Aymond v. State, Through Dept. of Highways

• Decision Date: 26 May 1976
• Docket Number: No. 5453,5453
• Citation: 333 So.2d 383
• Parties: Helen Marie Reed AYMOND et al., Plaintiffs-Appellees, v. STATE of Louisiana Through DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 383

333 So.2d 383

Helen Marie Reed AYMOND et al., Plaintiffs-Appellees, v. STATE of Louisiana Through DEPARTMENT OF HIGHWAYS,

Defendant-Appellant.

No. 5453.

Court of Appeal of Louisiana, Third Circuit.

May 26, 1976.

Rehearing Denied June 30, 1976.

Writ Refused Sept. 29, 1976.

Philip K. Jones, Norman L. Sisson, Robert J. Jones, Johnie E. Branch, Jr., William J. Doran, Jr. by William J. Doran, Jr., Baton Rouge, for defendant-appellant.

Gist, Methvin & Trimble by H. B. Gist, Jr., Mansour & Davis by Alfred A. Mansour, Alexandria, for plaintiffs-appellees.

Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.

BERTRAND, Judge.

The above numbered and entitled matter and the case entitled Aymond, er al. v. State of Louisiana, through the Department of Highways, No. 5454 of the docket of this court, were consolidated for trial in the lower court, 333 So.2d 380. We decide both of these cases today. The facts and the law common to both are set forth herein, however, those facts and questions of law peculiar only to the case of Beatrice Griffin Aymond, et al. versus State of Louisiana, through the Department of Highways, supra are set forth in a separate opinion which we likewise hand down this date.

These consolidated death actions arise out of a one-car accident which occurred when an automobile driven by Gerald Aymond and occupied by the driver and his uncle, Everett Aymond, failed to make a curve and ran off a bridge spanning a body of water known as the 'Chatelain Lake Canal.' The bridge spanning the canal referred to is located on Louisiana Highway 457 in Rapides Parish.

Suit No. 5453 is that of Mrs. Helen Marie Reed Aymond, widow of the driver, Gerald Aymond, on behalf of herself and the four minor children of her marriage to Gerald Aymond. Suit No. 5454 is that of Mrs. Beatrice Griffin Aymond, widow of the guest passenger, Everett Aymond, on behalf of herself and as natural tutrix of her two minor children who were the stepchildren of the deceased. Everett Aymond never adopted his stepchildren. The State of Louisiana, through the Department of Highways, is made defendant in each of the suits.

In each suit the defendant filed answer denying any negligence on its part and alleged that the accident was caused by the negligence of Gerald Aymond, driver of the automobile. In suit No. 5453 defendant pleaded contributory negligence on the part of Gerald Aymond in bar to the recovery of damages by plaintiffs. In suit No. 5454 defendant filed an exception of no right of action to the claim on behalf of the stepchildren as well as an exception of res judicata based upon an unrestricted release which Beatrice G. Aymond executed in favor of the insurer of Gerald Aymond. In addition, in the latter suit, the highway department filed a third party demand seeking contribution from Helen Marie Reed Aymond, individually and as natural tutrix of her minor children, in the event it be determined that the fatal accident was caused by the joint negligence of the department and Gerald Aymond.

After trial of these consolidated actions the trial court found that the accident was caused solely by the negligence of the highway department. Accordingly, in suit No. 5453 judgment was rendered in favor of Mrs. Helen Marie Reed Aymond for $80,000.00 and in favor of each minor child for $30,000.00 for loss of love, affection, mental pain, humiliation and suffering; in favor of Mrs. Aymond and the four minor children for loss of support in the amount of $600,000.00; and, in favor of all plaintiffs for pain and suffering prior to death in the amount of $7,500.00 and the sum of $2,905.75 for funeral expenses. In suit No. 5454 judgment was rendered sustaining the exception of no right of action dismissing the demand of the stepchildren; dismissing the exception of res judicata; dismissing the department's third party demand for contribution; and, awarding to plaintiff, Mrs. Beatrice Aymond the following monetary damages, viz: $25,000.00 for loss of support, $60,000.00 for mental pain, anguish, humiliation and suffering, $7,500.00 for pain and suffering of Everett Aymond prior to his death and the sum of $1,999.20 in funeral expenses.

The Department of Highways has appealed from these judgments. Plaintiff, Helen Marie Aymond has answered the appeal asking that the amounts awarded be increased. Plaintiff, Beatrice Griffin Aymond has likewise answered the appeal asking that the awards to her be increased and the stepchildren be awarded damages for loss of love, affection and support.

