97-1422 La.App. 3 Cir. 9/23/98, Deville v. Louisiana Dept. of Transp. & Development

Decision Date23 September 1998
Citation719 So.2d 584
Parties97-1422 La.App. 3 Cir
CourtCourt of Appeal of Louisiana — District of US

Gilbert J. Aucoin II, Ville Platte, for Gerald Deville.

I. Jackson Burson, Jr., Eunice, for Louisiana Dept. of Transp. & Development.

Anthony Craig Dupre, Ville Platte, John Blake Deshotels, Mamou, for Peter O'Conner.

J. Wendel Fusilier, Alex D. Chapman, Jr., Trent S. Brignac, Ville Platte, for David L. Fontenot, Latisha Ordner etc. and John H. Lyons et ux.

Miles A. Matt, Lafayette, for Charleen N. Soileau.

Before COOKS, PETERS and SULLIVAN, JJ.

[97-1422 La.App. 3 Cir. 2] COOKS, Judge.

In these consolidated actions arising from a one-car accident, the plaintiffs appeal the trial court's judgment finding the Louisiana Department of Transportation & Development free from fault in causing the mishap. For the reasons hereinafter expressed, we affirm.

FACTS

On April 23, 1993, at approximately 3:30 a.m., there was a one-vehicle accident on Louisiana Highway 29, approximately five miles from Eunice, Louisiana. The driver and owner of the vehicle (a Ford Festiva) was Gerald Deville. At the time of the accident, four passengers were riding in his vehicle: Peter O'Connor, Sebastian Santora, Jr., Troy Lyons and Greg Fontenot. Deville was [97-1422 La.App. 3 Cir. 3] driving from Eunice to Ville Platte when the accident occurred. The group had been to the Purple Peacock, which is a bar in Eunice. Deville lost control of his vehicle as he came to a curve in the road. There was a large, deep ditch located on the northwest side of the highway. While negotiating the curve, Deville slammed on his brakes, skidded along the roadway and shoulder, went over the steep embankment and crashed into the opposite bank of the ditch. The vehicle flipped over and burst into flames. Troy Lyons, Greg Fontenot and Sebastian Santora, Jr., died as a result of the accident. Deville and Peter O'Connor, although suffering serious injuries, survived the accident. The trial court found Deville was operating his vehicle while legally intoxicated at the time of the accident.

The heirs of the decedents filed suits for wrongful death, and Deville and Peter O'Connor filed suits for personal injuries. Named as defendants were the Louisiana Department of Transportation and Development (DOTD), Ford Motor Company 1 and Gerald Deville and his insurer. Plaintiffs settled their claims against Ford. Deville's insurer filed a concursus suit tendering, therein, the amount of its policy limits. The suits were consolidated and the matter was tried against DOTD, the only remaining defendant.

After trial, the judge found DOTD did not cause or contribute to the accident. While finding the ditch in question was "deep and dangerous," the trial court weighed this factor against his finding that the ditch's utility in facilitating drainage in the area was great. The trial court ultimately concluded the negligence of Gerald Deville solely caused the accident and resulting deaths and injuries. Finding no liability on the part of DOTD, the trial judge did not reach the issue of damages. Plaintiffs have appealed the judgment of the trial court, asserting the [97-1422 La.App. 3 Cir. 4] following assignments of error:

1. The trial court erroneously concluded that the roadway/curve and surrounding area within the state's right of way and control in question was not defective and did not pose an unreasonable risk of harm to the traveling public.

2. The trial court erroneously concluded that the conditions of the roadway/curve and the surrounding area within the state's control did not cause and/or contribute to causing the accident.

3. The trial court erroneously concluded that the conditions of the roadway/curve and the surrounding area within the state's control did not cause and/or contribute to causing the injuries and damages incurred by the five occupants of the vehicle in question.

4. The trial court erroneously found that DOTD was in compliance with La.R.S. 48:35 when in fact DOTD failed to conform to the standards of the American Association of State Highways and Transportation Officials (AASHTO).

5. The court erroneously failed to award any damages to the plaintiffs.

STANDARD OF REVIEW

It is well settled that an appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless they are clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). In a tort action against the state, whether based on strict liability or negligence, the plaintiff must show: (1) the property which caused the damage was in the custody of the DOTD; (2) the property was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the risk; and (4) the defect in the property was a cause in fact of the plaintiff's injuries. Bessard v. State, Dep't. of Transp. & Dev., 94 0589 (La.11/30/94); 645 So.2d 1134; La.R.S. 9:2800. The analysis under either theory is the same. Campbell v. Louisiana Dep't of Transp. [97-1422 La.App. 3 Cir. 5] & Dev., 94-1052 (La.1/17/95); 648 So.2d 898. Plaintiffs have the burden of proving all of the above factors, and thus the failure of any is fatal to the plaintiffs' case.

