McCoy v. Franklin Parish Police Jury

• Court: Court of Appeal of Louisiana
• Writing for the Court: NORRIS
• Citation: McCoy v. Franklin Parish Police Jury, 414 So.2d 1369 (La. App. 1982)
• Decision Date: 10 May 1982
• Docket Number: Nos. 14886,14887,s. 14886
• Parties: Oscar McCOY, et ux., Plaintiff-Appellant, v. FRANKLIN PARISH POLICE JURY, et al., Defendant-Appellee. and Duane Ray SIKES, et ux., Plaintiff-Appellant, v. FRANKLIN PARISH POLICE JURY, Defendant-Appellee.

Page 1369

414 So.2d 1369

Oscar McCOY, et ux., Plaintiff-Appellant, v. FRANKLIN PARISH POLICE JURY, et al., Defendant-Appellee. and Duane Ray SIKES, et ux., Plaintiff-Appellant, v. FRANKLIN PARISH POLICE JURY, Defendant-Appellee.

Nos. 14886, 14887.

Court of Appeal of Louisiana Second Circuit.

May 10, 1982.

McKeithen, Wear & Burns by Russell A. Woodard and Cynthia T. Woodard, Columbia, for plaintiffs-appellants.

Lowen B. Loftin, Dist. Atty. and Glynn D. Roberts, Asst. Dist. Atty., Rayville, for defendants-appellees.

Before JASPER E. JONES, FRED W. JONES and NORRIS, JJ.

NORRIS, Judge.

Plaintiffs appeal an adverse judgment in favor of the Franklin Parish Police Jury rejecting their claims for damages arising out of a one vehicle accident in these consolidated cases assigning in essence three issues for our consideration:

(1) The finding of the trial court that the driver of the automobile involved in the accident, Margie McCoy Sikes, was contributorily negligent;

(2) The finding of the trial court that the guest passenger, Lula B. McCoy, was contributorily negligent;

(3) The failure of the trial court to impose the doctrine of strict liability under Louisiana Civil Code Art. 2317.

The trial court in its "Reasons for Judgment" concluded "This collision occurred in the court's opinion because of the negligence of Mrs. Sikes." However, the court then proceeded to find both Mrs. Sikes and Mrs. McCoy contributorily negligent. Because of the court's findings, in addition to issues one and two listed above, we must consider for purposes of this appeal whether or not the Franklin Parish Police Jury was negligent; and if so, was its negligence a cause in fact of plaintiffs' injuries. Likewise, because the trial court did not address the question of strict liability, ¹ we must determine its applicability to the instant situation.

FACTS OF THE ACCIDENT

Margie McCoy Sikes (plaintiff together with her husband in suit No. 14,887) was the new delivery person for the Sunday edition of the Monroe Morning World newspaper for a rural portion of Franklin Parish, Louisiana. On November 12, 1978, she and her mother, Lula B. McCoy (plaintiff together with her husband in suit No. 14,886), picked up her newspapers in Columbia (Caldwell Parish) where they resided at approximately 3:00 a.m. and traveled to Franklin Parish commencing delivery on her newly acquired route. Visibility was poor on this dark, foggy morning. Although Mrs. Sikes had accompanied the former delivery person on the route on two previous occasions when she had assisted by rolling newspapers, placing rubber bands around them and handing them to her predecessor, this was her initial attempt to drive the route herself. Mrs. Sikes drove her 1975 Vega, distributing the newspapers to the various houses on the route aided by her mother's rolling the newspapers, placing rubber bands around them and handing them to her. Additionally, Mrs. McCoy operated a tape that had been recorded by the previous carrier that described houses where papers were to be delivered, proper placement of the papers and other general directions concerning the paper route.

At approximately 3:30 a.m., the women were driving south on an asphalt road known as the Ross Road, which is owned and maintained by the Franklin Parish Police Jury. Mrs. Sikes had delivered a paper, was traveling at a speed estimated between 15-25 mph, and was anticipating making a right turn as per the instructions on the tape. Approximately 1/4 of a mile south of the delivery, Ross Road abruptly terminates at a point where it forms a "T" intersection with another parish owned and maintained road running in an east/west direction. This road was referred to as the Ray Bryan Road and/or the White Oak Landing Road. South of the "T" intersection existed a 3-4 foot deep ditch, beyond which was an open field or pasture. At all material times, there existed no stop sign, warning sign or barricade to warn motorists traveling south on Ross Road of its termination at the "T" intersection. Although Mrs. Sikes was looking for the right turn, she saw no signs or warnings and was in the intersection before she realized it. She applied her brakes, skidded across the intersection into the ditch, wrecked her car and injured herself as well as her mother.

It is undisputed that the Ross Road and the intersection in question were under the jurisdiction of the Franklin Parish Police Jury.

