Wall v. American Emp. Ins. Co.

• Decision Date: 24 September 1979
• Docket Number: Nos. 13925,13926,s. 13925
• Parties: James L. WALL et al., Plaintiffs-Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Defendants-Appellees. Jeff L. BUTLER et al., Plaintiffs-Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 369

377 So.2d 369

James L. WALL et al., Plaintiffs-Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Defendants-Appellees.

Jeff L. BUTLER et al., Plaintiffs-Appellants, v. AMERICAN EMPLOYERS INSURANCE COMPANY et al., Defendants-Appellees.

Nos. 13925, 13926.

Court of Appeal of Louisiana, Second Circuit.

Sept. 24, 1979.

En Banc. Rehearings Denied Nov. 6, 1979.

Writ Granted Jan. 11, 1980.

Shaw & Shaw by James Hatch and Jenifer Ward Clason, Homer, for plaintiffs-appellants.

Doran & Kivett by William J. Doran, Jr., Baton Rouge, for Claiborne Parish Police Jury, defendant-appellee.

Before PRICE, MARVIN and JONES, JJ.

MARVIN, Judge.

In this protracted litigation for damages for wrongful death and for personal injury to guest passengers arising out of a 1966 two-car intersectional collision, plaintiffs in consolidated cases appeal from a 1978 judgment which rejected their respective demands against the Police Jury which was the only defendant remaining in the cases at the time of trial.

The lower court found that the Sole proximate cause of the collision was the combined negligence of the drivers of the vehicles and that the negligence, if any, of the Police Jury in failing to maintain a properly marked or "signed" and unobstructed intersection was not a proximate cause. We reverse and render judgment for the respective plaintiffs.

The collision occurred at the intersection of two rural blacktop roads maintained by the Police Jury as a part of its parish road system. The north-south road on which 17-year-old Brenda Prothro was driving northerly is called the Harris-Beck Road. The east-west road on which Mrs. Eunice Vize was proceeding easterly is called the Old Minden-Arcadia Road.

Several stop signs which once had been maintained facing north-south traffic on the Harris-Beck Road were knocked down or removed by persons unknown at least a month before the accident. Grass and weeds had grown on the road shoulders at the intersection to the extent that drivers' view of the intersection a safe distance away was obstructed. One stop sign remained at the intersection but it faced Southbound traffic on the Harris-Beck Road (Brenda Prothro was northbound) and was located not on the right shoulder of that road, but on the Left shoulder. ¹ The hazardous nature of the generally uncontrolled, unmarked, and obstructed intersection was compounded by a hill which also obstructed the vision of a northbound driver and by a curve which obstructed the view of the eastbound driver. The posted speed limit on each road was 60 MPH. Each automobile was traveling about 50-55 MPH. No signs, however, were posted to warn traffic that an intersection was ahead.

An agency maintaining a public rural road system has a duty to maintain the roads and traffic signs or controls in a reasonably safe condition and to warn motorists of unusually perilous conditions such as an improperly marked intersection. Wall v. American Employers Insurance Company, 215 So.2d 913 (La.App. 1st Cir. 1968), writ refused. See also Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974); Andrus v. Police Jury of Parish of Lafayette, 303 So.2d 824 (La.App. 3d Cir. 1975); Hodges v. State, through Dept. of Highways, 370 So.2d 1274 (La.App. 3d Cir. 1979); Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979). This duty is a high degree of care. Willis v. Everett, 359 So.2d 1080 (La.App. 3d Cir. 1978); Jerry Joseph Fontenot, Ind. v. State, etc., 346 So.2d 849 (La.App. 1st Cir. 1977).

The breach of the duty to warn of an unmarked rural intersection may constitute legal fault (Hodges, supra), but it must be shown that the public agency had knowledge, actual or constructive, of the danger and that it failed to correct the danger or warn motorists of the danger. Harrison v. State of La., Dept. of Highways, 375 So.2d 169 (La.App. 2d Cir. 1979). Constructive notice was found when it was shown that a traffic sign was down or missing for two weeks (Willis, supra) or three weeks (Fontenot, supra) or one month (Vervik, supra). See also Jones v. Louisiana Dept. of Highways, 338 So.2d 338 (La.App. 3d Cir. 1976). Either the defendant Police Jury knew that the stop sign or signs were down or missing (actual notice, as the trial court found) or it should have known (at least constructive notice, as we find) for more that a month before this accident occurred. The defendant took no action to correct the situation or to warn traffic of the danger.

