Smith v. Southern Pacific Transp. Co., Inc.

• Decision Date: 14 March 1985
• Docket Number: No. CA-2529,CA-2529
• Citation: 467 So.2d 70
• Parties: Lloyd SMITH v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

Page 70

467 So.2d 70

Lloyd SMITH v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, INC., et al.

No. CA-2529.

Court of Appeal of Louisiana, Fourth Circuit.

March 14, 1985.

Donna S. Cummings, Cummings & Gambel, New Orleans, for plaintiff/appellant.

John E. Maher, Jr., Asst. City Atty., Robert R. Gisevius, Deputy City Atty., Douglas P. Wilson, Chief Deputy City Atty., Salvador Anzelmo, City Atty., New Orleans, for defendants/appellees and cross/appellants.

Before REDMANN, C.J., and GARRISON and LOBRANO, JJ.

LOBRANO, Judge.

Plaintiff, Lloyd Smith, sued the City of New Orleans and Southern Pacific Transportation Company, Inc. for injuries he sustained when the top of a van-type truck he was driving struck the bottom of a railroad overpass. Southern Pacific was dismissed from the suit by way of summary judgment, and the trial proceeded against the City of New Orleans. The lower court found in favor of plaintiff and awarded him damages totalling $7,730.00. Both parties appeal. Plaintiff seeks an increase in the award. Defendant asserts lack of negligence on its part as well as contributory negligence on plaintiff's part. Defendant also asserts the applicability of La.R.S. 9:2791 and 9:2795.

FACTS:

The evidence at trial consisted of a series of stipulations concerning medical treatments, lost wages and an agreement between the City and the New Orleans Terminal Board, and the testimony of two witnesses, plaintiff and his mother. Plaintiff, a professional truck driver, while driving a van-type truck under a railroad underpass on Hospital Drive in City Park, hit the bottom portion of the structure with the top of the truck. The truck is eleven feet four inches in height, and therefore the underpass had to have less clearance. The evidence is clear that there were no warning signs posted advising of the low clearance.

The trial judge concluded that the City had a duty to warn motorists of the low clearance, and their failure to do so constituted negligence.

NEGLIGENCE:

Liability of a municipality for unsafe streets, roads and highways will only be imposed when a defect is dangerous or calculated to cause injury. There is no fixed rule for determining what is a dangerous defect in a public way, but must be determined from the facts and circumstances of each case. The test usually requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care? Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975). Additionally, in those instances where the alleged defect is not caused by the negligence of the municipality or its employees, notice, either actual or constructive, is a necessary requirement to a finding of fault. Pickens, supra.

The maximum legal height for a vehicle on the highways of this state is thirteen feet, six inches. La.R.S. 32:381. The vehicle driven by plaintiff was eleven feet four inches. The underpass had to have a clearance of less than eleven feet four inches, or a minimum of two feet two inches less than the maximum allowed legal height. The evidence is clear that at the time of the accident there were no warning signs to advise motorists of the clearance height. The evidence is also clear that the City assumed the maintenance of the underpass by agreement with the New Orleans Terminal Board in August of 1967, and therefore had knowledge of its clearance from that date. There is no evidence to indicate that the City had ever posted warning signs advising of the clearance.

Since the underpass was considerably lower than the maximum legal height of vehicles allowed on the highways of this state, we hold that it constituted a defect which is hazardous to the motoring public, and therefore a warning of some type was necessary. Having had either actual or constructive notice of this defect since 1967, we hold that the City's failure to advise motorists of same constituted negligence.

The City argues, however, that plaintiff was contributorily negligent because, at trial, he didn't know the height of the truck he was driving, and therefore a warning sign would have been useless. We disagree. The fact that plaintiff did not know the height of his truck was not the proximate cause of the accident. The proximate cause was the City's failure to warn him of the underpass's low clearance.

The City argues that a motorist is required to see an obstruction that is readily visible, and his failure to do so constitutes lack of due care on his part, citing Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148 (1945). The obstruction in that case, a fire escape, was readily observable, whereas in the instant case there is no evidence that the low clearance was easily detectable by passing motorists. There is no evidence indicating the actual clearance of the underpass. Suffice it to say that a motorist should not be placed in the position of having to estimate a clearance upon approaching it unless it is quite obvious that the vehicle cannot pass. There is no proof that this underpass was so obviously low that the untrained eye could have easily detected it.

La.R.S. 9:2791 and 9:2795:

For the first time, the City raises in this Court the defense of La.R.S. 9:2791 and 9:2795. Those statutes provide, in pertinent part:

La.R.S. 9:2791:

"A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing or boating or to give warning of any hazardous conditions, use of, structure or activities on such premises to persons entering for such purposes. If such an owner, lessee or occupant give permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted ..."

La.R.S. 9:2795:

"A. As used in this Section:

(1) 'Land' means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.

(2) 'Owner' means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.

(3) 'Recreational purposes' includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing,...