U.S. Fidelity & Guaranty Co. v. State, Through Dept. of Highways

• Citation: 339 So.2d 780
• Decision Date: 08 November 1976
• Docket Number: 58020,58001,Nos. 57993,58022 and 58021,s. 57993
• Parties: UNITED STATES FIDELITY AND GUARANTY COMPANY v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al. RYDER TRUCK RENTAL, INC. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS. Walter L. MULL v. Robert L. DAVIS et al. STANDARD BRANDS, INC. v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al.
• Court: Supreme Court of Louisiana

Page 780

339 So.2d 780

UNITED STATES FIDELITY AND GUARANTY COMPANY v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.

RYDER TRUCK RENTAL, INC. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.

Walter L. MULL v. Robert L. DAVIS et al.

STANDARD BRANDS, INC. v. DEPARTMENT OF HIGHWAYS, State of Louisiana, et al.

Nos. 57993, 58001, 58020, 58022 and 58021.

Supreme Court of Louisiana.

Nov. 8, 1976.

Rehearings Denied Dec. 10, 1976.

Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, William J. Doran, Jr., Sp. Asst. to Gen. Counsel, La.Dept. of Highways, Baton Rouge, for defendant-respondent in 57993, 58001, 58020, 58022 and 58021.

Judith Atkinson Chevalier, Dale, Owen, Richardson, Taylor & Mathews, Baton Rouge, for U.S. F & G., plaintiff-applicant in 57993 and for defendants-respondents in 58021, 58020, 58001 and 58022.

David S. Bell, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for intervenor-applicant in 58020 & plaintiff-applicant in 58021, for intervenor-respondent in 58022 and 57993 and for defendant-respondent in 58001.

John B. Noland, Breazeale, Sachse & Wilson, Baton Rouge, for Robert E. Wilson, respondent in 58020, 58021, 58022, 57993 and 58001.

Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-applicant in 58001 and for defendant-respondent in 58020, 58021, 57993 and 58022.

Bernard Kramer, Law Offices of Bernard Kramer, Alexandria, for plaintiff-applicant in 58022 and for defendant-respondent in 58001, 58020, 58021 and 57993.

MARCUS, Justice.

This case involves four tort suits arising out of a single highway accident in which two trucks traveling in succession were struck by a highway headache bar spanning the roadway at a height lower than the posted maximum clearance. The owner-lessor and lessee of the trucks seek damages for cost of repair, loss of use and rental of substitute vehicles; the insurer of the cargo of one of the vehicles seeks compensation for amounts paid to the cargo owner. One of the drivers seeks damages for personal injuries sustained in the accident, and his employer's workmen's compensation insurer intervenes for benefits paid to the injured driver.

The suits were consolidated for trial below, whereupon the trial judge rendered judgment in favor of all defendants stating in his written reasons that he found no demonstration of negligence. With regard to the alleged liability of the Louisiana Department of Highways, the trial judge concluded that the condition of the headache bar was not patently or obviously dangerous and that the Highway Department had no notice, actual or constructive, of a defect in the structure. Accordingly, he found no negligence on the part of the department, citing Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App.3d Cir. 1974).

Judgments of the trial court were affirmed on appeal to the First Circuit in separate judgments. ¹ The appeals court noted its disagreement with the lower court's finding of 'no actual or constructive notice' but declined to find manifest error in the holding that the condition complained of was not patently or obviously dangerous to a reasonably careful and prudent driver. We granted certiorari to review this decision. 333 So.2d 238, 239 (La.1976).

FACTS

At about 8:30 a.m. on November 2, 1972, Robert L. Davis, an employee of R. L. Smith Manufacturing Company, was driving a 1971 Ford truck and trailer (leased to R. L. Smith by Ryder Truck Rental) within the speed limit in an easterly direction on U.S. Highway 190. The truck was carrying a cargo of mobile home doors and windows manufactured by R. L. Smith and insured by United States Fidelity & Guaranty Company. Before the Smith Truck could cross the old Atchafalaya River Bridge at Krotz Springs, it was necessary to first pass under a highway height marker pole, commonly referred to as a headache bar. This structure consisted of a steel I-beam spanning the width of the roadway and mounted atop two upright steel H-beams enased in concrete on either side of the highway. The headache bar was erected at a height of fourteen feet, six inches, the same height as the bridge itself, so that vehicles exceeding the maximum bridge height clearance would strike the headache bar rather than strike and damage the bridge. The height of the truck driven by Davis was well below the posted clearance height; it was marked as being thirteen feet, six inches high from the surface of the roadway and measurements taken by a state trooper after the November 2 accident confirmed that the truck did not exceed thirteen feet, eight and one-half inches. Davis testified that he had driven the Highway 190 route and passed under the headache bar with the same rig on numerous occasions without encountering any difficulty. The last occasion was about a week before the accident. On November 2, 1972, Davis noticed nothing unusual about the headache bar as he traveled toward it. When his truck and trailer had partially cleared the crossbar, however, he heard a loud noise and saw through the rear view mirror that the headache bar was ripping through the roof and sides of the trailer, causing extensive damage to the vehicle and cargo.

