Shephard on Behalf of Shepard v. Scheeler

Citation701 So.2d 1308
Parties96-1690 La
Decision Date21 October 1997
CourtSupreme Court of Louisiana

Richard P. Ieyoub, Attorney General, David R. Kelly, Breazeale, Sachse & Wilson, Baton Rouge, for Applicant in No. 96-C-1690.

Stephen R. Barry, Tobin J. Eason, George J. Richaud, Young, Richard, Theard & Myers, New Orleans, for Applicant in No. 96-C-1720.

Sidney D. Torres, III, Gregory J. Noto, Richard A. Tonry, Michael C. Ginart, Jr., Tonry & Ginart, Chalmette, John W. Mumphrey, George N. Bischof, Jr., Stephen R. Barry, Tobin J. Eason, Weiss & Eason, New Orleans, George J. Richaud, Young, Richard, Theard & Myers, New Orleans, for Respondent in No. 96-C-1690.

Richard P. Ieyoub, Attorney General, David R. Kelly, Breazeale, Sachse & Wilson, Baton Rouge, Sidney D. Torres, III, Gregory J. Noto, Richard A. Tonry, Michael C. Ginart, Jr., Tonry & Ginart, Chalmette, John W. Mumphrey, George N. Bischof, Jr., Weiss & Eason, New Orleans, for Respondent in No. 96-C-1720.

[96-1690 La. 2] KNOLL, Justice.

This action arises out of a fatal accident that occurred on July 6, 1987, on Louisiana Highway 39 (Judge Perez Drive) in St. Bernard Parish. We granted a writ of review to determine whether a proper allocation of fault had been made below. For reasons which follow, we conclude the proper allocation of fault to be 80% Scheeler, 20% St. Bernard Parish Police Jury.

On July 6, 1987, Alfred Scheeler, then sixteen, went for an after school drive in his mother's 1978 Ford F-150 pickup truck. Although a hard rain was falling, Scheeler planned to drive from his home in Meraux to his old house, which had burned down, in Plaquemines Parish. Scheeler was accompanied by two friends, Brandon Lamarque and Matthew Shephard. As the boys headed south along the river, the rain intensified and the truck ran off the road onto the levee. Scheeler claims that this initial incident, which knocked the muffler from the pickup, was caused by an eighteen wheeler that forced him from the roadway.

It took several minutes for Scheeler to reattach the muffler to the pickup. The boys then decided to return home rather than continue onward in the driving rain. The fact that Shephard had an impending dentist's appointment may have been a factor in their decision.

The intensity of the rain began to decrease as Scheeler drove the pickup toward Meraux along the Judge Perez Drive extension, a four lane highway with a wide median and improved shoulders. This extension of Judge Perez Drive had been open for only six years at the time. It was sprinkling as Scheeler negotiated a gradual right to left curve in the roadway. The curve was "super elevated" or banked, with the right lane higher than the left.

Near the end of the curve, Scheeler lost control of his vehicle and the pickup went into a clockwise spin. The pickup spun an unknown number of revolutions over [96-1690 La. 3] a distance of two hundred feet before striking a St. Bernard Parish dump truck which was stopped partially on the shoulder. At impact, the driver's side of the cab just behind the door collided with the rear left corner of the dump truck. The cab of the pickup truck was crushed by the impact and there was minimal damage to the dump truck. Matthew Shephard was killed in the collision and Scheeler suffered serious injuries. Brandon Lamarque, who was apparently thrown free from the pickup, suffered only minor scrapes and bruises. Mr. Wallace Couture, the driver of the parish truck, and two parish employees boarding the truck at the time of the accident were also injured in the collision.

About five minutes before the accident, Couture had stopped the dump truck in front of St. Bernard Parish Area 5 Maintenance Yard, located just past the end of the curve, in order to pick up two parish workers. Couture had pulled halfway off the improved shoulder of the road and waited for the workers to board the truck. The two workers were eating lunch at a trailer in the maintenance yard, and were waiting for a break in the rain before running to the dump truck. They had just arrived at the truck when the accident occurred.

The accident spawned several lawsuits which were eventually consolidated for trial. In addition to the civil suits filed by the parties, juvenile proceedings were brought against Scheeler as a result of the accident. Although Scheeler entered guilty pleas to the offenses of negligent homicide and reckless operation of a motor vehicle, evidence of the juvenile proceeding was not allowed by the trial court.

