Thomas v. Petrolane Gas Service Ltd. Partnership

• Decision Date: 27 September 1991
• Docket Number: No. 22774-CA,22774-CA
• Citation: 588 So.2d 711
• Parties: Lonzo THOMAS and Brendia Thomas, Plaintiffs, v. PETROLANE GAS SERVICE LIMITED PARTNERSHIP, James P. Morgan, and Fidelity and Casualty Company of New York, Defendants.
• Court: Court of Appeal of Louisiana — District of US

Page 711

588 So.2d 711

Lonzo THOMAS and Brendia Thomas, Plaintiffs, v. PETROLANE GAS SERVICE LIMITED PARTNERSHIP, James P. Morgan and Fidelity and Casualty Company of New York, Defendants.

No. 22774-CA.

Court of Appeal of Louisiana Second Circuit.

Sept. 27, 1991.

On Rehearing Oct. 24, 1991.

Writ Denied Jan. 10, 1992.

Walker & Walker by C. Douglas Walker, Monroe, for plaintiffs-appellees-appellants.

Davenport, Files & Kelly by Mike C. Sanders, Monroe, for defendants-third-party plaintiffs-appellants, Petrolane Gas, James P. Morgan, and Fidelity and Cas. Co. of New York.

William J. Guste, Atty. Gen. Hayes, Harkey, Smith, Cascio & Mullens by Sp. Asst. Atty. Gen., Francis C. Broussard, Monroe, for defendant-third-party defendant-appellant, State of La., DOTD.

Before HIGHTOWER, VICTORY and BROWN, JJ.

HIGHTOWER, Judge.

In this automobile accident case, the trial court awarded damages in favor of Lonzo Thomas ("plaintiff") and his wife; assigned the defendant driver, James Morgan, and his employer, sixty percent of the liability; and additionally held the third party defendant, State of Louisiana through the Department of Transportation and Development (DOTD), forty percent at fault. This appeal ensued.

Ascertaining Morgan solely at fault, we reverse the assessment against DOTD but affirm the determinations of quantum, save for modifying the award for loss of future earnings. We further reverse the dismissal of the employer's insurer, also originally named as a defendant.

FACTS AND PROCEDURAL BACKGROUND

At approximately 11:15 a.m. on a rainy February 2, 1988, plaintiff and Edward Ausberry occupied Thomas' pickup as it traveled in a southerly direction in the right or outside lane of Louisiana Highway 137, immediately south of the Interstate 20 overpass near Rayville, Louisiana. (See Appendix A for depiction.) At that approximate location, Morgan, driving his employer's Ford F-150 truck in a northerly direction on the same four-laned highway, had positioned his vehicle in the left turn lane in preparation for entering the on-ramp of the expressway. Also, at that time, a large tractor-trailer truck, commonly termed an 18-wheeler, had stopped in the left or inside southbound lane, with its driver awaiting an opportunity to traverse the northbound lanes and enter a recently established Fina self-service station.

Morgan's position in the left turn lane impeded the intended path of the 18-wheeler, while the presence of the large truck conversely obstructed Morgan's view of other southbound traffic. Morgan nonetheless proceeded, first, across the inside southbound lane blocked by the 18-wheeler, and then into the outside lane, striking the left front and side of plaintiff's vehicle.

As a result of the collision, plaintiff sustained injuries. From February 1988 through July of that same year, he underwent treatment by a family doctor, a chiropractor, a physical therapist, an orthopedic surgeon, and a neurosurgeon. Ultimately, the neurosurgeon performed a bilateral hemilaminectomy for a herniated disk at L4-5.

Plaintiff and his wife subsequently filed suit for damages against Morgan; his employer, Petrolane Gas Services Limited Partnership; and the partnership's insurer, Fidelity and Casualty Company of New York. The three defendants answered, admitting that Morgan acted in the course and scope of his employment at all material times, but alleging the accident resulted solely from the fault of plaintiff. Later, by third party demand, they also sought indemnity or contribution from DOTD for a defective highway design that posed "an unreasonable risk to motorists in the position of the original plaintiffs and defendant James P. Morgan." DOTD answered and asserted various defenses.

The case proceeded to bench trial on September 5, 1989. In a May 8, 1990 written opinion, the district court allocated fault and awarded damages, while dismissing all demands against the insurer. Subsequently, on June 19, 1990, because their petition had not included DOTD as a defendant, the Thomases moved to "amend the pleadings to conform to the evidence." After a hearing, the trial judge granted the amendment. Signing of judgment on July 31, 1990, and the denial of a motion for new trial on September 24, 1990, preceded this appeal by all parties except the insurer.

