Deville v. Budd Const. Co.

• Decision Date: 07 April 1993
• Docket Number: No. 92-221,92-221
• Citation: 617 So.2d 570
• Parties: J.W. DEVILLE, et al., Plaintiffs-Appellees, v. BUDD CONSTRUCTION COMPANY, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 570

617 So.2d 570

J.W. DEVILLE, et al., Plaintiffs-Appellees, v. BUDD CONSTRUCTION COMPANY, et al., Defendants-Appellants.

No. 92-221.

Court of Appeal of Louisiana Third Circuit.

April 7, 1993.

Rehearing Denied May 25, 1993.

Jeffrey Michael Bassett, Patrick Craig Morrow, Sr., James P. Ryan, Opelousas, for plaintiff-appellee J.W. Deville et al.

Francis A. Olivier, III, Sunset, for defendant-appellant State of La.

Terry L. Rowe, Lafayette, for defendant-appellee N.H. Ins. and Ortego, Sr.

A. R. Johnson, IV, Lake Charles, for defendant-appellee La. Farm Bureau Ins.

Thomas Dennis Benoit, Baton Rouge, for intervenor State Employees Grp. Benefit Program.

James Paul Doherty, Jr., Opelousas, for plaintiff-appellee Kevin Wayne Perry.

Before STOKER, THIBODEAUX and SAUNDERS, JJ.

STOKER, Judge.

These consolidated cases arise from a single vehicle accident. Jack Ortego, Jr. accidentally drove his vehicle into a large excavated hole in a section of I-49 which was under repair. Jack Ortego, Jr. was killed and his two guest passengers, Cory Deville and Kevin Wayne Perry, were seriously injured. All three passengers in the vehicle were minors. The parents of the three minors filed these three lawsuits, which were consolidated for trial. ¹ Although the judgments are inartfully drawn, the Devilles recovered judgment against the State, DOTD and Jack Ortego, Sr. The Perrys and the Ortegos recovered judgment against the State, DOTD.

The State, Department of Transportation and Development (DOTD) appeals the judgments in all three suits. The Devilles appeal the judgment in their suit. The Ortegos and the Perrys have not appealed.

FACTS

At night, on September 23, 1988, Jack Ortego, Jr. drove his vehicle into an excavated section of I-49 southeast of Alexandria, Louisiana, at the overpass intersection of I-49 and Louisiana Highway 167. The overpass consisted of two bridge type constructions which elevated I-49 over Highway 167. The intersection is sometimes referred to as the Meeker intersection. At the time, I-49 was incomplete northward of the intersection but was open southward to Opelousas and Lafayette. In order to utilize the southward portion of I-49, southbound traffic from Alexandria took U.S. Highway 71 and then switched to Louisiana Highway 167 at Meeker just south of Lecompte. This led to the intersection in question.

I-49 at the intersection is a four lane divided highway separated by a median. Traffic proceeding north made its exit before reaching the double overpasses by turning right on a ground level feed-off lane to connect with Highway 167. Traffic proceeding south (from Meeker) passed under both overpasses, made a right turn on to a curved-cloverleaf access ramp which gradually ascended to the northerly portion of the southbound lanes of I-49, and there merged with southbound traffic just north of the southbound overpass. Because I-49 was not open north of the overpasses, the only traffic using the southbound overpass was that traffic coming from Meeker.

Louisiana Highway 167 leads from Meeker southerly to Turkey Creek and Ville Platte. Traffic coming from Turkey Creek and Ville Platte gains access to I-49 by a ground level access lane which leads from the right of Highway 167 at a point on the Ville Platte side of the overpasses.

At the time of the September 23, 1988 accident, a repair of a section of I-49 had been undertaken just south of the southbound overpass on the descending portion of I-49. Through subcontractors, the State had broken out a section of concrete slab from both southbound lanes of I-49, which left a large excavated hole thirteen inches deep with steel reinforcing rods protruding from concrete in the unaffected portions of the two lanes. This operation required closing the cloverleaf ramp which, when open, permitted access from Highway 167 for traffic coming from Meeker intending to connect with I-49 south. Failure to close the ramp properly is what led to the accident in question in this litigation. The apparent intention of the State and the subcontractors doing the repair work was that traffic coming from Meeker should proceed on beyond the underpasses and use the Turkey Creek and Ville Platte ground level access to I-49 south.

Earlier in the day Jack Ortego, Jr., with his two companions, Cory Deville and Kevin Wayne Perry, traveled I-49 from some miles south of the Meeker intersection for a shopping trip to Alexandria. On this leg of the trip they traveled the northbound lanes of I-49. On their return trip Jack Ortego, Jr. drove his vehicle up the access ramp on to the southbound overpass, and his vehicle went into the excavated hole. The vehicle burst into flames as it struck the concrete and protruding steel reinforcement rods.

Jack Ortego, Jr., sixteen years old, was killed almost instantly. His body was burned beyond recognition. Cory Deville, fifteen years old and the front seat passenger, suffered brain damage and third degree burns. Cory was pulled from the burning car by Leonard Wiggins, a motorist who happened to be passing by on Highway 167. Leonard had to wait for the wind to shift before he could reach Cory. Fifteen year old Kevin Perry, the back seat passenger, was ejected through the windshield. He sustained a gash on his forehead, a gash on his mouth, a nearly severed tongue, a concussion, and he lost three teeth.

These three personal injury, wrongful death and loss of consortium suits were filed by the boys' parents against the State, DOTD, Budd Construction Co., Waste Management of Central Louisiana and various insurance companies. A great number of third party demands, reconventional demands, cross-claims, and interventions were filed. Ultimately, all defendants settled with the plaintiffs prior to trial, except the State, DOTD and Jack Ortego, Sr. The State, DOTD dismissed its third party demands against Budd Construction and Waste Management prior to trial.

A trial on the merits was held to determine the liability of the State, DOTD and the amount of damages to be awarded to each plaintiff.

After a trial on the merits, the trial judge allocated fault for the accident as follows: the State, DOTD--80%; Budd Construction Co. (the contractor employed by the State to do the repair work)--10%; Waste Management of Central Louisiana (a subcontractor hired by Budd Construction to supply the road signs)--5%; Jack Ortego, Jr.--5%. The trial judge awarded damages as follows: Kevin Wayne Perry--$113,623.05; Brenda Faye Soileau Perry--$1000; Harold Wayne Perry--$500; Cory Jude Deville $5,082,998.64; Barbara Soileau Deville $35,000; J.W. Deville--$10,000; Jack Ortego, Sr.--$162,485.40; Sheral Ortego--$150,000.

The State, DOTD appeals the judgment, contending the trial judge erred in holding it 80% at fault for the accident and in awarding excessive general damages to Kevin Perry.

The Devilles also appeal the judgment, alleging the trial judge erred in holding Jack Ortego, Jr. 5% at fault and in awarding inadequate damages. The Devilles also raise the issue of the constitutionality of the statutes limiting the State's liability for general damages and prejudgment interest, LSA-R.S. 13:5106 and 13:5112.

We amend the judgment and affirm as amended.

I. ISSUES OF FACT

The position of the plaintiffs is that the defendants, the State (DOTD), Budd Construction Co. and Waste Management of Central Louisiana, were at fault and caused the accident through failure to properly sign the intended diversion of traffic and to properly barricade the access ramp. The State contends that Jack Ortego, Jr. and his companions ignored a "Road Closed" sign at the ramp and removed properly posted barricades so as to permit them to proceed up the ramp.

The trial court rejected the State's contentions. In oral reasons for judgment, the trial judge reached the obvious conclusion that the State, DOTD and its subcontractors were aware of the danger and unreasonable risk posed by the excavation. Indeed, the position taken by the State, that proper measures to avoid access to the excavation were taken, is an admission of its knowledge. Therefore, the trial court concluded that LSA-R.S. 9:2800 was satisfied.

Contrary to the State's claim that the sign posted at the entrance of the access ramp read "Road Closed", the trial judge found that a sign on the shoulder portion of the road under the overpass read "Closed to Thru Traffic." Also contrary to the State's claim that the access ramp was completely barricaded, the trial judge found there was only one movable barricade on the access ramp which "did not completely block the shoulder or the main traveled portion of the road--of the cloverleaf." The trial judge concluded that the sign reading "Closed to Thru Traffic" conveyed no clear meaning to Jack Ortego, Jr. and his companions and there was no impediment to driving up the access ramp. Accordingly, the trial judge found the State, DOTD, and its subcontractors, Budd Construction and Waste Management, to be 95% at fault in causing the accident. The trial court assigned 5% of the fault to Jack Ortego, Jr. but did not explain the basis for finding him at fault. However, implicit in the apportionment of 5% fault to Jack is the finding that he did drive around the barricade on the access ramp, to the extent that it partially blocked the road in front of the excavated site, in violation of LSA-R.S. 32:237. Jack's fault was only slight, compared with the misleading "Closed to Thru Traffic" sign at the entrance to the ramp and the fact that the defendants failed in their duty to completely block the road in front of the hole. See LeJeune v. State, Dept. of Hwys., 215 So.2d 150 (La.App. 3d Cir.1968), writ ref'd, 253 La. 321, 217 So.2d 413 (1969); Reeves v. State, Dept. of Hwys., 80 So.2d 206 (La.App.2d Cir.1955), aff'd, 232 La. 116, 94 So.2d 1 (1957); Rosier v. State, 50 So.2d 31 (La.App.2d Cir.1951). Although orally given, the trial court gave well structured reasons for his conclusions...