Aetna Cas. & Surety Co. v. State Through Dept. of Transp. and Dev.

712 So. 2d 216, 1998 WL 166973
CourtLouisiana Court of Appeal
DecidedApril 8, 1998
Docket97 CA 0716, 97 CA 0717
StatusPublished
Cited by7 cases

This text of 712 So. 2d 216 (Aetna Cas. & Surety Co. v. State Through Dept. of Transp. and Dev.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aetna Cas. & Surety Co. v. State Through Dept. of Transp. and Dev., 712 So. 2d 216, 1998 WL 166973 (La. Ct. App. 1998).

Opinion

712 So.2d 216 (1998)

AETNA CASUALTY & SURETY COMPANY
v.
STATE of Louisiana, Through The DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT; Parish of Assumption, Parish of Assumption Department of Public Works.
Leon J. THERIOT, Jr. & Barbara Theriot
v.
STATE of La., DOTD, Parish of Assumption, Dept. of Public Works.

Nos. 97 CA 0716, 97 CA 0717.

Court of Appeal of Louisiana, First Circuit.

April 8, 1998.

*217 Ms. Danna Schwab, Metairie, for Plaintiff/Appellee Aetna Casualty & Surety Company.

Mr. Karl Krousel, Baton Rouge, for Defendant/Appellant DOTD.

Mr. Vincent Fornias, Baton Rouge, for Defendant Parish of Assumption and Parish of Assumption Dept. of Public Works.

Mr. Ben Vega, Donaldsonville, for Plaintiff/Appellee Leon Theriot, et ux.

Before CARTER and FITZSIMMONS, JJ., and CHIASSON,[1] J. Pro Tem.

CARTER, Judge.

This is an appeal by the State, through the Department of Transportation and Development (DOTD) from a judgment of the trial court finding Leon Theriot 75% at fault and DOTD 25% at fault for a vehicular accident.

FACTS AND PROCEDURAL HISTORY

On June 2, 1990, Leon Theriot (Theriot) stopped at a bar known as "The Fuel Stop" located in Assumption Parish between 3:00 and 5:00 p.m. Theriot stayed at the bar drinking beer and visiting with friends until approximately 10:00 p.m., when he left the bar and drove on Highway 70 in the direction of his home in Pierre Part. Theriot estimated he had consumed ten to twelve beers while at the bar.

Theriot had been driving for approximately ten minutes when he approached a curve *218 in Highway 70 at milepost 31.9. As he entered the curve, he glanced to his left to see if a friend was home. At this point the right tires of his vehicle left the roadway. An eyewitness account estimated Theriot's vehicle only left the road for a second or a fraction thereof. Upon reentering the roadway, Theriot's vehicle crossed the centerline of Highway 70 and collided with a truck travelling east. The eastbound truck was driven by Albert Norton, Sr. (Norton). Norton, a truck driver for Total Transportation Services, Inc., was in the process of making a delivery to the Sunshine Bridge.

Theriot sustained lacerations across his head and neck, and an injury to his knee. A blood sample taken at Lakewood Hospital revealed Theriot's blood alcohol content to be.193 per cent. The emergency room records of Lakewood Hospital indicated Theriot had acute alcoholic intoxication when he was admitted following the accident. Another blood sample taken from Theriot approximately three hours after this accident was tested at the State Police Crime Lab and revealed a blood alcohol level of .12 per cent.

Norton sustained serious injuries; his back was broken in two places, his right leg required amputation below the knee, his left foot was crushed, and his right retina was ruptured, resulting in an 80% loss of vision in his right eye. At the time of trial he had undergone 33 surgeries in connection with his injuries. Norton was rendered disabled from his job as a truck driver, and all attempts to render vocational rehabilitation have been unsuccessful.

On March 14, 1991, Aetna Casualty & Surety Company (Aetna), the workers' compensation insurer of Total Transportation Services, Inc., filed suit against DOTD, the Parish of Assumption, and the Assumption Department of Public Works, seeking to recover benefits and medical expenses it paid on behalf of Norton for injuries sustained in the accident. Aetna alleged the accident was caused by the defective condition of Highway 70.

On May 31, 1991, Theriot filed a separate suit against DOTD and Assumption Parish seeking recovery for his personal injuries sustained in the accident. There was also a loss of consortium claim by Mrs. Theriot; however, it was not pursued at trial. The suits filed by Theriot and Aetna (plaintiffs) were consolidated on October 4, 1991. Norton did not file suit for his injuries.

Aetna amended its petition on December 6, 1991, and added Theriot and his insurer, State Farm Mutual Automobile Insurance Co. (State Farm), as defendants. State Farm filed a concursus proceeding, and deposited the policy limits of $10,263.22 into the registry of the court. An order signed on January 29, 1993, authorized Aetna to remove the funds deposited from the registry of the court by State Farm. On April 5, 1993, State Farm and Theriot were dismissed as defendants from the action by Aetna.

Trial on the merits was held on October 22-23, 1996. Judgment was rendered on December 18, 1996, in favor of Travelers' Insurance Company (successor to Aetna) against DOTD in the amount of $766,120.04, subject to a reduction of 75% because of the fault allocated to Theriot. The judgment against DOTD, after reduction of Theriot's fault, was $191,530.01 plus legal interest from the date of judicial demand.

DOTD appeals the judgment with the following assignments of error:[2]

1) The trial court committed manifest error in finding the State of Louisiana, through the Department of Transportation and Development, responsible in part for this accident, when the plaintiffs failed to meet the burden of proof as required by LSA-R.S. 9:2800.
2) The trial court committed manifest error in allowing plaintiff's expert to testify regarding the road's condition as it existed at the time of trial.
3) The trial court committed manifest error in finding the State of Louisiana, through the Department of Transportation and Development, was in any way or degree *219 responsible for this accident and subsequent damages.

LAW AND DISCUSSION

In order to prove liability of a public entity based on a defective condition of a bridge or roadway the plaintiff must prove custody or ownership of the defective thing by the public entity; the defect created an unreasonable risk of harm; actual or constructive knowledge of the defect or risk of harm and failure by the public entity to take corrective action within a reasonable time; and causation. Porter v. Ascension Parish Police Jury, 93-2166, pp. 2-3 (La.App. 1st Cir. 10/7/94); 644 So.2d 710, 711. The theory presented by the plaintiffs at the trial was that the difference in elevation between the roadway and the shoulder was unreasonably dangerous in that it caused vehicles leaving the roadway to "scrub" against the edge of the roadway, thereby prohibiting a safe reentry back onto the roadway. Plaintiffs alleged that Theriot's vehicle shot across the road and into Norton's lane as the result of his uncontrolled re-entry onto the roadway. Plaintiffs claim the accident was caused by the dangerous discrepancy in elevation between the roadway and the shoulder. The only factual evidence presented evidencing this theory was Theriot's own testimony, which indicated he had trouble getting his vehicle back onto the roadway after he went on the shoulder. We do not have oral or written reasons for judgment from the finding of 25% liability on the part of DOTD. However, we must conclude the trial court found Aetna proved all the previously listed elements for DOTD to be assessed with liability for the condition of the shoulder.

In our review of the case sub judice, we find the trial court erred in assessing DOTD with any liability in this case. We do not find the drop-off between the shoulder and the roadway constituted an unreasonably dangerous condition, nor do we find the drop-off caused or contributed to the accident.

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Cite This Page — Counsel Stack

Bluebook (online)
712 So. 2d 216, 1998 WL 166973, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-cas-surety-co-v-state-through-dept-of-transp-and-dev-lactapp-1998.