Holmes v. State Through Dept. of Highways

• Decision Date: 06 March 1985
• Docket Number: No. 84-174,84-174
• Citation: 466 So.2d 811
• Parties: Mary HOLMES, Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, American Motors Corporation, American Motors Sales Corporation, Sentry Insurance Company and Gary L. Dickerson, Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 811

466 So.2d 811

61 A.L.R.4th 379

Mary HOLMES, Plaintiff-Appellee, v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, American

Motors Corporation, American Motors Sales

Corporation, Sentry Insurance Company

and Gary L. Dickerson,

Defendants-Appellants.

No. 84-174.

Court of Appeal of Louisiana, Third Circuit.

March 6, 1985.

Rehearing Denied April 16, 1985.

Jerry Finley, Baton Rouge, for defendants-appellants.

Baggett, McCall & Ranier, William B. Baggett, Sr., Payton R. Covington, Lake Charles, for plaintiff-appellee.

Colvin J. Norwood, Jr., New Orleans, Kenneth I. Gluckman, Southfield, Mich., Raggio, Cappel, Chozen & Berniard, Fred L. Cappel, Lake Charles, for defendants-appellees.

Before GUIDRY, FORET and STOKER, JJ.

GUIDRY, Judge.

This case is one of three tort actions based upon common facts which were consolidated for trial. The cases remain consolidated on appeal, and we this day render separate decisions in the companion cases entitled Dickerson v. State of Louisiana, Through the Department of Highways, et al., 466 So.2d 830 (La.App. 3rd Cir.1985), and Olivier v. State of Louisiana Through The Department of Highways, et al., 466 So.2d 831 (La.App. 3rd Cir.1985).

These cases arise out of a single vehicle accident which occurred on Interstate 10 in Calcasieu Parish. The driver of the vehicle was Gary Dickerson; the passengers were Julie Olivier, Wanda Moore and Steve Duhon. Miss Moore died as a result of injuries sustained in this mishap; Miss Olivier sustained serious injuries.

Mary Holmes, as surviving parent of Wanda Moore, filed a tort action against the State of Louisiana, through the Department of Highways (DOTD), American Motors Corporation (AMC), Sentry Insurance Company (Sentry), and Gary E. Dickerson. Mrs. Holmes alleged the negligence of DOTD, AMC and Dickerson caused the injury and resulting death of her daughter, Wanda Moore. Mrs. Holmes also sought recovery from Sentry on the basis of an insurance policy issued by Sentry in favor of Miss Moore providing uninsured motorist coverage.

Julie Olivier filed suit against DOTD, AMC, Aetna Casualty & Surety Company (Aetna), and Gary Dickerson. Miss Olivier alleged the negligence of DOTD, AMC and Dickerson caused her injuries. Miss Olivier sought recovery from her insurance carrier, Aetna, under the uninsured motorist provisions of the policy.

Gary Dickerson filed suit against DOTD and AMC alleging their negligence caused his injuries.

DOTD, in answering the above suits, denied liability and further pled the affirmative defenses of assumption of risk and contributory negligence on the part of Dickerson, Olivier and Moore. Also DOTD filed third party demands against AMC in all three suits. DOTD third partied Dickerson and Olivier in the Holmes' suit. DOTD third partied Dickerson and the Estate of Wanda Moore in the Olivier suit.

AMC, in its answer to the three suits, denied liability and pled the affirmative defenses of assumption of the risk and contributory negligence on the part of Dickerson, Olivier and Moore. In addition, AMC filed third party demands against DOTD in all three suits. AMC also third partied Dickerson in the suits filed by Olivier and Holmes.

Prior to trial, a number of dismissals took place. Mrs. Holmes dismissed her claim against Sentry, Dickerson and AMC. She dismissed Dickerson and AMC as of non-suit. The dismissal of AMC carried with it the additional covenant not to sue AMC. The dismissals contained the proviso that all rights were reserved against any other parties which may be liable. Miss Oliver dismissed her claims against Aetna, Dickerson and AMC. The conditions of her dismissals were the same as Mrs. Holmes. Gary Dickerson dismissed his claim against AMC under the same conditions as well. Subsequently, AMC dismissed its third party demands against Dickerson in the Olivier and Holmes cases.

Exceptions of no cause of action were filed by Olivier and Holmes in connection with DOTD's third party demands against them. The trial court maintained the exceptions.

After trial on the merits, the trial court found that DOTD was solely responsible and awarded judgment against DOTD in the amounts of $1,100,000.00 to Julie Olivier, $110,000.00 to Mary Holmes, and $37,500.00 to Gary Dickerson. All other respective claims were dismissed. DOTD has suspensively appealed these judgments.

