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

• Decision Date: 27 February 1991
• Docket Number: No. 22181-CA,22181-CA
• Citation: 576 So.2d 85
• Parties: Clarice L. ROBERTS, Plaintiff/Appellant/Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and L.J. Earnest, Inc., Defendants/Appellants/Appellees. 576 So.2d 85
• Court: Court of Appeal of Louisiana — District of US

Page 85

576 So.2d 85

Clarice L. ROBERTS, Plaintiff/Appellant/Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT and L.J. Earnest, Inc.,

Defendants/Appellants/Appellees.

No. 22181-CA.

576 So.2d 85

Court of Appeal of Louisiana,

Second Circuit.

Feb. 27, 1991.

Rehearing Denied March 28, 1991.

Writ Denied June 14, 1991.

Peters, Ward, Bright & Hennessy by J. Patrick Hennessy, Shreveport, for plaintiff/appellant/appellee, Clarice L. Roberts.

Lunn, Irion, Johnson, Salley & Carlisle by Charles W. Salley and James A. Mijalis, Shreveport, for defendant/appellant/appellee, State of La., Through the Dept. of Transp. and Development.

Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendant/appellee, L.J. Earnest, Inc.

Before SEXTON, LINDSAY and BROWN, JJ.

SEXTON, Judge.

Defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD), appeals the trial court judgment awarding the plaintiff, Clarice Roberts, $295,674.83 in damages suffered as the result of an automobile accident and rejecting DOTD's third party demand against L.J. Earnest, Inc. (the contractor). The plaintiff has also appealed, seeking review of a summary judgment which dismissed plaintiff's claims against the contractor and its insurer, First Horizon Insurance Company. ¹ We affirm in part, reverse in part, and amend in part.

The automobile accident at issue occurred on La. Highway 3 in Bossier Parish. On the date of the accident, December 24, 1986, DOTD was in the process of having La. 3 converted from a two-lane highway into a four-lane highway. DOTD had contracted with L.J. Earnest, Inc. to perform the necessary work. Plans called for the contractor to initially construct two new lanes, during which time traffic would continue on the original lanes of La. 3. When the new lanes of travel were completed, traffic would be rerouted onto the new lanes while the contractor upgraded the old lanes. On the date of the accident, the contractor was still working on the new lanes of La. 3. Only minor work had been done on the old lanes of La. 3, such as the installation of drainage pipes at periodic locations under the highway. Pursuant to DOTD's specifications, the contractor had erected various signs along La. 3 noting that it was under construction.

Additionally, the contractor had erected "low shoulder" signs every three-fourths mile along the construction project. These signs were erected in response to a December 9, 1986, conversation between Wayne Conley, an engineering specialist with the DOTD and supervisor of the DOTD's inspectors for the La. 3 project, and representatives of the contractor. Mr. Conley had informed the contractor that maintenance was necessary to repair edge ruts which had developed between the edge of the paved highway and the unimproved shoulder. Although the depth of these edge ruts, three to five inches, would have dictated their repair based upon DOTD regulations, repair was not then undertaken because it was apparently determined that inclement weather had made the shoulders too wet to allow effective repair. Instead, the contractor put up the "low shoulder" signs. The edge ruts were eventually repaired by the contractor on January 7, 1987.

At approximately 11:45 a.m. on December 24, 1986, the plaintiff was driving in the southbound lane of La. 3, approximately two miles south of Benton, heading toward Bossier City. It should be noted that the new lanes were being constructed adjacent to the northbound lane of the then La. 3. The plaintiff had traveled this same road both to and from work four days a week since she had begun to work in Benton, three weeks previously. Although the plaintiff does not remember the accident, eyewitness testimony reveals that the plaintiff's passenger side tires strayed off the roadway and into a water-filled edge rut. From some apparent combination of the jolt caused by the vehicle hitting the rut, the plaintiff's immediate, abrupt and apparently purely instinctive turning of the steering wheel, and the reduced friction between the tires and the ground caused by the water in the edge rut, the plaintiff's vehicle was, in effect, thrust back onto the highway, across the center line, and into a northbound vehicle being driven by Mildred Davis Jones. The plaintiff suffered a compound fracture of the left femur, a concussion, and lacerations to her face as a result of the accident.

