Brown v. Louisiana Dept. of Highways

• Decision Date: 05 July 1979
• Docket Number: No. 6961,6961
• Parties: Kenny R. BROWN et al., Plaintiffs-Appellees, v. LOUISIANA DEPARTMENT OF HIGHWAYS et al., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 605

373 So.2d 605

Kenny R. BROWN et al., Plaintiffs-Appellees, v. LOUISIANA DEPARTMENT OF HIGHWAYS et al., Defendant-Appellant.

No. 6961.

Court of Appeal of Louisiana, Third Circuit.

July 5, 1979.

Rehearing Denied Aug. 15, 1979.

David K. Balfour, Baton Rouge, for defendant-appellant.

Broussard, Bolton & Halcomb by Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellee.

Before FORET, CUTRER and SWIFT, JJ.

SWIFT, Judge.

This is a suit for damages arising out of a two car accident allegedly caused by a low shoulder of a state-maintained highway which had not been brought up to grade after the road surface was overlaid with one and one-half inches of asphalt. It was consolidated for trial and appeal with our No. 6960 entitled "Eugene A. Wilson, Jr., et al v. Louisiana Department of Highways", La.App., 373 So.2d 610. From a judgment in favor of the plaintiffs in both suits, the defendant, State of Louisiana, through the Department of Transportation and Development (formerly the Department of Highways), has appealed. We affirm and render separate decrees.

The plaintiffs in the present suit, Kenny R. Brown, Henderson Anderson, Toney Martin and Frank Jackson, III, were passengers in a vehicle being driven by Eugene A. Wilson, Jr. and owned by Rosa Lee Wilson. The latter two persons filed the other action. The second vehicle was driven by Mrs. Annie Mouton, but she is not a party to this litigation.

We quote with approval from his reasons for judgment the trial judge's recital of the relatively undisputed facts:

"On February 2, 1973, Eugene Wilson was driving a 1972 Plymouth automobile south on U.S. 167 between Winnfield and Dry Prong. Wilson, a student at Grambling University, was enroute to his home in Alexandria and was accompanied by Frank Jackson, Henderson Anderson, Kenny Brown and Toney Martin all of whom were students at Grambling. Wilson was driving between 45 and 50 miles an hour. The highway was smooth as the portion with which we are concerned had been recently overlaid. The overlay was done by a contractor whose contract provided that the Department of Highways would do the shoulder work necessitated by the overlay.

"The Department had accepted the overlay job on or about December 1, 1972, but had not performed the necessary work to raise the shoulders to the level of the overlay. As a result, there was a drop from the surface of the road to the shoulder which was stipulated to be at least 11/2 inches.

"Construction signs erected when the construction was underway were still up at each end of the two mile overlay strip. Work had been completed and no work was being done on February 2, 1973. There were no signs warning of low shoulders.

"All plaintiffs testified that they suddenly noticed what 'seemed like rough riding' on the right rear as though the tire had gone flat or had blown out. Wilson lifted his foot from the accelerator, slightly applied his brakes and began to pull his automobile to the shoulder of the highway. He was successful in getting one or both right wheels off the pavement when 'the steering wheel locked.' The evidence shows the right wheel or wheels of the Wilson vehicle subsequently came back on the blacktop and the vehicle crossed the highway at an angle into the north bound lane where it was struck by a vehicle operated by Mrs. Annie Mouton."

The trial judge also found in regard to these disputed issues that at the time of the accident the shoulder was more than two inches lower than the asphalt surface; that this was a hazardous condition; that the Department was negligent in failing to eliminate the drop-off; and that it was a proximate cause of the accident for which the Department was legally responsible.

The legal responsibility of the Department as to highway accidents was generally stated by this court in LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974) as follows:

"The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it."

Also see U. S. F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976) and Guin v. State Through Dept. of Highways, 360 So.2d 1185 (La.App. 3 Cir. 1978).

Included within the Department's duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). Specifically, where a drop-off to a low shoulder results from asphalt overlaid on the road by the Department or its contractor the former has the duty to repair the defect or hazardous condition within a reasonable length of time. Brandon v. State, Through Dept. of Highways, 367 So.2d 137 (La.App. 2 Cir. 1979). In this connection the court said:

"What constitutes a reasonable time to complete construction and to eliminate construction defects depends upon the circumstances of each case and involves consideration of factors such as the extent of the project, emergencies, availability of materials and manpower, priorities of projects, safety and economic aspects of construction, the nature and degree of the hazard created, the ability to adequately warn, and other factors."

In the cases now before this court the Department has admitted it had actual knowledge of the condition of the shoulder at the scene when the overlay was accepted from the contractor slightly over two months before the accident occurred. Consequently, the issues presented on this appeal are: (1) Whether the drop-off was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver? (2) Whether a reasonable time had expired for the Department to eliminate the defect? (3) Whether the condition was a cause-in-fact of the accident?

(1) The defect.

No one actually measured the difference in the elevations of the road surface and its west shoulder. It was estimated by the state trooper who investigated the accident and two of the plaintiffs to be greater than two inches. However, all of them admitted it could be less. In view of such testimony and the stipulation of the parties, we cannot say the trial judge's determination that the drop-off exceeded two inches was manifestly in error.

The Department's "Maintenance Superintendent's Manual" states at Standard M4-12, "Raising shoulders must be done after any overlay". Also M4-2 it says that edge rut repairs "may be done on an inclement weather schedule . . . let them get at least one inch deep before repairs, and catch them before they get about two inches deep".

Professor Joseph H. Barnwell, an engineer who was recognized by the trial judge as an expert in the field of accident reconstruction, testified that the elevation difference in this case was a hazardous condition which tended to cause a vehicle to turn to the right when its right wheel ran onto the shoulder. This would have a detrimental effect on the driver's ability to maintain control of the car, particularly in this instance where the vehicle's right rear tire had blown out.

Mr. Lacy Glascock, a Bituminous Research Engineer with the Department who was qualified as an expert in traffic engineering, said that a one and one-half inch difference in elevation between the surface and shoulder of the highway was "in the area of what I would call a hazardous situation", but not an undue hazardous condition that would demand any action...