FACTS

On October 12, 1980, at approximately 8:15 p.m., a vehicular accident occurred on Interstate 10 near Westlake, Louisiana, in Calcasieu Parish. The accident occurred on the eastbound side of the divided highway. The driver of the 1980 AMC C-J-5 Jeep involved in the accident was Gary Dickerson. Dickerson's passengers were Julie Olivier, Wanda Moore and Steve Duhon. As Dickerson proceeded to pass slower vehicles by entering the inside or northernmost lane of travel of the eastbound highway, he allowed the left wheels of the vehicle to stray onto the shoulder. The vehicle continued to deviate from its lane of travel to the point where the left wheels of the vehicle were entirely off of the shoulder and on the grassy median. At the point where the Jeep deviated onto the shoulder, the shoulder was paved with asphalt and was in good condition; it measured 44 inches in width. The Jeep continued down this path for approximately 160 feet before it encountered a complete lack of asphalt shoulder. At this point, all four wheels of the Jeep were completely off the traveled portion of the roadway. The right wheels of the Jeep scrubbed against the edge of the pavement of the roadway. Dickerson attempted to re-enter the highway as his vehicle encountered this rut. Since the dropoff was approximately five inches in this area, Dickerson applied a great deal of force in his steer. As Dickerson attempted to regain the highway, his right front wheel encountered an area of shoulder in which the asphalt remained. The vehicle re-entered the highway upon encountering this elevated shoulder. However, because Dickerson had placed so much force into his steer, the vehicle was, in a sense, propelled onto the highway. Upon re-entering the highway in this sudden manner, the vehicle began to flip over as it crossed the highway.

At trial, it was established that two missing segments of asphalt shoulder existed in this area. The first missing segment or rut was approximately 45 feet in length; the second missing segment was 30 feet in length. Between these two ruts there existed a section of asphalt shoulder 15 feet in length. The area of asphalt between these two ruts was referred to at trial as an island of asphalt. The two ruts were approximately five inches in depth.

The evidence adduced at trial also established that these four individuals were returning home from an excursion to Holly Beach, Louisiana. The four had spent a large part of the day together riding around on the beach in Dickerson's Jeep. During the outing, the four consumed some beer and smoked marijuana. Although the testimony was somewhat inconsistent on this matter, Dickerson testified that three marijuana cigarettes were smoked while Olivier and Duhon maintained that only two marijuana cigarettes were smoked. The same holds true for the amount of beer consumed. Dickerson testified that he drank six, ten-ounce beers during the outing while Duhon and Olivier testified that only seven-ounce beers were drunk. Be that as it may, Dickerson's blood alcohol level at 10:05 p.m. the night of the accident was .073%.

LIABILITY OF DOTD

The trial court concluded in this case that the preponderance of the evidence proved the existence of a defective shoulder and that it was the proximate cause of the accident. Furthermore, the trial court found that DOTD knew or should have known of the defect. The determinations of the trial court in this regard are factual and should not be reversed on appeal absent manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

On appeal, DOTD does not seriously question the existence of the defective shoulder, but rather argues that the trial court clearly erred in finding that DOTD knew or should have known of the defect prior to the accident. DOTD contends that the trial court arrived at this finding based upon aerial photographs which were erroneously admitted into evidence.

To recover on the basis of negligence, it was incumbent upon plaintiffs that they prove that DOTD knew or should have known of the defect prior to the accident. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). In order to prove this element of their case on the theory of negligence, plaintiffs introduced aerial photographs taken on March 1, 1979 and October 3, 1980, depicting the area in which the accident occurred. By the use of expert testimony, plaintiffs were able to establish that the defective condition of the shoulder was in existence as far back as March 1, 1979. The trial court, in its written reasons for judgment, accepted the testimony relating to the March 1, 1979 photograph as proof that the defect existed at that time and continued to exist right up to the time of the accident. The trial court found no proof that DOTD had made any repairs to the shoulder during this interval. Counsel for DOTD objected to the introduction of these photographs at trial.

We have examined the arguments propounded by DOTD on appeal in support of its contention that the aerial photographs were inadmissible. Although we believe that the trial court was correct in allowing the aerial photographs to be admitted into evidence, we deem it unnecessary to delve any further into this matter because the trial court could have also found DOTD liable on the basis of strict liability. Under the theory of strict liability, a claimant is relieved of the burden of proving that the defendant knew or should have known of the risk, i.e., the defect. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). Since plaintiffs were relieved of...