Prest v. State Dept. of Transp.

• Citation: 490 So.2d 659
• Decision Date: 11 June 1986
• Docket Number: No. 17887-CA,17887-CA
• Parties: John Michael PREST, Plaintiff-Appellant, v. STATE DEPARTMENT OF TRANSPORTATION and Travelers Insurance Company, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 659

490 So.2d 659

John Michael PREST, Plaintiff-Appellant, v. STATE DEPARTMENT OF TRANSPORTATION and Travelers Insurance Company, Defendant-Appellee.

No. 17887-CA.

Court of Appeal of Louisiana Second Circuit.

June 11, 1986.

Richie & Richie by Byron A. Richie, Shreveport, for plaintiff-appellant.

Blanchard, Walker, O'Quin & Roberts by Julie Mobley Lafargue, Roy S. Payne, Shreveport, for defendant-appellee.

Before MARVIN, JASPER E. JONES and LINDSAY, JJ.

LINDSAY, Judge.

The plaintiff, John Michael Prest, appealed a judgment of the trial court denying his personal injury claim against the Louisiana Department of Transportation and Development (DOTD) and its insurer, Travelers Insurance Company, arising from an auto accident. We affirm the trial court judgment.

FACTS

On the afternoon of May 7, 1985, plaintiff left Shreveport traveling westbound on Interstate 20 on his way to work in Marshall, Texas. The plaintiff picked up a hitchhiker, Mark Allen Wren, shortly before the accident occurred. The plaintiff was traveling in the left-hand lane of Interstate 20. Also traveling in the left-hand lane was a rig owned and operated by the defendant, DOTD, which was spraying chemicals on the median. This vehicle, which was painted bright orange, was traveling at a speed of ten to twelve miles per hour and was equipped with three warning lights, several flags and an emblem on the rear designating it as a slow moving vehicle.

Plaintiff contends he was traveling behind an eighteen wheeler which obstructed his view of the DOTD vehicle. The eighteen wheeler successfully changed lanes to avoid the DOTD vehicle. However, plaintiff failed to change lanes and collided with the rear of the DOTD vehicle.

Plaintiff suffered a fracture of the right femure, multiple contusions and abrasions, a large perforation of the vastus lateralis muscle and a fat emboli syndrome. Plaintiff's injuries required surgery in order to place a rod in his leg and plaintiff was hospitalized for a total of six weeks. Plaintiff sued for the $250.00 insurance deductible on his own pickup truck which he was driving when the accident occurred and for damages resulting from his injuries. The total amount of damages claimed by plaintiff was $372,670.18.

The parties stipulated that an insurance policy written by Travelers Insurance Company for the DOTD was in full force and effect at the time of the accident. The parties stipulated to a bifurcated trial and the only issue presented to the trial court was the issue of the liability of the DOTD.

Plaintiff contended at trial that the cause of the accident was the state's negligence in not placing signs, flags, or other warning devices on the roadway in order to warn approaching traffic of the slow moving vehicle.

The DOTD contended that it exceeded minimum regulations for operating slow moving, highway maintenance vehicles. The DOTD contended that the plaintiff was traveling at an excessive rate of speed and failed to keep a proper lookout.

The trial court found that plaintiff's negligence was the sole cause of the accident, and denied his claim for damages, holding that plaintiff failed to prove his claim by a preponderance of the evidence and failed to prove the negligence of the defendant. The trial court found that the DOTD did everything reasonably required to protect motorists and found that plaintiff was negligent in following too close behind the eighteen wheeler, in traveling at an excessive rate of speed, and in failing to take evasive measures to avoid the collision.

Plaintiff appealed the trial court judgment arguing that the court erred in finding no negligence on the part of the DOTD and finding that plaintiff was totally at fault in causing the accident. In the alternative, plaintiff contends the trial court erred in not finding that the DOTD was at least partially at fault in causing the accident. We find plaintiff's arguments to be meritless and affirm the trial court judgment.

DUTY OF THE DOTD

The plaintiff argues the DOTD created a dangerous condition by operating a vehicle on an Interstate highway at a slow rate of speed. LSA-R.S. 32:263 prohibits the operation of slow moving vehicles on Interstate highways. Plaintiff argues that, by enacting this statute, the legislature recognized the danger created by operating slow moving vehicles on busy Interstate highways. The plaintiff recognizes the DOTD had a competing duty to maintain the highways, and that fulfillment of this obligation would occasionally necessitate a deviation from the requirements of LSA-R.S. 32:263. Plaintiff argues because the danger created by a slow moving vehicle is so great, the DOTD has a high duty to adequately warn approaching motorists of the presence of such a vehicle. The duties of the DOTD to maintain roadways and to do so in a manner that poses the least danger to motorists was recognized in Hale v. Aetna Casualty & Surety Company, 273 So.2d 860 (La.App. 2d Cir.1973), writ denied 275 So.2d 867 (La.1973). There we stated the Highway Department has the duty to maintain roads in a safe condition and that the work necessary to fulfill this obligation must be done in such a way so as not to expose the motoring public to dangers which could be prevented by the use of ordinary and reasonable care. This obligation imposes the duty to adequately warn motorists of the existence of dangers created by road repairs or maintenance.

The DOTD is required by law to adopt minimum safety standards with respect to highway design, construction and maintenance. LSA-R.S. 48:35. Pursuant to this legislative directive, the DOTD has adopted safety regulations for performing moving maintenance operations by slow moving vehicles on two-lane or multi-lane highways. Under such conditions, the DOTD vehicle must have a flashing amber light and a warning sign. In addition, the diagram in the regulations indicates the vehicle must also be equipped with two flags at the rear.

In the present case, the DOTD exceeded the minimum standards required to warn motorists of the presence of a slow moving vehicle. Here, the vehicle was painted bright orange, was equipped with three flashing lights. In addition to the two flags mounted at the rear of the vehicle, a "slow moving vehicle" emblem was attached.

The plaintiff contends that DOTD should have put signs, warning devices, or flares along the roadway to warn motorists of the slow moving vehicle, instead of relying on warning devices solely on the vehicle itself. At trial, testimony indicated these measures would not have been feasible. This spraying rig operated on a ten mile portion of the Interstate. Completely closing this section of the heavily traveled Interstate would have imposed an unreasonable risk to motorists. Signs left on the roadway would soon be too far from the vehicle itself to give effective warning. If signs were placed along the roadway, additional crew members would have been required to move the signs as the spraying operation moved along the roadway to keep the signs...