Cosper v. State ex rel. Department of Transportation & Development

492 So. 2d 243, 1986 La. App. LEXIS 5864
CourtLouisiana Court of Appeal
DecidedJuly 21, 1986
DocketNo. 85-927
StatusPublished
Cited by1 cases

This text of 492 So. 2d 243 (Cosper v. State ex rel. Department of Transportation & Development) 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
Cosper v. State ex rel. Department of Transportation & Development, 492 So. 2d 243, 1986 La. App. LEXIS 5864 (La. Ct. App. 1986).

Opinion

LABORDE, Judge.

The State of Louisiana, through the Department of Transportation and Development (DOTD) appeals a decision finding it liable to plaintiff, Johnny G. Cosper, for damages he suffered in a vehicular collision. We find no error in the judgment below, and therefore affirm.

On February 22, 1981, Cosper’s motorcycle collided with a car driven by Ernest Bourgeois on a one-way service road in Lafayette Parish. Cosper sued DOTD under La.Civ.Code art. 2317, alleging that the road had no signs to indicate that it was a one-way road, and that it was therefore unreasonably dangerous. DOTD filed a third party demand against Bourgeois and against Barber Brothers Contracting Company, Inc. Bourgeois entered into a settlement and release with plaintiff, and was thereafter dismissed from the third party demand by summary judgment. The claim against Barber Brothers was dismissed pursuant to a motion for directed verdict. No appeal has been taken from either of the two actions dismissing Bourgeois and Barber Brothers.

FACTS

On the day of the accident, plaintiff was driving his motorcycle south on Highway 167 in Lafayette Parish. At that time, Highway 167 was a four-lane roadway undergoing construction to change it into a limited access thoroughfare (U.S. Interstate 49) running north-south. Prior to the accident, a service road had been completed on both the east and the west sides of the four-lane roadway. Both service roads were originally designed to accommodate two-way traffic. In December, 1980, Barber Brothers contracted with DOTD to perform work on Highway 167 between its intersections with Highway 182 to the north, and with Highway 726 to the south. The job required that regular highway traffic be rerouted onto the two service roads. This was accomplished in December, 1980 by converting the west service road into a one-way road for traffic going south, and by converting the east service road into a one-way road for traffic going north. Regular southbound traffic on Highway 167 was detoured onto both lanes of the west service road near the intersection of Highways 167 and 182. Plaintiff, traveling south on Highway 167, detoured onto the west service road near Highway 182 and remained in the right lane for a short time. At the same time, Ernest Bourgeois was driving his car on the west service road in a northerly direction, that is, against the one-way flow of traffic. The two drivers did not see each other until plaintiff emerged from behind another car which he was attempting to pass. Plaintiff made an unsuccessful attempt to avert Bourgeois. A collision occurred and plaintiff was thrown by the resultant impact into a ditch. Bourgeois continued driving north, slowly and in a daze, until he was stopped by a witness to the accident, Larry Carriere. Carriere had been following plaintiff on the service road when the collision occurred. He told Bourgeois that the road was for southbound traffic only. Bourgeois answered that he did not think the service road was for one-way traffic.

As a result of the accident, plaintiff suffered the loss of his leg, which required amputation just below the knee, great pain, and lost wages. The trial court found plaintiff 25% contributorily negligent and found Bourgeois 25% negligent. DOTD was adjudged 50% liable and was con[245]*245demned to pay plaintiff $213,727.60 plus costs.

LAW

One may recover on the basis of strict liability under La.Civ.Code art. 2317 by showing 1) that the thing which caused the damage was in the care or custody of defendant; 2) that it had a vice or defect, i.e., some condition which occasioned an unreasonable risk of injury; and 3) that the injury was caused by the defect. Jones v. City of Baton Rouge—Parish of East Baton Rouge, 388 So.2d 737 (La.1980); Holmes v. State Through Department of Highways, 466 So.2d 811 (La.App. 3d Cir.), writ denied, 472 So.2d 31 (La.1985).

DOTD argues initially that the highway was not defective as a matter of law. The argument is based on testimony of DOTD witnesses, some of whom directed the signing of roads, and others who actually erected signs for DOTD. There was testimony to the effect that the proper signing of a temporary crossing, from which Bourgeois wrongfully entered the service road, required, at a minimum, a stop sign on the right at the intersection of the crossing and the service road, and two one-way signs, one on the far left side of the service road and one at the near right side of the service road. There was also testimony from the DOTD witnesses to the effect that the necessary signs, including two wrong-way signs between thirty and fifty yards north of the intersection on the service road, were in place in December, 1980, when the service road was converted to one-way use.

The testimony of plaintiff’s witnesses contradicted the testimony of DOTD’s witnesses. Larry Carriere testified that he was traveling south on the service road and could see plaintiff on a motorcycle immediately prior to the accident. Carriere arrived at the accident scene seconds after the impact. After plaintiff had been taken to the hospital in an ambulance, Carriere left the accident scene, traveling south on the service road, and expressly looked for one-way signs south of the accident scene on the service road; he did not, however, see any such signs.

Mr. Leo Burleigh testified that he was traveling south on the service road in the right lane just prior to the accident. He saw Mr. Bourgeois’ car pass him going north in the left lane and looked in his rearview mirror and observed the collision between plaintiff’s motorcycle and Mr. Bourgeois’ automobile. He returned to the scene of the accident to render aid and a few moments later continued south on the service road, expressly looking for one-way signs at the temporary shell crossing and at other points. He did not see any.

Mr. Joseph Lalonde testified that he was Mr. Bourgeois’ son-in-law and that he arrived at the accident site approximately thirty minutes after the accident. Mr. Bourgeois got in Mr. Lalonde’s automobile to be driven home. They traveled south on the service road. Mr. Bourgeois pointed out to Mr. Lalonde the gravel crossover where Mr. Bourgeois had turned right onto the service road. Mr. Lalonde pulled over and expressly looked for one-way signs, but did not see any.

Mr. Armand Bourgeois, the son of Mr. Ernest Bourgeois, testified that he followed his father and Mr. Lalonde home from the accident scene in his own automobile and also looked for signs, but did not see any one-way signs on the service road. However, both Mr. Lalonde and Mr. Armand Bourgeois testified that they did see the wrong-way signs on the service road.

Mrs. Barbara Latour testified that she traveled north on the west service road one or two days prior to the accident and did not see any one-way signs. She was not aware that it was a one-way thoroughfare until she was informed of that fact by her son-in-law, Byron Boudreaux, at Mr. Bou-dreaux’s home located at the intersection of Patín Road and the west service road.

The trial judge carefully reviewed all of the testimony and found, as do we, that it preponderates in favor of plaintiff and against DOTD. The trial judge is in the best position to evaluate the testimony [246]

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572 So. 2d 150 (Louisiana Court of Appeal, 1990)

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Bluebook (online)
492 So. 2d 243, 1986 La. App. LEXIS 5864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cosper-v-state-ex-rel-department-of-transportation-development-lactapp-1986.