Keith v. Bearden

• Decision Date: 07 May 1986
• Docket Number: No. 17738-CA,17738-CA
• Citation: 488 So. 2d 1071
• Parties: Frank Lafaye KEITH, Appellee, v. M.B. BEARDEN, Commercial Union Insurance Company, Ouachita Parish Police Jury, et al., Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 1071

488 So.2d 1071

Frank Lafaye KEITH, Appellee, v.M.B. BEARDEN, Commercial Union Insurance Company, Ouachita Parish Police Jury, et al., Appellants.

No. 17738-CA.

Court of Appeal of Louisiana Second Circuit.

May 7, 1986.

Bruscato, Loomis & Street by C. Daniel Street, Monroe, for appellee.

Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for appellant, M.B. Bearden.

Theus, Grisham, Davis & Leigh by Ronald L. Davis, Jr., Monroe, for appellants, Ouachita Parish Police Jury and Commercial Union Ins. Co.

Before MARVIN, SEXTON and NORRIS, JJ.

NORRIS, Judge.

The defendants Ouachita Parish Police Jury (Police Jury) and M.B. Bearden(Bearden) appeal a judgment rendered against them in solido in favor of plaintiff for damages sustained when his vehicle collided with two runaway horses on a Ouachita Parish road.The lower court assessed fault at 80% to Bearden and 20% to the Police Jury.

PlaintiffFrank Lafaye Keith(Keith) appeals seeking an increase in his future lost wages award and requesting that the interest on his award against the Police Jury be made retroactive to the date of his original petition.For reasons expressed, we amend to increase the fault of the Police Jury to 35% and as amended, affirm the judgment.

FACTS

At approximately 9:00 p.m. on September 6, 1982, plaintiff and his family were returning home from a fish fry at a friend's home.The plaintiff was driving a 1976 Chevrolet station wagon west on Parker Road in Ouachita Parish.Constructed and maintained by the Police Jury, Parker Road is a two-lane blacktop road in a rural area but is an important connecter road, fairly heavily traveled, and close to the interstate.At the time of the accident, extensive foliage was growing unchecked along its shoulders, especially along the northern shoulder.As plaintiff was traveling within the posted speed limit of 45 mph, two horses suddenly appeared from behind a large willow tree.This willow tree covered the north shoulder and allegedly protruded some two to three feet into the westbound lane of the paved portion of the road.Plaintiff applied his brakes immediately when he first saw the horses but was unable to avoid hitting them.

The horses were a full grown mare and her baby colt.They were "paints," having dark coats with patches of white.They were owned by defendant Bearden and had run off when Bearden's minor son, Tracy, had attempted to move them into the Bearden barn.Bearden admitted that he did not have adequate facilities to keep the horses at the time.Bearden's home and barn are located south of Parker Road.Bearden and the local rangerider were in active pursuit of the horses when the accident occurred.Immediately following the accident, the plaintiff complained of pain in his left hip, left testicle and left leg.

PROCEDURAL HISTORY

Plaintiff initially filed suit solely against Bearden on March 9, 1983.On March 22, 1983, he amended his suit to include Bearden's liability insurer, Comco Insurance Company.Plaintiff again amended his suit on February 2, 1984 to name the Police Jury as a defendant and then again on March 8, 1984 to include the Police Jury's insurer, Commercial Union Insurance Company.After a bench trial judgment was rendered in favor of the plaintiff for $822,256.99.In written reasons for judgment the trial court found there was overhanging foliage which obscured the plaintiff's vision of the two horses.The plaintiff was found free of fault.Bearden and the Police Jury were held concurrently liable: Bearden for allowing the horses to escape and also for strict liability under LSA-C.C. articles 2317 and 2321, and the Police Jury for allowing an unreasonably dangerous condition to exist and for breaching its duty of reasonable maintenance.Fault was assessed 80% to Bearden and 20% to the Police Jury.The trial court further found the Police Jury had actual or constructive knowledge of the condition and that the offending foliage was a contributing cause of the accident.After trial Comco paid its policy limits plus interest and Commercial Union reached a settlement with plaintiff.Thus, there are only the devolutive appeals of plaintiff, Bearden and the Police Jury now before the court.The Police Jury assigns as error: 1) the trial court's failure to admit into evidence an aerial photograph of the scene of the accident; 2) the conclusion that the condition of the road shoulder was a contributing cause of the accident; 3) the finding that the highway was unreasonably dangerous; 4) the trial court's application of the burden of proof; and 5) the conclusion that the risk and harm encountered by the plaintiff fell within the scope of the protection owed by the police jury.

