Merrell v. State, Through Dept. of Transp. and Development

• Decision Date: 26 May 1982
• Docket Number: No. 8863,8863
• Citation: 415 So.2d 660
• Court: Court of Appeal of Louisiana — District of US
• Parties: Iva O. MERRELL, Plaintiff & Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant & Appellant.

Page 660

415 So.2d 660

Iva O. MERRELL, Plaintiff & Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant & Appellant.

No. 8863.

Court of Appeal of Louisiana Third Circuit.

May 26, 1982.

Robert H. Carpenter, Jr., and Owen M. Goudelocke, of Mengis, Durant & Carpenter, Baton Rouge, for defendant & appellant.

Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff & appellee.

Before CULPEPPER, FORET and DOUCET, JJ.

CULPEPPER, Judge.

The plaintiff, Iva O. Merrell, sues the State of Louisiana, through the Department of Transportation and Development (hereinafter "Department") for damages for personal injuries arising out of a two vehicle accident which occurred in Natchitoches Parish on November 26, 1978. The trial court held the Department was negligent in failing to maintain a safe highway and shoulder, which negligence was the sole cause of the accident. The Department appeals.

On appeal, the Department contends:

1) The trial court was clearly wrong in finding that a hazardous condition existed, and that the Department had notice thereof.

2) The trial court was clearly wrong in finding that Iva O. Merrell was not contributorily negligent.

3) The trial court abused its discretion by awarding excessive general damages and future loss of earnings.

FACTS

The accident which gave rise to this suit occurred at approximately 4:40 p. m. on Sunday, November 26, 1978, on Louisiana Highway 1 in Natchitoches Parish. The plaintiff, accompanied by two passengers, was proceeding northward on Highway 1 to attend evening church services. Due to heavy rains, Mr. Merrell was operating his vehicle with the headlights on and windshield wipers in operation. Just after crossing what is known as Monette's Ferry Bridge, at a point at which the shoulder of Highway 1 changes from one of asphalt pavement to one consisting of dirt and gravel, the right front tire of plaintiff's automobile dropped off the pavement and into a hole or rut in the gravel shoulder at the edge of the paved portion of the highway. At this point, the plaintiff lost control of his automobile, which veered into the south bound lane where it collided with a south bound dual wheel pickup truck. Mr. Merrell suffered severe injuries as a result of the accident.

The trial court concluded that the Department was negligent in failing to maintain a safe highway and shoulder, and that the evidence showed no contributory negligence on the part of the plaintiff which would relieve the Department of its liability for his injuries. He held that the condition of the road and shoulder was in the nature of a trap causing Mr. Merrell to lose control of his vehicle. He further found that the Department had adequate notice of the defect and was negligent either in failing to observe it, or in seeing it and failing to correct it within a reasonable time. In addition to awards for past loss of wages and past and future medical expenses, the court fixed the award for future loss of earnings at $368,000 and for past, present and future pain, suffering, disfigurement and disability at $200,000.

NEGLIGENCE OF THE DEPARTMENT

The general duties of the Department toward the traveling public were stated by the Louisiana Supreme Court in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980);

" It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time.3

Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department's duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.

[2, 3] The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition.

* * *

* * *

In Rue, [372 So.2d 1197 (La.1979) ] supra, the rule was clarified to include persons who drove onto the shoulder inadvertently where there was neither knowledge nor reason to know of either a defective condition of the shoulder itself or any other condition that would make such action hazardous (such as a car on the shoulder of the road)."

The trial court found as a fact that a hazardous shoulder condition did exist at the site of this accident, that the Department had notice of its existence, and that the plaintiff encountered this hazard which caused him to lose control of his vehicle. The Department contends the evidence as a whole is insufficient to support these findings.

It is well settled that the test of the sufficiency of the evidence in a civil case, whether direct or circumstantial, is whether the evidence, taken as a whole, shows the fact sought to be proved is more probable than not. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972).

The plaintiff testified he was proceeding cautiously and, because he noticed oncoming traffic, moved his vehicle to the far right of the north bound lane after crossing the bridge. Because of low visibility due to the rainy condition, he was using the white lane marker on the right-hand side of the road as a guide. He stated that soon after he crossed the bridge, his right front wheel suddenly left the pavement, he felt a drop-off and a scraping sensation underneath the automobile, and then lost control.

Two sets of photographs taken by the Department were introduced into evidence. One set of these photos was taken exactly one month before the accident (It is unclear from the record exactly when the other set was taken). These pictures show a rut (we use this term for want of a better descriptive term) on the edge of the pavement in the angle formed by the end of the paved shoulder and the roadway as it continues with a gravel shoulder. They show that the white lane marker by which the plaintiff was guiding his automobile comes to an end at the point at which the paved shoulder ends, leading directly into this rut, and begins again to the north end of the rut. At this point the edge of the main travel portion of the highway has been eroded for a distance of some two to five feet and at least four inches in width, resulting in a rut. The length of two to five feet is based on the pictures and the observations of witnesses, since no measurements were taken.

Mrs. Doris Hale and Mrs. Elsie Vinsick testified that on November 14, 1978, 12 days before the plaintiff's accident, they were traveling in an automobile whose right rear tire dropped into this same rut while leaving the main travel portion of the roadway to go onto the shoulder, in order to avoid faster traffic approaching from the rear. Mrs. Hale, the driver, testified that due to the severity of the jar, she experienced difficulty in maintaining control of her vehicle, despite ideal weather conditions and a slow speed of 10 to 20 miles per hour. She stopped on the shoulder, and she and Mrs. Vinsick got out to look at the rut. Mrs. Hale testified that the rut appeared to be about six inches deep, and that the gravel shoulder had eroded away from the main travel portion of the roadway so that five to eight inches of the asphalt edge were visible.

The plaintiff's father, who also works for the Department, testified that at least two weeks before the accident he had noticed the broken off place in the same area. He stated that he did not tell his supervisor about it because such reports from employees were discouraged, and because he assumed that one of the crews working in that area would take care of it. Nor did he see any reason to mention it to his son.

The Department introduced the testimony of Troy Vascocu, the parish maintenance superintendent, that the records kept during his general annual inspection of October 20-26, 1978 showed no particular problem in this area, and that he had noticed nothing he would consider to be a serious defect in driving this route on November 8, 13 or 16, nor in his regular inspection of routes on December 12, 1978. The only other evidence of the condition of the road in this area was the testimony of a Department employee that he worked on the shoulders of the section in which this accident occurred on October 27, 1978, November 20, 1978, and again in early December, 1978, and noticed no particular problem at any of these times. However, he had no independent recollection of the specific areas of the section in which he worked, or what was done in a particular area.

There are numerous cases in which an irregularity in the shoulder of the road has been held to constitute a hazardous condition. Many of these involved elevational differences between the roadway and the shoulder due to additional overlay of the road, generally ranging in height from slightly over two inches to four inches. See Sinitiere v. Lavergne, supra; Smith v. State, through Department of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir. 1982); McDaniel v. State, through Department of Transportation and Development, 398 So.2d 88 (La.App. 3rd Cir. 1981), writ denied 404 So.2d 277, 279 (La.1981); Edwards v. State, through Department of Transportation and Development, 403 So.2d 109 (La.App. 3rd Cir. 1981); Godwin v. GEICO, 394 So.2d 751 (La.App. 3rd Cir. 1981).

In Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979) the Supreme Court held that a rut at the highway's edge which caused the plaintiff to lose...