Sinitiere v. Lavergne

• Decision Date: 05 February 1980
• Docket Number: No. 7424,7424
• Citation: 381 So.2d 522
• Parties: Albert SINITIERE, Jr., et al. Plaintiffs-Appellees, v. Gerald W. LAVERGNE et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 522

381 So.2d 522

Albert SINITIERE, Jr., et al. Plaintiffs-Appellees, v. Gerald W. LAVERGNE et al., Defendants-Appellants.

No. 7424.

Court of Appeal of Louisiana, Third Circuit.

Feb. 5, 1980.

Rehearing Denied April 2, 1980.

Chris B. Fruge, Ville Platte, for defendant-appellant-appellee, Dept. of Transp.

Onebane, Donahoe, Bernard, Torian, Diaz, McNamara & Abell by Henry C. Perret, Jr., Jones, Walker, Waechter, Poitevente, Carrere & Denegre, Anthony M. Fazzio, Lafayette, for Gerald Lavergne.

J. Minos Simon, Edward J. Milligan, Lafayette, for the plaintiffs-appellees.

McBride & Brewster, Norman P. Foret, Logan, deLaunay & Stutes, Gerald C. deLaunay, Lafayette, Roy & Forrest, Alex A. Lopresto, III, New Iberia, for defendant-appellee.

Before FORET, CUTRER and DOUCET, JJ.

CUTRER, Judge.

This suit was consolidated in the trial court and on appeal with the case of Lavergne v. Department of Transportation and Development et al., 381 So.2d 528 (La.App. 3rd Cir. 1979). Separate judgments were rendered in the trial court and separate judgments are rendered on this date in each case on appeal.

These consolidated suits are for damages arising out of a two vehicle accident in which Florentine Sinitiere and Cyrillia Sinitiere Henry were killed, and Gerald W. Lavergne was injured.

The basic facts are set forth by the trial judge in his written reasons as follows:

"On May 19, 1977, at approximately 3:00 P. M., CYRILLIA HENRY was driving a 1974 Monte Carlo in a westerly direction on Louisiana Highway 182 near its intersection with Captain Cade Road in St. Martin Parish, Louisiana. FLORENTINE SINITIERE, her guest passenger, was in the right front passenger seat. At the same time GERALD WAYNE LAVERGNE, while acting within the course and scope of his employment with MICROFILM CONSULTANTS, INC., was operating a 1968 Ford van in an easterly direction on Louisiana Highway 182. As LAVERGNE rounded a curve in the highway, he caused the right front and back wheels of the van to veer off of the travel portion of the roadway onto the shoulder of the highway. In an attempt to maneuver the van back onto the travel portion of the highway, LAVERGNE lost control of his vehicle. He crossed the center line of the highway directly into the pathway of the oncoming HENRY vehicle. A headon collision resulted the left front of the LAVERGNE van hit the left front of the HENRY vehicle. Both vehicles came to rest in the westbound lane, the area of impact. MRS. HENRY was apparently killed immediately; MRS. SINITIERE was severely injured and died approximately two hours after the accident.

"Louisiana Highway 182 is an undivided blacktopped highway approximately 23 feet 10 inches wide. The lanes of traffic are marked by a white divided center line and are delineated from the adjoining 8 foot shoulders by a 4 inch wide reflectorized line. There was a 3 1/2-4 inch drop from the travel portion of the highway to the shoulder on the eastbound shoulder side of the highway at the site of the accident. This 3 1/2-4 inch drop, which existed throughout the curve of the highway, ran from 30 to 40 feet (in length). On the day of the accident, the weather was clear and the road was dry. There were no 'low shoulder' warning signs in the area."

Suit was filed by Albert Sinitiere, Jr., son of Florentine Sinitiere, and by Byran Henry, as surviving spouse of Cyrillia Sinitiere Henry, and as tutor of their minor son, Steven C. Henry. Suit was also filed by George Seiber as tutor for the minor children of the former marriage between Seiber and Cyrillia Sinitiere Henry. These children are Donnie, Troy and Derek Seiber.

