Payne v. Louisiana Dept. of Transp. and Development

• Decision Date: 16 November 1982
• Docket Number: Nos. 14822,14826,s. 14822
• Citation: 424 So.2d 324
• Parties: Roy L. PAYNE v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Elliott WATSON and Mrs. Virgie McDonald Watson v. TRAVELERS INDEMNITY COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 324

424 So.2d 324

Roy L. PAYNE v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

Elliott WATSON and Mrs. Virgie McDonald Watson v. TRAVELERS INDEMNITY COMPANY, et al.

Nos. 14822, 14826.

Court of Appeal of Louisiana First Circuit.

Nov. 16, 1982.

Rehearing Denied Jan. 14, 1983.

Hobart Pardue, Springfield, and Phillip Hagger, New Orleans, for plaintiffs Glen Murphy, E.L. Thornhill, Clarence Everett and Roy Payne.

Paul Due, Baton Rouge, for plaintiffs Elliot Watson, et al.

William J. Doran, Baton Rouge, for defendants Louisiana Dept. of Transp. and Development et al.

Before SHORTESS, SAVOIE and ELLIS, JJ.

SAVOIE, Judge.

Five cases were consolidated for trial (Numbers 14,822; 14,823; 14,824; 14,825; and 14,826). The Louisiana Department of Transportation and Development (Department) is a common defendant and appellant in each case, which stem from four different automobile accidents, three of which involved single vehicles. The same approximate location is involved also: Louisiana Highway 43 in Livingston Parish, approximately 3.4 miles north of its intersection with U.S. Highway 190. In all four accidents, a southbound motorist left the roadway after failing to negotiate a curve. The curve was described as 400 feet long, turning through a delta angle of 20? to 30? , resulting in an estimated 5.9? curve. The road is 20 feet wide with 3 to 4 foot shoulders on each side. On the west side, the ditch is 12 to 14 feet from the road. On the east side, the ditch is flatter and its bank is about 22 feet off the road. The curve is not super-elevated and has an adverse crown ¹ at its end.

We dispose of these cases with separate opinions in order to promote a proper understanding of the factual situation surrounding each.

Defendant-appellant asserts the trial court's award of damages in tort to plaintiffs-appellees, Mr. and Mrs. Payne, is in error. We affirm the holding of the trial court.

On April 16, 1978, Mrs. Payne and her eight-month old child, traveling south on La. Hwy. 43, were involved in a one-car accident. She failed to negotiate a curve after the right tires of her vehicle strayed onto the shoulder of the road. After slowing down, she attempted to regain the paved roadway but "lunged" across the proper lane of traffic into the path of Watson's on-coming car, colliding with it. Mrs. Payne testified that after she slowed her vehicle to negotiate the curve (her child standing on the seat beside her), she remembered nothing until waking up in the hospital.

Louisiana State Police Trooper G. Van Dawson testified that he vaguely (emphasis added) remembered Mrs. Payne recalling she had reached for her child. However, his testimony does not reflect at what time in this accident sequence this "reaching" occurred. Trooper Dawson also testified there was a six to eight inch drop-off from the paved roadway to the shoulder running down the road "aways".

The sole eye-witness, David Wagner, testified Mrs. Payne appeared (emphasis added) to reach for her child after (emphasis added) the vehicle had "dropped" off the paved roadway. He stated she applied her brakes after "dropping" off the paved roadway and it appeared as though the vehicle might roll over. Further, he stated she appeared to regain control of her vehicle until she attempted to re-enter the paved roadway. Testimony indicates Mrs. Payne attempted to re-enter the roadway while in this six to eight inch drop-off.

Testimony also clearly indicates the Department had failed to erect any warning signs concerning the low shoulder despite a long history of accidents in this location.

The trial court found the road's shoulder at the curve to be defective and the sole cause of the accident. Finding no evidence of any substandard conduct, the trial court awarded her damages. The trial court also awarded Mr. Payne damages for the loss of his vehicle and medical expenses incurred by Mrs. Payne.

Appellant lists the following specifications of error:

"I. The trial court erred in its finding that there was present on the roadway at the time of these accidents, a condition which was patently and obviously dangerous to a driver exercising ordinary care and reasonable prudence.

