Aucoin v. State Through Dept. of Transp. and Development

• Decision Date: 24 April 1998
• Citation: 712 So. 2d 62
• Parties: 97-1938 La
• Court: Louisiana Supreme Court

Page 62

712 So.2d 62

97-1938 La. 4/24/98, 97-1967 La. 4/24/98

Michelle AUCOIN, et al. v.STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

Nos. 97-C-1938, 97-C-1967.

Supreme Court of Louisiana.

April 24, 1998.

Rehearing Denied June 5, 1998.

Paul H. Due, Due, Caballero, Price & Guidry, G. Stephen Covert, Donald W. Price, Baton Rouge, for Applicant in No. 97-C-1967 and Respondent in No. 97-C-1938.

Stacey A. Moak, Richard P. Ieyoub, Attorney General, Robert C. Funderburk, Jr., John C. Young, Lawrence A. Durant, Baton Rouge, for Respondent in No. 97-C-1967 and Applicant in No. 97-c-1938.

[97-1967 La. 1]KNOLL, Justice.^*

The State of Louisiana, through the Department of Transportation and Development(DOTD), sought writs from a ruling in the Court of Appeal, First Circuit, which affirmed the trial court's judgment finding DOTD 15% at fault in this personal injury case.Plaintiffs also sought writs, asserting that the court of appeal erred in reducing special damages awarded for payment of the minor's medical expenses incurred as a result of her injury in the single car collision.For the following reasons, we affirm the judgment assigning 15% fault to DOTD, finding no manifest error; we reverse the court of appeal's reduction of special damages, finding that judgment contrary to the rule under the applicable version of La.Civ.Code art. 2324(B).

FACTS

On July 29, 1990, plaintiff, Michelle Aucoin, (Aucoin) was proceeding southbound on Greenwell Springs Road, Highway 37, with her one-year-old daughter [97-1967 La. 2] Amber, who was strapped in her car seat.A dog ran into the road and Aucoin swerved right to avoid hitting the dog.When Aucoin swerved, her car's outer wheels ran outside the white fog line, onto a narrow shoulder approximately one foot wide, and down a steeply-sloped ditch.In less than two seconds from the time her wheels first left the road, Aucoin's car had traveled 123 feet before crashing into a tree that was growing on the back slope of the ditch in DOTD's right of way, eight and a half feet from the edge of the fog line.

As a result of the accident, Aucoin suffered injuries to her arm and Amber suffered severe closed head injuries requiring extensive treatment.Amber was hospitalized for three weeks and was diagnosed with a left frontal parietal hemorrhagic contusion complex, a left frontal fracture, a left subgaleal hematoma and a right femur fracture.As a consequence of the injuries to her head, Amber required surgery to implant a cerebralperitoneal shunt.

The trial court found that Aucoin suffered damages in the amount of $1,247.08 for past medical expenses and $90,000 for loss of consortium; Amber suffered damages in the amount of $85,294.18 for past medical expenses, $100,000 for future medical expenses, and $900,000 in general damages, plus legal interest.The trial court assigned fault: 85% to Aucoin, 15% to DOTD.Applying La.Civ.Code art. 2324(B), the trial court held DOTD liable for a total of $13,687.06 in favor of Aucoin, and solidarily liable for $542,647.09 in favor of Amber.The trial court, in its written reasons for judgment, determined that the accident was primarily caused by Aucoin, who failed to maintain control of her vehicle when faced with a sudden emergency.The court found that the "combination of shoulder width, slope angle and horizontal clearance created an unreasonable risk" of harm, and that DOTD had negligently failed to maintain the highway in accord with reasonable standards and [97-1967 La. 3] failed to prioritize proper maintenance.

The court of appeal amended the judgment, reducing the past and future medical expenses awarded Amber from $185,294.18 to $27,794.13, a reduction of $157,500.05.Concluding that medical bills incurred by a minor are the responsibility of a parent, the court of appeal reduced the medical damage award by the 85% fault attributable to her mother.In all other respects, the judgment of the trial court was affirmed.

LAW AND DISCUSSION

DOTD has urged this court to hold them not liable based on this court's holdings in Holloway v. DOTD, 555 So.2d 1341(La.1990)andMyers v. State Farm Mutual Automobile Insurance Co., 493 So.2d 1170(La.1986).In Holloway, the driver lost control of his vehicle for no apparent reason.His wheels dropped onto the shoulder and rolled onto an AASHTO (American Association of State Highway and Transportation Officials) conforming ditch (4:1 slope) before hitting a pine tree beyond the back slope of the ditch.The Holloway court found DOTD not liable because plaintiffs had not proven that the conditions of the roadway had caused the accident.Myers addressed DOTD's liability following a 1977 lane widening project undertaken to conform the roadway to the eleven-foot standard then applicable.This court determined that DOTD need not comply with all modern standards, which would have been a task this court considered physically and financially impossible.The Myers court held that DOTD's failure to reconstruct the state's highways to meet modern standards did not establish the existence of a hazardous defect.Myers v. State Farm Mutual Automobile Insurance Co., 493 So.2d 1170, 1173(La.1986).