Defendants were Gerald W. Lavergne, Microfilm Consultants, Inc. (Microfilm), Lavergne's employer, and the State of Louisiana through the Department of Transportation and Development (Department). An intervention was filed by State Farm Mutual Automobile Insurance Company (State Farm), as subrogee, to recover payments made to Albert Sinitiere, Jr. and Bryan Henry under the medical and/or collision coverage of policies issued by State Farm to these persons.

A third party demand was filed by Lavergne against Southeastern Fidelity Insurance Company (Southeastern), his alleged insurer, the Department, and the heirs of decedents.

Lavergne also filed suit (our Docket Number 7425) against the Department for personal injuries he received in the accident.

The trial court in this suit (Docket Number 7424) rendered judgment in favor of plaintiffs and intervenor against defendants, Lavergne, Microfilm, and the Department, in solido.

The trial court also ordered reciprocal contribution as between the defendants, Department, for one-half of the judgment and Lavergne and his employer, Microfilm, for one-half thereof. The trial court also rendered judgment on Lavergne's third party demand in favor of Lavergne and against Southeastern, third party defendant, in the amount of $10,000.00.

In the companion case (Docket Number 7425), judgment was rendered in favor of the Department and against Lavergne, dismissing Lavergne's suit.

The Department appealed from the judgment rendered against it in Docket Number 7424. Lavergne appealed in both suits.

The issues presented for review are as follows:

(1) Whether the Department was negligent in its maintenance of the shoulders of the highway;

(2) Whether Lavergne was negligent in the operation of the Microfilm vehicle; and

(3) Whether the awards to the plaintiffs are excessive.

We will discuss the issues in the order enumerated.

NEGLIGENCE OF THE DEPARTMENT

The duties of the Department and its responsibilities to the public using the highways was set forth by this court in the recent case of Brown v. Louisiana Dept. of Highways, 373 So.2d 605 (La.App. 3rd Cir. 1979), as follows:

"The legal responsibility of the Department as to highway accidents was generally stated by this court in LaBorde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 182 (La.1974) as follows:

'The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver; and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it.'

Also, see U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La.1976) and Guin v. State Through Dept. of Highways, 360 So.2d 1185 (La.App. 3 Cir. 1978).

"Included within the Department's duties is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, (Through) Dept. of Highways, 372 So.2d 1197 (La.1979). . . . "

The Department contends that the plaintiffs failed to satisfy requirement number (2) of the above, that is, it was not proved that the Department had actual or constructive notice of the existence of the defect and failed to correct same within a reasonable time. The resolution of this issue, being a question of fact, depends upon the existing facts and circumstances of each case. The trial court, in its reasons for judgment, found that:

" . . . the Department of Transportation was negligent in failing to correct the 3 1/2 to 4 inch drop from Louisiana Highway 182 to the shoulder despite its actual and constructive knowledge of the defect."

The court further stated that:

"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."

An examination of the record reveals evidence which fully supports the trial court's conclusion that the Department had actual or constructive notice of the defect in the shoulder and failed to repair same within a reasonable time. Millard Segura, who worked at a nearby golf course, heard the collision of the vehicles and went to the scene of the accident. He testified that he saw the rut or drop-off alongside the hard surface when he arrived at the scene. He further stated that the defective condition had existed for some time before the accident. He wasn't sure for how long, however.

Sidney Hebert traveled the road twice a day going to and from work. He arrived at the scene of the accident soon after its occurrence and noticed the rut or drop-off alongside the hard surfaced road. Hebert had observed the existence of this condition on other occasions, stating that the condition had existed from four to eight weeks.

Whitney Lasseigne, Superintendent of the Department for St. Martin Parish, testified that his records indicated that on May 16, 1977, three days prior to the accident, the shoulder in the area of the accident was inspected by him and he noted that it needed "blading." By "blading" he explained that the grader machine would be used to smooth out rough spots and depressions. Lasseigne stated that he didn't send a grader to the area immediately due to the shortage of personnel and equipment. He didn't think that the situation was dangerous enough to require emergency action. In the event of an emergency, Lasseigne stated that the regular work schedule would be interrupted and the dangerous condition would be repaired. Lasseigne further...