Wilson v. State, Through Dept. of Highways
| Decision Date | 01 November 1978 |
| Docket Number | No. 6693,6693 |
| Citation | 364 So.2d 1313 |
| Parties | Debra WILSON, Plaintiff-Appellee, v. STATE of Louisiana, THROUGH the DEPARTMENT OF HIGHWAYS, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for defendant-appellant.
Jackson, Smith & Ford, S. Chris Smith, III, Leesville, for plaintiff-appellee.
Rodney W. Schamerhorn, Leesville, for defendant-appellee.
Before CULPEPPER, GUIDRY and FORET, JJ.
Debra K. Wilson instituted this suit for personal injuries received when the pickup truck in which she was a passenger collided with a large tree lying across Louisiana Highway 28. She alleges that the accident occurred solely as a result of the negligence of the defendant, Department of Highways, in not removing or otherwise attending to this tree which, prior to falling across the highway, was leaning out over it in such a manner as to create a clear danger of its falling and thus obstructing the highway. The Department of Highways answered by way of general denial and third partied Rodney Schamerhorn, the driver of the pickup truck.
The trial court found that the accident was due solely to the negligence of the Department of Highways and awarded Debra Wilson $9,617.70 plus legal interest. The third party demand was dismissed.
The Department of Highways appeals this judgment maintaining that:
(1) it was not negligent in its conduct,
(2) that the third party defendant, the driver of the pickup truck, was negligent, and
(3) that plaintiff lacked the procedural capacity to sue for recovery of medical expenses.
Plaintiff answers the appeal urging an increase in the amount of recovery.
Rodney Schamerhorn picked up his sister, the plaintiff, Debra Wilson, at approximately 3:15 A.M. in his grandfather's 1972 Ford pickup truck. Driving on Louisiana Highway 28 near the community of Hicks, the truck collided with a large pine tree which was lying completely across the highway. For several days prior to the accident there had been a considerable amount of bad weather in the area; on the night of the accident, it had been raining and the weather conditions were generally unfavorable.
One or two days prior to the accident, a Department of Highways crew had been sent out along the highway to clean up the trees and debris blown down by the wind and rain and to seek out any trees which might present a potential hazard and to remove those which might fall onto the highway. Testimony of a number of Department of Highways employees shows that a crew inspected this very tree one or two days prior to the accident; the crew discussed cutting down this tree, however the foreman of the crew apparently decided not to remove it. The testimony of a Mr. Douglas Gordy, an employee of the Department of Highways was as follows:
"Q. Mr. Gordy, that tree was leaning toward the road, is that right?
A. That's right.
Q. And it was about five feet from the fence?
A. Yes sir.
Q. Was it leaning far enough that it was leaning over the fence?
A. Yes sir, it was.
Q. Okay sir. So it actually leaned over and extended out over the highway right-of-way, is that right?
A. Uh, . . .
Q. . . . part of it?
A. Yes sir."
Mr. Elwood Busby, also an employee of the Department of Highways, confirmed Mr. Gordy's testimony as follows:
However, the foreman, Louie Dowden, apparently decided not to cut the tree down at that time.
The Department of Highways is not an insurer nor responsible for every accident that occurs on the State highways. However, it is the duty of the Department of Highways to maintain the roads so that they will be reasonably safe for a prudent motorist. The Department of Highways is only liable for accidents occurring on the highways if the unsafe condition was (1) obviously dangerous to a reasonably careful and prudent motorist and (2) the Department had notice (actual or constructive) of the defect and had an opportunity to remedy it. United States Fidelity & Guaranty Co. v. State, Department of Highways, 339 So.2d 780 (La.1976); Laborde v. La., Dept. of Highways, 300 So.2d 579 (La.App. 3 Cir. 1974), writ refused; Doucet v. State, Dept. of Highways, 309 So.2d 382 (La.App. 3 Cir. 1975), writ refused; Wilkinson v. American Insurance Co. of Newark, New Jersey, 311 So.2d 584 (La.App. 3 Cir. 1975); Mistich v. Matthaei, 277 So.2d 239 (La.App. 4 Cir. 1973); Barnes v. Liberty Mutual Insurance Co., 350 So.2d 288 (La.App. 3 Cir. 1977), writ refused.
It is obvious that a highway with a large pine tree completely across it is not "reasonably safe" for the motoring public. As shown by the facts of this accident, the pine tree was a sufficiently dangerous defect so as to cause the accident, and the Department had notice, according to the testimony of its own employees, of the potential danger posed by this large pine tree leaning over the highway right-of-way. Its crew, a day or so before the accident, was in the area cutting down other trees. The Department had reasonable time to remedy the situation by cutting down or otherwise restraining this tree.
In aid of its defense, the Department of Highways notes the recent Second Circuit case of Adams v. La., Department of Highways, 357 So.2d 1239 (La.App. 2 Cir. 1978) wherein the Department was held liable in damages to a landowner for cutting down a "landmark" pecan tree located on private property.
"A public body may not destroy private property overhanging a public right of way without observing legal process unless the property constitutes a public nuisance Or poses imminent danger to users of the right of way. Oglesby v. Town of Winnfield, 27 So.2d 137 (La.App. 2d Cir. 1946); Tissot v. Great Southern Telephone & Telegraph Co., 39 La.Ann. 996, 3 So. 261 (1887). See also annotation at 64 A.L.R.2d 870. There is no evidence that the Statute-of-Liberty tree was a public nuisance Or that it posed imminent danger to the highway users. (Emphasis provided.)
The testimony in the present case tends to show that the tree in question was in fact located on private property behind a fence; however, it is clear that the tree did pose an imminent danger to users of the highway as evidence by the fact that it fell within days of being inspected by the Department of Highways. The Department of Highways clearly owed a duty to the motoring public to remove or restrain this tree.
We quote from 14 A.L.R.2d 203:
"While there is some authority not in full accord, the majority of the cases considering the question have taken the view that a state or municipality cannot avoid liability for damages caused by the fall of a tree, or limb of a tree, by...
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