The plaintiff filed suit against DOTD and L.J. Earnest, Inc., alleging the defendants were negligent and/or strictly liable for failure to properly maintain the shoulder of the highway and for failure to warn of its dangerous condition. The petition was later amended to add as a defendant First Horizon Insurance Company, the insurer of L.J. Earnest, Inc. Third party demands were filed by each defendant against the other. DOTD alleged that L.J. Earnest, Inc. owed indemnification or contribution pursuant to the contract between the parties.

L.J. Earnest, Inc. and its insurer filed motions for summary judgment against the plaintiff on the main demand and against DOTD on the third party demand. The trial court found there was no dispute that the contractor had not yet begun construction on the original two lanes of La. 3 and therefore could not be liable in tort to plaintiff. Summary judgment for the contractor on the original demand was therefore ordered. Summary judgment was denied on the third party demand, as the trial court found that demand involved a contractual dispute, as to which there remained genuine issues of material fact.

A bench trial was had on the remaining issues. In a written opinion, the trial court found that DOTD was solely responsible for the accident and the plaintiff's damages, which were found to total $295,674.83. The trial court found DOTD had the duty to maintain the highway shoulder and that this duty encompassed the risk that a driver would be injured by inadvertently straying onto the defective shoulder. The court found DOTD knew of the existence of the edge ruts and failed to adequately correct the problem, thereby breaching its duty to the plaintiff. The plaintiff was found not to be at fault in the accident as the trial court found she could not have known of the edge ruts. Nor was the plaintiff negligent in her instinctive reaction, abruptly turning the steering wheel, after hitting the edge rut. Additionally, the trial court found that the contractor was not liable on the third party demand under its contract with the DOTD as the trial court found the contractor had strictly complied with all of DOTD's requests regarding the construction project. A judgment ordering DOTD to pay all of plaintiff's damages was thereafter prepared and signed.

LIABILITY OF DOTD AND L.J. EARNEST, INC.

The DOTD has a duty to keep the state's roadways and their shoulders in a reasonably safe condition. Whether the DOTD has breached that duty, i.e., whether the roadway and shoulder at the scene of the accident were in an unreasonably dangerous condition, will depend on the particular facts and circumstances of each case. Holloway v. State Department of Transportation and Development, 555 So.2d 1341 (La.1990); Manasco v. Poplus, 530 So.2d 548 (La.1988).

A motorist has a right to assume that a highway shoulder, the function of which is to accommodate motor vehicles intentionally or unintentionally driven thereon, is maintained in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979). An implicit necessity for the functional use of a shoulder is a connection between the roadway and the shoulder that allows for safe, gradual movement from one to the other. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

In the instant case, the connection between the paved roadway of La. 3 and the unimproved shoulder was disrupted by the three- to five-inch edge ruts. These edge ruts defeated, or at least obstructed, the functional use of the shoulder. The edge ruts prevented the safe use of the shoulder of La. 3 and constituted an unreasonably dangerous condition. The edge rut which the plaintiff entered on the date of the accident was especially dangerous as it was at least partially filled with water. This made the depth and also the mere existence of the edge rut difficult to determine from the roadway. It also reduced friction between a tire which entered that edge rut and the ground.

There is little doubt that the edge rut was a cause of the accident. The jolt caused by the plaintiff's entering the rut, together with the reduced frictional coefficient caused by the water in the rut and the plaintiff's apparently instinctual, abrupt turning of the wheel caused her to reenter the highway and strike the oncoming vehicle driven by Mildred Jones.

The issue of the DOTD's liability in this case is complicated by the existence of the construction contract with L.J. Earnest, Inc. The contract between DOTD and L.J. Earnest, Inc. provided that the contractor was to maintain the area under construction and to provide for the continuation of traffic during the entirety of the construction project. This necessarily envisioned that the contractor, not the DOTD, would be responsible for the maintenance of the roadway and shoulders of the original lanes of travel of La. 3 during the construction of the two new lanes of travel.

However, notwithstanding a contrary arrangement with a contractor, the DOTD may not contract away its responsibility as to the general public to maintain the highways and their shoulders in a reasonably safe condition; this duty is non-delegable. Guillotte v. Department of Transportation and Development, 503 So.2d 618 (La.App. 4th Cir.1987); Robinson v. State Department of Transportation and Development, 454 So.2d 257 (La.App. 1st Cir.1984), writ denied, 458 So.2d 122 (La.1984); Hardy v. State, Department of Highways, 404 So.2d 981 (La.App. 3rd Cir.1981), writs denied, 407 So.2d...