Bialy v. STATE, THROUGH DEPT. OF TRANSP. AND DEV.

414 So. 2d 1273, 1982 La. App. LEXIS 6991
CourtLouisiana Court of Appeal
DecidedMarch 17, 1982
Docket8683
StatusPublished
Cited by17 cases

This text of 414 So. 2d 1273 (Bialy 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
Bialy v. STATE, THROUGH DEPT. OF TRANSP. AND DEV., 414 So. 2d 1273, 1982 La. App. LEXIS 6991 (La. Ct. App. 1982).

Opinion

414 So.2d 1273 (1982)

Mark BIALY, Plaintiff-Appellee,
v.
STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.

No. 8683.

Court of Appeal of Louisiana, Third Circuit.

March 17, 1982.
Rehearing Denied May 10, 1982.
Writ Denied July 2, 1982.

*1274 William J. Doran, Jr., Baton Rouge, for defendant-appellant-appellee.

Trimble and Associates, Lon P. Wilson, Alexandria, for plaintiff-appellee.

Kramer & Laird, Martin Laird, III, Alexandria, for plaintiff-appellee-appellant.

Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.

Before CULPEPPER, GUIDRY and STOKER, JJ.

STOKER, Judge.

This case arises out of a two car collision which occurred on January 16, 1978, on a bridge over the Red River between Alexandria and Pineville, Louisiana. The bridge, commonly known as the Fulton Street Bridge, is part of the Louisiana State Highway system, and was designed, built and maintained by the State. Nancy Bialy's car crossed the median of the bridge and was struck in the opposing lane of traffic by a bread truck driven by Elbert Smith. Nancy Bialy (Mrs. Bialy) was killed in the accident, and her husband, plaintiff-appellee Mark *1275 Bialy (Bialy) brought this claim for his damages and his wife's wrongful death against defendant-appellant, the State of Louisiana, through the Department of Transportation and Development (State). Bialy's petition alleges that the State is strictly liable because the bridge in their custody was defective, or alternatively, that the State was negligent in its design, construction, or maintenance of the bridge. In a companion case[1] which we decide this date, Elbert Smith (Smith) sued Bialy and his insurer for damages, alleging that Mrs. Bialy was negligent in her operation of the vehicle. Smith also sued the State, arguing in the alternative that the State was strictly liable or liable in negligence for the accident. Both Smith's and Bialy's cases were consolidated for trial. The court found that neither Mrs. Bialy nor Smith were negligent and awarded $286,966.55 to Bialy and $530,000.00 to Smith against the State. The State appealed this judgment and Bialy and Smith answered the appeal, seeking increases in their awards.

FACTS

The Fulton Street Bridge is a lift bridge, the lift section of which is a level, open, metal grid. The rest of the bridge is concrete which slopes to meet the lift section. The bridge has two lanes of travel in each direction which at the time of the accident were divided by a concrete median ten inches high and four feet wide.

According to witnesses, Mrs. Bialy was in the right-hand northbound[2] lane travelling within the posted 50 mile per hour speed limit when her car began to "fishtail" at or close to the point at which the concrete and metal grid portions of the bridge meet. The weather was wet and near freezing, but there was no ice on the bridge. The car swerved two or three times on the metal grid and then ran against the curb of the median for a short distance. Finally, the car was thrown into the air over the median and landed in the southbound lanes of traffic, where it was struck by a Cotton Brothers Baking Company bread truck driven by Smith. The first witnesses to arrive seconds later found Mrs. Bialy dead from the impact.

The trial court gave the following written reasons for its judgment in favor of plaintiffs Bialy and Smith:

"The evidence was to the effect that neither Mrs. Bialy nor Mr. Smith was negligent; that the cause of the accident was the unsafe condition of the bridge; and that the state highway department had ample notice and failed to correct the defects prior to this tragic accident. The bridge lacked an adequate barrier between the opposing lanes; the metal grid had not been properly maintained and was dangerously slippery; the fifty mile speed limit on the bridge was unsafe; and there were no signs warning of the slippery condition of the bridge when it was wet."

The State alleges that the trial court erred in the following respects:

"I. The trial court erred in its finding that the cause of the accident was the unsafe condition of the bridge.
II. The trial court erred in failure to find Nancy Bialy guilty of contributory negligence which is attributable to plaintiff, Mark Bialy.
III. The trial court erred in awarding an excessive amount of damages to both plaintiffs."

The State also urges in a supplemental brief that should we find the State to be strictly liable under LSA-C.C. art. 2317, there is no wrongful death action under Article 2317. These arguments will be addressed below.

WAS THE BRIDGE UNSAFE?

The State contends that the trial court erred in finding that the cause of the *1276 accident was the unsafe condition of the bridge. The jurisprudence regarding this issue is summarized in Bush v. State, Through the Department of Highways, 395 So.2d 916 (La.App. 2nd Cir. 1981), writs denied, 399 So.2d 609 (La.1981), as follows:

"... The law is settled that the Department of Highways is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways.... Generally, it is the duty of the Highway Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence.... (citations omitted)
United States Fidelity and Guaranty Co. v. State, Department of Highways, 339 So.2d 780 (La.1976).
"... However, reasonable care requires, and the Department does owe, a duty to the traveling public to erect barricades, signs and adequate markings to warn against extremely dangerous, trap-like hazards, unusual obstructions, perilous conditions or defects in the road.... Whether the warning is required, reasonable, or adequate is determined by the place where the danger exists, the nature of the road and the general situation and circumstances surrounding it. All of these factors, together with the kind and speed of vehicles, are to be taken into consideration to determine whether the Department has discharged its duty.... (citations omitted)
Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974).
"There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? ... (citations omitted)
Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975)."

Plaintiffs sought to establish that the bridge was not "maintained in a reasonably safe condition for persons exercising ordinary prudence" chiefly by the testimony of Dr. Robert Brenner, an expert in safety and traffic engineering. Dr. Brenner pointed out several risk factors in the design, construction, and maintenance of the bridge, all of which made the bridge more unsafe and which, in Dr. Brenner's opinion, contributed to the causation of the accident. Dr.

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414 So. 2d 1273, 1982 La. App. LEXIS 6991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bialy-v-state-through-dept-of-transp-and-dev-lactapp-1982.