Fitzgerald v. Files Timber Co.

687 So. 2d 674, 1997 La. App. LEXIS 77, 1997 WL 21181
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1997
Docket29145-CA
StatusPublished
Cited by4 cases

This text of 687 So. 2d 674 (Fitzgerald v. Files Timber Co.) 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
Fitzgerald v. Files Timber Co., 687 So. 2d 674, 1997 La. App. LEXIS 77, 1997 WL 21181 (La. Ct. App. 1997).

Opinion

687 So.2d 674 (1997)

Thomas M. FITZGERALD, et ux, Plaintiffs-Appellees and Cross-Appellants,
v.
FILES TIMBER CO., et al., Defendants-Appellants and Cross-Appellees.

No. 29145-CA.

Court of Appeal of Louisiana, Second Circuit.

January 22, 1997.
Writ Denied April 4, 1997.

*676 Usry & Weeks, T. Allen Usry, John F. Weeks, II, Paul E. Mayeaux, for Defendant/First Appellant and Cross-Appellee, Deputy Morgan Perry.

Herman Castete, Lloyd E. Hennigan, Jr., for Plaintiffs/Appellees and Cross-Appellants.

Before BROWN, WILLIAMS and PEATROSS, JJ.

PEATROSS, Judge.

Defendant Winn Parish Deputy Sheriff Morgan Perry appeals the judgment of the Eighth Judicial District Court finding him to be 20% at fault for the injuries sustained by plaintiffs, Mary Bernice Fitzgerald and her husband, Thomas Fitzgerald. The Fitzgeralds answer the appeal praying that the judgment be affirmed in all respects except the degree of fault allocated to Deputy Perry, which plaintiffs ask be increased through an assignment of error. Finding that the trial judge's assignment of 20% of the fault to Deputy Perry was erroneous, we reverse.

FACTS

On the evening of December 8, 1991, Mary Bernice Fitzgerald, plaintiff/appellee and also cross-appellant herein, was involved in a one-vehicle accident on Louisiana Highway 126 between Grayson and Sykes in Winn Parish. At approximately 8:00 p.m., Mrs. Fitzgerald was driving westbound on Highway 126 at an estimated speed of forty to forty-five miles per hour. Mrs. Fitzgerald came over the top of a hill, and, on the downhill side, encountered slippery, wet mud coating the highway. Her pick-up truck left the roadway, veered into a ditch on the northern side of the highway and ultimately struck a tree. Mrs. Fitzgerald suffered severe, life threatening injuries which required emergency surgery.

In the area of the accident, Highway 126 is a two-lane, undivided, black-top highway running east to west through hilly and curvy terrain. The accident occurred in a relatively low-lying area between two hills. The cause of Mrs. Fitzgerald's accident was mud deposited on the highway, which had become more slick as a result of rain that had begun earlier in the day and continued through the time of the accident. The mud had been tracked onto the roadway by vehicles belonging to Files Timber Company, a logging company, which had completed logging operations on property adjacent to the scene the day before the accident.

Approximately two hours before Mrs. Fitzgerald's accident, Winn Parish Deputy Sheriff Morgan Perry had been dispatched to the scene by the Winn Parish Sheriff's Department.[1] Deputy Perry initially approached the area from the west and traversed the area from hill to hill, returning to the west end. He testified that he observed mud on the road. He further testified that he saw a yellow and black "Mud on Road" sign approximately eighteen inches square and posted approximately two feet off the ground on the eastern hill "on the back side of the hill from the mud." Reasoning that this sign would possibly warn westbound travelers, Deputy Perry elected to place his vehicle at the top of the western hill, which was unmarked, to serve as a warning to eastbound motorists.

*677 Having determined that the mud on the highway created a hazardous condition, Deputy Perry called the Winn Parish Sheriff's Office dispatcher and requested that she call and inform the Department of Transportation and Development ("DOTD") that warning signs were needed in the area. He told the dispatcher that he would stay at the site until the DOTD crew arrived with the signs. At 6:32 p.m., Mr. Billy Gorham, an employee of DOTD at the time of the accident, was advised by the Sheriff's Office that signs were needed in the area. Mr. Gorham testified that when he received the call, the DOTD crew was working on a bridge in Gansville, approximately 30-35 miles away from the accident site. Mr. Gorham told his crew that when they finished the Gansville job, they were to pick up signs and take them to the muddy area of Highway 126. The crew continued to work at the Gansville site for approximately an hour and a half to two hours. After completing the Gansville job, the DOTD crew called the Sheriff's Office and were told signs were needed. The crew then picked up signs and took them to the accident site. Mr. Gorham was aware that, due to the work in Gansville, the crew's response to the Sheriff's Office request for signs would be somewhat delayed. The record contains no evidence, however, that Deputy Perry was ever informed by the dispatcher or DOTD that the crew's arrival with the signs would be delayed.[2]

Deputy Perry remained at the scene for at least 45 minutes at which point, for reasons stated later in this opinion, he traveled one mile to a church where he performed a security check. Deputy Perry later returned to the site. During his absence from the scene, Mrs. Fitzgerald's accident occurred.[3]

On January 17, 1992, in the Eighth Judicial District Court for Winn Parish, Mrs. Fitzgerald filed a petition seeking damages for her injuries and losses. Her husband, Thomas, joined as a plaintiff, seeking damages for loss of consortium. Initially named as defendants were Files Timber Company and Riverwood International Corporation, alleged to be the owner of the land where Files Timber had been conducting its operations. A number of supplemental and amending petitions followed. Of importance to the present appeal is an amended petition filed on August 20, 1993, which first named as a defendant Morgan Perry, a Winn Parish Deputy Sheriff, who is the sole original appellant and cross-appellee herein. Plaintiffs alleged that Perry, along with the other defendants, was liable for Mrs. Fitzgerald's damages because he was aware of the dangerous highway conditions before the accident but nevertheless "left the scene unprotected." This amended petition also added the State of Louisiana, Department of Transportation and Development ("DOTD"), as a defendant, alleging that it had been given notice of the dangerous condition of this state highway, but took no action to either clean the roadway or to provide warnings of its condition.

Before a bench trial commenced on March 8, 1995, the plaintiffs reached a settlement with, and dismissed, all defendants in the case except Deputy Perry. On February 28, 1996, the trial judge signed written Reasons for Judgment. He found Deputy Perry twenty (20%) percent at fault and assessed the remaining eighty (80%) percent of the fault to settling defendant Files Timber Company. No fault was assessed to plaintiff Mrs. Fitzgerald. In accordance with his findings, the trial judge awarded judgment against Deputy Perry for $104,017.40, which is 20% of $520,087.03, the full assessment of damages. Judgment was also awarded against Deputy Perry for 20% of all costs, including expert witness fees.

DISCUSSION

Deputy Perry appeals the trial court's judgment, assigning the following six assignments *678 of error: (1) the trial court erred in admitting into evidence a deposition given by Deputy Perry; (2) the trial court erred in its characterization of the nature and extent of the legal duty Deputy Perry owed motorists such as Mrs. Fitzgerald; (3) the trial court erred in finding that Deputy Perry breached any duty owed Mrs. Fitzgerald; (4) the trial court erred in finding any act or omission of Deputy Perry was a cause in fact of Mrs. Fitzgerald's injuries; (5) the trial court erred in allocating 20% of the fault to Deputy Perry; and (6) the trial court erred in allocating no fault to Mrs.

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Bluebook (online)
687 So. 2d 674, 1997 La. App. LEXIS 77, 1997 WL 21181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-files-timber-co-lactapp-1997.