Sinitiere v. Lavergne, 67482

Decision Date10 November 1980
Docket NumberNo. 67482,67482
Citation391 So.2d 821
PartiesAlbert SINITIERE, Jr., et al. v. Gerald W. LAVERGNE et al. Gerald W. LAVERGNE v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
CourtLouisiana Supreme Court

Norman L. Sisson, Marshall W. Wroten, Robert J. Jones, Baton Rouge, Christopher B. Fruge, Ville Platte, for defendant-applicant.

J. Minos Simon, J. Minos Simon, Ltd., Anthony M. Fazzio, Lafayette, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Dennis Doise, Onebane & Donahoe, Metairie, for plaintiff-respondents.

BLANCHE, Justice.

At issue in this case is whether the Court's decision in Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979), compels a finding that the Department of Transportation and Development (Department), is solely liable for damages whenever a motorist inadvertently steers his vehicle onto a road shoulder containing a dangerous rut and loses control of the vehicle, thereby injuring himself and others.

On May 19, 1977, a clear day, at approximately 3:00 p. m., Gerald Wayne Lavergne was driving a van owned by his employer, Microfilm Consultants, Inc. (Microfilm) in an easterly direction on Louisiana Highway 182, an undivided 2-lane highway, when he inadvertently allowed his two right wheels to ease onto the eastbound shoulder of the road. Knowing that his vehicle was partially on the shelled shoulder, Lavergne allowed the van to slow to about 35-40 miles per hour while planning his re-entry onto the travel portion of the road. At the point where Lavergne attempted to maneuver the vehicle back onto the highway, there was a 31/2 to 4 inch drop from the travel portion of the highway to the east bound shoulder portion of the highway. Contact between one or both of Lavergne's right wheels and the elevated edge of the roadway resulted in Lavergne losing control of the vehicle and careening across the center line of the highway into the oncoming traffic lane. The van struck the west bound vehicle driven by Cyrilla Henry and occupied by Florentine Sinitiere head-on, fatally injuring the two women and seriously injuring Lavergne.

The survivors of Mrs. Sinitiere and Mrs. Henry instituted wrongful death and survival actions against Lavergne, his employer and the Department. 1 Various incidental actions were filed, including a third party demand by Lavergne against the Department, the plaintiffs and his alleged insurer, a third party demand by the Department against Lavergne, and an intervention by State Farm Automobile Insurance Company (State Farm), as subrogee, to recover payments made to two of the plaintiffs under policies issued by the company to those persons. Gerald Lavergne filed a separate original action against the Department for the injuries he sustained. 2 Both suits were consolidated for trial.

The trial court concluded that the highway department was negligent in failing to correct a hazardous condition despite actual or constructive knowledge of the defect. The court also concluded that Lavergne was negligent in running off the road at a time when there was no immediate danger which required him to do so, citing Hopkins v. Dept. of Highways, 167 So.2d 441 (La.App. 1st Cir. 1964), writ denied, 246 La. 885, 168 So.2d 268 (1964). Further, the evidence established that at the time of the accident Lavergne was driving within the course and scope of his employment, thereby rendering Microfilm vicariously liable for Lavergne's negligence. C.C. art. 2320.

Judgment was rendered in favor of the Sinitiere and Henry survivors and State Farm against Lavergne, the Department and Microfilm, in solido. As between the defendants, the court ordered the Department to contribute one-half the judgment and Lavergne and Microfilm to bear the other one-half. Judgment was entered in favor of Lavergne against his insurer in the amount of $10,000.

In Lavergne's separate action against the Department, the trial judge found that Lavergne's own negligence was a contributing factor to the injuries sustained by him and, accordingly, rendered judgment against Lavergne and in favor of the Department.

Gerald Lavergne appealed the judgments in both cases while the Department appealed only the judgment rendered against it.

