(dissenting).
Mrs. Alberta T. Kennedy, a school teacher, sustained injuries on the grounds of The Cottage when a footbridge fell, as she and her class crossed it. The Cottage is an antebellum home, open to the public for tours, and Mrs. Kennedy was conducting her class on the tour. The collapse of the bridge was caused by a break of a steel-supporting cable. Mrs. Kennedy and her husband have sued to recover damages.
The basic law governing the demand is found' in three articles of the Louisiana Civil Code:
“Art. 2315. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it. * * * ”
“Art. 2316. 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.”
“Art. 2322. The owner of a building is answerable for the damage occasioned by' its ruin, when this is caused by neglect to repair it, or when it is the result of a vice in its original construction.”
Article 2322 makes the owner answerable for damage caused by the fall of a building, whether it falls because of a neglect to repair it or a vice in the original construction.
As used in this article, the term, “building,” refers to a construction. The jurisprudence establishes that the term includes bridges constructed upon privately owned land. Baucum v. Pine Woods Lumber Co., 130 La. 39, 57 So. 577; Lawson v. Shreveport Waterworks Co., 111 La. 73, 35 So. 390; 39 Tulane Law Review, 798, 837. See also Atkins v. Bush, 141 La. 180, 74 So. 897, L.R.A.1917E, 809; Allain v. Frigola, 140 La. 982, 74 So. 404; and Cristadoro v. Von Behren’s Heirs, 119 La. 1025, 44 So. 852, 17 L.R.A.,N.S., 1161.
The difficult question under this Article is whether the use of a steel cable of insufficient size and strength to support the number of people the footbridge would spatially accommodate is a vice of original construction. The Louisiana jurisprudence on this question is quite meager. Two decisions have suggested in dicta that this Article excludes only a fall, or collapse, caused by a vis major or fortuitous event. Thompson v. Commercial Nat. Bank, 156 La. 479, 100 So. 688; Barnes v. Beirne, *88938 La.Ann. 280; 4 Tulane Law Review 611, 615.
Pending further research, I reserve judgment on the question. The applicability of Article 2322, however, is squarely presented by the facts and should be determined by the Court.
Presently omitting further consideration of Article 2322, I am of the opinion that Articles 2315 and 2316 require the imposition of liability on the defendant. The plaintiff was an invitee. As both courts below found, it was foreseeable that the school group would use the bridge. Under the circumstances, the owners were under a duty to close the bridge or, at least, to post a warning to indicate the safe limit of the load capacity.
The sign “Enter on Bridge at own risk” does not suffice as a warning of the load capacity. At best, it is a unilateral attempt to stipulate against liability for accidents on or about the bridge by invitees using it. Such a stipulation, of course, is contrary to public policy and unenforceable. See Gilliam v. Lumbermens Mutual Cas. Co., 240 La. 697, 124 So.2d 913 and Klein v. Young, 163 La. 59, 111 So. 495.
Since the record is insufficient to establish either contributory negligence or assumption of risk, the plaintiffs should recover.
For the reasons assigned, I respectfully dissent.