Bennett v. Bardwell

480 So. 2d 349, 1985 La. App. LEXIS 10562
CourtLouisiana Court of Appeal
DecidedDecember 11, 1985
DocketNo. 84-885
StatusPublished
Cited by1 cases

This text of 480 So. 2d 349 (Bennett v. Bardwell) 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
Bennett v. Bardwell, 480 So. 2d 349, 1985 La. App. LEXIS 10562 (La. Ct. App. 1985).

Opinion

STOKER, Judge.

Warren Bennett sued Gerald Bardwell, Bardwell’s insurer, and the State of Louisiana, through the Department of Transportation and Development (DOTD), to recover damages resulting from a vehicular collision between Bennett and Bardwell. Bard-well and his insurer were released on a partial judgment of dismissal. After trial the judge found that the State was fully responsible, resting “upon either negligence (La.C.C. Art. 2315) or strict liability (La.C.C. Art. 2317).” Bennett was awarded damages totaling $43,369.40, with interest and costs. The judge granted Bennett’s application for a new trial on the issue of quantum, increased general damages from $25,000 to $50,000, and raised the award for loss of earnings from $15,-000 to $25,000.

The State appeals on the issues of its liability and the quantum. Bennett answers requesting a further increase in his award.

FACTS

The collision occurred on the Murray Street Bridge, which connected Alexandria and Pineville. The bridge was owned and maintained by the DOTD. On September 9, 1981 Bennett was driving his van toward Pineville, while Bardwell was proceeding toward Alexandria driving a pickup truck pulling a single axle four-wheel trailer. The bridge was 18 feet from curb to curb, and Bardwell’s trailer was 8 feet at its widest point. As the vehicles approached each other, each driver pulled to his right. The sections of the steel grill roadway were uneven, and a piece of the metal curbing projected into Bardwell’s lane. The trailer wheel on the passenger side hit the curb and the trailer was propelled over the centerline into Bennett’s van. A gouge in the trailer tire and a shred of rubber on the curb that fit the gouge confirmed this account of the accident.

No one took accurate measurements of the protrusion of the curb. Estimates at trial showed it to be somewhere between 1½ inches and 4 inches. There is no doubt that the bridge was in poor condition. In fact, it had been designated for replacement. However, the DOTD had been enjoined from replacing it by a citizens group which wanted to preserve it as a landmark. The bridge was inspected every six months, and the reports around the time of the accident show that there were cracks in the piers, causing shifting of the bridge, and corrosion of the steel, among other deficiencies. Cecil Roy Danzy, who had inspected the bridge for the DOTD, knew of the protrusion of this curb but had not made a notation on it in his report because “it wasn’t bad enough.”

LIABILITY

The trial court imposed liability upon the DOTD based “upon either negligence (La.C.C. Art. 2315) or strict liability (La.C.C. Art. 2317).” As explained in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), the only difference between the two theories is that in a strict liability case, based on LSA-C.C. Art. 2317, the claimant is relieved of proving that the owner knew or should have known of the unreasonable risk of injury created by the thing he owns. The inspectors of the Murray Street Bridge were aware of the condition of the bridge. In light of that knowledge, there is no need to hold the State strictly liable. Liability based on negligence is imposed when the DOTD is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. [352]*352Robinson v. State Through Dept. of Transp., 454 So.2d 257 (La.App. 1st Cir. 1984), writ denied, 458 So.2d 122 (La.1984). This liability stems from its duty under LSA-R.S. 48:21 to “improve, maintain, repair, and regulate the use of public transportation systems and to perform such other functions with regard to public highways, roads, and other transportation related facilities as may be conferred on the department by applicable law.” LSA-R.S. 48:1 includes bridges in its definition of “highway.”

To show negligence on the part of DOTD, Bennett also had to prove that the condition of the bridge created an unreasonable risk of injury that resulted in damage, and that the DOTD failed to render the bridge safe or to take measures to prevent the damage. Kent, supra.

The trial judge stated in his reasons for judgment:

“Both vehicles were within the posted weight and size limits of vehicles allowed to cross the bridge. There were no signs warning of the protrusion. Motorists crossing the narrow bridge would not ordinarily see the protrusion because their attention would necessarily be focused on approaching traffic.
“The Court is of the opinion that the two or three inch protrusion in the metal curbing, when combined with the bridge’s deteriorating condition, its narrowness, and the lack of any warning of the protrusion, presented an unreasonable risk of harm to motorists. This defective condition was the cause of the accident. The State, as owner and custodian of the bridge, is liable for the resulting damages.”

We agree with his conclusions.

The DOTD argues that Bardwell’s maneuvering to the right when he was within his lane of traffic caused the accident. On such a narrow bridge, Bardwell’s action would be perfectly natural. The plaintiff testified that he also pulled toward the right as he approached the pickup truck. In fact, numerous marks and gouges on the curb showed that many vehicles had taken the same action and had hit the curb. If the obstruction had not snagged the tire, the trailer might have brushed the curb, but we doubt that it would have been thrown into the opposite lane. We find no negligence in Bardwell’s efforts to compensate for the narrowness of his lane.

The DOTD concedes that it took no steps to repair the bridge. In its brief it argues that the fact that it was “at least making every effort to replace” the structure should militate against a finding that it breached its duty. Though the DOTD was enjoined from replacing the bridge, it was still responsible for ensuring that the roadway was in safe condition for the traveling public. The projection of the curb created a hazard to drivers on the bridge. It was so small that it would not necessarily catch the attention of drivers concentrating on other conditions on the bridge, yet its seriousness was magnified by the fact that the extremely narrow lane extended all the way to the curb. The failure to recognize and remedy this hazard was a breach of the DOTD’s duty to provide a safe roadway. We therefore affirm the trial court’s judgment holding the DOTD 100% liable for the collision.

QUANTUM

The trial judge awarded damages to Bennett as follows:

General damages $25,000.00
Past and future loss of earnings 15,000.00
Past medical expenses 1,721.00
Future medical expenses 500.00
Damages to vehicle 1,148.40
$43,369.40

In response to Bennett’s application for a new trial, the general damages were increased to $50,000, and the award for loss of earnings was raised to $25,000.

DOTD argues that the increases were improper, as Bennett’s business has increased since the accident. Bennett claims that the award was grossly inadequate m light of the evidence.

[353]*353Bennett owns a ceramic tile and marble contracting firm, and is engaged in a great deal of physical labor in conjunction with that business. He was 44 years old at the time of the accident.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Marziale v. Maney
529 So. 2d 504 (Louisiana Court of Appeal, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
480 So. 2d 349, 1985 La. App. LEXIS 10562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-bardwell-lactapp-1985.