While the appeals were pending in this case, this court decided the Rue case, supra, wherein we held that mere inadvertence in allowing one's vehicle to stray from the travel portion of a highway onto its shoulder is not necessarily such substandard conduct as constitutes negligence barring recovery against the highway department for injuries caused by defective conditions on the shoulder. The case expressly overruled Hopkins v. Department of Highways, supra, relied upon by the trial court, which held otherwise.

The appellate court, relying upon Rue, affirmed the judgment in favor of plaintiffs and against the Department in the Sinitiere-Henry case, but amended such judgment to exclude defendants Lavergne and Microfilm from liability. In Lavergne's suit, the judgment was reversed and the Department held liable to Lavergne. The Department applied for Writs of Certiorari on the liability issue in each case, which this Court granted. La.Const. art. 5, § 5.


It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. 3

Since road shoulders are only designed for temporary use when a motorist finds himself off the roadway, the Department's duty of care is generally discharged at a level of construction and maintenance less than that required for the primary road surface. However, an implicit necessity for the functional use of a shoulder is a connection between the roadway and shoulder that allows for safe gradual movement from one to the other.

The duty to maintain reasonably safe highways and shoulders extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition. In the past this duty was held to extend to the protection of those persons who had to drive onto the shoulder because an emergency condition made travel on the main portion of the roadway hazardous. Hopkins, supra. It was later held to include people who reasonably believed that conditions required them to drive onto the shoulder although no actual hazard existed. Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), writ denied 342 So.2d 218 (La.1977). In Rue, supra, the rule was clarified to include persons who drove onto the shoulder inadvertently where there was neither knowledge nor reason to know of either a defective condition of the shoulder itself or any other condition that would make such action hazardous (such as a car on the shoulder of the road). Likewise, passengers in vehicles that strayed from the road were within the ambit of the duty. Rue, supra. From this, there can be no doubt but that the duty extends to passengers and drivers in one vehicle who are likely to be injured when a driver of another vehicle goes out of control because of a negligently maintained shoulder. Thus, the plaintiff's decedents in the Sinitiere-Henry suit, as well as Lavergne, are within the ambit of the Department's duty to maintain reasonably safe highway shoulders.

A review of the trial record leads this Court to the conclusion that the lower courts were not manifestly erroneous in their conclusion that the Department breached its duty to plaintiff's decedents. As was stated by the trial court:

"Louisiana Highway 182 was inspected 3 or 4 days prior to the accident. Witnesses testified that the drop off had existed for some time prior to the accident. Mr. Whitney Lasseigne, St. Martin Parish Highway Superintendent (for the Department of Transportation) testified that a 2 inch drop from the highway to the shoulder is dangerous. The guidelines followed by his department, prepared by the Department of Highways, states that more than a one (1) inch drop should not be allowed."

Further, Mr. Lasseigne testified that he could have interrupted the regular work schedule of his road crews to correct the defect at issue if he had felt that the situation necessitated immediate action. This testimony, coupled with other competent testimony that the drop off in question was 31/2 to 4 inches at the point at which Lavergne's vehicle struck the curb, was sufficient to show breach. The shoulder condition was dangerous, the Department knew, or should have known, of the condition, and the Department could have expediently corrected the situation prior to the accident.

For the foregoing reasons, the Department must also be said to have breached its duty to Mr. Lavergne since he was within the scope of the Department's duty.

Negligence is only actionable where it is both a cause in fact of the injury and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs and such relation must be substantial in character. Dixie Drive It Yourself System v. American Beverage Co. 242 La. 471, 137 So.2d 298 (1962); Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905 (La.1973). Using a "but-for" test to determine cause in fact clearly results in a finding that the accident would not have resulted had the road shoulder been substantially even with the travel portion of the road. Further, there is a substantial relationship between the failure to correct a highway defect and an automobile accident, the type of risk encountered by plaintiffs' decedents and Lavergne.


A motorist's duty of reasonable care includes the duty to keep his vehicle under control....

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