Fuselier v. City of Oakdale

130 So. 3d 984, 13 La.App. 3 Cir. 640, 2014 WL 130766, 2014 La. App. LEXIS 80
CourtLouisiana Court of Appeal
DecidedJanuary 15, 2014
DocketNo. 13-640
StatusPublished

This text of 130 So. 3d 984 (Fuselier v. City of Oakdale) 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
Fuselier v. City of Oakdale, 130 So. 3d 984, 13 La.App. 3 Cir. 640, 2014 WL 130766, 2014 La. App. LEXIS 80 (La. Ct. App. 2014).

Opinion

THIBODEAUX, Chief Judge.

[t The plaintiff, Kelli Fuselier, was injured in a one-car accident when she ran off the roadway into a ditch on Hospital Drive in Oakdale, Louisiana. She appeals the judgment of the trial court in favor of the defendant, the City of Oakdale. The trial court found that Ms. Fuselier failed to prove that the conditions of the roadway created an unreasonable risk of harm that caused Ms. Fuselier’s accident and injuries. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in finding that the conditions of Hospital Drive did not create an unreasonable risk of harm; and
(2) whether the trial court manifestly erred in finding that the conditions of Hospital Drive did not cause the plaintiffs injuries.

II.

FACTS AND PROCEDURAL HISTORY

In August 2006, twenty-five-year-old Kelli Fuselier was driving south on Hospital Drive in the City of Oakdale (City) in a well-travelled, commercial area containing medical and health facilities and business offices. A vehicle allegedly entered the two-lane street from a parking lot on Ms. Fuselier’s left and made a wide right turn, coming toward Ms. Fuselier and into her lane of travel. Ms. Fuselier moved to her right to avoid a collision. At the accident site, Hospital |2Drive had no center striping, no shoulder, and there was a shallow ditch running parallel to Ms. Fuselier’s lane of travel. The two right wheels of the Fuselier vehicle dropped onto the slope of the ditch while the two left wheels stayed on the pavement.

As Ms. Fuselier continued moving forward, the undercarriage of the vehicle scraped along the edge of the paved lane. Tire tracks in the grassy slope indicated that Ms. Fuselier’s vehicle followed the contours of the ditch and was ultimately channeled toward a protruding culvert and another open ditch which ran perpendicular to the first. There was no evidence that Ms. Fuselier applied her brakes or tried to re-enter the roadway, but she may have taken her foot off of the accelerator. She struck the culvert, jumped the perpendicular cross ditch, and finally came to rest in the grass at the edge of the cement curb of the Allen Parish Health Unit’s paved drive-way. At some point, her airbags deployed. There were apparently no witnesses to the accident, and the unknown car and driver that caused Ms. Fuselier to swerve toward the ditch were never identified.

Ms. Fuselier was taken by ambulance stretcher to the emergency room at the Oakdale Community Hospital where x-rays revealed a vertebral fracture at T-ll. She was given the anti-inflammatory, Toradol, and was transferred to Christus St. Frances Cabrini Hospital in Alexandria. There, a CT scan revealed a mild, superior end plate compression fracture involving T-ll. Though she complained of low back [986]*986pain as well, there was no evidence of acute trauma involving the lumbar spine. Ms. Fuselier was discharged the same day with a prescription of Vicodin and was to follow up at the Oakdale Orthopedic Clinic, which she did not do. She did not see an orthopedic specialist or any doctor for the subject accident until August 2007, a full year after the accident.

|3Ms. Fuselier was unable to return to work for approximately two months after the accident. She brought suit against the City and its insurer for damages, and she sought medical treatment sporadically thereafter.

The case was tried as a two-day bench trial almost seven years after the accident. The trial judge found that the roadside conditions complained of were not unreasonably dangerous and found, in the alternative, that the unknown driver, not the condition of the road, was the cause-in-fact of the accident. Having found no liability against the City, the court did not reach the issues of apportionment of fault or extent of damages.

III.

