Bijeaux v. State, DOTD

702 So. 2d 1088, 97 La.App. 3 Cir. 224, 1997 La. App. LEXIS 2637, 1997 WL 671599
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
DocketNo. 97-224
StatusPublished
Cited by4 cases

This text of 702 So. 2d 1088 (Bijeaux v. State, DOTD) 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
Bijeaux v. State, DOTD, 702 So. 2d 1088, 97 La.App. 3 Cir. 224, 1997 La. App. LEXIS 2637, 1997 WL 671599 (La. Ct. App. 1997).

Opinion

JiCOOKS, Judge.

The issue presented by this appeal is whether the State of Louisiana, Department of Transportation and Development (DOTD), breached its duty to keep the roads and bridges in safe condition. For the following reasons, we affirm the judgment of the trial court that DOTD did not breach its duty in this case.

FACTS

On December 2,1991, John J. Bijeaux, Sr., was driving home between 6:30 and 7:00 p.m on Louisiana Highway 347 after closing his pharmacy in St. Martin Parish, Louisiana. Road conditions were wet as it had been raining most of the day. Bijeaux testified he encountered mud on the surface of the highway which caused his vehicle to lose control and leave the highway. The |2vehicle catapulted some distance coming to rest in a field. There was no evidence that Bijeaux was driving in excess of the posted speed limit.

Bijeaux sustained injuries which required immediate hospitalization and eventual back surgery. Plaintiffs alleged further that Bijeaux developed complications which led to a stroke, causing paralysis on the right side of his body. After extensive rehabilitation, Bijeaux was able to return to work at his pharmacy. Unfortunately, Bijeaux suffered additional illnesses unrelated to the accident and died on June 26,1994.

Prior to his death a suit for damages was filed by Bijeaux, his wife and their three children, as well as Bijeaux’s business, Howard’s Pharmacy, Inc. of New Iberia. Named as defendant was the State of Louisiana, through the Department of Transportation and Development (hereafter DOTD). Also named as defendants were Lawrence Dugas, Sr., Lawrence Dugas, Jr., George Patout, d/b/a D & P Farms, and their insurer, Farm Bureau Casualty Insurance Company. D & P Farms was a sugarcane operation that owned and farmed the land adjacent to the area where Bijeaux’s vehicle left the road. The plaintiffs alleged it was this “property from which the mud and other foreign substances came to be placed on the road-way_” Near the accident site is a lime[1090]*1090stone road from which D & P Farms trucks entered Highway 347. A jury heard the claims against D & P Farms. Prior to deliberation, the claims against D & P Farms were settled. The trial court heard the claims against DOTD.

On April 10, 1995, the trial court issued written reasons for judgment finding no liability on the part of DOTD in causing the accident. Plaintiffs have appealed the trial court’s judgment. For the following reasons, we [ -¡affirm.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). The Louisiana Supreme Court has established a two-tier test for reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong. Stobart, 617 So.2d at 882, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

The appellate court must do more than simply review the record for evidence which supports or controverts the trial court’s findings. It must review the record in its entirety to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. The task of the reviewing court is not to determine whether the conclusions of the trier of fact were right or wrong. The task is to determine whether the fact finder’s conclusions were reasonable. Disagreement with the findings of the trial court, alone, is not grounds for the reviewing court to substitute its judgment for that of the trier of fact. Stobart, 617 So.2d 880.

There are two theories of liability available to a plaintiff who claims he was injured as a result of the condition of a thing: 1) negligence, under La.Civ.Code arts. 2315 and 2316, and 2) strict liability, under La.Civ. Code art. 2317. Under both theories of liability a plaintiff must prove that the condition of the thing presented an unreasonable risk of harm, or was defective, and that this 14 condition of the thing was a eause-in-fact of the injuries.

This court in Melder v. State, Through Dept. of Highways, 512 So.2d 546, 548-549 (La.App. 3 Cir.1987) set out DOTD’s duty to the traveling public:

DOTD’s duty to travelers on state highways under La.C.C. art. 2315 is well settled. DOTD has a duty to construct and maintain the state’s highways in a condition reasonably safe for persons using ordi-. nary care and prudence. DOTD is not responsible for every accident which occurs on state highways, nor is it a guarantor of the safety of travelers or an insurer against all injury which may result from obstructions or defects in the highways. DOTD will be. held liable, under the provisions of La.C.C. art. 2315, when the evidence shows that the condition complained of presented an unreasonable risk to prudent drivers and DOTD had actual or constructive notice of the defect and failed to correct it within a reasonable time. [Citations omitted],

Shortly after the accident, State Police Trooper Conrad Vidrine investigated the accident. He attempted to retrace the path of Bijeaux’s vehicle from the cane field where it came to rest. It appeared to Trooper Vidrine that the vehicle took a straight path instead of turning or banking in conformity with the curve in the road. He noted at the point where Bijeaux’s vehicle left the road there was very little disturbance of the ground. He was not able to detect any skid marks or other such indications of braking. Trooper Vidrine did observe a small accumulation of “packed” mud on the road approximately a quarter inch to a half inch thick extending from the limestone road to Highway 347. He testified:

Q: Did Mr. Bijeaux’s vehicle, according to your investigation, go in a straight line into the cane field?
A: Yes, sir.
Q: Was there any evidence of any fishtailing, |5slipping, sideslipping of this vehicle as it left the road and went off the road?
[1091]*1091A: No, sir.
Q: Was there any indication that the wheels of Mr. Bijeaux’s vehicle were turned either to the right or to the left?
A: No, sir. If they would have been the shoulder would have been disturbed as it ran off the road.
Q: Was there any indication that Mr. Bijeaux attempted to break his — -apply his brakes on his vehicle.
A: No, sir.

Trooper Vidrine also testified that when he interviewed Mr. Bijeaux in the hospital he stated “something about there being water on the road and that’s what caused him to lose control of this vehicle.”

Plaintiffs rely on pictures taken the day after the accident to indicate there was a large accumulation of mud on Highway 347. However, Trooper Vidrine, while confirming on the day of the accident there was similar type mud on the road, indicated there was far less of it than the photographs depicted.

Plaintiffs rely heavily on the case of Llorence v. State, Dept. of Transp. and Dev., 558 So.2d 320 (La.App. 3 Cir.), writ denied,

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702 So. 2d 1088, 97 La.App. 3 Cir. 224, 1997 La. App. LEXIS 2637, 1997 WL 671599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bijeaux-v-state-dotd-lactapp-1997.