Self v. Smith

• Decision Date: 08 December 1993
• Docket Number: 93-372,Nos. 93-371,s. 93-371
• Citation: 629 So.2d 446
• Parties: Lelan L. SELF, et al., v. Stanley E. SMITH, et al. Stanley SMITH, et ux., v. L.J. EARNEST, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 446

629 So.2d 446

Lelan L. SELF, et al., v. Stanley E. SMITH, et al.

Stanley SMITH, et ux., v. L.J. EARNEST, INC., et al.

Nos. 93-371, 93-372.

Court of Appeal of Louisiana Third Circuit.

Dec. 8, 1993.

Edwin Cabra, Leesville, for Lelan L. Self, et ux.

Dale B. Garbutt, Baltimore, MD, Roger G. Burgess, Robert C. McCall, Lake Charles, for Stanley E. Smith, et al.

Elvin Clemence Fontenot Jr., Leesville, Michael H. Wainwright, Shreveport, for L.J. Earnest, Inc.

Joseph R. Ballard, Alexandria, for Continental Ins. Co. (Boston Old Colony).

Ronald J. Fiorenza, David Payne Spence, Alexandria, for State, DOTD.

Frederick L. Cappel, Lake Charles, for Aetna Cas. & Sur.

Arthur W. Landry, New Orleans, for Lumbermen's Mut. Cas.

Henry Gregory Walker Jr., Alexandria, for L.H. Bossier and Highlands Ins. Co.

Lala Brittain Sylvester, Natchitoches, for LA. Farm Bureau Cas., Southern Farm.

Before LABORDE, COOKS and DECUIR, JJ.

DECUIR, Judge.

This matter arises out of a vehicular accident on U.S. Highway 171 in Vernon Parish, Louisiana. Suits for personal injury were filed by Lelan and Dorothy Self and Stanley and Ann Smith, adverse to L.J. Earnest, Inc., L.H. Bossier, Inc., and their insurers, and the State of Louisiana through the Department of Transportation and Development. Following a bifurcated trial on the merits of these consolidated cases, the jury rendered a verdict finding no fault on the part of any of the defendants. The trial judge in oral reasons found no fault on the part of the State of Louisiana. Subsequently, plaintiffs' motions for new trial were denied. Plaintiffs, Lelan and Dorothy Self and Stanley and Ann Smith, appeal the judgment of the trial court in favor of defendants and the judgment denying plaintiffs' motions for new trial.

Plaintiffs contend that the trial judge erred in denying the motions for new trial, that both the jury and the trial judge erred in finding that Ann Smith's vehicle did not enter the drop-off area of U.S. Highway 171, and in finding no fault on the part of the defendants. We affirm.

FACTS

In the early evening of December 20, 1986, plaintiffs' vehicles collided near a road construction site on U.S. Highway 171, when a van driven by Ann Smith and occupied by her daughter, Laura Smith, crossed the center line of the roadway striking a vehicle driven by Lelan Self and occupied by Dorothy Self, Ivory Jarred, Lesa Watson and Kristen Watson. Plaintiffs allege that immediately prior to the accident, Mrs. Smith ran off the roadway into an unreasonably dangerous drop-off along Highway 171. Plaintiffs further allege that after entering the drop-off, Mrs. Smith attempted to re-enter the roadway, but over-steered her vehicle and crossed the center line of the roadway into the path of the Self vehicle. Plaintiffs sued the State of Louisiana through the DOTD, L.H. Bossier, Inc., and L.J. Earnest, Inc. The record reveals the DOTD had entered into a contract with L.J. Earnest, Inc. for the reconstruction of Highway 171. L.J. Earnest, Inc. subcontracted with L.H. Bossier, Inc. to perform asphalt paving.

Plaintiffs contend that the defendants were at fault for failing to maintain the roadway in a safe condition, for allowing the existence of the unreasonably dangerous drop-off area, for failing to properly warn motorists of the hazardous condition, and for failing to ensure warnings were properly maintained.

LAW

Plaintiffs filed motions for new trial in order to introduce the testimony of Carmen Love to contradict the testimony of Trooper Kenneth Coleman as to certain facts, including whether a warning marker was in place immediately following the accident. Plaintiffs argue they are entitled to a new trial on peremptory grounds on the basis of newly discovered evidence pursuant to LSA-C.C.P. art. 1972, and alternatively on discretionary grounds pursuant to LSA-C.C.P. art. 1973.

Plaintiffs in brief contend that Ms. Love will testify that she was the first to arrive at the scene of the accident; that she does not recall seeing the marker in question indicating the edge of the drop-off area; that she drove off into the drop-off area after accident at the same location Trooper Coleman testified he saw the marker; and that she did not knock a marker down with her vehicle. According to plaintiffs, Ms. Love would also testify that she checked on the occupants of both the Self and Smith vehicles and that she transported one of the injured Smiths to the hospital. Ms. Love was not subpoenaed to appear at the trial, nor was her deposition taken prior to trial. ...