Vallery v. State Through Dept. of Transp. and Development

• Court: Court of Appeal of Louisiana
• Writing for the Court: KING
• Citation: Vallery v. State Through Dept. of Transp. and Development, 480 So.2d 818 (La. App. 1985)
• Decision Date: 15 November 1985
• Docket Number: No. 84-309,84-309
• Parties: Clyde L. VALLERY and Mildred E. Vallery, Plaintiffs-Appellants, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendant-Appellee. 480 So.2d 818

Page 818

480 So.2d 818

Clyde L. VALLERY and Mildred E. Vallery Plaintiffs-Appellants, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al., Defendant-Appellee.

No. 84-309.

480 So.2d 818

Court of Appeal of Louisiana Third Circuit.

Nov. 15, 1985.

Fuhrer, Flournoy & Hunter, Philip G. Hunter, Alexandria, for plaintiffs-appellants.

Jerry L. Finley, Baton Rouge, and Chris J. Roy, Alexandria, for defendant-appellee.

Before DOMENGEAUX, DOUCET and KING, JJ.

KING, Judge.

The issue presented by this appeal is whether or not the State of Louisiana is liable for the damages incurred as a result of the collision of two automobiles at a newly constructed highway intersection.

The plaintiffs in this case are Clyde L. Vallery (hereinafter Vallery), and his mother Mildred E. Vallery, who was a guest passenger in Vallery's car. The plaintiffs sued Johnny Robert (hereinafter Robert), the driver of the other vehicle, his automobile insurer, State Farm Mutual Insurance Company, the State of Louisiana, through the Department of Transportation and Development (hereinafter the DOTD), and Buchart Horn Engineers, the designers of the intersection. Robert filed a reconventional demand and third party demand against Vallery, his automobile liability insurer, MFA Mutual Insurance Company, the DOTD, and Buchart Horn Engineers. The DOTD filed answers denying liability to Clyde L. Vallery, Mildred E. Vallery, and Johnny Robert and also filed third party demands against both Clyde L. Vallery and Johnny Robert and both of their automobile liability insurers. Prior to trial, Clyde L. Vallery, Mildred E. Vallery, and Robert settled their claims against Buchart Horn Engineers. Also prior to trial, Clyde L. Vallery, his insurer, MFA Mutual Insurance Company, Mildred E. Vallery, Johnny Robert, and his insurer, State Farm Mutual Insurance Company, settled their claims against each other. Thus the sole issue before the trial court was whether the DOTD was liable for the damages incurred by Clyde L. Vallery, Mildred E. Vallery and Johnny Robert.

The trial court found that the DOTD was neither negligent nor strictly liable to the Vallerys and Robert and dismissed their suits against the DOTD. Only Clyde L. Vallery and Mildred E. Vallery appeal this decision. None of the other parties have appealed so the trial court decision is final as to them. For the reasons hereinafter set forth we affirm.

FACTS

On December 4, 1980 Clyde L. Vallery and his mother, Mildred E. Vallery, were driving southbound on U.S. Highway 167 in Rapides Parish, Louisiana at approximately 7:15 P.M. The roadway was dark. Meanwhile Johnny Robert was driving southeast on U.S. Highway 71. Both cars were approaching a newly constructed intersection where Vallery had the right-of-way on U.S. Highway 167 and Robert had to stop on U.S. Highway 71, pursuant to a stop sign, before entering U.S. Highway 71. When Robert arrived at the intersection of the two highways, he brought his car to a complete stop at the stop sign. Robert looked both ways and then proceeded into the intersection. At this moment, Vallery's vehicle was only three or four car lengths away and traveling approximately 50 miles per hour. Vallery did not have time to take evasive action and he collided with Robert's automobile striking it on the driver's side at the left rear. Both Clyde L. Vallery and Mildred E. Vallery were injured as a result of the collision.

The sole issue on appeal is whether the trial court erred in not finding the DOTD liable to Clyde L. Vallery and Mildred E. Vallery because of its finding that the sole proximate cause of the accident was the negligence of Johnny Robert.

In this regard the Vallerys contend that the DOTD was negligent in the design, construction, signing and placing of traffic controls at the intersection as well as in its failure to adequately warn motorists of the hazardous nature of the intersection. The Vallerys also contend that the DOTD is strictly liable because the intersection was defective; that is, it occasioned an unreasonable risk of injury to others. Whether we apply a negligence analysis or a strict liability analysis to the facts of this case, the result is the same. The record does not support a finding that the design, construction, or signing of the intersection was a cause in fact of the accident.

