Bozeman v. State

• Decision Date: 04 April 2001
• Docket Number: No. 34,430-CA.,34,430-CA.
• Parties: Linda BOZEMAN, Individually and on Behalf of Tommy Bozeman, Plaintiff-appellee, v. STATE of Louisiana, and the Department of Transportation and Development, Defendant-appellant.
• Court: Court of Appeal of Louisiana — District of US

787 So.2d 357

Linda BOZEMAN, Individually and on Behalf of Tommy Bozeman, Plaintiff-appellee, v. STATE of Louisiana, and the Department of Transportation and Development, Defendant-appellant.

No. 34,430-CA.

Court of Appeal of Louisiana, Second Circuit.

April 4, 2001.

Rehearing Denied May 3, 2001. Writ Denied June 29, 2001.

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Claude W. Bookter, Jr., Special Assistant Attorney General, Counsel for Appellant.

Jack M. Bailey, Jr., Shreveport, William G. Adamson, Counsel for Appellee.

Before BROWN, CARAWAY and PEATROSS, JJ.

CARAWAY, J.

This action arose from an automobile accident which the plaintiff alleged was caused by a defective shoulder on a state highway. The trial court found the State of Louisiana 75% at fault for the unreasonable risk of harm created by a three inch drop-off from the blacktop to the shoulder. The driver of the vehicle was apportioned with 25% of the fault for the accident. The State appeals urging various assignments of error, including the trial court's finding of unreasonable risk of harm and its special damages award of $613,626.64 for medical expenses covered by Medicaid or Medicare. For the reasons which follow, we affirm in part and remand.

Facts

On May 12, 1993, Tommy Bozeman ("Tommy") was driving a 1976 DJ-5 Jeep on Highway 173, traveling within the posted speed limit of 55 mph. As he encountered a curve prior to Highway 173's intersection with Industry Park Drive (just north of Shreveport), his right tires left the paved road at the point where there was a drop-off between the surface of the blacktop and the shoulder. The shoulder drop-off measured 150 feet in length and varied in depth from two to over three and one-half inches. As Tommy attempted to re-enter the paved road, he lost control of the vehicle. His Jeep was flung in a "sling shot" manner across the road, fell onto its side, and slid until it struck the curb on the west corner of the intersection. The vehicle flipped and landed on its side in a ditch. Tommy was seriously injured and transported by helicopter to LSU Medical Center.

As a result of his injuries, Tommy remained in a semiconscious state for three years and three months until his August 29, 1996 death. Upon his release from LSU Medical Center, Tommy remained in a long-term health care facility for round-the-clock care. Tommy was 40 years old at the time of the accident, and was married to Linda Bozeman ("Bozeman"), with whom he had a son. He also had a grown son from a previous marriage.

Bozeman, individually and on behalf of Tommy, sued the State of Louisiana, Department of Transportation and Development (the "State" or "DOTD"), alleging that the unreasonably dangerous and defective condition of the shoulder caused Tommy to lose control of his Jeep and sustain the injuries which resulted in his death. Chrysler Corporation, Jeep-Eagle Corporation, and other related co-defendants (hereinafter collectively "Chrysler") were later added as defendants in Bozeman's second and third supplemental and amending petitions. By 1998, the Chrysler defendants were dismissed from the suit, leaving only the claims against the State.

After trial, the trial court issued written findings of fact and reasons for judgment. The trial court ruled that the accident was the combined fault of the State (75%) and Tommy (25%). The trial court found that there was a drop-off of approximately three inches, and that the drop-off precluded Tommy from safely returning to the paved roadway. Thus, the trial court ruled that the shoulder drop-off presented an unreasonable risk of harm to Tommy and other motorists, and that the State knew or should have known of the hazardous condition. Further, the trial court ruled that Tommy was driving within the posted speed limit, and that as Tommy approached the curve, his right tires left the paved portion of the road. The trial court entered judgment awarding damages to plaintiff in the amount of $1,241,988.64, subject to the 25% reduction for Tommy's comparative fault.

In five assignments of error, the State complains that the trial court erred in finding that the shoulder drop-off where Tommy allegedly left and attempted to return to the highway presented an unreasonable risk of harm; that the trial court erred in preventing a witness from testifying regarding his visit to the accident scene in January 2000; that the trial court erred by excluding portions of the deposition testimony of Deputies John Norsworthy and Mike Christian; that the trial court erred in failing to keep the trial of this matter open to allow the State to call an expert witness to attempt to prove the negligence of Chrysler for the accident; and that the trial court erred in failing to give a credit or reduction in medical expenses for payments made by Medicaid/Medicare.

