Smith v. State Through Dept. of Public Safety

• Decision Date: 28 September 1992
• Docket Number: No. CA,CA
• Citation: 620 So.2d 1172
• Parties: Jeanne Harwell SMITH and Jesse L. Smith v. STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY and State of Louisiana through the Department of Transportation and Development. 91 0618.
• Court: Court of Appeal of Louisiana — District of US

Page 1172

620 So.2d 1172

Jeanne Harwell SMITH and Jesse L. Smith v. STATE of Louisiana Through the DEPARTMENT OF PUBLIC SAFETY and State of Louisiana through the Department of

Transportation and Development.

No. CA 91 0618.

Court of Appeal of Louisiana,

First Circuit.

Sept. 28, 1992.

Rehearing Denied Feb. 22, 1993.

Paul Due, Baton Rouge, for plaintiffs.

Jonathan R. Schmidt, Hammond, for State Dept. of Public Safety.

Randall Cashio, Baton Rouge, for State/DOTD.

Wayne Ray Chutz, Port Vincent, for Livingston Police Jury.

Christopher Matchett, Baton Rouge, for intervenor State.

Before WATKINS, SHORTESS, LANIER, CRAIN and GONZALES, JJ.

LANIER, Judge.

This action is a suit for damages in tort arising from an accident that occurred when a motorist drove her automobile on a flooded private road and struck a pothole. Suit was filed by Jeanne H. Smith and her husband, Jesse L. Smith, (the Smiths) against the State of Louisiana through the Department of Public Safety (DPS) and the Department of Transportation and Development (DOTD); DPS and DOTD answered and filed third party demands against the Livingston Parish Police Jury (Police Jury). The trial court dismissed DOTD and the Police Jury and rendered judgment in favor of Mrs. Smith against DPS for $215,949.60. DPS took this suspensive appeal.

FACTS

In 1975, the Buddy Ellis Road (Road) was a rural, gravel and dirt road located in Sections 10, 11 and 12, Township 7 South, Range 3 East, south of the Town of Walker in Livingston Parish, Louisiana. The Road runs in an east-west direction, and, in 1975, it connected Louisiana Highway 447, also referred to as the Walker South Road, (La. 447) on the east with Louisiana Highway 1026 on the west. The road traversed property privately owned by the Crown Zellerbach Corporation (Crown) and the Juban family. ¹ Crown used the Road to conduct its timber harvesting (logging) operations in the area. This general area was relatively isolated in 1975. Only one family (Bobby Gill) lived in the area and it was located south of the Road about 0.8 of a mile from the eastern (La. 447) end.

In about 1975, DPS became interested in developing a place for demolition training (explosive range), a firearm range and a training facility. An isolated area was needed for the firearm and explosives training. Captain William T. Poe of the Louisiana State Police helped to develop this facility. Approximately 140 acres of land was acquired by DPS in three transactions. This land was located in Sections 2, 3, 10 and 11 of Township 7 South, Range 3 East. Through Poe's efforts, DPS obtained predial servitudes of passage to its properties over the Road from Crown and the Juban family. ² The conventional servitude agreement between Crown and DPS was signed by Crown on October 17, 1975, and by DPS on October 21, 1975. This agreement provided, in pertinent part, as follows:

It is understood and agreed that the right of way herein granted shall be solely for the purpose of constructing and maintaining a private road for the use of the GRANTEE herein, his agents, employees, heirs and assigns, and that GRANTEE shall not do or allow to be done any acts or act which shall cause said right of way to become a public road without the prior written consent of GRANTOR.

GRANTEE hereby agrees to construct or improve and maintain this road at its own expense and further agrees that GRANTOR shall be allowed the free use of said road at any and all times as well as grant the right of use thereof to other parties.

. . . . .

It is distinctly understood that this instrument shall not be construed as a conveyance of title to any part of the land covered hereby, nor of the minerals therein or thereunder, and grants only the right of way and servitude as herein provided.

This servitude covered only 7,564.61 feet of the Road owned by Crown located in Sections 11 and 12 of Township 7 South, Range 3 East; it did not cover that portion of the Road that continued to the west past the entrance to the DPS property.

Thereafter, DPS proceeded to develop its facility. Crown periodically conducted logging operations in the area and used the Road. In 1980, a stock patrol facility was completed on the DPS property. Trooper Leroy Robison was assigned to the stock patrol facility from its inception until it was closed in April of 1988. Trooper Robison testified that DPS did not have any equipment to work the Road so he got the Police Jury and Crown to occasionally work the Road with their equipment. Howard P. Elliot, Jr., DPS's general counsel, testified that DPS tried to obtain budgeting (funding) for the maintenance of the Road but was unsuccessful. DPS asked DOTD for assistance, but DOTD declined to do so because the Road was a private road and not a part of the State highway system. DPS asked the Division of Administration (DOA) for assistance, but DOA declined to do so on the ground that one State budgetary unit could not give its funds to another.

