Sweeney v. State

• Citation: 768 S.W.2d 253
• Parties: Maureen F. SWEENEY, Plaintiff-Appellant, v. STATE of Tennessee, Defendant-Appellee. 768 S.W.2d 253
• Decision Date: 27 March 1989
• Court: Supreme Court of Tennessee

Page 253

768 S.W.2d 253

Maureen F. SWEENEY, Plaintiff-Appellant, v. STATE of Tennessee, Defendant-Appellee.

768 S.W.2d 253

Supreme Court of Tennessee,

at Knoxville.

March 27, 1989.

Foy R. Devine, Devine & Morris, Atlanta, Ga., Sidney W. Gilreath, Knoxville, for plaintiff-appellant.

W.J. Michael Cody, Atty. Gen. & Reporter, Raymond S. Leathers, Asst. Atty. Gen., Nashville, for defendant-appellee.

OPINION

FONES, Justice.

Plaintiff brought suit based upon T.C.A. Secs. 9-8-307(a)(I) and (J) ¹ against the State of Tennessee for damages for personal injuries she received while riding as a passenger in an automobile that was wrecked at a curve on U.S. Highway 41A in Franklin County. The Tennessee Claims Commission determined that plaintiff failed to prove that the State was negligent in planning, programming, inspection, design, construction, maintenance, or approval of plans and construction of the said location of the accident, and further failed to prove that a dangerous condition existed at the site of the accident. The Court of Appeals found a dangerous condition did exist at the point where the accident occurred, but plaintiff failed to prove that the State had notice of the dangerous condition sufficiently prior to the injury to have taken appropriate measures.

Plaintiff, at the time of the accident, was twenty years of age and attending the University of the South in Sewanee, Tennessee. On 22 April 1983, plaintiff was rendered a quadriplegic when the car she was riding in as a rear seat passenger was involved in a single vehicle accident. Plaintiff, along with five other individuals, was travelling in a westerly direction along U.S. Highway 41A from Sewanee toward Winchester, Tennessee. The accident occurred at approximately 7:00 p.m.; it was dusky dark and the highway was wet from rain that had fallen earlier in the day.

The driver of the vehicle testified that he had never driven this stretch of road from Sewanee to Winchester which is predominately downhill mountainous terrain. As he was travelling 35 m.p.h., with his headlights on, down a straight section of road he noticed that he was approaching a curve, and applied his brakes. The vehicle skidded off the highway over a small retaining wall and down a steep embankment. While the other occupants of the vehicle suffered only minor injuries, the plaintiff was thrown about in the vehicle causing a fracture of the cervical spine which resulted in permanent paralysis from the neck down.

Before the Claims Commission plaintiff based her claim upon T.C.A. Secs. 9-8-308(a)(I) and (J). Upon review of the record, we do not find evidence to support a cause of action under subsection (I) for negligence by the State. The thrust of plaintiff's argument on appeal to this Court addresses subsection (J).

The issue is whether a dangerous condition existed at the situs of the accident on U.S. Highway 41A. If answered in the affirmative, then we must address the issue of whether the foreseeability of the risk and notice was given to the proper state officials at a time sufficiently prior to the injury for the State to have taken appropriate measures. T.C.A. Sec. 9-8-307(a)(J).

DANGEROUS CONDITION

Plaintiff insists that the "dangerous condition" factor was established by the proof of an inordinately high number of accidents at the location involved here, after the State redesigned the roadway, and by the testimony of her expert that safety measures, such as signs and guardrails, were inadequate to warn of the danger created by the steep grade and sharp curve.

Our statutes do not provide a definition of a dangerous condition, "on state maintained highways" for application in determining the State's liability under T.C.A. Sec. 9-8-307(J). In Holmes v. Christopher, 435 So.2d 1022 (La.App. 4th Cir.1983), the Court defined the duty of the State of Louisiana with regard to highway conditions and applied it to the Mississippi River Bridge Authority, one of the defendants in the case. We find it to be an appropriate delineation of the factors involved in determining whether a dangerous condition exists on state maintained highways applicable to cases brought under T.C.A. Sec. 9-8-307(J). We quote as follows:

The decision of whether a condition of a highway actually is a dangerous and hazardous one to an ordinary prudent driver is a factual one, and the court should consider the physical aspects of the roadway, the frequency of accidents at that place in the highway and the testimony of expert witnesses in arriving at this factual determination. Besnard v. Department of Highways, 381 So.2d 1303 (La.App. 4th Cir.1980), writ denied. 385 So.2d 1199 (La.1980).