The sole issue at the civil trial was the apportionment of fault between Scheeler, Couture, the St. Bernard Parish Police Jury (the Parish), 1 and the State of [96-1690 La. 4] Louisiana through the Department of Transportation and Development (DOTD). Plaintiffs asserted that DOTD was liable because the accident was initially caused by a defective condition in the roadway, namely a puddle of standing water in the curve that caused Scheeler to lose control of his vehicle. The plaintiffs also asserted that Couture and the Parish were liable because the presence of the Parish truck on the shoulder and within the "clear zone" of the highway denied Scheeler a chance to regain control of the vehicle and increased the harm caused by the accident. Plaintiffs further asserted the DOTD's liability for allowing the Parish to place a maintenance yard within the "clear zone" of the roadway.

DOTD and the Parish denied liability, asserting that the accident and resulting damages were caused solely by Scheeler's failure to maintain control of his vehicle under the prevailing roadway conditions. DOTD asserts that the roadway was free from defects, and that its design and construction in no way contributed to the accident. The Parish asserts that its truck was legally parked on the shoulder under La.R.S. 32:296(A)(2), and that the accident would not have happened but for Scheeler's negligence.

After extensive discovery, the issue of liability was tried separately on August 2-3, 1993, before Honorable Thomas M. McBride, III. After taking the case under advisement, but before a judgment could be rendered, Judge McBride passed away. In order to spare the expense of a second trial, the parties stipulated that the first trial be transcribed and that the case be decided on the record by Judge McBride's successor, Honorable Robert A. Buckley, Jr.

Judge Buckley issued written reasons on March 20, 1995, in which he assessed 66 2/3% of fault for the accident to DOTD and 33 1/3% to St. Bernard Parish. Scheeler was not assessed any fault in causing the accident and resulting damages. [96-1690 La. 5] The Fourth Circuit Court of Appeal affirmed, Shephard v. Scheeler, 95-1439, 95-1440, 95- 1441, 95-1442, 95-1443 (La.App. 4 Cir. 5/8/96), 674 So.2d 1135. 2 Judge Landrieu dissented, finding Scheeler partly responsible for the accident.

DOTD assigns as error the lower courts' finding that the highway was defective, its failure to find Scheeler solely at fault in causing the accident, and its failure to admit Scheeler's guilty pleas into evidence.

The Parish assigns as error the failure of the lower courts to recognize Louisiana law which permits public vehicles on official business to park on the shoulder. The Parish also asserts that the lower courts misapplied the concept of "clear zone" to a temporarily stopped vehicle, and that they erred in failing to find Scheeler solely at fault for causing the accident.

The case sub judice was fairly characterized by the trial court as two separate accidents occurring almost simultaneously. The first accident occurred when, for one reason or another, the Scheeler vehicle began to spin out of control. The second accident occurred when the out of control pickup struck the parish truck that was parked partially on the shoulder of the roadway. It is clear that more than one legally responsible cause can contribute to produce harm. When multiple causes are present, a defendant's conduct is a cause in fact when it is a substantial factor generating plaintiff's harm. Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

This accident was initiated when the Scheeler vehicle began to spin out of control in a clockwise manner. Two conflicting theories for the loss of control were advanced by the parties. Plaintiffs assert that the accident was caused when the right [96-1690 La. 6] tires of the Scheeler vehicle entered a deep puddle of standing water in the roadway. The added resistance applied to the right tires by the water caused "differential drag" and caused the pickup to spin in a clockwise direction. DOTD asserts that driver input caused the Scheeler vehicle to spin out of control, and that Scheeler was negligent in failing to maintain control of the vehicle in light of the prevailing weather conditions. It must be initially determined whether a puddle of standing water existed in the roadway, and whether this puddle constituted an unreasonably hazardous condition.

At trial, Scheeler testified that he was driving in the right lane at a speed of around 50 miles per hour. It was raining and he had his wipers on. Scheeler stated he noticed a large puddle in his lane which he estimated to be 1-2 inches deep. He stated that the water covered the entire lane up to the dividing line between the right and left lanes. Although he had driven through other puddles on the road during the drive, this puddle worried him to the extent that he thought about switching lanes. He testified that before he could change lanes, he struck the puddle and the truck spun out of control. He saw the dump truck just prior to striking the puddle. Scheeler vaguely remembers the dump truck being partially in the right lane of the highway and only 20-30 feet from the...

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