Maxwell v. State, Through Dept. of Transp. and Development, 13635

• Decision Date: 06 October 1980
• Docket Number: No. 13635,13635
• Citation: 391 So.2d 1230
• Parties: Sandra Duren Maxwell, wife of/and James F. MAXWELL v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
• Court: Court of Appeal of Louisiana — District of US

Page 1230

391 So.2d 1230

19 A.L.R.4th 525

Sandra Duren Maxwell, wife of/and James F. MAXWELL v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

No. 13635.

Court of Appeal of Louisiana, First Circuit.

Oct. 6, 1980.

Writ Refused Nov. 26, 1980.

Paul H. Due, Baton Rouge, for plaintiff.

David K. Balfour, Woodrow W. Wyatt, Baton Rouge, for defendant.

Before COVINGTON, CHIASSON and LEAR, JJ.

COVINGTON, Judge.

Plaintiffs-appellees, Sandra Duren Maxwell, wife of/and James F. Maxwell, filed suit against the defendant-appellant, State of Louisiana, through the Department of Transportation and Development (Department of Highways) for damages and for injuries the wife sustained as a result of a one-car accident.

The case was tried in the Twenty-first Judicial District Court for the Parish of Livingston before Leon Ford, III, Judge, who rendered judgment in favor of the plaintiffs. The Department suspensively appealed the judgment. We affirm.

The accident occurred on the night of July 26, 1976, on Louisiana Highway 16 (La. 16) in the Parish of Livingston, Louisiana. Plaintiff, Sandra Maxwell, was driving her new Cadillac automobile in a northerly direction at about 50 miles per hour, although the speed of the vehicle could not be definitely determined. As she entered a sharp curve just south of the intersection with Arnold Road, Louisiana Highway 1025 (La. 1025), one wheel of her automobile slipped off the paved portion of the roadway onto the shoulder, causing her to lose control of her car and to crash into the adjacent ditch, which resulted in the damages and injuries of which the plaintiffs complain.

The evidence in the record establishes that the curve on La. 16 where the accident occurred, although designated as safely negotiable at 50 m. p. h., could not be safely negotiated at a speed in excess of 40 m. p. h. At this point the shoulder was significantly lower than the roadway and was very narrow. In discussing the conditions at the point of the accident, the trial judge noted:

"The shoulder to Highway 16 was dangerous and defective at the point of the accident because of its drop off from the edge of the highway at its critical location in the sharp curve. It was of insufficient width to allow a driver who dropped off of the highway on to the shoulder at any reasonable speed to regain control of their (his) vehicle and avoid running into the adjacent ditch."

This case, like Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979), presents primarily the issue of whether a motorist who inadvertently drives off the paved portion of a state highway onto the shoulder, and who thereby loses control of her vehicle due to the condition of the roadway and shoulder, is barred from recovery for her injuries. The question of the liability of the State resulting from the condition of the roadway and shoulder is necessarily an issue. The appellant has also raised the incidental question of the trial judge's acceptance of the plaintiffs' expert witness, Duaine T. Evans, as an expert in traffic engineering and accident reconstruction.

The Highway Department has the basic responsibility for the maintenance of State Highways. LSA-R.S. 48:21, 191. The Department is required to maintain its highways in a reasonably safe condition for motorists exercising ordinary care and reasonable prudence. Although it is not an insurer of the safety of motorists using its highways, it can not knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. Sinitiere v. Lavergne, 381 So.2d 522 (La.App. 3 Cir. 1980); Brown v. Louisiana Department of Highways, 373 So.2d 605 (La.App. 3 Cir. 1979); Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir. 1977), writ denied, 356 So.2d 434 (La.1978); Breaux v. Louisiana Department of Highways, 347 So.2d 1290 (La.App. 1 Cir. 1977), writ denied, 350 So.2d 1226 (La.1977).

In Watson v. Morrison, 340 So.2d 588 (La.App. 1 Cir. 1976), writ denied, 341 So.2d 1134 (La.1977), and Willis v. State ex rel. Louisiana Department of Highways, 321 So.2d 819 (La.App. 1 Cir. 1975), writ denied, 325 So.2d 280 (La.1976), the courts established that shoulders are included in the duty of maintenance of the highway department. See also Besnard v. Department of Highways, 381 So.2d 1303 (La.App. 4 Cir. 1980).

The evidence reveals that the dangerous condition of this particular curve (with the inadequate shoulder) was known to the Department. Local residents had made numerous complaints to the Department about the condition and many vehicular accidents had occurred at this particular location over an extended period of time. See Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1 Cir. 1967), writ refused, 251 La. 932, 933, 207 So.2d 538, 539 (1968). We thus determine that the Department was negligent in allowing such a known dangerous condition to exist, which caused the accident in question.

The defendant contends that Sandra Maxwell was negligent in driving at an excessive rate of speed under the circumstances. The Department sums up its argument: "Clearly, some negligence on the part of Mrs. Maxwell caused this accident. Any other conclusion is pure guess work and plaintiff should not be allowed to recover on that foundation."

The evidence does not support the defendant's allegation of excessive speed on the part of Mrs. Maxwell, or any other "negligence" on her part. The evidence shows that as she attempted to negotiate the curve at a reasonable rate of speed, one of the front wheels inadvertently left the paved surface of the highway, onto a severe dropoff on the narrow shoulder, causing her to lose control of the automobile and to crash into the adjacent ditch. We find that the contention of the Department that Mrs. Maxwell was contributorily negligent under such circumstances is fully answered by the Louisiana Supreme Court in Rue v. State, Department of Highways, 372 So.2d 1197, 1199 (La.1979). In the Rue case, the motorist had inadvertently driven off the highway onto its shoulder and lost control of her vehicle upon striking a dangerous rut in the shoulder, causing the accident and injuries. The Rue Court held as follows:

"Under a simple 'but-for' analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. But this does not conclude the inquiry. Focusing on plaintiff's 'substandard' conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder...