96-754 La.App. 3 Cir. 3/5/97, Tassin v. State Farm Ins. Co.

• Decision Date: 05 March 1997
• Parties: 96-754 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 604

692 So.2d 604

96-754 La.App. 3 Cir. 3/5/97

Joseph E. TASSIN, et al., Plaintiff-Appellee, v. STATE FARM INSURANCE COMPANY, et al., Defendant-Appellant.

No. 96-754.

Court of Appeal of Louisiana Third Circuit.

March 5, 1997.

Thomas Overton Wells, Alexandria, for plaintiff-appellee.

Owen Murrah Goudelocke, Danial Vidrine, Baton Rouge, for State, Dept. of Transp. and Development.

R. Stuart Wright, Natchitoches, for Donnie Parker, et al.

David Payne Spence, Alexandria, for Liberty Lloyds Ins. Co.

Before THIBODEAUX, SAUNDERS and DECUIR, JJ.

[96-754 La.App. 3 Cir. 1] SAUNDERS, Judge.

This appeal arises from litigation involving an allegedly defective shoulder case in which the State of Louisiana, Department of Transportation and Development, was held twenty (20%) liable for injuries sustained when plaintiff's vehicle collided with a truck blocking the travel portion of a highway. At the time of the accident, the truck was being used to extricate a third vehicle that had become stuck on the shoulder of the road. We reverse the finding of legal liability against the State.

[96-754 La.App. 3 Cir. 2] FACTS

On August 22, 1992, Jerry Brevelle and Matthew Phillips and their passengers drove separate vehicles to a party being held on Mundy Loop Road, which intersected Highway 8 in Grant Parish. Both Brevelle's and Phillips' automobiles became stuck in the mud on the shoulder of Highway 8, where they had stopped in anticipation of a U-turn after passing Mundy Loop Road.

Sometime after Brevelle and Phillips unsuccessfully attempted to dislodge their vehicles, Mr. Donnie Parker, after hearing the spinning of the automobile tires from his father-in-law's residence nearby, drove his Ford one-ton pickup truck to the scene to offer assistance. Believing he was protected by flagmen assigned to stop traffic coming from either direction, good Samaritan Parker sought to extricate the bogged vehicles by using his truck. To do so required that he block La. Highway 8.

This litigation ensued when a vehicle driven by plaintiff, Joseph E. Tassin, who was driving under the influence of alcohol, ¹ failed to heed the warnings of the flagmen in the eastbound lane of travel and collided with Mr. Parker's Ford truck. ² Following trial on the merits, the trial court concluded that plaintiff had proven general damages of $65,000.00, plus $1,760.00 for lost wages and $29,002.26 in medical expenses. Additionally, it concluded that plaintiff was 40% at fault for the accident as was codefendant, Donnie Parker.

[96-754 La.App. 3 Cir. 3] This appeal is limited to the trial court's assessment of 20% on the part of the State of Louisiana, through its Department of Transportation and Development. ³

ERRORS ASSIGNED

The State assigns a total of eight (8) errors, of which we find dispositive the State's argument that its legal duty to provide reasonably safe shoulders did not extend to protect the plaintiff.

In order to determine whether liability exists under the facts of a particular case, our court has adopted a duty-risk analysis. Under this analysis plaintiff must prove:

(1) the conduct in question was the cause-in-fact of the resulting harm

(2) defendant owed a duty of care to plaintiff

(3) the requisite duty was breached by the defendant

(4) the risk of harm was within the scope of protection afforded by the duty breached

Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289 (La.1993); Mart v. Hill, 505 So.2d 1120, 1122 (La.1987). Whether a duty is owed is a question of law. Faucheaux, 615 So.2d at 292; Harris v. Pizza Hut of La., Inc., 455 So.2d 1364, 1371 (La.1984). Whether defendant has breached a duty owed is a question of fact. See Annis v. Shapiro, 517 So.2d 1237 (La.App. 4th Cir.1987).

Mundy v. Dept. of Health & Human Res., 620 So.2d 811, 813 (La.1993).