In 1983, Mr. Daniel Haggard acquired property near the intersection of the Road and the Bobby Gill Road. ³ Mr. Haggard testified he was the first resident in the area after Bobby Gill. Mr. Haggard stated that his property was located on the north side of the Road opposite the Bobby Gill Road and was approximately 0.8 mile west of the intersection of the Road and La. 447. He stated that "some time in 1984" a bridge on the west end of the Road (over West Colyell Creek) became impassible, and, thereafter, the only ingress and egress to and from his property was over the Road to La. 447. ⁴ Mr. Haggard also testified that the condition of the Road started getting bad in 1984.

On October 19, 1984, Crown entered into an act of exchange with The Natchez Corporation (Natchez). In this conveyance, Crown transferred title to 808.26 acres of land in Livingston Parish, Louisiana, to Natchez in exchange for the conveyance by Natchez to Crown of 1,883.00 acres of land in East Baton Rouge Parish, Louisiana, and 59.00 acres of land in Copiah County, Mississippi. Six of the tracts of land conveyed by Crown to Natchez were in Sections 10, 11, 12, 15 and 22 of Township 7 South, Range 3 East. The tract (No. 19) in Section 11 contained 31.34 acres and was bounded on the west by the DPS property and bounded on the south, in part, by the Road. The property description does not give the ownership of the properties bounding this tract on the north and east, or on the south where the property was not bounded by the Road. This contract did not grant a servitude of passage to Natchez over the Road.

On October 23, 1984, Natchez sold the 31.34 acre tract (Tract No. 19) in Section 11 to James H. Brackin, Waunell Carter Brackin, Marshall W. Brackin and Jimmie Kathleen Wall Brackin (the Brackins). The same property description used in the Crown-Natchez sale was used in this sale. This contract did not grant a servitude of passage to the Brackins over the Road.

The Brackins developed this property into a subdivision called Ashley Heights, Third Filing. They apparently marketed the subdivision lots through Holden Real Estate. On December 11, 1985, the Brackins sold lots 6 and 7 of Ashley Heights, Third Filing to Jesse L. Smith, Sr. and Jeanne Harwell Smith. ⁵ This contract did not grant a servitude of passage to the Smiths over the Road. The Smith's lots fronted on Jennifer Lane. Jennifer Lane intersected the north side of the Road approximately 1 mile west of the Road-La. 447 intersection. The Jennifer Lane-Road intersection was approximately 0.2 mile west of the Road-Bobby Gill road intersection. The Smiths moved on the property to live in September of 1986. Thereafter, Mrs. Smith travelled on the Road an average of 2 or 3 times a week.

Daniel Haggard testified that in 1986, about 40 families lived in the area and used the Road for access. During 1986, the condition of the Road deteriorated. Rudolph Ratcliff, the Police Jury Parish Superintendent, testified that the Police Jury records for 1986 showed that the Police Jury graded the Road on January 13, 1986, and did drainage work on the Road on February 11, 1986, but no other work was done on the Road that year.

Edward J. Murphy, an attorney specializing in real estate, title examinations and abstracts, was qualified as an expert witness in abstracting and title examination and testified that in 1986, Cavenham Forest Industries, Inc. (Cavenham) acquired the ownership of the Road (and other properties) from Crown. ⁶ Mrs. Smith testified that during October of 1986, logging operations were commenced on property along the Road and these operations continued into December of 1986. Logging trucks used the Road during this time. During this time, DPS and the Police Jury received numerous complaints about the general condition of the Road from those who used it. The evidence shows, and the trial court correctly found, that DPS had knowledge of the general condition of the Road in December of 1986.

Prior to December 20, 1986, there were heavy rains in the area and portions of the Road were flooded. On Saturday, December 20, 1986, Mrs. Smith decided to drive her 1975 Chevrolet van to a grocery store on La. 447 to get some food for Christmas. She went south on Jennifer Lane, turned left onto the Road and headed east toward La. 447. After proceeding an undetermined distance down the road, Mrs. Smith attempted to go around a pothole, got too close to the roadside ditch and slid in the ditch. Daniel Haggard and another man came with a tractor and pulled her van out of the ditch.

Mrs. Smith decided to continue on her errand. In the vicinity of a red barn on the north side of the Road, she encountered a flooded portion of the Road that was approximately " 3/4 of a block long". This flooded area was estimated as either 1/2 or 2/3 of a mile from La. 447. ⁷ Mrs. Smith slowed down and started to cross the flooded roadway. She was unable to see beneath the surface of the water. The left front tire of her van went down...