Alford v. Estate of Zanca

552 So. 2d 7, 1989 WL 124614
CourtLouisiana Court of Appeal
DecidedOctober 12, 1989
Docket89-CA-220, 89-CA-219
StatusPublished
Cited by17 cases

This text of 552 So. 2d 7 (Alford v. Estate of Zanca) 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
Alford v. Estate of Zanca, 552 So. 2d 7, 1989 WL 124614 (La. Ct. App. 1989).

Opinion

552 So.2d 7 (1989)

Rosie Creppel ALFORD, et al.
v.
ESTATE OF Anthony
v.
ZANCA, Jr.

Nos. 89-CA-220, 89-CA-219.

Court of Appeal of Louisiana, Fifth Circuit.

October 12, 1989.

*9 The Law Offices of Owen J. Bradley, Michael R. Guidry, New Orleans, and Gaudin & Gaudin, Pierre F. Gaudin, Sr., Gretna, for Quitman Alford, Jr., and Sheila Alford, individually and as legal tutrix of the minor, Kevin J. Dermody, plaintiffs-appellants.

Lawrence D. Wiedemann, Allain F. Hardin, New Orleans, for Rosie Alford, plaintiff-appellant.

Emile R. St. Pierre, APLC Destrehan, for defendant-appellee.

Ronny J. Champlin, Baton Rouge, for the State of La., through the Dept. of Transp. and Development, defendant-appellee.

Before CHEHARDY, C.J., and BOWES and GOTHARD, JJ.

CHEHARDY, Chief Judge.

This suit and its companion case, Zanca v. State of Louisiana, et al., 552 So.2d 14 (La.App. 5 Cir.1989), arise from a head-on two-car collision on U.S. Hwy. 61 about 1,200 feet east of the Bonnet Carre Spillway Bridge in St. Charles Parish. Five of the occupants of the cars died; the sole survivor, a four-year-old boy, sustained serious injuries. Judgment was rendered absolving the state Department of Transportation and Development of liability for an alleged defect in the highway. The plaintiffs in both cases have appealed.

At approximately 5:45 p.m. on July 1, 1984, Anthony Zanca Jr. was driving his Ford Bronco truck east on Hwy. 61. He had just come across the Bonnet Carre Spillway Bridge, which was undergoing construction to widen the roadway, when he changed from the left lane to the right lane. The right wheels of his truck apparently went off the 2-inch dropoff on the right edge of the road. His truck then veered sharply to the left across the westbound lanes, colliding head-on with a Chevrolet Nova driven by Roberto Dermody and occupied by Dermody's wife, Charleen, his daughter, Tina, his son, Kevin, and his father-in-law, Quitman Alford Sr. Alford, Zanca, and Roberto, Charleen and Tina Dermody all died at the scene of the accident. Kevin Dermody was severely injured, but survived.

This suit was filed by Rose Alford, widow of Quitman Alford Sr., and by Quitman Alford Sr.'s son and daughter, Quitman Jr. and Sheila Alford. Sheila also appears on behalf of Kevin, as legal tutrix of the orphaned child. Named as defendants were the Estate of Anthony V. Zanca Jr.; the State of Louisiana, Department of Transportation and Development (hereafter called "DOTD"); Boh Brothers Construction Company, Inc., the State's contractor on the construction project; Louisiana Paving Company and T.L. James & Co., Inc., Boh's subcontractors; Allstate Insurance Company, insurer of the Bronco; State Farm Insurance Company, insurer of the *10 Nova; and Colonial Lloyd's Insurance Company, underinsured motorist insurance carrier for the Dermodys. The companion suit, Zanca v. State, 552 So.2d 14, was filed by Anthony Zanca's widow against DOTD, Boh, and their insurers.

State Farm and Allstate tendered their policy limits, respectively $50,000 and $40,000, to the Alford/Dermody plaintiffs and obtained summary judgment dismissing them from this suit. Judgment was rendered in favor of the defendant Estate of Anthony Zanca on an exception of insufficient service. Boh, Louisiana Paving Company and T.L. James settled with the Alford/Dermody plaintiffs for $475,000 and were dismissed, with a reservation of the plaintiffs' rights against DOTD.

Trial of the matter took place with DOTD as the sole remaining defendant. Rather than attempting to prove the 2-inch dropoff between the new road and the old road was a hazard, the plaintiffs tried to establish that DOTD was negligent in placing traffic channelizer barrels within 3 feet of the edge of the new roadway. They argued that Zanca's abrupt swerve after his wheels went over the dropoff was an attempt to avoid one of the barrels. They contended that the presence of the barrel within 3 feet of the edge of the travelled roadway was unreasonably dangerous because it presented such a "formidable obstacle" to a vehicle going off the new roadway that a driver had to swerve to avoid it.

In her reasons for judgment, the trial judge concluded the evidence did not establish that the barrel was a cause in fact of the accident, because "it is not more probable than not that the intimidating effect of the barrel caused the accident, whether or not it was placed too close to the travelled portion of the roadway. * * * [T]here are other as-plausible explanations by witnesses and other credible evidence."

On appeal the plaintiffs assert the district court erred in finding that the location of the barrel was not a cause-in-fact of the accident.

FACTS

The purpose of the road construction project was to widen the spillway bridge road. The construction area began several thousand feet before the west end of the bridge, continued on the bridge itself, extended several thousand feet past the east end of the bridge, and was clearly denoted along its entire length by warning signs and barrels.

On the east side of the bridge four new lanes of roadway had been built immediately adjacent to the north side of the highway. Traffic was being routed through these new lanes while the old roadway was being resurfaced. At the time of the accident the surface of the old roadway was 2 inches below the surface of the new lanes and was awaiting its final layer of asphalt.

The new lanes had been striped clearly with permanent-style lane markings, including solid white lines along the edge of the road. Channelizer barrels, some of metal and some of plastic, had been placed on the old roadway from 25 to 50 feet apart and about 3 feet from the edge of the new roadway.

Scott Reggio, the state trooper who investigated the accident, stated he found yaw marks made by the Bronco as it swerved from the right edge of the new roadway across the four new lanes to the point of impact. Approximately 8 feet 4 inches from where the yaw marks began was an orange metal barrel with a "SPEED LIMIT 45" sign mounted atop it. The barrel, like numerous others in the construction zone, was set in the old roadway a few feet away from the white line marking the edge of the new roadway.

Other testimony established the barrel was 2 feet 8 inches from the edge of the new roadway. The DOTD project engineer's instruction to the contractor was to place the barrels 3 feet from the edge. The guideline manual followed by DOTD provided that signs should be 6 to 12 feet from a roadway edge. It is disputed whether this guideline is for permanent signs only or also applies to signs during construction.

Lieutenant Michael Sunseri of the Louisiana State Police, accepted by the court as *11 an expert in accident reconstruction, stated the point of maximum impact was in the northbound left lane of U.S. 61; that there was nothing to indicate the Nova was exceeding the speed limit; that the Bronco was going about 53 miles per hour in the yaw and could have been going faster before it went into the yaw; that it appeared the right front tire of the Bronco had gone off the roadway edge and the right rear tire may have done so also; that the Bronco appeared to have been out of control as it yawed across the roadway.

He pointed out that, considering the Bronco's speed, the maneuver that resulted in the yaw must have begun much further back than where the yaw marks climb back on the road. He was unable to establish at what point the Bronco had gone off the edge.

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Cite This Page — Counsel Stack

Bluebook (online)
552 So. 2d 7, 1989 WL 124614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alford-v-estate-of-zanca-lactapp-1989.