In the context of defective shoulder cases like the one presently before us, the State is the owner and the following principles apply:

LIABILITY OF DOTD

A duty founded in statute and recognized by the jurisprudence exists on the part of the DOTD to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. This duty to maintain extends to the shoulders of the highway as well. LSA-R.S. 48:1(11), (21), 48:21; Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir.1976), writs denied, 341 [96-754 La.App. 3 Cir. 4] So.2d 1134 (La.1977); 342 So.2d 218 (La.1977); Rue v. State Department of Highways, 372 So.2d 1197 (La.1979); Payne v. Louisiana Dept. of Transp., Etc., 424 So.2d 324 (La.App. 1st Cir.1982); Palermo v. Allstate Insurance Company, 415 So.2d 437 (La.App. 1st Cir.1982) ... In LeBlanc v. State, 419 So.2d 853, 854 (La.1982), the Louisiana Supreme Court stated:

"The Department's duty to maintain highway shoulders is imposed to protect a motorist from the risk of injury produced by a combination of the motorist's inadvertent encounter with an unexpected, sharp dropoff from the roadway and her consequent instinctive oversteering of her vehicle."

....

Liability based on negligence is imposed when the DOTD is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) ...

The maintenance of our highways in a reasonably safe condition is paramount to the safety of the public. As a matter of public policy it is vital that there be an accountable entity to whom the public can look for adequate maintenance of the roadways as well as for redress in the event that a defective condition in the highway precipitates injury. This duty to maintain the public roads and highways has been statutorily imposed on the DOTD. LSA-R.S. 48:21.

Robinson v. State, Through Dept. of Transp., 454 So.2d 257, 260-61 (La.App. 1 Cir.), writ denied, 458 So.2d 122 (La.1984).

Applying this analysis, the cases are legion where the State has been found liable to drivers and passengers in errant vehicles for its failure to repair ruts or eliminate abrupt drop-offs in the shoulders of highways it is charged to maintain. See, e.g., Sinitiere v. Lavergne, 391 So.2d 821 (La.1980); Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979); Brown v. Department of Transp., 604 So.2d 99 (La.App. 3 Cir.1992); Grappe v. State, Dept. of Transp. and Dev., 462 So.2d 1337 (La.App. 3 Cir.1985); Robinson v. State, Through Dept. of Transp., 454 So.2d 257 (La.App. 1 Cir.1984). The rationale for extending liability to such drop-off victims is clear: "an implicit necessity for the functional use of a shoulder is a connection [96-754 La.App. 3 Cir. 5] between the roadway and shoulder that allows for safe gradual movement from one to the other." Sinitiere, 391 So.2d at 825. Indeed:

A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Conversely the Highway Department's duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder.

Rue, 372 So.2d at 1199.

Nonetheless, the State's liability is not a given, for:

It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.

Sinitiere, 391 So.2d at 824-25. In accord, Lewis v. State, Through DOTD, 94-2370 (La.4/21/95); 654 So.2d 311; Bush v. State Through La. DOTD, 542 So.2d 721 (La.App. 4 Cir.1989).

Defendant cites Joseph v. Ennis, 560 So.2d 894 (La.App. 1 Cir.1990) and Snider v. Pagragan, 480 So.2d 1053 (La.App. 5 Cir.1985). In Joseph, a motorist's whose right wheel fell off the paved portion of a road construction project became helplessly stuck, and a good Samaritan who came to her aid was injured when a chunk of concrete flew into his knee; the State was absolved of liability for injuries befalling an attempted rescuer because "the injury suffered by plaintiff did not fall within the ambit of the protection afforded by DOTD's duty to maintain the State's highways and shoulders in a reasonably safe condition." Joseph, 560 So.2d at 896. Likewise, in Snider, 480 So.2d 1053, the State was absolved of legal liability where a landowner "had on the edge of his property a post consisting of a short iron pipe [96-754 La.App. 3 Cir. 6] protruding from a concrete base" upon which a vehicle became hung up, resulting in serious injuries to a good Samaritan who tried to free the vehicle:

In our opinion, the injury suffered by Snider did not fall within the scope of protection afforded by the defendant's duty toward him. As stated in Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), rules of negligence are not designed to protect every victim against every risk that may befall him simply because a violation of a rule may have played some part in producing the injury. Here, accepting that the pipe constituted a hazard to motor vehicles, it cannot reasonably be held to have constituted a hazard, to a non-motorist injured in attempting to extricate a vehicle from the pipe. As noted in Lundin, supra, it is the task of the courts to define the proper reach of a rule of conduct, and to determine by the circumstances of each case which persons are protected by the rule. In the present case, we recognize that a property owner is under a duty not to maintain a post on the edge of his property which is dangerous to traffic. However, it is this court's opinion that the ambit of that duty simply does not encompass the risk that a third party might be injured in trying to...