Rue v. State, Dept. of Highways

• Citation: 372 So.2d 1197
• Decision Date: 25 June 1979
• Docket Number: No. 63813,63813
• Parties: Patricia C. RUE and Lloyd Rue, Jr. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
• Court: Supreme Court of Louisiana

Page 1197

372 So.2d 1197

Patricia C. RUE and Lloyd Rue, Jr. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.

No. 63813.

Supreme Court of Louisiana.

June 25, 1979.

Rehearing Denied July 27, 1979.

Allen L. Smith, Jr., Plauche, Smith, Hebert & Nieset, Lake Charles, for plaintiffs-applicants.

Robert R. Roche, State Dept. of Transp. and Development, Office of Highways, Baton Rouge, for defendant-respondent.

CALOGERO, Justice.

This case presents the narrow legal issue of whether a motorist who inadvertently drives off a highway onto its shoulder and who loses control of her vehicle upon striking an admittedly dangerous rut in the shoulder is barred from recovery for her injuries by her negligence in leaving the paved surface of the highway.

The uncontroverted facts of this case are that the Department of Highways was negligent in failing to maintain the shoulder of the highway in a safe condition ¹ and that plaintiff, who was presented no real or imagined emergency situation, drove her vehicle off the paved surface of the highway for no apparent reason. ² The trial court and the Court of Appeal, relying on Hopkins v. Department of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writ refused, 246 La. 885, 168 So.2d 268 (1964), concluded that the Department of Highways was negligent, but that plaintiff's conduct in leaving the highway, a legal cause of her injuries, was contributory negligence barring recovery.

In Hopkins the First Circuit held that in the absence of an emergency over which a motorist has no control and which is not of his own creation, "it constitutes negligence for a driver to permit his vehicle to leave the improved portion of a road or highway without reducing his speed and otherwise taking precautions to insure his retention of control thereof in the event he should encounter some unforeseen defect on the shoulder of the thoroughfare." That court reasoned that but-for plaintiff's inadvertence in allowing his vehicle to leave the paved surface, the accident would not have occurred, and because plaintiff's own negligence was a proximate cause of the accident, his recovery was barred.

Without specifically overruling Hopkins the First Circuit in Watson v. Morrison, 340 So.2d 588 (La.App. 1st. 1976), writ denied 342 So.2d 218 (1977) determined that the standard by which to establish whether the driver who leaves the paved surface is negligent is whether that driver is faced with an Apparent emergency. In that case the Court of Appeal found that a driver who left the surface of the highway in an attempt to avoid what appeared to her to be an oncoming vehicle's encroaching over the center line was not negligent even though it was established that the other driver had not in fact crossed the center line. That Court found that a driver might reasonably leave the paved surface if he Believed that he was faced with an emergency situation. See also, Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1977).

This case presents a factual situation in which there was neither a real emergency (a Hopkins requirement) nor a perceived one (as in Watson ). If the standard announced in Hopkins is applied, or even if minimally a perceived or seeming emergency as in Watson is required, plaintiff must be barred from recovery in this lawsuit. Assessing the opinion of the First Circuit Court of Appeal in Hopkins, that a motorist like plaintiff is negligent and proximately so in regard to the accident, requires that we examine plaintiff's conduct and her ensuing injury in the context of a duty risk analysis.

Under a simple "but-for" analysis the accident would not have occurred had either the Highway Department not been negligent in failing to maintain the shoulder or the plaintiff not been negligent (and for present purposes we assume her inadvertent meandering was negligence) in moving the vehicle onto the shoulder. ³ But this does not conclude the inquiry. Focusing on plaintiff's "substandard" conduct the question is whether the risk of injury from striking an unexpected, negligently maintained highway shoulder was a risk reasonably related to plaintiff's failure to drive entirely on the paved portion of the highway. We conclude that it was not. 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. Conversely the Highway Department's duty to maintain a safe shoulder encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself travelling on, or partially on, the shoulder.

We conclude that plaintiff's conduct if indeed it was substandard is no bar to her recovery of damages occasioned chiefly because the Highway Department negligently failed to maintain a safe highway shoulder. We therefore expressly overrule Hopkins v. Department of Highways, supra.

Because judgment below was for defendant, neither lower court reached the issue of the damages to which plaintiffs, Mrs. Rue and her husband, are entitled, although a record in this regard was made up in the trial court. Even though we have the entire case before us we deem it preferable to remand this case to the Court of Appeal for the purpose of assessing damages. See, Natal v. Phoenix Assurance Co. of New York, 305 So.2d 438 (La.1974); Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (1967).

Decree

For the foregoing reasons the judgments of the district court and the Court of Appeal in favor of defendant are reversed and the case is remanded to the Court of Appeal for further proceedings consistent with this opinion.

JUDGMENT OF DISTRICT COURT AND COURT OF APPEAL REVERSED; REMANDED TO THE COURT OF APPEAL.

SUMMERS, C. J., dissents.

1 As the Court of Appeal noted:

"The ...