Holmes, 435 So.2d at 1026.

The evidence at trial established the stretch of road where the accident occurred was reconstructed after a rock slide in 1978. That work was completed in 1980. As a result of the redesign, a curve just prior to the present curve in the highway was removed. A 600 foot straight section of roadway at a downhill 6% grade was constructed leading into a 24? curve to the left, with a radius of 239 feet, resulting in a sharp, tight curve. Off the shoulder of the road at said curve was a sloping embankment covered with gravel, bordered by a low lying rock wall and beyond, large trees, boulders, and a ravine.

Plaintiff introduced reports of 23 single car accidents that occurred between 7 March 1981 and 3 March 1983 on the same curve that caused plaintiff's injury. Paul Waggner, who was the Chief of Police of Sewanee, testified that "considerably more accidents" happened on that curve after that location was redesigned than before. The State concedes that the commissioner erred and the Court of Appeals was correct in admitting and giving consideration to prior accidents on the dangerous condition issue, where such accidents occurred under substantially similar conditions. See John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974 (1924); City of Nashville v. Brown, 25 Tenn.App. 340, 157 S.W.2d 612 (1941); cf. Winfree v. Coca-Cola Bottling Works, 19 Tenn.App. 144, 83 S.W.2d 903 (1935); and e.g. 40 Am.Jur.2d, Highways, Streets & Bridges Sec. 601.

However, the State asserts that the erection of a two-foot by four-foot horizontal arrow behind the guardrail, at the entrance to the curve, about three weeks before plaintiff's accident significantly altered conditions at the accident site and rendered the prior accidents "irrelevant and incompetent." The new sign was erected by John Gibson, the state maintenance superintendent for that region because he was aware from newspaper accounts and observations at the site that a number of accidents were occurring at that location. Unfortunately, the arrow sign added no warning of any significance. The pictures reveal that the guardrail which was present at the beginning of the sharp curve gave more notice of the existence of a curve than the added sign. The problem was the sharpness and tightness of the curve at the end of a long, steep downgrade, which plaintiff's expert said required a 90? curve sign as opposed to a mild curve sign. We find no merit to the State's contention. The accident reports of the officers who investigated the 23 accidents during the two year period before plaintiff's accident, uniformly contained language to the following effect, in response to DESCRIBE WHAT HAPPENED: "Drive lost control on sharp curve, ran off road and over low retaining wall."

On the date of the accident some distance up the road prior to the curve, there was a 36 X 36 inch 45? curve sign under which was attached a 30 m.p.h. advisory plate. In addition, at the beginning of the curve was a 2 X 4 foot arrow sign pointing in the direction of the curve. The arrow sign was erected on 29 March 1983, three weeks prior to the accident. Plaintiff contends that the foregoing signs did not adequately warn the public and give them reasonable notice of the dangerous curve. Since it is virtually impossible to eliminate curves when constructing roadways through mountainous terrain, this hazardous condition could be minimized by traffic control measures such as adequate signing, pavement markings and guardrails.

At trial, George Black was plaintiff's expert witness. He has a degree in civil engineering from Georgia Tech, specializing in transportation engineering with extensive experience in traffic crash research and investigation. He was of the opinion that a dangerous condition prevailed at the particular segment of roadway in question. He testified:

it [the 6% downhill grade on a straight stretch] produced ... a chute type effect. The old alignment [prior to the 1980 reconstruction] restrained the speeds of vehicles somewhat because of its curviness. These are apparently irregular curves also, and that would have lowered the speeds of the drivers. Once the new project was opened, there was a straight downhill stretch similar to a roller-coaster where a vehicle would tend to gain speed, and then be immediately dumped into a very tight left hand curve.

Black further testified that the 30 m.p.h. advisory plate would have dictated a 90? turn sign as opposed to the 45? turn sign in place at the time of the accident, which was technically improperly posted according to the Uniform Manual for Traffic Control Devices. He would have used a 48 X 48 foot sign rather than the current 36 X 36 foot sign. Black found that the posted 30 m.p.h. advisory plate would be at the top of the appropriate range given all the other factors associated with the curve. Additionally, the questioned curve required five or six chevron markers. He said the advantage of such signs over the straight arrow was that they outline the outer edge of the curve to give the motorist the direction of the curve and some perception of the severity.

Black concluded that the "single big arrow would indicate there was something there, but it would not have given very much information to the driver about what was there....