Faye v. State, Department of Transportation & Development

702 So. 2d 1036, 97 La.App. 3 Cir. 512, 1997 La. App. LEXIS 2600, 1997 WL 671866
CourtLouisiana Court of Appeal
DecidedOctober 29, 1997
DocketNo. 97-512
StatusPublished
Cited by2 cases

This text of 702 So. 2d 1036 (Faye v. State, 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
Faye v. State, Department of Transportation & Development, 702 So. 2d 1036, 97 La.App. 3 Cir. 512, 1997 La. App. LEXIS 2600, 1997 WL 671866 (La. Ct. App. 1997).

Opinion

11WOODARD, Judge.

The defendant, the Department of Transportation and Development (DOTD), appeals from an adverse judgment rendered in this negligence action brought by Kasey Lynn Ann Faye (Faye) when the car she was driving left the state gravel highway, fell into a ditch, and flipped over. The trial court found the DOTD to be 100% at fault and granted Faye awards for general damages, past med[1039]*1039ical bills, future medical costs, and her three minor children’s losses of consortium. The DOTD suspensively appealed, and Faye answered, requesting an increase in the general damage award. We affirm.

FACTS

Faye was driving north one cold, clear morning on December 17,1993, in a 1989 Geo Spectrum, on Louisiana Highway 397 (Hwy.397) in Calcasieu Parish whenj¿the car she was driving went off the gravel road, dove into a ditch, and then flipped over.

Highway 397 is a 24r-foot wide, state roadway, consisting of gravel. The road texture is not uniform up and down the highway. Days before the incident on December 6, 13, 14, and 15, 1993, ninety-three tons of limestone were spread out in various places along the highway. At the time, the DOTD had compacting equipment in its possession but chose not to use it.

The one-vehicle accident took place in a rural area where the posted speed limit is 55 miles per hour; Faye’s speed was estimated to be 45 miles per hour. She was not the owner of the vehicle and had driven it about five times before. An occasional driver, Faye had last driven on this highway a month prior to the incident. Her driver’s license was expired at the time. Amber Simpson, the young child of her roommate, was also in the vehicle at the time of the accident. Faye sustained injuries to her neck, spinal cord, and teeth in the accident and was admitted to various hospitals before being transported to University Medical Center and then to New Orleans Charity Hospital, where she was released on December 26, 1993. She was assessed with a 27% permanent total disability.

On November 14, 1994, Faye brought suit against the DOTD, challenging its roadway maintenance methods and traffic control procedures and also filed suit on behalf of her three minor children for losses of consortium. After a two-day bench trial on December 17 and 18 of 1996, a judgment was rendered in her favor, attributing all of the fault to the DOTD. Faye received $276,858.10 in general damages, $11,141.90 in past medical bills, and $12,000.00 in future medical costs. Each of her three minor children received $15,000.00 for their losses of consortium. The DOTD suspensively appealed this judgment. In answering the appeal, Faye requested an increase in the general damage award.

ASSIGNMENTS OF ERROR

The DOTD asserts that the trial court erred in:

(1) Finding Faye free from fault which caused her accident.
(2) Failing to address the issue of whether DOTD’s conduct was a cause-in-fact of the December 17, 1993 accident, considering the depth of the gravel, warning signs, and grading/compacting.
(3) Awarding $12,000.00 as future medicals.

|3In her answer to the appeal, Faye claims that the judgment should be modified to increase the award of general damages to $400,000.00.

LAW

Failuee to Assess Fault to Faye

Because findings of fault are factual in nature, we will not disturb a trial court’s allocation of fault unless those findings were made under manifest error, which exists when there is no reasonable basis for the findings, and the findings are clearly wrong based on a review of the record in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In its first assignment of error, the DOTD asserts that the trial court had no reasonable factual basis for holding Faye free from any fault. It argues that if a factual conclusion is contrary to testimony that is uneontroverted, then, manifest error has occurred. In this case, the DOTD contends that the testimony of its expert, Marshall Lyles (Lyles), was the only one that addressed the cause (over steering) of the vehicle’s departure from the road, and as uneontroverted, makes the trial judge’s factual finding unreasonable.

We disagree. The trial judge’s assessment of fault was also based on the testimonies of State Trooper Michael Mallett, Dr. Edward [1040]*1040Rhomberg, Faye, and her mother, Linda Faye, who all visited the site on the day of the accident; in contrast, Lyles viewed the accident site almost three years later. In addition, the evidence is uncontested that Faye was proceeding below the posted speed limit. She drove on the highway a month prior to the accident, but that was before the gravel was laid out. Further, Faye testified that she did not steer the car to the right and that the car was pulled into the ditch by the gravel.

Where such conflicts exist in the testimony, reasonable inferences of fact should not be disturbed upon review. Joiner v. Newberg Venture, 94-1583 (La.App. 3 Cir. 5/3/95), 657 So.2d 206. Further, great deference should be given to the trial court’s conclusions when they are based on the credibility of the witnesses. Mistich v. Volkswagen of Germany, Inc., 95-939 (La.1/29/96), 666 So.2d 1073. In fact, findings based on the credibility of testimony can “virtually never be manifestly erroneous or clearly wrong.” Rosell, 549 So.2d at 845. Because the trial court attached greater |4weight to the testimony of witnesses who promptly viewed the scene of the accident, we find no manifest error in its conclusion that the DOTD was solely at fault.

We also agree with the trial court that had Faye been warned of the loose gravel, then and only then, could contributory negligence have been imputed to her. This first assignment of error is without merit.

DOTD’s Conduct as Cause-in-Fact

In its second assignment of error, the DOTD claims that the trial court misapplied the law to the facts of this case by not addressing the issue of whether the DOTD’s conduct was a cause-in-fact of the accident. We are able to infer from the court’s reasoning that the trial judge did address this issue. Hence, we conduct our review of causation based on the manifest error standard.

In determining whether to impose liability under La.Civ.Code art. 2315, the following duty-risk analysis must be applied:

(1) Duty — Did the defendant owe a legal duty which encompassed the particular risk of harm to which plaintiff was exposed?
(2) Breach — Did the defendant breach that duty?
(3) Causation— Was the defendant’s conduct a cause-in-fact of the resulting harm?
(4) Damage — What damages were sustained?

Forest v. State, Through Louisiana Dept. of Transp. and Dev., 493 So.2d 563 (La.1986). Since the only element challenged is that of causation, we need only address that issue.

Because the cause-in-fact of an injury is a factual determination, we will not disturb it absent manifest error. Causation can be proved in many ways. If the defendant’s conduct was a substantial factor in bringing about the harm, then it is a cause-in-faet of the tort victim’s injuries. Dixie Drive It Yourself System New Orleans Co., v. American Beverage Co., 242 La.

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702 So. 2d 1036, 97 La.App. 3 Cir. 512, 1997 La. App. LEXIS 2600, 1997 WL 671866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/faye-v-state-department-of-transportation-development-lactapp-1997.