NEGLIGENCE THEORY

La.R.S. 32:235 makes the police jury or parish authority responsible for placing and maintaining traffic control devices upon highways under its jurisdiction. Fontenot, et al. v. State, through the Dept. of Highways, et al., 346 So.2d 849 (La.App. 1st Cir. 1977).

Likewise, the responsible governing authority which has jurisdiction over the highway, road, street or thoroughfare has the legal duty to erect warning signs or barricades sufficient to warn motorists of any unusual obstructions, perilous condition or defect in the road face that would entail danger to the physical safety of those proceeding over such routes. Callahan v. Town of Bunkie, 287 So.2d 629 (La.App. 3rd Cir. 1973); Watts v. City of Baton Rouge, 248 So.2d 42 (La.App. 1st Cir. 1971), writ refused 259 La. 63, 249 So.2d 203 (1971). Failure of the governing authority to erect or properly maintain appropriate warning signs or barricades at a "T" intersection where the road terminates in a deep ditch has been held by our court to be a violation or breach of the duty to protect the traveling public from an unusually dangerous hazard. See Watts v. City of Baton Rouge, supra; McCallum v. State, Dept. of Highways, 246 So.2d 46 (La.App. 3rd Cir. 1971); LeJeune v. State, Dept. of Highways, 215 So.2d 150 (La.App. 3rd Cir. 1968), writ refused 217 So.2d 413 (La.1969). However, in order for this violation of duty to constitute negligence, it must be shown that the public agency had knowledge, actual or constructive, of the danger and that it failed to correct the danger or warn motorists of the danger. Wall v. American Employers Ins. Co., 377 So.2d 369 (La.App. 2d Cir. 1979) affirmed at 386 So.2d 79 (La.1980); Harrison v. State of La., Dept. of Highways, 375 So.2d 169 (La.App. 2d Cir. 1979).

In the instant situation, we conclude that the unmarked "T" intersection constituted an unreasonable risk of harm or a dangerous hazard to the public and should have been appropriately signed or marked by the Franklin Parish Police Jury. In addressing the question of whether or not the police jury had actual or constructive knowledge of this defect or dangerous hazard, we note the trial court's correct statement that the testimony regarding whether or not the intersection in question had ever been signed was conflicting. ² The lower court made no express finding regarding this issue; however, we conclude that there had been stop signs placed at this particular intersection controlling traffic traveling south on Ross Road prior to the accident although we can not determine from the evidence exactly when a sign was last in place.

The evidence does clearly show that the police jury was aware that this intersection existed. R. H. Allen, maintenance superintendent for the Franklin Parish Police Jury, was familiar with the intersection. He testified that the stop sign at the intersection controlling south bound traffic on Ross Road had been knocked down some four or five times in the past four years. While he had no knowledge of the existence or condition of the sign at the time of the accident, he felt there had been one in place around two weeks prior to the accident from his personal observations. Although not sure about the time frame, he testified it could not have been longer than three weeks before the accident when he observed the sign.

Allen further testified that the police jury had no regular inspection system for determining whether traffic control devices in its jurisdiction were in need of repair or replacement. Furthermore, he did not know whether or not the police jury had received any notice that the stop sign was down. Therefore, from the testimony we can only conclude that the stop sign in question could have been down for as long as two weeks.

Considering the hazardous nature of the "T" intersection, with its prior history of downed or missing signs, coupled with the police jury's lack of a reliable inspection system for ascertaining whether traffic control devices within its jurisdiction were in need of repair or replacement, we conclude that the police jury is charged with constructive notice of the missing stop sign. See Willis v. Everett, 359 So.2d 1080 (La.App. 3rd Cir. 1978), writ refused 362 So.2d 800 (La.1978); Jones v. La. Dept. of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976).

However, even if the police jury had not been charged with this constructive notice of the downed sign, we would still conclude that they were in violation of their duty to adequately warn the motoring public because the placement of a stop sign alone at this intersection in our opinion was an inadequate marking or warning. See Wood v. State, Dept. of Highways, 295 So.2d 78 (La.App. 2d Cir. 1974), writ refused 295 So.2d 446 (La.1974); Lopitz v. Louisiana Dept. of Highways, 268 So.2d 269 (La.App. 4th Cir. 1972); McCallum v. State, Dept. of Highways, supra; LeJeune v. State, Dept. of Highways, supra. Ray Bryan, who had lived in close proximity to the intersection since 1953, testified there had been "quite a few accidents" at the intersection where motorists had run through the intersection into the ditch. ³ Therefore, this hazardous location should have at least been properly identified with a "T Intersection Ahead" reflector sign, and perhaps even with some type of reflecting barricade or blinking red light.

We further conclude that the negligence of the police jury was the cause in fact of the harm sustained by plaintiffs. Mrs. Sikes testified she was looking for a stop sign or some...