Hood v. State Through Dept. of Transp. and Development

• Citation: 587 So.2d 755
• Decision Date: 27 September 1991
• Docket Number: Nos. 22751-C,22752-CA,s. 22751-C
• Parties: Kenneth Layton HOOD and Sara Jo Hood, Appellees/Appellants, v. STATE of Louisiana Through the DEPARTMENT of TRANSPORTATION and DEVELOPMENT, et al. Ronald W. GANTT, as Administrator of the Estate of the Minor Child, Gary Don Gantt, Appellee/Appellant, v. STATE of Louisiana, Through the DEPARTMENT of TRANSPORTATION and DEVELOPMENT, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 755

587 So.2d 755

Kenneth Layton HOOD and Sara Jo Hood, Appellees/Appellants, v. STATE of Louisiana Through the DEPARTMENT of TRANSPORTATION and DEVELOPMENT, et al.

Ronald W. GANTT, as Administrator of the Estate of the Minor Child, Gary Don Gantt, Appellee/Appellant, v. STATE of Louisiana, Through the DEPARTMENT of TRANSPORTATION and DEVELOPMENT, et al.

Nos. 22751-CA, 22752-CA.

Court of Appeal of Louisiana Second Circuit.

Sept. 27, 1991.

Writ Denied Dec. 13, 1991.

Scott J. Crichton, William Paul Lawrence, Jr., Shreveport, for Kenneth Layton Hood and Sara Jo Hood.

Tommy J. Johnson, Shreveport, for Ronald W. Gantt, as Adm. for the Estate of the minor child, Gary Don Gantt.

Frank H. Thaxton, Claude Bookter, Jr., Shreveport, for Safeco Ins. Co.

Eskridge E. Smith, Jr., Shreveport, for Capital Enterprise Ins. Co. and Ronald W. Gantt, et ux.

James M. Johnson, Minden, for State of La., through the Dept. of Transp. and Development.

Before LINDSAY, VICTORY and STEWART, JJ.

VICTORY, Judge.

These consolidated suits arise out of a single vehicle accident which occurred on Highway 146 in Claiborne Parish. Anthony Gantt was operating his father's truck when it strayed from the roadway, encountered a shoulder drop-off condition, and subsequently overturned. Gary Don Gantt and Joel Hood were passengers. As a result of the accident, Joel died instantly and Gary suffered serious injuries. The trial court found the State of Louisiana, through the Department of Transportation and Development (DOTD) the sole cause of the injuries sustained. DOTD appeals the issues of liability and damages. We affirm in part and reverse in part.

FACTS

The accident occurred the morning of July 12, 1985 on Louisiana Highway 146 approximately 6.9 miles east of Homer in Claiborne Parish. Anthony Gantt (age 15) was driving his father's 1983 Chevrolet S-10 pickup truck accompanied by his brother, Gary Don Gantt (age 10), and his friend, Joel Hood (age 13). Traveling west at approximately 55 m.p.h., Anthony took his eyes off the road to look down at his sweaty shirt when Gary and Joel began teasing him about it. While Anthony was looking down, the truck went completely off the paved roadway onto the shoulder. Anthony immediately took his foot off the accelerator and traveled approximately 189 feet before he attempted to return to his lane of traffic. Upon reentry, his left tires began scrubbing against a four-inch drop-off between the shoulder and pavement, causing the truck to "sling-shot" across the road into the oncoming lane of traffic. As Anthony compensated by steering back to the right, the truck skidded 63 feet before it rolled over. The truck overturned several times, ejecting both Gary and Joel.

The Gantts filed a tort action against DOTD claiming that its negligent maintenance of the road caused Gary's injuries. The Hoods, as surviving parents of Joel Hood, filed a wrongful death action against DOTD, the Gantts, and Capital Insurance Company (the Gantts' liability insurer). The Hoods also sought recovery from Safeco Insurance Company based on their uninsured motorist coverage. DOTD subsequently made the Gantts a third party defendant, claiming Anthony Gantt was solely at fault. In addition, various other cross-claims and incidental demands were filed.

Following bifurcated trials on the issues of liability and damages, the trial court found DOTD 100% at fault and awarded judgment in the amounts of $1,635,798.87 to Gary Don Gantt's parents for his damages, and $363,206.76 to the Hoods for Joel's wrongful death.

DOTD suspensively appeals, claiming the trial court erred (1) in finding the State liable, (2) in failing to find Anthony Gantt contributorily negligent, (3) in awarding excessive wrongful death damages to the Hoods, (4) in awarding excessive future loss of earnings and general damages to Gary Don Gantt, (5) in awarding Gary Don Gantt excessive general damages in violation of LSA-R.S. 13:5106(B)(1), and (6) in awarding excessive interest contrary to LSA-R.S. 13:5112(C).

The Hoods have also appealed, although they contend the trial court decision is correct, arguing that if Anthony Gantt is found partially liable for the accident, their rights against Gantt should be protected.

LIABILITY OF DOTD

DOTD contends that the trial court erred when it found DOTD negligent in its maintenance of Highway 146. We find no error.

DOTD has the duty to keep all state owned or state maintained highways and their shoulders in a reasonably safe condition. This duty encompasses the obligation to protect a motorist who intentionally or unintentionally drives onto the shoulder. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). Although DOTD is not an insurer of safety, it cannot knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Coleman v. State, Department of Transportation and Development, 524 So.2d 1281, 1284 (La.App. 3d Cir.1988); Rochelle v. State, Department of Transportation and Development, 570 So.2d 13 (La.App. 3d Cir.1990), writ denied 572 So.2d 93 (La.1991).

To recover upon the basis of negligence, it was incumbent upon the plaintiffs to prove DOTD knew, or should have known, of the hazardous condition prior to the accident. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). DOTD may also be held strictly liable under LSA-C.C. Art. 2317 as custodian of a defective shoulder in normal use. Under both a negligence and strict liability theory, the duty imposed on DOTD is the same. However, under a strict liability theory, the plaintiff is relieved of the burden of proving DOTD's knowledge of the defect. Kent v. Gulf States Utility Co., 418 So.2d 493 (La.1982).

The trial court found DOTD liable under both theories of liability. Since the lower court found that DOTD had knowledge of the shoulder condition, we will simply address DOTD's liability on the basis of negligence.

The record reveals substantial evidence supporting the district court's finding that there was "at least a four-inch drop-off between the paved portion of the road and the dirt shoulder" at the scene of the accident. All of plaintiff's witnesses, including a neighbor who knew none of the parties involved, testified that a drop-off existed. These five people were the only ones to inspect the scene on the day of the accident other than Trooper Campbell, who testified he saw no significant drop-off worth reporting. Upon cross-examination he testified that he would not consider a drop-off significant unless it were five, six, or seven inches. The record clearly supports the trial court's holding that the drop-off existed.

Courts have consistently held that an abrupt drop-off between a roadway and a shoulder constitutes a defect. LeBlanc v. State, Department of Highways, 419 So.2d 853 (La.1982); Grappe v. State, Department of Transportation and Development, 462 So.2d 1337 (La.App. 3d Cir.1985), writ denied 466 So.2d 1302 (La.1985). An implicit necessity for the use of a shoulder is a connection between the roadway and the shoulder that allows for safe, gradual movement from one to the other. Sinitiere v. Lavergne, supra. We agree with the trial court's conclusion that a drop-off of at least four inches makes the shoulder unreasonably dangerous to normal use.

The trial court also found that DOTD was actually aware of the hazardous condition and failed to take corrective action within a reasonable time. The record supports his conclusion.

Although DOTD denies knowledge of any defect, the Parish Superintendent, James Martin, had previously scheduled repair work at the accident site for Monday, July 15, 1985, three days after the accident. Bobby Moorehead, DOTD Maintenance Specialist, testified that the roads and shoulders in that area were inspected bi-monthly and that any drop-off condition of three inches or more would be scheduled for repair, in accordance with department standards.

The lower court found the defect to be a cause in fact of the sling-shot effect as the truck reentered the highway. The trial court obviously placed great emphasis on the testimony of plaintiff's expert, Dr. John Glennon, who stated that the "scrubbing sling-shot" phenomenon is the only thing that could explain the vehicle's path on reentry. Causation is a question of fact determined by the trial court which is entitled to great weight and should not be disturbed absent manifest error. Rivet v. State, Through DOTD, 434 So.2d 436 (La.App. 3d Cir.1983). The record supports the conclusion that the defect was a cause of the accident.

DOTD's breach of its duty to maintain the shoulder in a reasonably safe manner encompassed the risk of this type accident and injury, making it liable for the damages caused by the defective shoulder. See Thomas v. Jackson, 442 So.2d 1186 (La.App. 2d Cir.1983), writ denied, 445 So.2d 435 (La.1984).

LIABILITY OF ANTHONY GANTT

The appellant, DOTD, argues that the trial court erred in finding the driver, Anthony Gantt, free of negligence. After carefully reviewing the record, we agree that the trial court clearly erred in failing to find that Gantt's actions in allowing the truck to leave the pavement constituted negligence.

The trial judge found that Gantt's inadvertent straying from the highway did not constitute negligence under Rue v. State, Department of Highways, supra. The supreme court in Rue held that inadvertent straying onto the shoulder did not constitute such substandard conduct as to bar a motorists recovery in a defective shoulder case.

Rue is no longer viable in light of the subsequent adoption of comparative fault. LSA-C.C. Art. 2323. We agree with the reasoning of Judge (now Justice) Cole in Motton v. Travelers Insurance Co., 484 So.2d 816 (La.App. 1st Cir.1986):

[W]e believe one of the major reasons for the result reached in Rue was the harshness of the total bar to recovery which resulted from the application of contributory negligence. In order to avoid this harsh result, the Court...