Immediately behind the Smith truck driven by Davis was another tractor-trailer unit driven by Walter L. Mull for Standard Brands, Inc. Mull testified that he was traveling at about 30 miles per hour and had been following the truck ahead at a distance of about one hundred and fifty to two hundred feet when, without warning, he heard a loud noise and saw part of the Smith trailer 'turn up into the road.' Fearing that he might hit the vehicle ahead, Mull pulled the emergency brake valve and dove for the floor of the truck's cab to protect himself. Davis, who had proceeded ahead a short distance to get out of the way of the following truck, noted that the headache bar had been bent eastward and observed through his rear view mirror that the crossbar just cleared the hood of the Standard Brands vehicle before it crashed through the windshield and driver compartment, sheering off the top of the cab. As a result of the accident, Mull received personal injuries including contusions and lacerations about his face and upper torso. These injuries prevented him from working for several weeks, during which time he was compensated under a policy for workmen's compensation furnished by Commercial Union Assurance. The truck, trailer, and refrigeration unit driven by Mull, for which Standard Brands was responsible as lessee, was severely damaged in the accident.

In an effort to establish that the headache bar had been hit and damaged by a third party prior to the November 2, 1972 accident, testimony was adduced concerning an incident which occurred on October 28, 1972. On that date, Robert E. Wilson, a driver for Eagle Trucking Company, was traveling east on Highway 190 in a vehicle measured at fourteen feet, four inches high, for which a permit had been issued. As he passed through the headache bar at the west approach to the Atchafalaya Bridge, he was stopped from behind by a following automobile, the occupants of which claimed that a small piece of angle iron had fallen from stop the truck causing damage to the car's windshield. Without difficulty, Wilson backed down under the crossbar to discuss the problem. Sgt. R. L. Montgomery III and Krotz Springs Chief of Police, Fred J. Soileau, investigated the accident and testified that, while it was unclear if or why the piece of metal had fallen from the Eagle truck, it was certain that no damage whatsoever had been suffered by the headache bar as a result of this incident. Upon completion of the investigation, Wilson was escorted by Sgt. Montgomery through the headache bar and safely across the bridge. The Eagle truck experienced no difficulty in clearing either structure.

The Louisiana Department of Highways apparently received information concerning the October 28, 1972 incident to the effect that there Had (been damage to the headache bar. During his testimony, James H. Drake, Chief Maintenance and Operations Engineer for the Department of Highways, identified a letter written by himself and dated November 1, 1972--the day before the accident. While Drake could not recall the source of the information which prompted the letter and while he insisted that he did not consider the matter urgent, the communication nevertheless indicated an awareness of a defect in the headache bar structure inasmuch as it noted that the department would 'plan on removing and replacing this clearance bar at the earliest possible date. . . .' No effort was made, however, to determine whether or not the height of the crossbar had been affected nor was any attempt made to warn oncoming truck traffic of a possible obstruction. Had an on-the-spot investigation of the condition of the crossbar been conducted in conjunction with the November 1, 1972 letter, the reduced vertical clearance of the headache bar would probably have been discovered. Trooper J. C. Bertrand, Jr., one of the officers who investigated the accident, testified that one or two days before the accident he passed under the bar and noticed that it was leaning eastward.

On the morning of the accident, Henry Delrie, State Bridge Maintenance Supervisor for the Highway Department, passed under the west Atchafalaya Bridge headache bar at approximately 5:30 a.m. He noted that one of the upright support beams for the crossbar had been knocked out of plumb and was leaning about four to six inches toward the bridge in an easterly direction. He further observed that the crossbar itself was somewhat lower than it was supposed to be. Although Mr. Delrie testified that he did not consider the condition of the crossbar to constitute an immediate traffic hazard, he admitted that he reported the situation in an effort to avoid an accident. He radioed the information to the Highway Department's Lafayette District...