97-645 La.App. 3 Cir. 7/1/98, Cormier v. Comeaux

• Decision Date: 01 July 1998
• Citation: 714 So.2d 943
• Parties: 97-645 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 943

714 So.2d 943

97-645 La.App. 3 Cir. 7/1/98

Patricia Deshotel CORMIER, et al., Plaintiffs--Appellants, v. Mickey L. COMEAUX, et al., Defendants--Appellants.

Mickey Louis COMEAUX, et al., Plaintiffs--Appellants, v. STATE of Louisiana, et al., Defendant--Appellee.

Nos. 97-645, 97-646.

Court of Appeal of Louisiana Third Circuit.

July 1, 1998.

Rehearing Denied Aug. 5, 1998.

Jack Derrick Miller, Crowley, John Ezell Jackson, Lake Charles, for Patricia Deshotel Cormier, et al., in No. 97-646 and Patricia Deshotel Cormier, in No. 97-646.

J. Rock Palermo, III, Lake Charles, for Mickey L. Comeaux, et al. in No. 97-645 and Mickey Louis Comeaux, et al. and State, Through DOTD in No. 97-646.

Charles E. Soileau, Rayne, for State, Through DOTD in both cases.

Before THIBODEAUX, DECUIR, PETERS, AMY and GREMILLION, JJ.

[97-645 La.App. 3 Cir. 1] PETERS, Judge.

These consolidated personal injury suits arise out of a tragic one-vehicle accident in which Mickey Louis Comeaux and Patricia Deshotel Cormier were rendered quadriplegics. Ms. Cormier, individually and as administrator of the estate of her minor children, filed a petition for damages, naming as defendants Mr. Comeaux, who was the driver of the vehicle, and the State of Louisiana through the Department of Transportation and Development (DOTD). Mr. Comeaux and his wife, Cheryl Comeaux, also filed suit naming only DOTD as a defendant. The cases were [97-645 La.App. 3 Cir. 2] consolidated, and after trial, the trial court rendered judgment in favor of Ms. Cormier and against Mr. Comeaux, awarding her damages in the amount of $9,578,304.00 and damages in favor of three of Ms. Cormier's minor children in the amount of $100,000.00 each and $75,000.00 to a fourth child. All claims against DOTD were rejected by the trial court. Both Ms. Cormier and Mr. Comeaux have appealed that portion of the judgment finding DOTD without fault in causing the accident and resulting injuries.

FACTS CONCERNING THE ACCIDENT

The accident occurred on December 25, 1991, around 3:30 a.m. on U.S. Highway 90, one mile east of Mermentau, Louisiana. At the point of the accident, U.S. Highway 90 is a two-lane, hard-surface highway running generally east and west. A ditch runs parallel to the north side of the highway. Mr. Comeaux, Ms. Cormier, and Patrick Kibodeaux were traveling west on U.S. Highway 90 on their way to Jennings, Louisiana, when the accident occurred. At that time, Mr. Comeaux was driving, and both Ms. Cormier and Mr. Kibodeaux were asleep.

For an unknown reason, the vehicle exited the travel lane at an angle to the northwest, traversed the highway shoulder, and entered the ditch. The vehicle traveled seventy-four feet before first striking the back slope of the ditch. It traveled another thirty-five feet in the ditch before again striking the back slope and then traveled an additional nineteen feet to its stopping point. Sometime in the process of traversing the ditch, the vehicle overturned. When the vehicle finally came to a stop, it was facing north with the rear bumper twenty feet from the paved surface of U.S. Highway 90.

On the night of the accident, the weather was clear and the road surface was dry and free of visible defects. No skid or gouge marks were found on the paved surface [97-645 La.App. 3 Cir. 3] that might suggest a reason that the vehicle left the highway. Expert testimony at trial established that excessive speed was not a factor in causing the accident because the vehicle was traveling at approximately forty-five to fifty miles per hour when it left the highway. The litigants stipulated at trial that at the time of the accident, Mr. Comeaux's blood-alcohol content was .14 percent based on grams of alcohol per 100 cubic centimeters of blood. However, the eyewitness testimony was to the effect that his driving was not impaired.