Bearden does not contest his liability on appeal.Rather, he contends that the trial court erred in not assessing more fault to the Police Jury.Bearden also assigns as error the trial court's conclusion that all of plaintiff's medical problems stemmed from the accident; therefore, he seeks a decrease in the damage award.

Plaintiff assigns as error the trial court's award of only $400,000 for future lost wages and earning capacity; and the trial court's award of legal interest against the Police Jury only from the date it was joined as defendant rather than from the date of the original petition.

POLICE JURY'S LIABILITY

As the trial court found, there is ample evidence that the Police Jury had notice of the condition of Parker Road.¹Since notice was proven, there is no need to presume knowledge of the condition, under a theory of strict liability, LSA-C.C. art. 2317.

Instead the Police Jury's liability depends upon an analysis of the reasonableness of its conduct in allowing a condition to exist of which they were well aware.This is essentially a negligence determination.Kent v. Gulf States Utilities, 418 So.2d 493(La.1982).As in any suit founded upon negligence, the plaintiff must prove the existence of a duty, a breach of that duty and damages as a result of the breach.Stevens v. State, Through Dept. of Transp., 440 So.2d 920(La.App.2d Cir.1983)writ denied443 So.2d 1119(La.1984);andEverett v. La. Dept. of Transp., 424 So.2d 336(La.1982).

DUTY

The existence of a duty on the part of the police jury is well established both statutorily and jurisprudentially.The DOTD and all political subdivisions of the state, including parish police juries, are subject to "minimum safety standards with respect to highway design, construction and maintenance.These standards shall correlate with and, so far as possible, conform to the system then current as approved by the American Association of State Highway and Transportation Officials."LSA-R.S. 48:35, 48:35.1.Moreover, Louisiana jurisprudence has long recognized that the DOTD owes a duty to the traveling public to reasonably repair and maintain its roadways.Wilson v. State, Through Dept. of Highways, 364 So.2d 1313(La.App. 1st Cir.1978), writ denied366 So.2d 563(La.1979).This is particularly so if the hazard is trap-like or is unusually dangerous.Arnold v. City Parish Government, 290 So.2d 763(La.App. 1st Cir.1974).This duty is equally applicable to parish Police Juries for roads within their jurisdiction.Pickens v. St. Tammany Police Jury, 323 So.2d 430(La.1975).

CAUSATION--WAS THE CONDITION OF THE ROAD SHOULDER A

CONTRIBUTING CAUSE OF THE ACCIDENT?

The Police Jury contends that in order for the plaintiff to prove the willow tree was a contributing cause, he must show that the horses were traveling along the north shoulder of the road prior to appearing from behind the willow tree foliage; further, that the evidence failed to establish that the accident actually occurred at the site alleged; and that the trial court unfairly shifted the burden of proof to it to "disprove plaintiff's case."

Causation is the causal relationship between the plaintiff's harm and the defendant's alleged negligent conduct.Wattigny v. Lambert, 408 So.2d 1126(La.App.3d Cir.1981), writ denied410 So.2d 760(La.1981), cert. denied457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349(1982).In order to prove causation, the plaintiff must show that he would not have suffered his harm but for the defendant's negligence.Id.Where the negligence of more than one tortfeasor is involved, the courts have uniformly held that the negligence of each must be a "substantial factor" in bringing about the plaintiff's harm.Dixie Drive-It-Yourself v. American Beverage Co., 242 La. 471, 137 So.2d 298(1962);andEverett v. La. Dept. of Transp. etc., supra.Causation is primarily a factual determination and accordingly great weight must be given to the conclusion reached by the trial court.Cantor v. Koehring, 283 So.2d 716(La.1973).

While the trial court in this case had some difficulty in finding that the horses came from behind the willow tree, we do not.The trial court resorted to a complex deductive analysis to find causation.We find this completely unnecessary in light of the direct, unrebutted testimony of the plaintiff and his wife that the horses came from behind the willow tree that blocked his view of the north shoulder and a portion of the west bound lane, were coming straight at him, and just prior to impact they wheeled to the south or to their right.The only possible criticism of plaintiff's testimony is that he could not say where the horses came from prior to their emergence from behind the willow branches.The lack of view can be logically explained.Plaintiff simply could not see through the foliage to the other side.As David Vinson, an associate pastor of the Garrett Road Baptist Church, testified, "the tree acted as a wall and blocked all visual observations and part of the road."R.p. 609.

Plaintiff's testimony is further corroborated by his friend, Harold Moore, who was following in his car approximately 50 yards behind the plaintiff immediately prior to the accident.He testified that the horses must have come from...