Moon v. City of Baton Rouge

• Decision Date: 22 October 1987
• Docket Number: Nos. 86,s. 86
• Citation: 522 So.2d 117
• Parties: Patricia J. MOON, et al. v. CITY OF BATON ROUGE and Parish of East Baton Rouge, et al. Glen Charles WARD v. CITY OF BATON ROUGE and Parish of East Baton Rouge, et al. CA 0913, 86 CA 0914. 522 So.2d 117
• Court: Court of Appeal of Louisiana — District of US

Page 117

522 So.2d 117

Patricia J. MOON, et al. v. CITY OF BATON ROUGE and Parish of East Baton Rouge, et al.

Glen Charles WARD v. CITY OF BATON ROUGE and Parish of East Baton Rouge, et al.

Nos. 86 CA 0913, 86 CA 0914.

522 So.2d 117

Court of Appeal of Louisiana First Circuit.

Oct. 22, 1987.

Rehearing Granted in Part and

Denied in Part Jan. 6, 1988.

On Rehearing Jan. 15, 1988.

On Second Rehearing March 16, 1988.

Writs Denied April 29, 1988.

George Clauer, III, Baton Rouge, for plaintiff-appellant Patricia J. Moon, et al.

Michael Palmintier, Baton Rouge, for plaintiff-appellee, Glen Charles Ward.

James J. Zito, Baton Rouge, for defendant-appellant City of Baton Rouge, etc.

John Keogh, Baton Rouge, for defendant-appellant Admiral Ins. Co.

Arthur Cooper, Baton Rouge, for defendant-appellant Pacific Employers Ins. Co.

Before WATKINS, CARTER and CHIASSON ^*, JJ.

WATKINS, Judge.

These are consolidated wrongful death and personal injury suits which arise out of an automobile accident that occurred on January 11, 1980. Patricia J. Moon filed suit individually and on behalf of her minor children, Jeffrey Scott Moon and Victoria Elizabeth Moon, against the City-Parish of East Baton Rouge, Louisiana (City-Parish), and its insurers, Admiral Insurance Company (Admiral) and Pacific Employers Insurance Company (Pacific), for the wrongful death of her husband, Kenneth R. Moon, the father of the two minor children, and as a survival action.

Glen Charles Ward filed suit against the City-Parish of East Baton Rouge, Louisiana, and its insurers, Admiral and Pacific, and against Aetna Casualty and Surety Company (Aetna), the insurer of the vehicle driven by Vincent Maggio, to recover for personal injuries. The court dismissed Aetna on summary judgment because it had exhausted its policy limits with payment to Mrs. Moon and her children and the payment of $5,561.00 to Mr. Ward.

The trial court entered judgment in favor of the plaintiffs holding the City-Parish, Admiral and Pacific liable in solido with Mr. Vincent Maggio. The basis of the City-Parish's liability was held to be the failure of the City-Parish to maintain a safe highway shoulder at the site of the collision, which was found by the trial court to be a substantial cause of Kenneth Moon's death and Glen Ward's injuries. Mr. Maggio's liability was based on the negligent operation of his motor vehicle. The court assessed interest and costs to each defendant according to each defendant's proportionate share of the total judgment. We amend the trial court's judgment, and affirm as amended.

FACTS

The accident occurred January 11, 1980, at approximately 7:30 p.m. on Jones Creek Road, a two-lane hard surface road located in the City of Baton Rouge in the Parish of East Baton Rouge. The facts presented at trial establish that Kenneth Moon was proceeding in a southerly direction on Jones Creek Road when Vincent L. Maggio, who was proceeding in a northerly direction, entered Mr. Moon's lane of traffic causing a head-on collision. Mr. Moon and Mr. Maggio were fatally injured in the accident, and Glen Charles Ward, a passenger in the Maggio vehicle, sustained severe injures.

Prior to the accident, Mr. Maggio picked up Glen Charles Ward and Jimmy E. Oxner and had planned to go to Secrets Lounge on Highland Road. They stopped at a 7-11 Store prior to proceeding down Jones Creek Road. Mr. Billy V. Smith, a friend of Mr. Maggio, testified that he saw Mr. Maggio at the 7-11 that night and that he was drinking a beer. Mr. Smith also testified that the Maggio vehicle squealed out of the 7-11 parking lot. While proceeding down Jones Creek Road Mr. Maggio passed a vehicle being driven by Mr. Dugas. Mr. Dugas testified that the Maggio vehicle came out of nowhere and passed him at a high rate of speed which he guessed to be approximately 65 to 70 miles per hour. The speed at which the Maggio vehicle was traveling prompted Mr. Dugas to remark to his family that "Those kids need to slow that car down. First thing you know they're going to get themselves in an accident--get killed." Approximately one-half mile later Mr. Dugas noticed a cloud of smoke and could see tail lights moving about rather rapidly.

