Robinson v. State Through Dept. of Transp. and Development, s. 82

• Decision Date: 02 July 1984
• Docket Number: Nos. 82,s. 82
• Citation: 454 So.2d 257
• Parties: Melvin ROBINSON v. STATE of Louisiana Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. John Dale WATKINS v. PATTERSON TRUCK LINE, INC., Melvin Robinson, National Union Fire Insurance Company, Department of Transportation and Development of the State of Louisiana and the State of Louisiana. Terri Rene CHAMBERS, Individually, and as Natural Tutrix of her minor child, Andy Lee Chambers v. PATTERSON TRUCK LINE, INC., Melvin Robinson, and State of Louisiana, Department of Transportation and Development, Secretary of Transportation and Development. CA 0971-82 CA 0972, 82 CA 0973. 454 So.2d 257
• Court: Court of Appeal of Louisiana — District of US

Page 257

454 So.2d 257

Melvin ROBINSON v. STATE of Louisiana Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.

John Dale WATKINS v. PATTERSON TRUCK LINE, INC., Melvin Robinson, National Union

Fire Insurance Company, Department of

Transportation and Development of the

State of Louisiana and the

State of Louisiana.

Terri Rene CHAMBERS, Individually, and as Natural Tutrix of

her minor child, Andy Lee Chambers v. PATTERSON TRUCK LINE, INC., Melvin Robinson, and State of

Louisiana, Department of Transportation and

Development, Secretary of Transportation

and Development.

Nos. 82 CA 0971-82 CA 0972, 82 CA 0973.

454 So.2d 257

Court of Appeal of Louisiana, First Circuit.

July 2, 1984.

Writ Denied Oct. 12, 1984.

Steve LeMoine and Clyde A. Ramirez, New Orleans, for plaintiff and appellant--Melvin Robinson.

Philip Henderson, Houma, for plaintiff and appellant--John Watkins.

Charles Steib, St. Louis, Mo., Thomas A. Rayer, New Orleans, for plaintiff and appellant--Terri Chambers.

Gerald Dillon, New Orleans, for defendant and appellant--Louisiana Paving Co.

Grady Weeks, Houma, for defendant and appellee--State of La., Dept. of Transp. & Development.

Huntington B. Downer, Houma, for defendant and appellee--Patterson Truckline.

Before EDWARDS, COLE, WATKINS, SHORTESS and ALFORD, JJ.

WATKINS, Judge.

These cases, consolidated for trial, arose out of a head-on collision which occurred on January 14, 1980 on U.S. Highway 90 in Terrebonne Parish between Morgan City and Houma. The collision took place between two pickup trucks, one owned by Patterson Truck Line, Inc. (Patterson) and driven by Melvin Robinson, and the other driven by John Dale Watkins and owned by Randel Chambers who was a passenger. Chambers was killed by the collision, and Robinson and Watkins suffered extensive injuries.

Robinson filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD). On January 14, 1981, Robinson amended his petition to add as a party defendant Louisiana Paving Company, Inc. (Louisiana Paving), the contractor of DOTD who was performing construction and repair work under contract on the roadway.

In his original petition, Watkins named as defendants Robinson, Patterson, National Union Fire Insurance Company, (National Union) Patterson's liability insurer, and the DOTD. Jessie E. LeBlanc and Gordon S. LeBlanc, d/b/a LeBlanc Brothers and Company, and Louisiana Paving were added as parties defendant by amended petition on August 28, 1980. ¹

On January 13, 1981, Terri Chambers, widow of the decedent, Randel Chambers, filed suit on her own behalf and on behalf of her minor son against Patterson, Robinson, and the DOTD. Chambers amended her petition to add Louisiana Paving as a defendant on March 17, 1981, more than one year after the accident and death of her husband.

The DOTD filed third party demands against Patterson, Louisiana Paving, Robinson and Watkins.

Louisiana Paving filed third party demands against Patterson and National Union.

At the conclusion of plaintiffs' case, the trial court issued a directed verdict which dismissed all claims against Patterson and National Union. After trial on the merits, the trial court dismissed the plaintiffs' claims against all of the defendants except Louisiana Paving and rendered judgment in favor of each plaintiff against Louisiana Paving in the amounts of $85,000 to Melvin Robinson, $192,905.75 to Terri Chambers, $100,000 to Terri Chambers on behalf of her minor child Andy Lee Chambers, and $175,000 to John Watkins, together with legal interest and costs. The claims asserted in the third party demands were dismissed.

Louisiana Paving has appealed the trial court's decision. Robinson has appealed the dismissal of his claims against the DOTD. Watkins has appealed the dismissal of his claims against the DOTD, Robinson, Patterson and National Union. Louisiana Paving has also filed on appeal an exception of prescription against the claims asserted by Terri Chambers. None of the appellants question the correctness of the quantum of the trial court's awards.