"II. The trial court erred in failing to find the drivers of the various vehicles guilty of negligent conduct which was the sole cause of these accidents, or in the alternative, from finding these drivers to be guilty of contributory negligence, or in the further alternative, for failure to find that the recovery of these plaintiffs was barred from "victim fault" or fault of a third party which would constitute an intervening cause of these accidents and would bar recovery under any doctrine of strict liability.

"III. The trial court erred in failing to reduce any award to the Watsons by its virile share based upon the settlement of the Watsons with Travelers Insurance Company and United States Fidelity & Guaranty Company, or in the alternative, erred in failing to grant credit to the Department of Transportation for amounts paid as a result of these settlements.

"IV. The trial court erred in awarding to plaintiffs an excessive amount of damages."

At trial, appellees claimed damages under both strict liability and negligence. We find liability would attach under either theory of recovery.

Louisiana Civil Code Art. 2317 states:

"We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody...."

One may recover on the basis of strict liability under L.S.A.-C.C. 2317 by showing (1) that the thing which caused the damage was in the care or custody of defendant, (2) that it had a vice or defect, that is, some condition which occasioned an unreasonable risk of injury, and (3) that the injury was caused by the defect. Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980).

"Highway" is defined as a public way for vehicular, mounted and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes. L.S.A.-R.S. 48:1(11). "Shoulder" is defined as that portion of the highway contiguous with the roadway for accommodation of stopped vehicles, emergency use, and lateral support of base and surface. L.S.A.-R.S. 48:1(21). La. Hwy. 43 is defined as a state highway. L.S.A.-R.S. 48:191. As such, the road and shoulder of La. Hwy. 43 are in the care and custody of the Louisiana Department of Transportation and Development (Department). Foggan v. Louisiana Department of Transportation and Development, 402 So.2d 154 (La.App. 1st Cir.1981).

The Department is under a duty to maintain safe highways and shoulders, that duty extending to protect the people who may foreseeably be placed in danger by an unreasonably dangerous condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). Appellees are within the ambit of the Department's duty to maintain safe shoulders.

Appellees have proven by a preponderance of the evidence a six to eight inch drop-off existed in this curve between the roadway and the shoulder. Testimony of Hubert Stilley, Kenneth Johnston, and Donald Ray Morrison supports a finding the Department had actual knowledge of the defect at the time in question. Stilley, who lived only one mile east of the accident site, travels La. Hwy. 43 several times a day. After observing an accident in the summer or fall of 1976 at this spot, he notified the Department about the low shoulders which, he felt, warranted repair. Kenneth Johnston, the Department's maintenance engineer, was in charge of an asphalt overlay project for La. Hwy. 43, which was completed March 3, 1976. He testified the asphalt applied to the highway raised the road's elevation by one and one-half inches. Donald Ray Morrison, with the Department's planning section, gathered data relative to the accident site. Morrison testified that from 1974 to 1978, there were eleven collisions at this location, most of which were one-car accidents. Additionally, no warning signs had been erected. The highway and its adjoining shoulder were a vice or defect that occasioned an unreasonable risk of injury.

Using Sinitiere's, supra, "but for" test to determine cause-in-fact, we agree with the trial court's conclusion that this accident would not have occurred had the shoulder been substantially even with the paved roadway. The trial court's findings of fact will not be disturbed on appeal unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). There is also a substantial relationship between the failure to correct the highway defect and the accident, the risk encountered by appellees.

We find the trial court correctly found the Department liable under Art. 2317, as (1) the highway was in the care and custody of the Department, (2) the shoulder of the highway posed such a danger to motorists that it was a vice or defect in the highway, and (3) the defective shoulder was a substantial cause of appellees' injuries.

We now consider whether the Department could also be held liable on the grounds of negligence.

All rules of conduct are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that can befall him, merely because it shows that the violation of the rule played a part in producing the injury.

The Department's general duties toward motorists on the highway are set forth in Sinitiere v. Lavergne, supra, wherein our Supreme Court held as follows:

"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 the hazardous condition and fails...