Farbe v. Casualty Reciprocal Exchange

746 So. 2d 228, 99 La.App. 3 Cir. 341, 1999 La. App. LEXIS 3265, 1999 WL 1005719
CourtLouisiana Court of Appeal
DecidedOctober 27, 1999
DocketNo. 99-341
StatusPublished
Cited by3 cases

This text of 746 So. 2d 228 (Farbe v. Casualty Reciprocal Exchange) 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
Farbe v. Casualty Reciprocal Exchange, 746 So. 2d 228, 99 La.App. 3 Cir. 341, 1999 La. App. LEXIS 3265, 1999 WL 1005719 (La. Ct. App. 1999).

Opinion

hGREMILLION, J.

In this appeal, the defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD), asserts the trial court erred in awarding damages to the plaintiff, Abigail Farbe. Farbe also appeals contending that the trial court erred in assessing only 20% of the damages rather than 50% to DOTD and also contends her award for future medical expenses should be increased from $20,000 to $75,000. For the following reasons, we amend the judgment of the trial court and affirm as amended.

FACTS

On July 21, 1991 at approximately 12:20 in the afternoon, twenty-eight year old Farbe was traveling north along the meandering Bayou Des Glaise on Louisiana Highway 451 in Avoyelles Parish when she collided head-on with intoxicated motorist, Steven Beaver. Beaver, who had negotiated fifteen less extreme |2curves while traveling toward Moreauville, lost control of [230]*230his vehicle while negotiating the sharpest curve in the road to that point, crossed the center line, and struck Farbe’s vehicle. Beaver died at the scene while Farbe, though saved by her seatbelt, suffered numerous serious injuries.

Farbe filed suit against Louisiana Indemnity Company, Farbe’s uninsured/under insured motorist carrier, Casualty Reciprocal Exchange and State Farm Mutual Automobile Insurance Company, Beaver’s Lability carriers, as well as Beaver’s estate. Philip and Cynthia Beaver, the deceased’s sole heirs, were subsequently substituted as party defendants. Additionally, Charles Marionneaux, Jr., owner of the vehicle Beaver was driving, and DOTD were also made party defendants. All defendant insurers settled for the policy limits and the Estate of Steven Beaver was released, leaving DOTD the only remaining defendant.

At the trial on the merits, the trial court held that Beaver’s blood alcohol level of .17 and his failure to heed posted speed limit and curve warning signs were the primary causes of the accident and, accordingly, assigned him 80% of the fault. However, in written reasons, the trial court held that the succession of curves leading to the scene of the accident, the degree of the curve in which the accident occurred, the geometry of the curve, the fact that there was no curve widening to accommodate the severity of the curve in question, and that the curve could have been minimized by the construction of an embankment closer to Bayou Des Glaise supported a finding that the “defective curvature of the highway was a substantial factor in bringing about the accident and plaintiffs injuries” and, as such, found DOTD 20% at fault. Farbe was awarded $350,000 in general damages, $35,131.95 for past due medical |3expenses, $20,000 for future medical expenses, and $1,734.40 for lost earnings, all of which were reduced by 80%, the percentage of fault assigned to Beaver.

DISCUSSION

Farbe appeals maintaining that the trial court erred in assessing to DOTD only 20% rather than 50% of the damages and that her award of $20,000 for future medical expenses should be increased to $75,-000. DOTD also appeals claiming that it bears no responsibility for the design of Highway 451 insisting that it was merely a “path” dating back to the nineteenth century that over time evolved into a state roadway. DOTD additionally asserts that Beaver’s intoxication and failure to heed posted speed limit and curve warning signs were the causes of the accident. Further, DOTD claims Farbe failed to prove that the highway was defective and created an unreasonable risk of harm to motorists, thus, it was not a cause-in-fact and legal cause of Farbe’s injuries.

In this case, DOTD’s liability may arise under a theory of negligence, La.Civ.Code art. 2315, or a theory of strict liability, La.Civ.Code art. 2317. Article 2315 provides, in pertinent part, that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Article 2317 provides: that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” The distinction between recovery under these theories is that under strict liability, the plaintiff is relieved of proving the owner or custodian of the thing which caused the damage knew or should have known of the risk involved. See Kent v. Gulf States Util. Co., 418 So.2d 493 (La.1982). However, when a public entity is a named defendant, as in the case at bar, an additional requirement is imposed on the plaintiff. La.R.S. 9:2800(B), in relation to government defendants, requires a plaintiff to prove that the public entity had “actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy [231]*231the defect and has failed to do so.” Therefore, under either theory of recovery, the analysis is the same when a public entity is involved. Graves v. Page, 96-2201 (La.11/7/97); 703 So.2d 566.

Accordingly, in order to recover under either strict liability or negligence Farbe must show: (1) the thing was in the custody of DOTD; (2) the thing contained a defect, ie., it had a condition that created an unreasonable risk of harm to the plaintiff; (3) DOTD had actual or constructive knowledge of the risk and failed to take corrective action after a reasonable period of time; and (4) the defective condition of the thing caused the plaintiffs injuries. Oster v. State, Through DOTD, 582 So.2d 1285 (La.1991).

The duty-risk analysis is employed on a case by case basis. Daye v. General Motors Corp., 97-1653 (La.9/9/98); 720 So.2d 654; Harris v. Pizza Hut of La., Inc., 455 So.2d 1364 (La.1984). Therefore, whether DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of this case. Generally, the first determination in the duty-risk analysis is cause-in-fact. Daye, 720 So.2d 654; Boykin v. Louisiana Transit Co., Inc., 96-1932 (La.3/4/98); 707 So.2d 1225; Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970). Cause-injact5 is a “but for” inquiry, that is, if the plaintiffs harm would not have occurred but for the defendant’s substandard conduct then it is a cause-in-fact. When multiple causes are present, a defendant’s conduct is a cause-in-fact when it is a substantial factor generating a plaintiffs harm. Shephard v. Scheeler, 96-1690, 96-1720 (La.10/21/97); 701 So.2d 1308; Dixie Drive It Yourself v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

DOTD has a duty to maintain the roadway so it does not pose an unreasonably dangerous condition to the motoring public, even though the roadway at issue is an old highway. Aucoin v. State, Through DOTD, 97-1938, 97-1967 (La.4/24/98); 712 So.2d 62. “Design standards both at the time of the original construction and at the time of the accident may be relevant factors for consideration in deciding this issue, but are not determinative.” Hunter v. State, Through DOTD, 620 So.2d 1149, 1151 (La.1993); Dill v. State, Through DOTD, 545 So.2d 994 (La.1989). As pointed out in Aucoin, 712 So.2d at 66:

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746 So. 2d 228, 99 La.App. 3 Cir. 341, 1999 La. App. LEXIS 3265, 1999 WL 1005719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/farbe-v-casualty-reciprocal-exchange-lactapp-1999.