Louisiana, there is no longer a bar to suit against the government in tort for the negligent conduct of its official which occasions damage to another.
About the Author
Ferdinand F. Stone. W.R. Irby Emeritus Professor and Scholar in Residence, Tulane University School of Law, O.B.E. (Hon.); B.A. 1930, M.A. 1931, Ohio State University; B.A. 1933, B.C.L. 1934 [Oxon]; J.S.D. 1936, Yale University.
Andrew Rinker, Jr. B.S. 1978, M.B.A. 1981, Louisiana State University; J.D. 1982, Tulane University; Member, Louisiana Bar Association.
Citation
57 Tul. L. Rev. 328 (1982)