Additionally, expert testimony established that in the area of the accident, the roadway had an eleven-and-one-half-foot-wide westbound travel lane and a three-foot-wide unpaved shoulder. The ditch foreslope began immediately adjacent to the shoulder, and the combination of foreslope, ditch bottom, and back slope resulted in a 28.2-foot-wide ditch. The foreslope comprised twelve feet of the 28.2 feet and contained three different slope breaks over the twelve-foot distance. For five feet from the edge of the shoulder, the slope was 3.8:1. ¹ For the next five feet, there was a 2.4:1 slope, and for the next two feet, there was a 1.2:1 slope. At this point, the side of the ditch dropped vertically 1.5 feet, or to the bottom of the ditch. The ditch bottom extended 5.7 feet to the beginning of the back slope. The back slope extended the remaining 10.5 feet and was subject to two slope breaks over that distance. For the first 2.5 feet from the bottom of the ditch the slope was 0.7:1. The slope of the final eight feet of the back slope was 1.8:1. A box culvert was located about ten or twelve feet before the area where the tires dropped into the ditch and did not have a guardrail.

The plaintiffs did not attempt to prove that DOTD was responsible for Mr. [97-645 La.App. 3 Cir. 4] Comeaux leaving the travel lane of the highway. Rather, they contended that the shoulder of the highway and the foreslope and back slope of the ditch were defective and that these defects contributed to the severity of their injuries. The trial court found that the foreslope and back slope of the ditch were dangerous and hazardous to a vehicle leaving the traveled portion of U.S. Highway 90 and that these dangerous and hazardous conditions contributed to the severity of the injuries the plaintiffs suffered. The trial court further found that changing the contours of the shoulder and ditch or adding a guardrail would have, in all probability, lessened the impact and trauma. On appeal, DOTD does not dispute these factual findings. Despite reaching these conclusions, the trial court still denied recovery against DOTD, concluding that DOTD owed no duty to the plaintiffs to remedy or rectify these dangerous and hazardous conditions. Both Mr. Comeaux and Ms. Cormier assign as error the trial court's conclusion that DOTD owed no duty to them. In this appeal, they request that DOTD be found liable for their damages and that fault be apportioned between DOTD and Mr. Comeaux.

OPINION

Liability

The plaintiffs assert that DOTD's liability may be found in either the theory of negligence under La.Civ.Code art. 2315 or the theory of strict liability under La.Civ.Code art. 2317. In either case, "liability hinges on whether the defendant has breached his duty to the plaintiff." Hunter v. Dep't of Transp. & Dev., 620 So.2d 1149, 1150 (La.1993). In order to determine whether liability exists, a duty-risk analysis is used. Syrie v. Schilhab, 96-1027 (La.5/20/97); 693 So.2d 1173. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the defendant [97-645 La.App. 3 Cir. 5] breached the duty, and the risk of harm was within the scope of protection afforded by the duty breached. Id. Under the duty-risk analysis, all four of these inquiries must be answered in the affirmative for the plaintiff to recover. Id. Because the trial court's conclusion that the condition of the right-of-way was a cause-in-fact of the accident is not contested by DOTD, only the duty issue is before us for review.

Expert testimony presented by the plaintiffs included that of James R. Clary, Sr., an expert in the field of highway design, highway safety, highway signing, land surveying, and hydraulics design; John C. Glennon, a civil engineer; and Duane T. Evans, an expert in the field of accident reconstruction and traffic engineering. Dr. Joseph Blaschke, a civil engineer and expert in traffic engineering, highway design, accident reconstruction, and driver behavior within the field of traffic engineering, testified for DOTD.

All of the plaintiffs' experts were of the opinion that a combination of factors, all within the control of DOTD, created a dangerous situation in the area of the accident. All agreed that the shoulders of the highway as well as the foreslope and back slope of the ditch did not meet acceptable engineering standards. Additionally, they all agreed that the dangerous condition could have been remedied simply by increasing the shoulder width and/or modifying the foreslope of the ditch to a less severe drop or by installing a guardrail.

While generally agreeing that the highway did not meet modern safety standards, Dr. Blaschke was of the opinion that the angle of entry and speed made this accident nonrecoverable. He indicated that in order to make the slope more gentle, the ditch configuration would have to be changed. Dr. Blaschke also testified that a barrier (guardrail) is itself a hazard. The trial court rejected Dr. Blaschke's analysis and accepted the opinions of the plaintiffs' experts in reaching the factual conclusions it [97-645 La.App. 3 Cir. 6] did, and DOTD does not contest these factual conclusions on appeal.

As to the remaining questions in the duty-risk analysis, DOTD acknowledges that it owes the motoring public a duty to maintain the state's highways. La.R.S. 48:21 provides in part that "[t]he functions of [DOTD] shall be to study, administer, construct, improve, maintain, repair, and regulate the use of public transportation systems...." Included is the duty to "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. Once adopted, DOTD must conform to such safety standards. Id.

The question before us concerns the application of DOTD's statutory duty to highways constructed prior to the...