Rick v. State, Through Dept. of Transp. and Development
| Decision Date | 28 May 1993 |
| Docket Number | No. 92,92 |
| Citation | 619 So.2d 1149 |
| Parties | Monroe S. RICK, Sr., Monroe S. Rick, Jr., Michael E. Rick, Martha Rick Anthony, Melinda Rick Howes v. STATE of Louisiana, THROUGH The DEPARTMENT of TRANSPORTATION AND DEVELOPMENT. CA 1000. |
| Court | Court of Appeal of Louisiana — District of US |
Paul Due, Baton Rouge, Joseph Simpson, Amite, Grace Gasaway, Hammond, for plaintiff-appellee.
Duncan S. Kemp, III, Hammond, for defendant-appellant.
Before WATKINS, CRAIN and GONZALES, JJ.
This is an appeal from a judgment in a personal injury action.
On July 20, 1988, at approximately 1:43 p.m. Mrs. Mary Rick was driving a Volkswagen Rabbit in a westerly direction on Minnesota Park Road (MPR) which is located in the vicinity of the City of Hammond. MPR runs on an east-west direction. A railroad grade crossing owned by Illinois Central Railroad Company (ICRC) intersects with MPR. At the time of the accident, the crossing consisted of two sets of tracks which ran in a north-south direction. 1 The railroad grade crossing at issue was signed by an advance warning sign, a cross buck, and a red and white stop sign. As Mrs. Rick approached the grade crossing she stopped at the stop sign then proceeded slowly across the tracks. For some reason her vehicle stopped on the tracks and shortly thereafter was struck from the right by a southbound passenger train owned and operated by the National Passenger Railroad Corporation commonly known as Amtrak. Mrs. Rick died as a result of the accident.
Mrs. Rick's husband and four of her major children instituted this action against the state through the Department of Transportation and Development (DOTD). DOTD subsequently filed a petition entitled "cross claim" against Amtrak and the City of Hammond seeking indemnity and/or contribution. Amtrak filed a motion for summary judgment against DOTD in the "cross claim" or third party action contending that it was uncontroverted that Amtrak had previously entered into a compromise with plaintiffs in the principal action as a result of which Amtrak had obtained an unconditional release and discharge from plaintiffs. Summary judgment was rendered in favor of third party defendant Amtrak and against DOTD.
The City of Hammond as third party defendant filed the peremptory exception raising the objections of no cause and no right of action. The city also filed a motion for summary judgment on the basis that the grade crossing was outside the city limits in that the city was bounded on the east by the west right of way line of the ICRC. Summary judgment was rendered in favor of the city.
DOTD also filed a third party action seeking indemnity and/or contribution against the ICRC. ICRC answered, pleading release and discharge by plaintiffs in the principal action. ICRC subsequently filed a motion for summary judgment after which DOTD filed a motion for order of voluntary dismissal of ICRC which was granted by the court.
We note that DOTD has not appealed the summary judgments dismissing the City of Hammond and Amtrak. In brief DOTD contends MPR is a parish road; however, the Parish of Tangipahoa was not made a party either to the principal or third party demand.
After a bench trial on the merits, judgment was rendered in favor of plaintiffs and against DOTD. In written reasons for judgment the trial judge found both Mrs. Rick and DOTD at fault and apportioned 50% comparative fault to each. Judgment was entered in conformity with the written reasons.
DOTD has appealed alleging twelve assignments of error.
In the second, third, fifth and sixth assignments of error DOTD contends that the trial court erred in determining that a duty was owed by DOTD to Mrs. Rick; such duty, if any, was breached by DOTD; and that the alleged breach was both the cause in fact and legal or proximate cause of the accident.
In order to determine the liability of DOTD under La.C.C. art. 2315 the court must use a duty-risk analysis: Forest v. State, Department of Transportation, 493 So.2d 563, 569 (La.1986).
DOTD contends that it has no duty to maintain, provide protective devices or signalize railroad grade crossings on roads which are not part of the State Highway System (off system grade crossings).