Mr. Oxner and Mr. Ward testified that Mr. Maggio had bent over to pick something up off of the floor when the right wheels of the car left the roadway. The car traveled approximately 180 feet before re-entering the highway and colliding head-on with Mr. Moon's vehicle.

Mr. Dugas was the first person to reach the scene of the accident, where both Mr. Ward and Mr. Oxner were trying to exit the Maggio vehicle. Later, Mr. Dugas noticed that another vehicle had been involved and went to see about the passengers. It was then that he found Mr. Moon pinned in his car, gasping for air. Mr. Dugas estimated that Mr. Moon lived for 12 to 15 minutes after the accident, obviously in great pain.

Prior to trial Patricia Moon negotiated a settlement with Mr. Maggio's insurer for the sum of $92,417.84 and received $25,000 from her own uninsured insurance carrier. Evidence of both settlements was admitted at trial over plaintiff's objection.

After trial on the merits, the trial judge rendered judgment in favor of Mrs. Moon, individually and on behalf of her minor children in the sum of $1,070,949.50. Judgment was also rendered in favor of Glen Charles Ward in the sum of $36,499.32. The trial court held the defendants Vincent Maggio, the City-Parish, Admiral and Pacific liable in solido for the wrongful death of Kenneth Moon and the personal injuries of Glen Charles Ward. The trial court credited the defendants, City-Parish, Admiral and Pacific with the amounts paid to Mrs. Moon by Aetna and its insureds, Vincent Maggio, Sr., and Vincent L. Maggio, II, in the sum of $92,417.84. The court disallowed any credit for the settlement paid to Mrs. Moon by State Farm under the uninsured motorist provision of a policy covering the Moon vehicle. All defendants were assessed with a pro-rata share of interest and costs.

On motion of the defendants the trial court modified its original judgment reducing the award made to Patricia Moon individually and on behalf of her minor children by one-half, representing the virile share (one-half) of Mr. Maggio with whom the plaintiff settled.

The following issues are presented for review.

1. Whether the trial court erred in finding the road shoulder unreasonably dangerous and a legal cause of the accident.

2. Whether Mr. Maggio's negligence constituted third-party fault so as to bar the plaintiff's claim against the city.

3. Whether the trial court erred as a matter of law in awarding damages for loss of consortium to plaintiff, and alternatively whether the quantum awarded was excessive.

4. Whether the trial court erred in not casting Pacific for all costs and legal interest prior to and following judgment.

5. Whether the award of lost wages was excessive.

6. Whether the trial court erred in admitting evidence of the Maggio and underinsured insurance settlements.

7. Whether the court erred in not admitting evidence of Maggio's insolvency.

8. Whether the court erred in reducing the plaintiff's judgment by one-half.

STRICT LIABILITY OF CITY-PARISH

We will first address the question of strict liability of the City-Parish for the allegedly defective condition of the roadway. The trial court determined that the City-Parish was strictly liable for the defective shoulder at the point where the Maggio vehicle re-entered Jones Creek Road. The following reasons were enunciated by the trial court in this respect.

Mr. Oxner estimated the asphalt road had approximately a six-inch drop-off to the shoulder at the re-entry point.

Officer William E. Hornsby of the Baton Rouge City Police, who investigated the accident, testified that the Maggio car left 180 feet of tire marks along the right shoulder of Jones Creek Road before re-entering the road. That after re-entering Jones Creek Road the Maggio car proceeded approximately 96 feet in a northwesterly direction until it collided head-on with the Moon vehicle.... He also estimated that the Moon vehicle left four feet of skid marks before impact. Officer Hornsby further testified that the Maggio vehicle re-entered Jones Creek Road at a point immediately north of a private drive that entered Jones Creek Road. Officer Hornsby described Maggio's tire marks at re-entry as sliding marks.

Duane T. Evans, an expert in traffic engineering and traffic accident analysis, testified that he visited the scene of the accident on February 14, 1980, and that at the point the Maggio vehicle left Jones Creek Road the shoulder measured two to three feet in width and there was a two to three inch drop-off from the asphalt road to the shoulder. At the point of re-entry, Mr. Evans testified that the shoulder was two to three feet in width and at the point of re-entry there was a six-inch drop-off from the asphalt road to the shoulder. He stated that immediately south of the re-entry point, there was a minimum of a two-inch drop-off. Mr. Evans stated he used Officer Hornsby's measurements from Exhibit P-4 in determining the points where the vehicle left and re-entered Jones Creek Road. Mr. Evans testified that at the point of re-entry there was a hole that was six inches deep and measuring two to three feet across.

Mr. Evans concluded that the photographs of Maggio's re-entry reflected "yaw" marks which indicated the tires were partially rolling and partially sliding, an indication of loss of control....

Mr. Russell Miller testified that at the time of the accident he lived in the house which was located at the end of the private road south of the Maggio re-entry point. According to Miller the hole north of his driveway was about four inches deep and measured about one to one and a half feet in width. He attributed the hole to the mail carrier driving along the shoulder to service the mailbox.

Bert Guerin, a street superintendent of the...