Pesson v. Reynolds
| Decision Date | 13 November 1998 |
| Docket Number | No. 97 CA 0150.,97 CA 0150. |
| Citation | 727 So.2d 507 |
| Parties | Anna Pesson, wife of and Raymond PESSON, Jr. and Their Minor Children, Raymond Pesson, III and Jasmine Pesson v. Jess REYNOLDS, III, Patterson Truck Line, Inc. and Insurance Company of North America. |
| Court | Court of Appeal of Louisiana — District of US |
Lawrence K. Burleigh, Sr. Lafayette, LA, for plaintiffs-appellees Anna Pesson, Wife of and Raymond Pesson, Jr., et al.
William F. Dodd, Houma, LA, for defendants Jess Reynolds, III, Patterson Truck Line, Inc., and Insurance Company of North America.
James L. Pate, Lafayette, LA, for defendant Insurance Company of North America.
Bryan D. Scofield, Susan A. Daigle, Lafayette, LA, for defendants Excess Underwriters and Jess Reynolds, III, and Patterson Truck Line, Inc.
Brenda S. Nation, Edward M. Campbell, Baton Rouge, LA, for defendant-appellant State of Louisiana, Department of Transportation and Development.
Jay C. Zainey, Metairie, LA, for Intervenor Louisiana Health Care Authority.
BEFORE: GONZALES, PARRO, FITZSIMMONS and GUIDRY, JJ., AND LOTTINGER,1 J. Pro Tem.
In this personal injury action, the defendant, the State of Louisiana through the Department of Transportation and Development, appeals from the trial court's finding of liability and assessment of damages.
On July 2, 1993, at approximately 11:20 p.m., Anna Pesson (Mrs. Pesson) was driving her 1990 Ford Probe eastbound on U.S. Highway 90 (Hwy.90) in Morgan City, Louisiana, en route to her home in Bayou L'Ourse. Mrs. Pesson was traveling alone and had just attended a birthday party for her husband's uncle in Bayou Pigeon. Upon approaching the intersection of Hwy. 90 and Aycock Street, Mrs. Pesson collided with the rear portion of an unloaded lowboy trailer, which was attached to a tractor driven by Jess Reynolds, III (Mr. Reynolds). Mr. Reynolds was in the course and scope of his employment with Patterson Truck Line, Inc. and was headed to Ville Platte, Louisiana, to pick up a forklift. At the time of the collision, Mr. Reynolds was making a left turn from Aycock Street into the westbound lane of Hwy. 90.
Following the accident, Mrs. Pesson was taken to Lakewood Hospital in Morgan City, Louisiana, and then transferred to Charity Hospital in New Orleans for treatment. As a result of the accident, Mrs. Pesson suffered severe injuries.
On August 6, 1993, Mrs. Pesson, her husband, Raymond Pesson, Jr. (Mr. Pesson), and their minor children, Raymond Pesson, III and Jasmine Pesson (collectively referred to as "plaintiffs"), filed a petition for damages, naming as defendants Mr. Reynolds; his employer, Patterson Truck Line, Inc.; and its insurer, Insurance Company of North America (collectively referred to as "defendants"). In their petition, plaintiffs alleged that the sole and proximate cause of the accident was the negligence of Mr. Reynolds. On September 10, 1993, defendants filed an answer, generally denying plaintiffs' allegations. The defendants also asserted the comparative fault of Mrs. Pesson.
On November 2, 1994, Excess Underwriters2 intervened in the lawsuit, alleging that it issued a policy of excess insurance to Patterson Truck Line, Inc. and, because of the magnitude of the claimed damages, it wished to intervene in the lawsuit to oppose plaintiffs' claims. In addition, Excess Underwriters filed a third party demand, naming as a third party defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD). The third party demand alleged DOTD was negligent and strictly liable for plaintiffs' injuries because the intersection of Hwy. 90 and Aycock Street was unreasonably dangerous. Excess Underwriters also alleged that if Excess Underwriters had to pay damages, then it was entitled to indemnification and/or contribution from DOTD. Defendants then filed a supplemental and amending answer to the petition, also affirmatively alleging the fault of DOTD. On November 16, 1994, plaintiffs filed a supplemental and amending petition, naming Excess Underwriters as an additional defendant. Excess Underwriters filed an answer, generally denying plaintiffs' allegations and alleging the comparative fault of Mrs. Pesson.
