Bullard v. STATE, DEPT. OF TRANSP., ETC.

413 So. 2d 606
CourtLouisiana Court of Appeal
DecidedApril 13, 1982
Docket14668
StatusPublished
Cited by10 cases

This text of 413 So. 2d 606 (Bullard v. STATE, DEPT. OF TRANSP., ETC.) 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
Bullard v. STATE, DEPT. OF TRANSP., ETC., 413 So. 2d 606 (La. Ct. App. 1982).

Opinion

413 So.2d 606 (1982)

Timothy BULLARD, et ux.
v.
STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, OFFICE OF HIGHWAYS.

No. 14668.

Court of Appeal of Louisiana, First Circuit.

April 13, 1982.

Roger M. Fritchie, Baton Rouge, for plaintiffs-second appellant.

Owen M. Goudelocke, Baton Rouge, for Dept. of Transp. and Development-first appellant.

John C. Miller, Baton Rouge, for Howard Needles and Tammen & Bergendoff.

Randall Theunissen, Lafayette, for J. B. Talley & Co.

Robert A. Hawthorne, Jr., Baton Rouge, for Barnard & Burke.

William C. Kaufman, III, Baton Rouge, for St. Paul Fire & Marine-third appellant.

Paul Marks, Jr., Baton Rouge, for Emp. Commercial Union Ins. Co. of America.

*607 Before COVINGTON, COLE and WATKINS, JJ.

COVINGTON, Judge.

This is a suit for wrongful death and survival action brought by Timothy Bullard and Anna Marie Murphy Bullard, the father and mother of their deceased son, Michael Bullard, who was mortally injured on February 23, 1977, when a large, dead tree, which was standing in the median of Interstate 10, fell and struck the vehicle of Michael Bullard. At the time, Bullard was traveling in a westerly direction on said highway in West Baton Rouge Parish, Louisiana, while in the course and scope of his employment with Acadian Hills Country Club. As a result of the tree falling onto his vehicle, Bullard sustained such severe and painful injuries that he died 65 days after the accident, at the age of 27 years, survived by his parents and two brothers. His parents brought the instant action seeking damages. Initially, only the State of Louisiana, through the Department of Transportation and Development, Office of Highways, as owner of the property comprising the interstate highway, the median and the tree, was named as defendant. Subsequently, plaintiffs supplemented their petition to name as additional defendants the consulting engineers on the project for the particular section of the highway, Barnard & Burke and Howard, Needles, Tammen & Bergendoff (a joint venture of the engineering firms of Barnard & Burke, a partnership, and Howard, Needles, Tammen & Bergendoff, also a partnership); the aforesaid two engineering firms; and the contractor who constructed that particular portion of the highway, J. B. Talley & Company, Inc.

The State filed third party demands against the construction company and its bonding company, Employees Commercial Union Insurance Company of America,[1] and against the consulting engineers; Talley also third partied the State and the consulting engineers; the said engineers third partied the State and the contractor Talley; and St. Paul Fire & Marine Insurance Company intervened to recover on the claim paid by them as workmen's compensation carrier for the deceased's employer, Acadian Hills Country Club.

After trial on the merits, the trial court rendered judgment on April 3, 1981, in favor of the plaintiffs[2] in the amount of $528,354.91 against the State. In addition, judgment was rendered in favor of all other defendants and the third party demands were dismissed. The intervention of St. Paul, the workmen's compensation carrier, was recognized in the amount of $25,322.54 by preference and priority out of the plaintiffs' award.

From this judgment, the State has appealed. The plaintiffs also appealed insofar as the judgment rejected the demands against the consulting engineers and the contractor and insofar as it failed to grant the plaintiffs the quantum they had sought. St. Paul also appealed the dismissal of the consulting engineers and contractor.

The evidence shows that the large tree which struck the Bullard vehicle was located near the edge of the natural median area between the two eastbound lanes and the two westbound lanes of I-10. The tree in question was visibly rotten or defective. The photographs in evidence show a large portion of the trunk of the tree to be rotten. The physical evidence, along with the expert testimony presented leaves no doubt "that the fall of the tree was the result of its defective and decayed condition," as the trial court found. The evidence further establishes that the tree was owned by and in the custody of the State at the time of the accident.

*608 Consequently, under the codal doctrine of strict liability for things in one's custody, LSA-C.C. art. 2317,[3] as interpreted by Loescher v. Parr, 324 So.2d 441 (La.1975), the State must be held liable. In Loescher, supra, our Supreme Court concluded that the owner and custodian of a tree was liable to third persons for damages occasioned by its falling. The Court determined that delictual responsibility did not necessarily depend upon negligent acts, but upon "fault," and that the owner or custodian of a thing which causes unreasonable risk of injury to others is at fault. The Court further stated that the owner or custodian is not exculpated from liability simply because the tree was caused to fall by wind which was not so abnormal as to be unforeseeable. In the instant case the State has not shown that the damage was caused by the fault of the victim, or by the fault of a third person, or by an irresistible force. Here, as in Loescher, the wind, although high and gusty, was not so abnormal as to be unforeseeable. On appeal, the liability of the State is not questioned.[4] See Scott v. State, Department of Transportation and Development, 392 So.2d 482 (La.App. 1 Cir. 1980), writ denied, 396 So.2d 921 (La.1981). In Scott, we stated that strict liability under LSA-C.C. art. 2317 as interpreted in Loescher v. Parr, supra, applied to governmental agencies, such as the Department of Transportation and Development.

On the question of the liability of the consulting engineers, the record reflects that in the original suit the plaintiffs alleged that the consulting engineers were responsible for the defective design and construction of the highway by designing and constructing it in such a manner that it impeded the natural flow of ground water, thereby allowing a lake-like body of water to form in the area of the natural setting median during periods of rainy weather, which standing water promoted the deterioration of the tree which fell, causing the accident in question.

The contention that the drainage, or lack of drainage, caused the tree to fall is not substantiated by the evidence. The record fails to show a causal link between any periodic flooding and the falling of the dead tree. Both the chief project engineer and the interstate engineer testified that the roadway had no significant effect on the drainage in this area. It was a low-lying area before construction of the roadway and it was the same afterwards. There was no evidence that the particular tree which fell and struck the Bullard vehicle died or rotted due to exposure to excessive water or flooding.

Another claim made by the plaintiffs was that the consulting engineers were negligent in designing the highway in that wider recovery zones between the traveled portion of the highway and the tree line of the median should have been allowed. As to this issue, the record contains no evidence showing that the consulting engineers failed to follow accepted standards of interstate highway construction. Moreover, the consulting engineers had no responsibility for the designation of trees to be removed as hazards and those which should remain in the natural setting.

In contending negligent construction, the plaintiffs stated that J.B.

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