93-628 La.App. 3 Cir. 3/23/94, Campbell v. Louisiana Dept. of Transp. and Development

• Decision Date: 23 March 1994
• Citation: 635 So.2d 1224
• Parties: 93-628 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1224

635 So.2d 1224

93-628 La.App. 3 Cir. 3/23/94

Robert CAMPBELL, Plaintiff-Appellee, v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et

al., Defendants-Appellants.

Eugene FRAZIER, Sr., et ux., Plaintiffs-Appellees, v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et

al., Defendants-Appellants.

Nos. 93-628, 93-629.

Court of Appeal of Louisiana Third Circuit.

March 23, 1994.

Edward P. Chevallier, Jr., Many, Steven D. Crews, Natchitoches, for Robert Campbell.

Ted David Hernandez, Natchitoches, for Richard D. Ledford etc.

Before GUIDRY, DOUCET, KNOLL and LABORDE, JJ. and CULPEPPER, J. Pro Tem. ^*

[93-628 La.App. 3 Cir. 1] WILLIAM A. CULPEPPER, Judge Pro Tem.

[93-628 La.App. 3 Cir. 2] These two consolidated cases arise out of an accident in which the driver of a car went to sleep and drove into a concrete bridge abutment. Plaintiff in appeal No. 93-628 is Robert Campbell, a backseat passenger who was injured. Plaintiffs in appeal No. 93-629 are Mr. and Mrs. Eugene Frazier, Sr., parents of Robert Frazier, a front seat passenger, who died from injuries. Defendants are Richard Ledford, driver of the vehicle, and Louisiana Department of Transportation and Development (DOTD), on whose highway the accident occurred. All plaintiffs settled with Ledford. After a trial as to DOTD, the district judge held Ledford 25% at fault and DOTD 75% and awarded damages.

DOTD appeals contending the trial judge erred in: (1) finding the lack of guardrails on the bridge abutment created an unreasonable risk of harm for a motorist using reasonable care; (2) apportioning fault; and (3) awarding excessive damages.

FACTS

In the early morning hours of Sunday, January 22, 1989, Richard Ledford was driving west along Highway 6, a two lane highway between Natchitoches and Many, returning home from a fraternity party in Natchitoches. Ledford's two passengers, Frazier and Campbell, were sleeping at the time of the accident. Both passengers had been drinking heavily at the party; however, it is undisputed that Ledford, the driver, was not intoxicated. Sometime between 4:30 and 5:00 a.m. that morning, approximately nine miles east of Many, Ledford fell asleep at the wheel of his vehicle. Ledford drifted to his right off the paved portion of the roadway before awakening and attempting to regain the roadway. Ledford testified he had difficulty steering his car back onto the roadway and was forced to turn sharply to the left. In doing so, Ledford over-corrected and crossed [93-628 La.App. 3 Cir. 3] to the left side of the roadway where the vehicle struck the concrete abutment of the small bridge over Crib Creek. The right front portion of the car struck the abutment, demolishing the passenger side of the vehicle and killing Frazier. Campbell suffered a ruptured spleen. Ledford was not seriously injured.

The Crib Creek bridge was built in 1966 with no guardrails extending from the bridge abutments. In 1980 and 1981, two overlay projects were conducted on Highway 6. The first overlay in 1980 covered the road between Many and Fort Jessup. All three bridges on this section of highway had guardrails installed during the overlay. The second in 1981 covered the road between Fort Jessup and Natchitoches, including the bridge over Crib Creek. However, no guardrails were installed on this bridge. The parties stipulated that all fifteen bridges on Highway 6 between Natchitoches and the Texas state line have guardrails except for the Crib Creek bridge. It is also stipulated that all of these bridges received guardrails during overlay projects. It was undisputed that funds were available for guardrails at Crib Creek if they had been requested in the overlay plan.

Plaintiffs alleged that DOTD was at fault under both a negligence standard and the strict liability provided under LSA-C.C. art. 2317 and LSA-R.S. 9:2800. The trial court found the unprotected bridge abutment to be an unreasonable risk of harm and a cause-in-fact of the injuries.

FAULT OF DOTD

In the recent case of Ryland v. Liberty Lloyds Ins. Co., 93-1712, p. 16 (La.1994); 630 So.2d 1289, 1300 the Louisiana Supreme Court stated the duty of DOTD as follows:

[93-628 La.App. 3 Cir. 4] "The State, through the DOTD, is not a guarantor of the safety of travelers. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). Rather, the duty the DOTD owes is to keep the highways and its shoulders reasonably safe. Id. The DOTD is held liable when it breaches this duty, where the roadway at the scene of the accident was in an unreasonably dangerous condition. Hunter v. Dept. of Transp. and Dev. of State of La., 620 So.2d 1149 (La.1993); Manasco v. Poplus, 530 So.2d 548 (La.1988); Myers v. State Farm Mut. Auto Ins., 493 So.2d 1170 (La.1986)."

