Cox v. Moore

• Decision Date: 12 December 2001
• Docket Number: No. 01-878.,01-878.
• Citation: 805 So.2d 277
• Parties: Rebecca Wolcott COX v. Billie E. MOORE, et al.
• Court: Court of Appeal of Louisiana — District of US

805 So.2d 277

Rebecca Wolcott COX v. Billie E. MOORE, et al.

No. 01-878.

Court of Appeal of Louisiana, Third Circuit.

December 12, 2001.

Rehearing Denied February 6, 2002.

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Michael A. Pitman, Jones, Odom, Davis & Politz, Shreveport, LA, Counsel for: State of Louisiana, Department of Transportation and Development.

Donald W. Price, Due', Caballero, Price, Guidry, Piedrahita & Andrews, Baton Rouge, LA, Counsel for: Rebecca Wolcott Cox Individually, and on Behalf of Her Minor Children, Brandie Cox and Jerry Cox, Jr.

Court composed of HENRY L. YELVERTON, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.

HENRY L. YELVERTON, J.

The State of Louisiana, Department of Transportation and Development (DOTD) appeals a trial court judgment which found it 100% liable for an accident which occurred at an intersection on U.S. Highway 171 near Fisher, Louisiana, in the Parish of Sabine. It appeals both the liability findings and the awards of damages. We reverse in part, amend in part, and otherwise affirm.

FACTS

The accident occurred at the intersection of Highway 171 and Main Street of the Village of Fisher. In the general area, Highway 171 is a two-lane highway going north and south. However, at a point south of the intersection where the accident occurred, the northbound lane splits into two lanes, creating a three-lane highway. Main Street, which leads west to the Village of Fisher, makes Highway 171 the top of a "T" intersection. There is an overhead, flashing caution light at this intersection.

On November 10, 1989, Rebecca Cox was driving north on Highway 171 with her two minor daughters, Darlene and Brandie, in her car with her. It was a clear day. Intending to take a left turn onto Main Street which leads to Fisher, Rebecca stopped in the left lane of the two northbound lanes and activated her left-turn signal.

Meanwhile, Billie Moore was also traveling north on Highway 171. She changed lanes from the right lane to the left lane in order to move from behind a big dump truck. Moore struck Rebecca's vehicle from behind. Since Rebecca's wheels were turned left preparing to make a left turn, her vehicle, when it was hit from behind, was propelled into the path of a moving southbound tour bus. Rebecca's eleven-year-old daughter, Darlene, who was in the front passenger seat, was killed.

Rebecca filed suit against the DOTD and Moore and her automobile insurer. Moore and her insurer settled prior to trial. The case was tried on December 6, 2000. The trial judge found that the highway at this intersection was defective and that the DOTD was 100% liable for the accident. The trial judge awarded Rebecca $1,403,571.01 in damages. He also awarded damages for Brandie's injuries in the amount of $500,000. Jerry Cox, Rebecca's son, was awarded $250,000 in damages.

The DOTD appeals the trial court judgment asserting several assignments of error. The errors involve the trial judge's visit to the accident site, the findings and allocations of fault, and damages.

TRIAL JUDGE'S VISIT TO INTERSECTION

In his reasons for judgment the trial judge indicated that he visited the intersection where the accident occurred because of the conflicting expert testimony on the condition of the intersection presented at trial. The DOTD argues that it was reversible error for the trial judge to conduct a post-trial inspection of the site.

It is permissible for a trial judge to visit a site which is the subject of the litigation before it, not for the purpose of supplying new evidence, but for the purpose of determining, when the evidence regarding such site is in hopeless conflict, which version is worthy of belief. Landry v. Jefferson Davis Parish School Bd., 478 So.2d 194 (La.App. 3 Cir.1985); Dodson v. Webster Parish Police Jury, 564 So.2d 760 (La.App. 2 Cir.), writ denied, 567 So.2d 1127 (La.1990); Estate of Thomas v. State, Dept. of Transp. and Development, 604 So.2d 617 (La.App. 2 Cir.), writ denied, 608 So.2d 167 (La.1992). "Whether such a physical inspection should be made is within the discretionary authority of the trial court." Landry, 478 So.2d at 196.

