Brooks v. City of Baton Rouge/Parish of East Baton Rouge

• Decision Date: 21 February 1990
• Docket Number: No. CA,CA
• Citation: 558 So.2d 1177
• Parties: Willie M. BROOKS, Jr., Individually and as Natural Tutor of the Estates of his Minor Children, Bryant J. Brooks, Roger Brooks, Willie M. Brooks, III, and Brandon Lamar Brooks; Kenneth Anio and Sharon Denise Brooks v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, et al. 89 0021. 558 So.2d 1177
• Court: Court of Appeal of Louisiana — District of US

Page 1177

558 So.2d 1177

Willie M. BROOKS, Jr., Individually and as Natural Tutor of the Estates of his Minor Children, Bryant J. Brooks, Roger Brooks, Willie M. Brooks, III, and Brandon Lamar Brooks Kenneth Anio and Sharon Denise Brooks v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, et al.

No. CA 89 0021.

558 So.2d 1177

Court of Appeal of Louisiana First Circuit.

Feb. 21, 1990.

Rehearing Denied April 25, 1990.

Paul Due, Baton Rouge, Johnny Matthews, Baton Rouge, for plaintiffs-appellees Willie Brooks, et al.

William Cleveland, Slaughter, for plaintiff-appellee Zurich Ins. Co.

Boris Navratil, John Heinrich, Baton Rouge, for defendant-appellant Fidelity and Cas. Co. of New York.

Frank Gremillion, Baton Rouge, for defendants-appellants City of Baton Rouge, Parish of East Baton Rouge.

John David Ziober, Baton Rouge, William Porteous, III, New Orleans, for defendant-appellant Chicago Ins. Co.

Before LOTTINGER, CRAIN and LeBLANC, JJ.

LOTTINGER, Judge.

This is a wrongful death action brought by the decedent's husband, Willie Brooks, Jr., on his own behalf and on behalf of his minor children, Bryant J. Brooks, Roger Brooks, Willie Brooks, III, and Brandon Brooks. Also included as plaintiffs are the decedent's major children, Kenneth Anio and Sharon Denise Brooks. The defendants in this action are the City of Baton Rouge/Parish of East Baton Rouge (City/Parish), its insurers, The Fidelity & Casualty Company of New York and Chicago Insurance Company, Barber Brothers Contracting Company, Inc. and Bobby Golman, Jr. Barber Brothers Contracting Company, Inc. and Bobby Golman, Jr. were dismissed on summary judgment, and the case proceeded to trial against the City/Parish and its insurers. The trial court found the City/Parish responsible for the death. The City/Parish and its insurers now appeal the apportionment of fault and the quantum.

FACTS

On January 2, 1985, at about 8:20 A.M., Mrs. Dorothy Mae Brooks was operating her automobile in a southerly direction on O'Neal Lane in Baton Rouge. At the same time, Elizabeth Ferrara was operating her automobile in a northerly direction on O'Neal Lane. For some unknown reason the right wheels of the Brooks vehicle drifted off the roadway for approximately six inches before Mrs. Brooks instinctively oversteered her automobile to get it back onto the roadway. In the attempt to return the vehicle to the highway, Mrs. Brooks obviously loss control, crossed the center line of the highway, and was broadsided by the Ferrara vehicle. Mrs. Brooks died as a result of this accident.

O'Neal Lane had been recently overlaid and was freshly striped. Though the overlay job was contracted out on a public contract, the shoulder work was done by City/Parish employees. In constructing the shoulder at the site of the accident, a size No. 57 limestone aggregate was utilized rather than a size No. 610. The experts agreed that the size No. 610 was the better aggregate for shoulder surfacing because of the compaction ability. A depression of from 3 1/4 inches to 3 7/8 inches developed along the edge of the roadway at the site where the Brooks' car left the roadway. The shoulder along O'Neal Lane was straight and had no obstructions except a mail box some distance away. It had been raining earlier and the road was wet.

ASSIGNMENTS OF ERROR

The defendants contend that the trial court erred in:

(1) holding that the negligence of Mrs. Brooks accounted for only 15 percent of the causation of the accident.

(2) awarding the plaintiffs a grossly excessive damage award which is unsupported by the evidence at trial and contrary to law.

ASSIGNMENT OF ERROR NO. 1

The trial court found Mrs. Brooks 15 percent at fault and the defendants 85 percent at fault for their respective contributions to the accident. The defendants now appeal this apportionment.