The issues in these consolidated appeals are:

1. Was the Department of Highways guilty of negligence which proximately caused the accident?

2. Was Gerald Aymond guilty of negligence which caused or contributed to the accident?

3. If there is liability on the part of the Department, were the damages awarded excessive?

4. What is the effect of the general release granted to Gerald Aymond's insurer by Beatrice Aymond?

5. Are the stepchildren of Everett Aymond entitled to recover damages for his wrongful death?

The issues numbered 1 and 2 are common to both suits and will be fully treated in this opinion, however, issue number 3, insofar as it applies to Beatrice Aymond, and issues numbered 4 and 5 are discussed and disposed of in the opinion which we this day render in the suit which bears out docket No. 5454.

WAS THE DEPARTMENT OF HIGHWAYS GUILTY OF NEGLIGENCE?

Plaintiffs contend that the defendant's negligence consists in its having designed, created and maintained a dangerous condition or 'trap' on a state highway and in its failure to erect and maintain proper and adequate signs etc. to warn motorists of such dangerous conditions. The trial court so held.

The record in this case reflects that the history of construction and the physical appearance of the bridge over 'Chatelain Lake Canal' and the highway approach to that structure as they existed on the date of the accident, i.e., December 29, 1973 to be as described in the written reasons of the trial judge which we adopt as our own:

'Louisiana Highway 457 is a blacktop two-lane highway which traverses from Latanier to Lecompte, Louisiana. In 1953 a 5.5 mile section of it was resurfaced by the Highway Department and a bridge spanning the Chatelain Lake Canal was lengthened. The road-way has an overall width of 26 feet with two blacktop lanes 10 feet in width each, with shoulders 3 feet wide on each side. At the time of the event of these lawsuits, the speed limit was 60 mph. At the time of construction, the roadway was placed in the Class 6 category in accordance with the then existing Highway Department's design standards.

The area in which this highway is located is rural, although the highway does connect two major highways--Louisiana Highway 1 and U.S. 71. Trees and brush have grown up in the fence rows adjacent to the highway and onto the highway right-of-way itself.

Approximately 5 miles from Latanier, going toward Lecompte, the highway crosses the Chatelain Lake Canal. During 1953 the Canal was widened and excavated. In connection with this work the bridge across the Canal had to be lengthened, and an additional 19-foot span was constructed by the Highway Department onto the north end of the bridge. The bridge itself is made of treated timber and rests upon piling driven into the ground. Its overall length after the most recent addition is 155 feet, and each span is approximately 19 feet long. The width of the roadway between the wheel guards on the floor of the bridge is 17 feet 9 inches.

At the time of the construction in 1953, the road itself was not rerouted. The bridge was simply extended into the then existing roadway and the overall result is that the bridge is straight but constructed in a curve. With the addition of the 19-foot span, the curve is even more pronounced. Approaching from the Latanier side going toward Lecompte, the road curves to the right. After crossing the bridge, the road continues to curve to the right.

Approaching the bridge from the Latanier side, the view of it was completely obstructed because of trees and brush growing along the adjacent fence rows and on the highway right-of-way. There were no signs or warnings along the roadway indicating the existence of this bridge, only a curve sign with a 30 mph speed advisory sign attached to it, which was located some 384 feet north of the bridge ahead of the curve going into it. At the place where the curve sign is located, the road actually veers slightly to the left and then proceeds to turn right. The centerline of the highway was marked with double yellow striping . . .'

In addition to the above physical characteristics the evidence reflects the presence of wing spans or guard rails on the north end of the bridge which 'take off' at an angle from the right and left corner of the bridge. The right wing span as it leaves the corner of the bridge is immediately adjacent (less than 12 ) to the edge of the hard-surfaced roadway and is so located as to require a motorist proceeding north onto the bridge to turn slightly left and then sharply to the right. In this latter connection the trial court observed:

'Only by executing this maneuver could a motorist approaching from the north get onto the bridge and remain in his lane of travel.'

Six days previous to the Aymond accident, as a result of another accident, the left wing span or guard rail on the north end of the bridge was completely knocked away. In addition a portion of the left guard rail above the bridge floor was knocked down, however, this portion was partially reattached or pulled up by persons unknown. It is clear from the evidence that the Highway Department made no repairs to the bridge following the accident of December 23rd and prior to the Aymond accident on December 29th. The Department disclaimed any knowledge of the earlier accident and urges that the bridge was not repaired and signs were not placed to warn of the bridge damage because of this...