Reviewing the trial judge's reasons for judgment, it is clear that the court did not conduct experiments at the site, take any measurements, or otherwise create additional evidence. The trial judge merely viewed the site in order to get a better visualization of the location where the accident occurred. Both parties introduced pictures of the site and established the layout of the site through the testimony of witnesses. The trial judge's visit to the site did nothing more than establish a clearer picture in his mind of what was already in evidence and help him decide between the directly conflicting opinions of the expert witnesses. We find no abuse of discretion in the trial judge's visit to the accident site.

FAULT

The DOTD also appeals the trial judge's decision to assess it with 100% of the fault. It argues that the sole cause of this accident was the negligence of Billie Moore.

Fault of the DOTD

One of the complaints of the DOTD is that the trial judge erred in his finding that it had notice of a defect. Because of this error the DOTD maintains that we should give the findings a de novo review. In this regard we agree that the trial judge erred, but not because he found the DOTD had notice, rather, because he required Rebecca to prove notice.

This accident happened in 1989. The Louisiana Supreme Court has held that Louisiana Revised Statute 9:2800 which added an element of "actual or constructive notice" to the "strict liability" cause of action was unconstitutional until November 23, 1995, when the legislature passed Acts 1995, No. 828, which constitutionally allowed the legislature to limit by law the circumstances in which the State will be liable. Jacobs v. City of Bunke, 98-2510 (La5/18/99). 737 So.2d 14. Since this accident was in 1989, Rebecca was required to prove only the traditional elements of strict liability under Louisiana Civil Code Article 2317. Dupree v. City of New Orleans, 99-3651 (La.8/31/00); 765 So.2d 51, writ denied, 2001-1198 (La.6/22/01); 794 So.2d 787. Rebecca had to prove that: (1) the DOTD owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; and (3) the defect was a cause-in-fact of the accident. Id. Rebecca was not required to pove that the DOTD had notice of any defect.

While the trial judge committed an error of law in requiring Rebecca to prove notice, this was not a prejudicial error of law requiring a de novo review because it did not skew the trial judge's finding under the facts of this case. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Hebert v. Southwest La. Elec. Mem. Corp., 95-405 (La.App. 3 Cir. 12/27/95); 667 So.2d 1148, writ denied, 96-277, 96-798 (La.5/17/96); 673 So.2d 607, 608. Since the trial judge. placed a heavier burden on Rebecca than was required and he still found she proved her case, the error was harmless as to the DOTD. We will review the trial judge's factual findings regarding the fault of the DOTD under the manifest error standard of review.

It is well-settled that a reviewing court may not overturn the trial court's fidins of fact unless they are clearly wrong. Cormier v. Comeaux, 98-2378 (La.7/7/99); 748 So.2d 1123. The issue to be resolved by a revieweing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id.

The DOTD's ownership of this highway is not an issue in this case. Regarding the DOTD's duty with respect to its highway conditions, the first circuit recently summarized the law as follows:

DOTD has a legal duty to maintain the highways in a reasonably safe condition. This duty "extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition." It extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. DOTD cannot knowingly allow a condition to exist which is a hazard to a reasonably prudent driver. In such a case, DOTD must take reasonable measures to eliminate or reduce the risks associated with the dangerous condition or may post adequate signs to warn the public of the danger, risk, or hazard involved.

....

The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically. Although courts have described the unreasonable risk of harm criterion as requiring the reviewing court to balance the likelihood and magnitude of harm against the utility of the thing, the balancing test required by the unreasonable risk of harm criterion does not lend itself well to neat, mathematical formulations. In addition to the likelihood and magnitude of the risk and utility of the thing, the interpreter should consider a broad range of social, economic, and moral factors including the cost to defendant of avoiding the risk and the social utility of the plaintiff's conduct.

Sevario v. State ex rel. Dept. of Trans p., 98-1302, pp. 14-15 (La.App. 1 Cir. 11/10/99); 752 So.2d 221, 231-32, writs not considered, 99-3638, 00-44 (La.4/7/00); 759 So.2d 81, 82, writ denied, 99-3457 (La.4/7/00); 759 So.2d 760 (citations omitted).

At the time of the accident, the DOTD was conducting a resurfacing project in this area. There is no indication that this construction project contributed to the accident other than possibly causing traffic to back up a little more than usual. The speed limit had been reduced in the area from 55 miles per hour to 45 miles per hour due to the construction.

Terry Pantalion, Chief of Police for the Village of Fisher at the time of the accident, explained that mill workers came in and out of the area when the shifts changed because Fisher was home to Boise Cascade and the workers would turn at...