STANDARD OF REVIEW

The finding of the jury or trial judge on the ultimate determination of unreasonable risk of harm is subject to the manifest error standard of review. The fact finder’s determination is accorded deference and may not be disturbed absent a finding that the determination was clearly wrong or manifestly erroneous. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Under this standard, if two reasonable and permissible views of the evidence exist, and the fact finder’s choice is based on reasonable credibility evaluations and factual inferences in light of the entire record, the appellate court cannot reverse even if it would have, as trier of fact, weighed the evidence differently and reached a different result. Stobart v. State, DOTD, 617 So.2d 880 (La.1993).

Ji.IV.

LAW AND DISCUSSION

To prevail in her suit against the City, Ms. Fuselier must prove that (1) the thing which caused the damage was in the custody of the City, pursuant to La.Civ.Code art. 2317; (2) the thing contained a defect because it had a condition that created an unreasonable risk of harm to Ms. Fuselier; (3) the defective condition of the thing caused Ms. Fuselier’s injuries; and (4) pursuant to La.R.S. 9:2800, the City had actual or constructive notice of the defect and reasonable opportunity to remedy it prior to the accident, but failed to do so. See Oster v. DOTD, State of La., 582 So.2d 1285 (La.1991).

Here, elements one and four are undisputed; i.e., the City had custody of Hospital Drive and an approximate twenty-foot right-of-way on either side; and the City knew that the roadway at the accident site had no center striping, no shoulder, and open ditches with steep slopes. As to elements two and three, the trial court found that Ms. Fuselier did not prove that the road conditions posed an unreasonable risk of harm, and in the alternative did not prove that the road conditions caused the accident and injuries.

The “duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder.” Brown v. Louisiana Indem. Co., 97-1344, p. 4 (La.3/4/98), 707 So.2d 1240, 1242. “[M]any Louisiana roads have narrow shoulders and steep roadside ditches and are lined with trees, culverts, fences, and other objects.” Myers v. State [987]*987Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1173 (La.1986). “The finding of the existence of a defect alone is not a sufficient analysis to establish liability.” Boyle v. Board of Sup’rs, La. State 5Univ., 96-1158, p. 5 (La.1/14/97), 685 So.2d 1080, 1083. In order for there to be liability, the defect must create an unreasonably dangerous risk. Id. Whether a road condition is unreasonably dangerous is a question of fact. Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123; Ledoux v. State Through DOTD, 98-24 (La.9/18/98), 719 So.2d 43. In determining what is reasonable and unreasonable, the courts employ a risk-utility test. Cormier, 748 So.2d 1123.

In Broussard v. State ex rel. Office of State Bldgs., 12-1238 (La.4/5/13), 113 So.3d 175, the Louisiana Supreme Court emphasized the fact-intensiveness of the risk-utility test and its purpose:

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Reed v. Wal-Mart Stores, Inc.
708 So. 2d 362 (Supreme Court of Louisiana, 1998)
Myers v. State Farm Mut. Auto. Ins. Co.
493 So. 2d 1170 (Supreme Court of Louisiana, 1986)
Brown v. Louisiana Indem. Co.
707 So. 2d 1240 (Supreme Court of Louisiana, 1998)
Graves v. Page
703 So. 2d 566 (Supreme Court of Louisiana, 1997)
Oster v. Dept. of Transp. & Development
582 So. 2d 1285 (Supreme Court of Louisiana, 1991)
Holloway v. STATE, DEPT. OF TRANS.
555 So. 2d 1341 (Supreme Court of Louisiana, 1990)
Boyle v. Board of Sup'rs
685 So. 2d 1080 (Supreme Court of Louisiana, 1997)
Cormier v. Comeaux
748 So. 2d 1123 (Supreme Court of Louisiana, 1999)
Brooks v. State Ex Rel. Department of Transportation & Development
74 So. 3d 187 (Supreme Court of Louisiana, 2011)
Broussard v. State ex rel. Office of State Buildings
113 So. 3d 175 (Supreme Court of Louisiana, 2013)
Chambers v. Village of Moreauville
85 So. 3d 593 (Supreme Court of Louisiana, 2012)
Ledoux v. State ex rel. Department of Transportation & Development
719 So. 2d 43 (Supreme Court of Louisiana, 1998)

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130 So. 3d 984, 13 La.App. 3 Cir. 640, 2014 WL 130766, 2014 La. App. LEXIS 80, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fuselier-v-city-of-oakdale-lactapp-2014.