Mr. and Mrs. Pesson, individually and on behalf of their minor children, entered into a settlement agreement with CIGNA/Insurance Company of North America, Mr. Reynolds, and Patterson Truck Line, Inc. This settlement consisted of $1,500,000 (the limits of the insurance policy) paid to the Pessons by CIGNA/Insurance Company of North America, and $500,000 (the deductible) paid to the Pessons by RPC Energy Services, Inc., on behalf of Mr. Reynolds and Patterson Truck Line, Inc. Pursuant to the settlement agreement, CIGNA/Insurance Company of North America was dismissed from the lawsuit with prejudice, on December 21, 1994. Mr. Reynolds and Patterson Truck Line, Inc., remained as defendants in the lawsuit for any amounts in excess of $2,000,000.
On January 10, 1995, the Louisiana Health Care Authority intervened in the suit on behalf of Charity Hospital in New Orleans, alleging that it had a right to intervene for recovery of charges for services rendered there to Mrs. Pesson. Plaintiffs and defendants filed answers to the intervention of the Louisiana Health Care Authority, generally denying its allegations.
On January 13, 1995, DOTD filed an answer to the third party demand of Excess Underwriters, generally denying the allegations. On May 22, 1995, plaintiffs filed a supplemental petition, naming DOTD as an additional defendant, and alleging the intersection of Aycock Street and Hwy. 90 was unreasonably dangerous and DOTD was strictly liable for the plaintiffs' damages. DOTD filed an answer to the supplemental petition, alleging the comparative fault of Mrs. Pesson and the other defendants named in the suit.
Trial was held on April 3-4, 1996, and June 5-6, 1996. Before the trial, Patterson Truck Line, Inc. and Excess Underwriters entered into a "Mary Carter" settlement agreement with the plaintiffs.3 Pursuant to the agreement, Excess Underwriters gained a financial interest in Mrs. Pesson's recovery and was realigned as a plaintiff, leaving DOTD as the only defendant. Following the trial, a judgment was rendered in favor of the plaintiffs and the third party plaintiff, awarding $4,925,027.14 in damages, plus interest and costs. The trial court assessed Mr. Reynolds and Patterson Truck Line, Inc. with 60% of the fault and DOTD with 40% of the fault. Damages were allocated as follows:
Special Damages For Anna Pesson 1) Past Lost wages $ 27,090.00 2) Future loss of wages $ 200,992.00 3) Past medical expenses $ 206,945.14 4) Future orthopedic surgeries $ 40,000.00 5) Life Care $1,500,000.00 General Damages 1) Loss of Consortium—Ray Pesson, Jr. $ 250,000.00 2) Loss of Consortium—Ray Pesson, III $ 100,000.00 3) Loss of Consortium—Jasmine Pesson $ 100,000.00 4) Past and Future pain and suffering—Anna Pesson $2,500,000.00
It is from this judgment that DOTD now appeals and urges the following assignments of error:
In assignment of error number one, DOTD contends the trial court erred in finding DOTD liable under theories of strict liability and negligence.
The elements which plaintiff must prove to recover damages from a public entity based on a defective condition of a roadway are the same, whether based on negligence or strict liability. Faulkner v. State, Department of Transportation and Development, 25,857, 25,858 (La.App.2nd Cir. 10/26/94), 645 So.2d 268, 273,writs denied, 94-2901, 94-2908 (La.1/27/95), 649 So.2d 390. A plaintiff must prove: (1) that the defendant owned or had custody of the thing which caused the damage; (2) that the thing was defective in that it created an unreasonable risk of harm to others; (3) that the defendant had actual or constructive knowledge of the defect or risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Faulkner v. State, Department of Transportation and Development, 645 So.2d at 273.4
DOTD has a legal duty to the traveling public to maintain the highways in a reasonably safe condition for non-negligent motorists. Liability based upon negligence is imposed when DOTD is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. Sinitiere v. Lavergne, 391 So.2d 821, 824-825 (La.1980). DOTD's duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or are momentarily inattentive. Trahan v. State, Department of Transportation and Development, 536 So.2d 1269, 1273 (La.App. 3rd Cir.1988), writ denied, 541 So.2d 854 (La.1989).
Whether the roadway at the scene of the accident was in an unreasonably dangerous condition will depend on the facts and circumstances of each case. Hunter v. Department of Transportation and Development, 620 So.2d 1149, 1151 (La.1993). Design standards, both at the time of original construction and at the time of the accident, may be relevant factors in determining whether a given stretch of roadway presents an unreasonable risk of harm, but are not determinative of the issue. Dill v. State, Department of Transportation...
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