The intersection in question had just been opened to traffic on November 17, 1980 and was a four-way intersection with the two highways crossing at basically right angles. Prior to this new intersection's completion, U.S. Highway 167 and U.S. Highway 71 met at a T-type intersection and were both two lane highways. Drivers traveling on U.S. Highway 71 had the right-of-way and drivers on U.S. Highway 167 had to stop at a stop sign before entering U.S. Highway 71. During this time a flashing beacon flashed amber to the vehicles on U.S. Highway 71 and red to vehicles on U.S. Highway 167. Buck Morton, the DOTD's District Traffic Operations Engineer, explained that the flashing beacon was originally installed because the old intersection was considered unusually dangerous because any drivers failing to stop on U.S. Highway 167 at the old intersection would crash into the woods and hills due to the position of the old intersection. Approximately one year prior to this accident, the DOTD began rebuilding the intersection and widening U.S. Highway 167 into a four lane highway. During the construction, there was heavy construction equipment operating along the sides of the intersection and occasionally on the traveled lanes themselves. At times, parts of the shoulders at the intersection were ripped up leaving 12" dropoffs during some phases of the construction. Due to the hazards produced by these construction activities at the intersection, the flashing beacon was changed to flash red to traffic entering at all three entrances to the intersection and large interstate-size stop signs were installed at all three entrances as well. Once construction was completed and the modern cross-type intersection was opened, the flashing beacon was removed as unnecessary and the stop signs governing U.S. Highway 167 were removed to grant vehicles traveling on this new four lane portion of U.S. Highway 167 the right-of-way. The stop signs governing U.S. Highway 71 were left in place since drivers on U.S. Highway 71 were required to stop and give the right-of-way to drivers traveling on the new four lane U.S. Highway 167.

Mr. Morton, who was responsible for the signing and traffic control for the intersection, described the pertinent traffic signs and controls governing Robert's approach to the intersection as follows: (1) At 2500 feet from the intersection a sign stating "Junction U.S. 167 One Mile;" (2) at 1100 feet from the intersection a sign stating "STOP AHEAD;" (3) at 900 feet from the intersection a sign stating "Junction U.S. 167" and "Junction LA. 3026;" (4) a sign stating "Junction U.S. 167 to the left and straight ahead;" (5) next is a cluster sign stating "U.S. 71 straight ahead" and "LA 3026 to the right;" and (6) a large "STOP" sign. Mr. Morton also described the pertinent traffic signs governing Vallery's approach on U.S. 167 southbound as follows: (1) A sign stating "Junction U.S. 71 ONE MILE;" (2) at 2800 feet from the intersection a pictorial sign depicting the highway's change from two lanes to four lanes; (3) at 930 feet from the intersection a sign stating "Junction U.S. 71" and "Junction LA 3026;" and (4) at 400 feet from the intersection a cluster sign stating "LA 3026 straight ahead," "U.S. 167 to the left" and "U.S. 71 to the right."

Mr. Morton visited the intersection every day for the first two weeks after its opening. He observed that approximately fifty percent of the motorists traveling on U.S. Highway 71 were running the stop signs at the intersection. He noticed that a good percentage of the people who ran the stop signs were employees of Dresser Industries, which was located nearby, who drove through the intersection every day and who knew that the stop signs were there. To alleviate the danger caused by motorists ignoring the stop signs, Mr. Morton requested the State Police to monitor the intersection and enforce the stop signs by giving traffic tickets to violators.

The Vallery's traffic expert, Duane Evans, testified that the intersection was hazardous because of inadequate signing, driver confusion over the changing of the right-of-way, the high percentage of drivers running the stop signs and an excessive 55 mile per hour speed limit on U.S. Highway 167. Mr. Evans testified that the speed limit should have been 35 miles per hour and that motorists should have been warned that the intersection was dangerous and the right-of-way changed. To accomplish this, he would have required the posting of signs stating "DANGEROUS INTERSECTION AHEAD" and "RIGHT OF WAY CHANGED." He also testified that the flashing beacon should have been maintained at the new intersection flashing amber to drivers on U.S. Highway 167 who have the right-of-way and red to drivers on U.S. Highway 71 who have the duty to stop at the intersection. He believed that these measures would have significantly reduced the risk of injury. Mr. Evans admitted on cross examination that Mr. Morton's methods in signing the intersection were not substandard or in violation of any traffic engineering rules.

Mr. Morton explained the decisions as to signing and speed limits at trial. He testified that the flashing beacon was removed because the new cross-type intersection eliminated the unusual physical hazards presented by the old T-type...