DISCUSSION

Liability of DOTD

Defendants' third party demand mentioned neither negligence nor strict liability theories of recovery, but instead merely asserted that the highway posed an unreasonable risk of harm to plaintiff and Morgan. The trial court, nevertheless, found DOTD negligent "in not recognizing the danger and constructing the left turn lane, or in requiring its construction prior to the granting of the necessary permits" for installation of driveway entrances to the service station. Furthermore, the Thomases' post-trial amendment, authorized by the judge, alleged negligence against DOTD. Now, on appeal, all parties advance various arguments founded upon both theories.

Although delictual responsibility arises differently under the two concepts, liability under both hinges upon whether a defendant breached his duty to plaintiff. And, with reference to either theory, the actual duty involved is the same. Holloway v. Dept. of Trans. & Devel., 555 So.2d 1341 (La.1990); Briggs v. Hartford Ins. Co., 532 So.2d 1154 (La.1988); Manasco v. Poplus, 530 So.2d 548 (La.1988); Myers v. St. Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986); Dodson v. Webster Parish Police Jury, 564 So.2d 760 (La.App.2d Cir.1990), writ denied, 567 So.2d 1127 (La.1990). Concerning the duty owed by the state, it is well established that its obligation to motorists is to maintain highways in a reasonably safe condition and to remedy conditions creating an unreasonable risk of harm. Manasco, supra; Dodson, supra; Roberson v. Dept. of Trans. & Devel., 550 So.2d 891 (La.App.2d Cir.1989), writ denied, 552 So.2d 387 (La.1989); Gadman v. Dept. of Trans. & Devel., 493 So.2d 661 (La.App.2d Cir.1986). Of course, whether a breach of duty occurred, that is, whether an unreasonably dangerous condition existed, depends upon the particular facts and circumstances of each case. Holloway, supra; Manasco, supra; Myers, supra.

The three defendants ("original defendants") contended that the absence of a left turn lane for southbound traffic, at the intersection, created an unreasonable risk of harm to both plaintiff and Morgan under the circumstances presented. They maintained that, advantaged by such a turning lane, Morgan's line of sight for oncoming southbound traffic would have been improved, thus enabling him to adequately evaluate the situation and make appropriate maneuvers without endangering other drivers.

In support of that contention, Morgan testified that the approach of the 18-wheeler and its eventual position in the intersection impaired his ability to see other oncoming traffic. He also described his movement across the blocked lane, and then into the outside lane, as an "easing out." Later, however, he conceded that he did not know the exact speed of his maneuvers. Nor did he, preceding the accident, seek an opportunity to continue on north in order to extricate himself from the predicament.

To bolster their position concerning the intersection, the original defendants also relied upon the testimony of Dr. Odin Dart, a registered professional civil engineer. He appeared as an expert in highway design, accident reconstruction, and traffic engineering and safety.

Dart, who visited the scene on three separate occasions, agreed that the intersection had originally been safely designed. However, considering the recent opening of the adjacent Fina establishment, he felt the location had become "dangerous because of the sight line impingement, particularly for the very type of movement ... being made" in the case at hand. Although such a problem would mainly arise in situations involving an 18-wheeler, he opined that a left turn lane should have been installed for traffic entering the service station. In his view, DOTD should have constructed such a modification before issuing permits allowing highway access for the business. That installation or measure, he deduced, would have decreased the probability of an accident occurring.

Dr. Don Ivey, called on behalf of DOTD, similarly observed the accident site on two different occasions. As an expert in highway safety engineering, he noted that left turn lanes are mainly utilized to prevent rear end collisions and to facilitate traffic volume, rather than to avoid left turn accidents. In his opinion, such a modification at this site would not have improved the safety of the maneuver in question. Indeed, even in retrospect, he did not find such construction warranted.

Further, reviewing the sequence of events leading up to the collision, and examining photographs showing the position and damage of the vehicles at the scene, he estimated the speed of Morgan's Ford to have been 15-20 miles per hour at impact. From the witness' evaluation, the accident "resulted from a driver choosing to operate his vehicle where he could not see oncoming traffic." Moreover, in his opinion, if that vehicle had truly "inched out," the accident could have been averted.

The original defendants also introduced, over objection, police reports of other accidents occurring at the intersection subsequent to the present mishap. Not only do such investigative records constitute inadmissible hearsay under LSA-C.E. Art. 803(8)(b)(i), but we also note that the witness, Dart, considered these documents in formulating his conclusions.

As a whole, the evidence establishes the intersection to have been properly designed to safely accommodate the traffic at this location prior to the opening of the Fina service station/convenience store, that transpired only four days before the accident. In fact, neither expert found a traffic light warranted, even after the incident....