In Vallery v. State Through Dept. of Transp., 480 So.2d 818, 822 (La.App. 3d Cir.1985), writ denied, 481 So.2d 1350 (La.1986), we quoted the duty of DOTD as follows:

"The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. It is liable for damages only when the evidence shows (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir.1974); Dupre v. Louisiana Department of Highways, 154 So.2d 579 (La.App. 3 Cir.1963); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir.1973); St. Paul v. Mackenroth, 246 La. 425, 165 So.2d 273 (1964)." Siler v. Guillotte, 410 So.2d 1265, at page 1270 (La.App. 3rd Cir.1982)."

Although DOTD argues that the scope of its duty does not extend to a motorist who falls asleep and loses control of his vehicle, our supreme court has held in a line of [93-628 La.App. 3 Cir. 5] jurisprudence beginning with Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979) that the department does owe a duty to a motorist who inadvertently steers his vehicle onto a road shoulder. Rue involved a dangerous rut in the shoulder which caused the motorist to lose control. See also LeBlanc v. State, 419 So.2d 853 (La.1982) which involved a four to six inch dropoff between the roadway and the shoulder. In LeBlanc, the court discusses other cases where defective shoulders caused inadvertent motorists to lose control.

In Rachal v. State, DOTD, 505 So.2d 999 (La.App. 3d Cir.), writ denied, 508 So.2d 68 (La.1987), and 508 So.2d 76 (La.1987), an intoxicated driver struck a concrete pier located within four feet of the main travelled portion of the highway. The court found DOTD 10% at fault for a hazardous condition created by the design of the highway, requiring the driver to curve to the left and then back to the right, on a down grade within a short distance and a slope of the outside lane toward the median where the concrete pier was located underneath a railroad.

The only case cited by counsel involving a bridge railing is Labit v. Tangipahoa Parish Council, 581 So.2d 732 (La.App. 1st Cir.), writ denied, 588 So.2d 111 (La.1991) in which a motorist on a rural parish road left the roadway and struck a bridge embankment. The railings of the wooden bridge had either been knocked down or had decayed, making it difficult to ascertain the location of the bridge or the canal. Moreover, trees obscured the vision of the motorist. The court found the parish 50% at fault. Obviously, Labit is distinguished from the present case on the facts.

In the present case, there were no ruts, potholes or other defects either in the shoulder or the surface of the highway. The only condition which could have created [93-628 La.App. 3 Cir. 6] an unreasonable risk of harm was the lack of guardrails on the bridge abutment which Ledford struck. As stated above, when Highway 6 between Natchitoches and Many was resurfaced with asphalt, all fifteen bridges were furnished with guardrails except this bridge over Crib Creek. The only explanation offered by DOTD is that the plans called for guardrails where the shoulders were asphalt but not where, as here, the shoulders were constructed of aggregate materials.

Plaintiffs' expert, Larry Tipton, testified the purpose of guardrails on such concrete bridge abutments is to lessen the impact of vehicles and direct them back onto the roadway. Of course, much depends on the angle at which the vehicle strikes the guardrail. Tipton opined that in the present case the force of the impact could have been reduced as much as 80% by a guardrail.

Joseph Blaschke, the expert for DOTD, testified that it was pure speculation to estimate the degree to which the impact would have been reduced. Other experts for DOTD testified that there are over two thousand bridges in Louisiana which do not have guardrails.

In view of the peculiar circumstance that this was the only one of fifteen bridges on this particular construction project which was not furnished with guardrails, and the testimony of the experts that the severity of the impact would have been reduced to a degree, we can affirm the trial court's finding of fact that DOTD breached its duty, and that this was a cause-in-fact of the accident and injuries.

LEDFORD'S FAULT

Ledford was a naval enlisted man stationed in Pensacola, Florida. He was on leave visiting his home in Louisiana. Ledford left Pensacola Friday evening and arrived at his [93-628 La.App. 3 Cir. 7] home in Many around 4:30 a.m. on Saturday morning. He slept until 7:30 a.m., when he awoke and went fishing with his father. Ledford slept again from about 1:00 p.m. until 4:30 p.m....