In written reasons for judgment the trial court determined that DOTD owed to Mrs. Rick the "duty to see that this particular crossing was properly upgraded with the installation of active grade crossing warning devices so as to render the grade crossing reasonably safe, which duty was bre[a]ched, and the bre[a]ch of the duty was a concurrent cause of the fatal accident." The court cited Arnold v. Illinois Central Gulf Railroad, 501 So.2d 778 (La.App. 1st Cir.1986), writ denied, 503 So.2d 479 (La.1987) for the imposition of this duty on DOTD.
The issue of whether a defendant owes a duty to protect the plaintiff from the particular type of harm arising in a particular manner is a question of law. Jones v. Johnson, 572 So.2d 150 (La.App. 1st Cir.1990), writs denied, 576 So.2d 519 (La.1991).
It is uncontested that MPR is not part of the state highway system. It is a local road. There is also no evidence that DOTD contracted with either the parish or municipality to maintain it. Generally, the DOTD has no duty to maintain or signalize a public road unless such road is expressly included in the state highway system (La.R.S. 48:191-193) or unless the state has contracted (or otherwise assumed the duty) to maintain the road. Breshers v. Department of Transportation and Development, State of Louisiana, 536 So.2d 733 (La.App. 3d Cir.), writs denied, 541 So.2d 854, 856 (La.1988); Wall v. American Employers Insurance Co., 215 So.2d 913 (La.App. 1st Cir.1968), writ denied, 253 La. 325, 217 So.2d 415 (1969). This general rule includes the signing or erecting of protective safety devices at intersections and warning of hazardous locations on the highway.
Federal funding has been appropriated and made available to each state since 1974 pursuant to 23 U.S.C. Sec. 130(a) for the "elimination of hazards of railway-highway crossings, including the separation or protection of grades at crossings, the reconstruction of existing railroad grade crossing structures, and the relocation of highways to eliminate grade crossings...." In order to receive the funds each state is required to 23 U.S.C. Sec. 130(d). At least one half of the federal funds authorized for and expended for the elimination of hazards of railway crossings must be available for the installation of protective devices at railway-highway crossings. 23 U.S.C. Sec. 130(e).
Since at least 1978, the federal government placed no restrictions on use of the annual $3,500,000 of funds available to the state to achieve the elimination of hazards at off system crossings. From 1974 when the funds were first made available the state used the funds exclusively to upgrade on system crossings (those crossings intersecting with state highways). In 1983 the state decided to use the funds to upgrade off/system crossings as well.
There are a total of approximately 4,300 railroad grade crossings (of public roads) in the state, 950 of which are on system. The cost of installing protective devices is approximately $80,000 to $100,000 per crossing. It is uncontested that whether the MPR crossing was to be upgraded with protective devices with federal, state, parochial or municipal funds, ICRC would be performing the labor to install them. The only way in which a parish or city could obtain the federal funds to defray the cost of upgrading a crossing was through DOTD in the manner prescribed by Congress through the Federal Highway Administration (FHA).
In written reasons for judgment the trial court found:
[D]efendant admitted at trial that it had abandoned its prior policy to that effect so that by 1984 off-system grade crossing (sic) were considered equally along with on-system grade crossings for prioritization and qualification under this federal aid program, defendant legally has no excuse or justification for failing to have done what was within DOTD's power to see that this particular grade crossing received appropriate prioritization and consequent installation of active warning devices long before July 20, 1988. Defendant offered absolutely no evidence to explain or justify why this Minnesota Park grade crossing was not given priority consideration, and was not even listed as a project until September of 1986.
The factors considered by DOTD in determining which crossings will be upgraded are: the New Hampshire rating index, accident history, requests for upgrade, and site distance. The higher the rating index, the greater potential for accidents.
The New Hampshire rating index given to the MPR crossing by DOTD in September 1986 was 6.132. This is a low rating suggesting a low priority. The New Hampshire formula utilizes several factors: the volume of daily trains, the volume of daily vehicular traffic and the protection factors already in place at the crossing (stop signs, etc.). Michael Morgan, the DOTD Agreements Engineer, stated that an outdated vehicular traffic count was used to compute the formula. Thus, the rating index was artificially low. Mr. Morgan computed the New Hampshire formula using the updated vehicular counts and arrived at rating indices of 54 and 72 which he stated were...
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