Discussion

Before review of the State's primary claim that no unreasonable risk of harm was proven, we first consider two preliminary issues raised by the State disputing its liability. The State first contends that there was no physical evidence showing that Tommy's vehicle left the paved portion of the highway and encountered the shoulder drop-off. We disagree.

Plaintiff's expert, Dr. John Glennon, testified that he examined the Jeep and noticed a 2 to 2-1/2 inch scuff mark on the inside of the right tire of Tommy's vehicle. Dr. Glennon further stated that this type of tire marking is consistent with contact with an edge drop between the paved road and the shoulder. Additionally, Deputy John Norsworthy testified in his deposition that he saw the tire marks left by Tommy's Jeep on the gravel aggregate shoulder just after the accident. Deputy Norsworthy also stated that he did not notice any significant drop-off where Tommy left the road. Thus, Deputy Norsworthy did not take any measurements during his investigation of the accident. Lastly, the only eyewitness of the accident, Janet Wigton, who was traveling approximately one hundred yards behind Tommy just prior to the accident, stated that Tommy was not driving erratically and that she did not notice him making any sharp, sudden movements in his Jeep. Although she did not see him leaving the highway, Wigton stated that Tommy's vehicle shot across the highway, slid on its side, flipped and went up in flames when it hit a curb on the other side of the road. Dr. Glennon corroborated that this "sling-shot" effect is created when a vehicle encounters an abrupt drop-off and the driver overcompensates when returning to the roadway.

A trial court's finding of causation is a matter of fact. Bade v. Wade, 607 So.2d 927, 933 (La.App. 2d Cir.1992); Antee v. Southern Pacific Transp. Co., 627 So.2d 798 (La.App. 2d Cir.1993). When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the Court of Appeal may feel differently. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). In this case, we find that the trial court's ruling that the accident was caused by the shoulder drop-off is supported by the record.

Next, the State argues that the evidence did not reveal that the method by which Highway 173 was inspected established that the State had constructive notice of the drop-off. Nevertheless, the trial court's finding of actual and/or constructive knowledge is of no consequence in this case, because, as plaintiff correctly argues, the State is strictly liable for the defective condition of the shoulder. This accident occurred on May 13, 1993, prior to the substantive change in the law under the 1995 constitutional amendment to Article XII, § 10 allowing for the application of La. R.S. 9:2800.¹ Under Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14, La. R.S. 9:2800's notice requirements cannot be applied retroactively to Bozeman's cause of action.

In Jacobs, the supreme court held that the notice requirement of La. R.S. 9:2800 prior to the 1995 constitutional amendment to Article XII, § 10 was unconstitutional. Furthermore, in Dupree v. City of New Orleans, 99-3651 (La.9/1/00), 765 So.2d 1002, the supreme court applied strict liability under La. C.C. art. 2317 to find in favor of an injured plaintiff in a defective road accident which occurred prior to 1995. Therefore, Bozeman was not required to prove that the DOTD had actual or constructive notice of the shoulder defect.

Unreasonable Risk of Harm

In view of Jacobs, supra and Dupree, supra, Bozeman needed only to prove that the thing which caused the damage was in defendant's care or custody and that it presented an unreasonable risk of harm, or that the thing was defective. Guzman v. State, 95-0957 (La.App. 1st Cir.12/15/95), 664 So.2d 1343; see also, Crowell v. City of Alexandria, 558 So.2d 216 (La.1990). The DOTD has the basic responsibility for maintaining state highways. La. R.S. 48:21; Bethea v. Louisiana Dept. of Transp. and Development, 415 So.2d 535 (La.App. 1st Cir.1982). DOTD also has the duty to keep all state owned or state maintained shoulders in a reasonably safe condition. Hood v. State Through Dept. of Transp. and Development, 587 So.2d 755 (La.App. 2d Cir.), writs denied, 590 So.2d 81, 82 (La.1991). DOTD's duty encompasses the obligation to protect a motorist who intentionally or unintentionally drives onto the shoulder. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979); Hood, supra. Although DOTD is not the insurer of all travelers safety, it cannot knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Coleman v. State, Through Dept. of Transp. and Development, 524 So.2d 1281, 1284 (La.App. 3d Cir.1988); Rochelle v. State, Through Dept. of Transp. and Development, 570 So.2d 13 (La.App. 3d Cir.1990), writ denied, 572 So.2d 93 (La.1991); Hood, supra.

Prudent behavior for a motorist who inadvertently drives off the paved road onto...