ANALYSIS

It is undisputed that DOTD has custody of Louisiana Highway 29. As mandated by La.R.S. 48:21(A), DOTD has a statutory duty to "study, administer, construct, improve, maintain, repair, and regulate" the use of public highways and roads. Fulfillment of this duty necessarily requires that DOTD "adopt minimum safety standards with respect to highway and bridge design, construction, and maintenance." La.R.S. 48:35(A)(1). Those standards are to correlate with and conform to, as far as possible, the standards approved by the American Association of State Highway and Transportation Officials (AASHTO). Id.

As of the date of this accident, La.R.S. 48:35 provided:

A. (1) The office of highways of the Department of Transportation and Development shall adopt minimum safety standards with respect to highway design, construction, and maintenance. These standards shall correlate with and, so far as possible, conform to the system then current as approved by the American Association of State Highway and Transportation Officials. Hereafter, the state highway system shall conform to such safety standards.

(2) The chief engineer may designate those highways as listed in R.S. 48:191 on the effective date of this Section for reconstruction or repair at standards which are less than those as approved by the American Association of State Highway and Transportation Officials; however, no reconstruction or repair shall be done on any highway under this Part which results in a pavement width of less than eighteen feet, and all reconstruction or repair done under this Part shall be accomplished within the existing right of way.

DOTD cannot, however, guarantee the safety of all travelers. Nor can it be held responsible for all injuries resulting from any risk posed by the roadway or its [97-1422 La.App. 3 Cir. 6] appurtenances, but only for those caused by an unreasonable risk of harm to others. See Entrevia v. Hood, 427 So.2d 1146 (La.1983). Whether DOTD breached its duty to the motoring public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on the facts and circumstances of the case. Campbell, 648 So.2d 898.

La. Hwy. 29 is a two-lane roadway classified by DOTD as a rural collector road, which falls within the lowest functional classification. See La.R.S. 48:191. The highway was originally asphalt hard-surfaced in 1949-50. Today, it is a black-top road with a yellow dividing line in the middle. A solid yellow no-passing zone line extends from the beginning to the end of the curve where Deville lost control of his vehicle. Approximately two-tenths of a mile before the curve a warning sign is present, with a suggested speed of 40 miles per hour. There also are yellow signs with black chevrons to alert drivers of the existence of the approaching curve. The curve lanes are 11 feet in width, and there is a shoulder varying in width from approximately six feet to seven and one-half feet bordering it. The shoulder's composite consists of a mix of gravel and shell. The record testimony discloses the largest drop from the travel lane to the shoulder was an inch and a half, and the average drop is generally one half inch to an inch. The highway was overlaid and reconditioned in 1979-1980. Neither the width of the travel lanes nor shoulders was changed during the overlay.

Plaintiffs presented the testimony of Jim Clary, an expert in the field of highway design and highway safety, to establish that there were numerous defects in Hwy. 29 at the site of the accident. Clary found the curve warning sign in the northbound lane of traffic was farther from the curve than DOTD's regulations recommend. He also testified the curve had an excess radius degree; and, therefore, [97-1422 La.App. 3 Cir. 7] it was deficient. He also felt the roadway width was irregular and insufficient; and, there was stress cracking, wear and several other minor defects in the roadway....

To continue reading

Request your trial
3 cases
  • Boudreaux v. State, DOTD
    • United States
    • Court of Appeal of Louisiana (US)
    • 3 November 2010
    ...not determinative of the issue.' See Dill, supra, at 996. In Deville v. La. DOTD, 97-1422 to 97-1427, pp. 4-5 (La.App. 3 Cir. 9/23/1998), 719 So.2d 584, 586-87, writ denied, **6 98-2684 (La.12/18/98), 732 So.2d 1239, we set forth the four factors the plaintiff must show in a tort action aga......
  • Boudreaux v. State Of La., 10-189
    • United States
    • Court of Appeal of Louisiana (US)
    • 3 November 2010
    ...not determinative of the issue.' See Dill, supra, at 996. In Deville v. La. DOTD, 97-1422 to 97-1427, pp. 4-5 (La.App. 3 Cir. 9/23/1998), 719 So.2d 584, 586-87, writ denied, 98-2684 (La.12/18/98), 732 So.2dPage 8 1239, we set forth the four factors the plaintiff must show in a tort action a......
  • Lambert v. State, No. 2006 CA 1105 (La. App. 5/4/2007), 2006 CA 1105.
    • United States
    • Court of Appeal of Louisiana (US)
    • 4 May 2007
    ...care will give rise to a finding of liability. See Devine v. Louisiana Dept. of Transp. & Development, 97-1422 (La. App. 3 Cir. 9/23/98), 719 So.2d 584, 590, writ denied, 98-2684 (La. 12/18/98), 732 So.2d Following a thorough review of the record and exhibits, we find the record does not de......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT