Dill v. State, Dept. of Transp. and Development
| Decision Date | 14 March 1988 |
| Docket Number | No. 87-CA-708,87-CA-708 |
| Citation | 522 So.2d 1288 |
| Parties | David DILL and Anna Dill v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al. |
| Court | Court of Appeal of Louisiana — District of US |
Chaisson & Chaisson, Destrehan, for plaintiffs/appellees.
William J. Doran, Jr., Sp. Asst. to General Counsel, State of La., Dept. of Transp. and Development, Baton Rouge, for defendants/appellants.
Before BOWES, GRISBAUM and GOTHARD, JJ.
Defendant-appellant, the Louisiana Department of Transportation and Development, appeals a judgment of the trial court finding DOTD solely at fault and awarding plaintiffs damages as a result of a motor vehicle accident.
This matter arose out of a two car accident which happened at milepost 5 on La. Hwy. 48 (locally known as Brown's Curve on River Road) on July 18, 1985, at approximately 12:05 p.m. in St. Charles Parish, Louisiana. The plaintiffs, Mr. and Mrs. David Dill, were proceeding down river in an easterly direction with the curve being to their left. The other party involved in the accident, Warren C. Savoie, was proceeding up river in a generally westerly direction with the curve being to his right and the levee being to his left. It was lightly raining and the roadway was wet. While attempting to negotiate the curve, Mr. Savoie, who was then going the posted speed limit of 30 miles per hour, felt the back end of his car start to slide. Savoie lightly applied his brakes to slow down a little more and he regained control of his car. Since he had drifted somewhat into the easterly lane, however, the plaintiffs' vehicle impacted with his at the center of the curve in the plaintiffs' lane with both vehicles remaining at the point of impact. At trial, Mr. Savoie testified that he was attentive and his vision clear and that he travelled this roadway often; however, he could not avoid the accident once he went into the slide.
The plaintiffs were injured in the crash, Mrs. Dill more severely. Mr. Dill suffered a deep laceration of the scalp which required stitches. Mrs. Dill's injuries resulted in a fracture of the cervical odontoid C-2, fractures of six left ribs, and synovitis of the right knee. Mrs. Dill's injuries resulted in a 5% permanent anatomical disability and a 50% permanent functional disability to her whole body. As a consequence of Mrs. Dill's fractured neck, surgery was necessary to install a device called a halo, in order to immobilize the patient's upper torso neck and head, to allow the break to heal. Additional surgery was needed to remove the halo, after which, on October 17, 1985, Mrs. Dill was fitted with a Philadelphia collar. The Philadelphia collar was removed on December 12, 1985. At present Mrs. Dill must wear a soft cervical collar during situations where there is a possibility of reinjury, such as riding in a car. Mrs. Dill continues to suffer from dizziness. The synovitis of the right knee has left residual pain and discomfort to Mrs. Dill when walking, bending, and descending or ascending stairs.
During Mrs. Dill's convalescence, it was discovered that Mr. Dill had cancer which required surgery.
After finding DOTD 100% at fault, 1 the trial court made the following awards: (1) Mrs. Dill--$237,297.60--$200,000 for the pain and suffering associated with the broken neck bone; $15,000 for the pain and suffering associated with the six broken ribs; $10,000 for the pain and suffering associated with the knee injury; and reimbursement of medicals; (2) Mr. Dill--$40,287.50--$10,000 for the pain and suffering associated with the head injury; $30,000 for loss of consortium; and $287.50 for medical bills.
On appeal, DOTD assigned six specifications of error dealing with the trial court's assessment of liability and damages in two arguments. The plaintiffs answered the appeal urging an increase in their award of damages. Basically, DOTD's appeal requires us to determine the following two issues: (1) Was La. Hwy. 48 defective and, if so, was this defect solely or partially the cause of the accident, and (2) Were the awards made to plaintiffs excessive?
Two theories were presented at trial as to the cause of the accident: (1) Driver fault (argued by DOTD's expert); and, (2) Defective roadway (expounded by plaintiffs' expert). The trial judge chose to accept the latter explanation of the accident.
On appeal, DOTD contends that at the time of the accident, the substandard roadway at Brown's Curve was properly marked with an advance curve 30 mile per hour advisory speed sign and flashing amber beacon. As such, the roadway's condition, according to DOTD, did not constitute a defect; the sole cause of the accident was the fault of Mr. Savoie in that he was inattentive, or exceeding a safe speed for the existing road and weather conditions. Since the trial judge's findings were completely contrary to DOTD's position, in order for appellant to prevail, it must demonstrate that the trial court was manifestly erroneous in its factual determinations LSA-C.C.Art. 2324.1; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), and also that the court abused its much discretion in making its damage awards. Reck v. Stevens, 373 So.2d 498 (La.1979).
LA. 48 is a two-lane, 20 foot wide bituminous surfaced rural highway. At the time of the accident it was classified as a Class 2 Arterial Type Highway on the basis of an approximate 11,000 traffic volume per day. The applicable state highway standards published by DOTD as introduced through the expert's testimony require a degree of curvature at Brown's Curve approximately one-half of that presently existing. These standards further require a twelve foot lane width and a four foot shoulder, rather than the ten foot lane width and narrow unsurfaced shoulders at Brown's Curve. The superelevation or banking in the curve's westbound lane (which is the cross slope used in a curve to compensate for the curvature) was measured and found to be substandard for lack of a constant rate throughout the curve which produced a wavy surface and fluctuating coefficient of friction. There is considerable wear, pot marks, cracking, and deterioration of the roadway in the westbound lane, especially bad at the right hand wheel path.
The ball-bank indicator test which measures side force as a vehicle travels around a curve indicated that Brown's Curve was correctly posted with a 30 mile per hour advisory speed in each direction under dry weather conditions. The critical speed or speed at which a vehicle negotiating the curve would slide was estimated at 45-50 miles per hour by DOTD's expert witness, Olin K. Dart. The plaintiffs' expert witness, Duane T. Evans, estimated the critical speed at 38-41 miles per hour assuming a uniform surface and condition, but at 30 miles per hour in consideration of the severe degree of curvature, lane width, superelevation, wear of roadway, and wet pavement. 2 In Mr. Evans' opinion the fluctuating rate of superelevation and the pot marked and wet pavement of the curve caused a loss of the coefficient of friction which combined with the severe degree of curvature and narrow road width to cause Mr. Savoie's vehicle to slide into the eastbound lane. In Mr. Dart's opinion it was possible that the Savoie vehicle slid at 30 miles per hour due to the roadway conditions as described by Mr. Evans, but he thought it would take some steering input from the driver to cause the critical condition. Mr. Dart felt that the deficient roadway conditions at this curve were not sufficient to cause any serious decline in friction available to a vehicle going through the curve, that the curve actually had enough friction so that no superelevation was needed to hold a vehicle on the curve, and that a vehicle's suspension system would compensate for the bumps and potmarks on the roadway.
DOTD is not an insurer of the safety of all motorists on the road, but it has the duty to maintain the roads and highways in a reasonably safe condition for a reasonably prudent driver. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). The duty to maintain reasonably safe highways extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition. Sinitiere v. Lavergne, supra. This duty imposed on DOTD is the same under either strict liability or negligence. See Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982); Efferson v. State, Through T. and Dev., 463 So.2d 1342 (La.App. 1 Cir.1984), writs denied, 465 So.2d 722 (1985). Whether the Department has breached a duty, that is, whether the roadway at the scene of the accident was an unreasonably dangerous condition will depend upon the particular facts and circumstances of each case. Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986).
The St. Charles Parish Sheriff's Office produced a total of 72 accident reports of accidents occurring on LA. 48 at Brown's Curve from January 1, 1978 to July 2, 1985. Twenty-three of these accidents occurred in 1984 with approximately ten occurring in the west bound lane in the same way as the instant accident, three at 35 miles per hour, one at 15 miles per hour, and one at 25 miles per hour. Deputy Joey Chaisson testified that the St. Charles Parish Sheriff's Office records contained only accidents reported by the St. Charles Parish Sheriff's Office, not accidents reported by Louisiana State Police. He also testified that copies of all St. Charles Parish Sheriff's Office accident reports are sent to Louisiana State Police Headquarters, which in turn supplies that information to the Highway Safety commission and the DOTD.
Also introduced at trial was a report dated May 18, 1982, prepared by Boyd T. Gautreaux, District Traffic Operations Engineer, District Two, DOTD, regarding Brown's Curve, which states:
Accident date compiled by Department personnel from information provided by the State Police revealed that a total of 23 accidents occurred in this...
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