We reaffirm the holdings in both cases.Nevertheless, we do not find persuasive DOTD's assertion that it should be shielded from liability based on those [97-1967 La. 4]cases because we find them distinguishable.In the case sub judice, Aucoin has not suggested that Greenwell Springs Road be reconstructed to meet modern standards, contrary to the holding in Myers.Nor was the side slope of the roadway recoverable, as in Holloway.The issue under consideration in this case requires a determination of whether, under the specific facts of this case, the trial court erred in finding the roadway in question unreasonably dangerous.

DOTD owes a duty to maintain its right of way in a condition that it does not present an unreasonable risk of harm.Oster v. DOTD, 582 So.2d 1285(La.1991).Breach of duty and reasonableness of the risk depend on the facts and circumstances of each case.Manasco v. Poplus, 530 So.2d 548(La.1988);Hunter v. DOTD, 620 So.2d 1149(La.1993).The standard of review is manifest error in cases where unreasonable risk of harm is at issue.Reed v. Wal-Mart, Inc., 97-1174(La.3/4/98), 708 So.2d 362.The trial court's findings are reversible only when there is no reasonable basis for the conclusions, or they are clearly wrong.Mart v. Hill, 505 So.2d 1120(La.1987).

In this case, the trial court found that the site of the accident on Greenwell Springs Road was unreasonably dangerous because of the combination of dangerous defects that were allowed to accumulate by DOTD.These defects included a "drop off" shoulder, a nonrecoverable sloping, and limited horizontal clearance.¹We find the record supports the trial court's conclusions, and they are not clearly wrong.

Highway 37, or Greenwell Springs Road, is a two-lane highway that has been in existence since before 1927.Its history has been documented in Myers v. State Farm Mutual Automobile Insurance Co., 493 So.2d 1170(La.1986)andHolloway [97-1967 La. 5]v. DOTD, 555 So.2d 1341(La.1990).Briefly stated, its lanes were widened in 1958 and 1977, and it received an overlay of asphalt in 1988.

Over the years, traffic increased dramatically on the portion of Greenwell Springs Road involved in the instant accident.Traffic volume correlates directly with highway deficiency, according to Tom Buckley, DOTD's district traffic operations engineer.The evidence varied as to exact traffic volume, but by all accounts it was, at the time of the accident, in excess of 6000 per day.Another state highway, Highway 16, had undergone reconstruction to four lanes even though its traffic was only half that volume.² DOTD's district construction engineer, Gordon Nelson, conceded that Greenwell Springs Road was the only highway in his district that had such a high traffic count with such an acute situation for such a long period of time.According to his deposition, Trooper James Bentley considered the section of Greenwell Springs Road where the accident took place to be very dangerous, and that it had that reputation among his colleagues.Considering all the relevant factors, DOTD's chief design engineer, William Hickey, was unable to name any roadway that was more dangerous than Greenwell Springs Road.Lacking federal assistance to increase lanes to four, DOTD overlaid the existing roadway with asphalt to make the paved portion of the roadway safer.

The 1988 overlay project plans also called for an off roadway gradation.The drainage ditch paralleling the shoulder was to have a slope of 3:1.That proportion matched every three units of horizontal distance with a vertical drop of one unit.At the point of impact, the slope was 1.43:1, approximately twice as steep.According to Jim Clary, plaintiff's highway design expert, the increase in slope steepness was [97-1967 La. 6] evidence that DOTD had not properly executed its own maintenance standards.He noted that DOTD's 1986 Maintenance Standards Manual specified that shoulders were to be restored to their original grade and cross slope, which in this case was 3:1 as defined by the overlay plans.The failure to maintain the original slope was significant.According to mechanical engineer and accident reconstructionist Andrew McPhate, plaintiff's expert the steeper the slope, the greater the force of gravity pulling a vehicle into a ditch, and the less likelihood there would be that a vehicle could recover and return safely to the roadway.

In point of fact, even the 3:1 slope called for in the plans may not have rectified plaintiff's situation.Experts on both sides agreed that a slope steeper than 4:1 was considered non-recoverable.That is, once a vehicle had begun its descent, it would not be expected to be able to return safely to the paved portion of the roadway.Thus, it...