This breach of duty may constitute legal fault notwithstanding the intervening or later negligence of one or both drivers. See Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (La.1962); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972). All of the facts of the accident must be examined to make this determination.

Recent cases have admonished that the analysis of the issue of legal fault is not to be rule oriented. Instead, each case is to be approached within a fabric of principle and doctrine on its own facts. The suggested analysis is to be made in terms of the particular duty alleged to have been breached and in terms of the particular risk which the duty was imposed to protect against. See Robertson, 34 La.L.R. 1, Dialogues on Hill v. Lundin (1973). In a broad sense, this duty-risk analysis requires answer of the questions:

Was the conduct complained of a cause in fact of the harm sustained by plaintiff?

Was the defendant under a legal duty to protect this particular plaintiff against the particular risk involved?

Taking into account the dangers created by the defendant's conduct, giving due but not automatically decisive weight to any violation of a relevant statute, was the defendant's conduct negligent, substandard, blameworthy? See authorities cited by Robertson, supra, 34 La.L.R.

This analysis clearly establishes legal fault on the Police Jury even when proximate cause language is engrafted onto the duty-risk analysis. The injured plaintiffs (guest passengers in automobiles) and the harm they encountered are persons and harms which the imposed duty was designed to protect against, even though others may have contributed to the harm. Negligent conduct is a cause in fact if it is a substantial factor in bringing about harm to another and it is then A proximate cause of the harm even though the negligence of others may have contributed to the harm. Hall v. State, Department of Highways, 213 So.2d 169 (La.App. 3d Cir. 1968). It is most easy to associate the Police Jury's breach of duty with the harm sustained by these plaintiffs. Hill v. Lundin, supra.

There are situations where the public agency's breach of duty to maintain or post traffic signs was not held to be the cause in fact of the intersectional collision between two cars. See, e. g., Carmouche v. State, through Dept., etc., 360 So.2d 1374 (La.App. 3d Cir. 1978); Pepitone v. State Farm Mut. Auto. Ins. Co., 369 So.2d 267 (La.App. 4th Cir. 1969), writ refused. These involve situations where both drivers were Very familiar with the intersection and which street was the favored street or where the two drivers were both aware of a local neighborhood intersection and the circumstances were such that neither could reasonably believe he had an unqualified right of way. Here, Mrs. Vize (eastbound) knew of the intersection and knew that stop signs faced northbound traffic. She did state that After the accident she was told by relatives that the stop sign was down or missing, but there is no evidence that she knew or should have known the stop signs were not there at the time of the accident. She and Miss Prothro were traveling within the speed limit. Miss Prothro was shown only to have been a passenger in an automobile which traversed the intersection before the accident. It was not proved that she knew or should have known of the hazardous unmarked condition of the intersection. Dabov v. Allstate Insurance Company, 302 So.2d 697 (La.App. 3d Cir. 1974), writs refused; Willis, supra. These were rural roads. The posted speed limit was 60 MPH. The Police Jury is not relieved of its breach of duty in these circumstances. Hodges, supra.

The original defendants in these suits included the State Department of Highways and the drivers of the two automobiles as well as several liability insurers. Plaintiffs alleged that the accident was proximately caused by the joint and concurring negligence of these defendants, including the negligence of:

"(a) EUNICE S. VIZE:

"1. Entering a poorly marked, particularly blind intersection without ascertaining that same could be traversed with reasonable safety;

"2. Failing to observe the Prothro vehicle when it was first visible;

"3. Failing to yield the right of way to a fast traveling vehicle approaching from her right;

"4. Failing to keep a proper lookout for traffic approaching the intersection; and

"5. Failing to keep her vehicle under proper speed or control as she approached and entered the intersection under the circumstances when prevailing."

and of:

"(b) BRENDA GAIL PROTHRO:

"1. Entering a poorly marked, substantially blind intersection without ascertaining that same could be traversed with reasonable safety;

"2. Failing to observe the Vize vehicle when it was first visible;

"3. Failing to yield the right of way to a vehicle approaching from her left when she was supposed to stop for traffic traveling on the 'Old Minden-Arcadia Road';

"4. Traveling at an extremely excessive rate of speed at the time and under the circumstances then prevailing;

"5. Failing to keep a proper lookout; and

"6. Failing to keep her vehicle under proper control."

Allegations (c) and (d) alleged negligence on the Department of Highways and the Police Jury. Allegations (a) and (b) were admitted by the Police Jury.

Plaintiffs settled with the drivers and their insurers, reserving their rights against the...