The percentage allocation of fault in a comparative negligence case is a question of fact. Motton v. Travelers Insurance Company, 484 So.2d 816 (La.App. 1st Cir.1986); Gilder v. Branton, 471 So.2d 976 (La.App. 1st Cir.1985). As any other question of fact, it should not be disturbed in the absence of manifest error on the part of the trier of fact. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985) the Supreme Court indicated which factors should be considered in order to apportion fault under a system of comparative fault:

"In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. [Quoting Uniform Comparative Fault Act 2(b) (1979).] In assessing the nature of the conduct of the parties various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. And of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties."

Mrs. Brooks committed two acts of negligence: her inattention which caused her to leave the roadway, and her improper attempt to regain the paved portion of the highway before reducing speed. She should have perceived the great risk of attempting to reenter the roadway at speed. There was no need for her to proceed in such a hasty fashion. The roadway was straight and there were no obstructions in Mrs. Brooks' path which required her to return immediately to the paved portion of the roadway. The accident occurred during the day, and thus visibility was not limited as it might have been at night. There was no evidence of any emergency situation requiring her to proceed with haste and without proper thought. She traveled the road daily and therefore was very familiar with the road. The only factor tending to lessen her percentage of fault is the fact that her conduct was described as inadvertent or instinctive.

On the other hand, the City/Parish constructed the shoulder with a No. 57 limestone aggregate rather than the normally used No. 610 resulting in a less stable shoulder. This shoulder contained a two and one half to three and one half inch drop which the trial court concluded was defective. The No. 57 limestone aggregate was used for approximately 40 feet along the shoulder.

Plaintiffs argue that in LeBlanc v. State, 419 So.2d 853 (La.1982), when faced with a similar instinctive reaction, the court said:

"the natural instinct of an ordinary driver, without prior warning or specific training, is to attempt to regain immediate entry onto the highway, thereby creating a risk of loss of control. Because a substantial percentage, if not a majority, of ordinary drivers encountering an unexpected four to six inch descent upon inadvertently deviating slightly from the roadway would react instinctively as Mrs. LeBlanc did, the legal duty of the Department to maintain safe highway shoulders is imposed to protect against this risk."

(419 So.2d at 856).

However, we note that in Pitre v. Aetna Insurance Company, 456 So.2d 626 (La.1984), though the driver traveled 300 feet on the shoulder of the road before striking a bridge guardrail, the Supreme Court said:

"Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce speed and then to attempt a gradual reentry after he has regained control of the vehicle."

(456 So.2d at 629).

Plaintiffs would suggest that Pitre is distinguishable because the driver traveled on the shoulder for some distance before striking the guardrail. But, the Supreme Court said that the first thing an inadvertent driver who goes off the paved roadway is to do is reduce speed, not instinctively jerk the steering wheel to bring the vehicle back on the highway.

Thus, under the facts and circumstances as examined above, we conclude that the trial court was manifestly erroneous in finding that Mrs. Brooks was only 15 percent at fault. ¹ The trial court should have allocated to Mrs. Brooks 50 percent of the fault. Cashio v. State of Louisiana through the Department of Transportation and Development, 518 So.2d 1063 (La.App. 1st Cir.1987). Motton v. Travelers Insurance Company, 484 So.2d 816 (La.App. 1st Cir.1986); Efferson v. State Department of Transportation and Development, 463 So.2d 1342 (La.App. 1st Cir.1984), writs denied, 465 So.2d 722 (La.1985).

ASSIGNMENT OF ERROR NO. 2

The defendants next assign error to the quantum awarded by the trial court. Damages awarded by the trial court are as follows:

                Willie Brooks (husband)
                 Past loss of income                $  30,643
                 Future loss of income             $  153,600
                 General Damages                   $  200,000
                 Loss of past and future services   $  95,000
                Kenneth Anio (major son)
                 General Damages                   $  200,000
                Sharon Brooks (major daughter)
                 General Damages                   $  225,000
                Bryant Brooks (age 16)
                 General Damages                   $  250,000
                Willie Brooks, III (age 11)
                 General Damages                   $  275,000
                Roger Brooks (age 12)
                 General Damages                   $  275,000
                Brandon Brooks (age 3)
                 General Damages                   $  335,000
                                                   ----------
                  TOTAL                            $2,039,243
                

In order to disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its much discretion. Reck v. Stevens, 373 So.2d 498 (La.1979). An abuse of discretion is only found when the award is so excessively high or low as to shock a reviewing court into the...