On January 14, 1980, Robinson, who was in the process of buying a house trailer, received a telephone call at his office in Morgan City from a trailer salesman in Houma, who informed him that he (Robinson) had a deadline of 5:00 p.m. that day to come up with some additional money for the down payment on the house trailer. Robinson was employed by Patterson and had regular access to company vehicles. He took a Patterson pickup truck and drove from the Patterson office in Morgan City to Alto Trailer Sales on U.S. Highway 90 in Houma. He made the down payment on the trailer and was returning to work, traveling in a westerly direction on Highway 90 between Houma and Morgan City when the accident occurred. After negotiating a curve in the road, Robinson allowed the right wheels of his pickup truck to drop off the highway and onto the shoulder. When Robinson attempted to get back onto the highway, his right wheels came into contact with a two and one-half inch drop-off between the highway surface and the shoulder. He lost control of the vehicle and collided with the pickup truck occupied by John Watkins and Randel Chambers which was proceeding in the directionally opposite lane of travel.

The segment of Highway 90 on which Robinson ran onto the shoulder, lost control, and had the collision was under a contract for its widening, entered into by Louisiana Paving and the DOTD. The contract provided for asphaltic concrete base widening and overlay and related work on a segment of the highway about 10 miles in length. At the time of the accident the work to be performed under the contract was substantially under way. Asphalt patching and repair work on the existing concrete roadway had been done in many non-contiguous areas along the 10 mile segment, including an area within 500 feet of the accident site. Within seventy-five feet of the site of the accident a large tree had been removed from within the road right-of-way.

LIABILITY OF DOTD

A duty founded in statute and recognized by the jurisprudence exists on the part of the DOTD to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. This duty to maintain extends to the shoulders of the highway as well. LSA-R.S. 48:1(11), (21), 48:21; Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir.1976), writs denied, 341 So.2d 1134 (La.1977); 342 So.2d 218 (La.1977); Rue v. State Department of Highways, 372 So.2d 1197 (La.1979); Payne v. Louisiana Dept. of Transp., Etc., 424 So.2d 324 (La.App. 1st Cir.1982); Palermo v. Allstate Insurance Company, 415 So.2d 437 (La.App. 1st Cir.1982). The scope of the duty imposed on the DOTD encompasses the particular risk which gave rise to the plaintiffs' injuries in this case. In LeBlanc v. State, 419 So.2d 853, 854 (La.1982), the Louisiana Supreme Court stated:

"The Department's duty to maintain highway shoulders is imposed to protect a motorist from the risk of injury produced by a combination of the motorist's inadvertent encounter with an unexpected, sharp dropoff from the roadway and her consequent instinctive oversteering of her vehicle."

In the present case Robinson had emerged from a curve on Highway 90 when the right wheels of his vehicle unintentionally deviated from the roadway onto the shoulder. When he subsequently attempted to return his right wheels to the road surface, he met with a sharp drop-off of two and one-half inches which threw his truck out of control and caused it to cross the highway and to veer into the vehicle occupied by Watkins and Chambers, which was traveling at about 45 mph in the opposite direction. Since the record establishes that a two and one-half inch drop-off is hazardous to motorists, plaintiffs are clearly within the ambit of the DOTD's duty to maintain the roadways.

Liability based on negligence is imposed when the 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 (La.1980). The record establishes that a two and one-half inch drop-off existed between the road surface and the shoulder. Mr. Herberto Rivera, Resident Construction Engineer for the DOTD, testified that inspectors from the DOTD were on the job site to inspect the progress of the work every day that the contractor was performing construction operations. As a result we are compelled to find the DOTD knew, or at least should have known of the hazardous condition of the highway and its shoulders through observation of the area that was under contract, and yet it took no action to correct the condition or have the condition corrected.

The DOTD contends that its duty to maintain the highway in a safe condition was shifted from the DOTD to Louisiana Paving by virtue of the construction contract wherein Louisiana Paving agreed to perform maintenance of the roadway and to post warning signs during the course of the construction. Although the trial court found that the duty to maintain the highway was shifted to Louisiana Paving, we know of no authority which would allow the DOTD to contract away to a private concern a responsibility as fundamental and as critical as its duty to maintain the public roads and highways in a reasonably safe condition.

It is clear from the contract between the parties that Louisiana Paving did undertake the obligation of maintenance during the course of construction. Section 105.15 of the contract provides for "Maintenance During Construction", obliging the contractor to maintain the work during the course of construction until the project is accepted. But it is apparent that the DOTD did not understand Section 105.15 to absolve it of its overriding duty to the public because Section 105.16 of the contract sets forth procedures to be followed in the event the contractor fails to maintain the...