Gadman v. STATE, DEPT. OF TRANSP. & DEV.

493 So. 2d 661
CourtLouisiana Court of Appeal
DecidedAugust 20, 1986
Docket17974-CA
StatusPublished
Cited by6 cases

This text of 493 So. 2d 661 (Gadman v. STATE, DEPT. OF TRANSP. & DEV.) 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
Gadman v. STATE, DEPT. OF TRANSP. & DEV., 493 So. 2d 661 (La. Ct. App. 1986).

Opinion

493 So.2d 661 (1986)

Frank GADMAN, Appellee,
v.
STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Office of Highways and Caddo Parish, Louisiana, in solido, Appellant.

No. 17974-CA.

Court of Appeal of Louisiana, Second Circuit.

August 20, 1986.
Rehearing Denied September 18, 1986.

*663 C. William Gerhardt & Associates by C. William Gerhardt, Shreveport, for plaintiff-appellee.

John A. Files, Shreveport, for intervenor-Susannah Wilson Gadman.

Robert T. Talley, Baton Rouge, for defendant-appellant.

Lunn, Irion, Johnson, Salley & Carlisle by Ronald E. Raney, Shreveport, for intervenor-Commercial Union Ins. Co.

Blanchard, Walker, O'Quin & Roberts by Roy S. Payne, Shreveport, for defendant-appellee Caddo Parish Police Jury.

Before JASPER E. JONES Jr., NORRIS and LINDSAY, JJ.

*664 NORRIS, Judge.

This is a suit for personal injuries by plaintiff, Frank Gadman, against the State of Louisiana, through the Department of Transportation and Development (DOTD).[1] Commercial Union Insurance Company (CU) intervened to recover workers compensation and medical expenses it had previously paid to plaintiff. After trial, the lower court concluded that the DOTD was negligent for failure to adequately sign the roadway and that plaintiff was contributorily negligent. Utilizing comparative negligence, the trial judge allocated fault of 60% to the DOTD and 40% to plaintiff. Accordingly, judgment was rendered in favor of plaintiff for $134,384.81. Judgment was also rendered in favor of CU for $30,855.00 for past compensation and medical expenses paid to plaintiff. CU was also given a credit for any future expenses or benefits it might have to pay. From this judgment, the DOTD appealed and plaintiff answered the appeal. For reasons expressed, we amend and affirm.

The issues on appeal are (1) whether the trial court erred in finding the DOTD at fault for the plaintiff's injuries; (2) whether the trial court erred in its allocation of fault; and (3) whether the 1985 amendment to LSA-R.S. 23:1101, which provides for reduction of the workers compensation carrier's award in proportion to the employee's degree of fault, is applicable.

The accident giving rise to this action occurred in the late morning of August 22, 1982, on La. Hwy. 168, approximately 1.2 miles west of its intersection with Hwy. 71 in Caddo Parish. The weather was clear and the road was dry. Hwy. 168 is a two-lane rural highway with numerous curves. In the vicinity of the accident, there are two adjacent curves. The first is a moderate right-hand curve. The second is a sharp left-hand curve. The roadway measures 18 feet 6 inches in width. At the time of the accident, the posted speed limit was 55 mph and the only sign warning motorists of the two curves was a reverse curve sign immediately preceding the first curve. The plaintiff was proceeding eastbound driving a fully loaded 18 wheel tanker truck owned by his employer, P & O Falco. When plaintiff approached the series of two curves, he noticed the reverse curve sign and slowed to approximately 40 mph in fourth gear. He negotiated the first curve. As he entered the second curve, he felt the truck lean. He began braking and shifted down into third gear. However, he could not hold the truck on the road and estimated he had slowed to approximately 30-32 mph when the vehicle left the highway, flipped over and came to rest along the side of the road.

Earlier that morning the plaintiff had traveled Hwy. 168 in the opposite direction on his way to pick up a load of crude oil. He was returning via Hwy. 168 eastbound when the accident occurred. He had never traveled Hwy. 168 before the day of the accident.

As a result of the accident, he suffered a compression fracture of the L-4 vertabrae and multiple lacerations and bruises. Ultimately, he was given a 10% permanent residual disability.

Plaintiff filed suit asserting that the DOTD had failed to provide adequate signs warning of a dangerous road condition. The DOTD stipulated that it was responsible for the construction, design and maintenance of the roadway where the accident occurred and that the roadway was, at the time of the accident, within its care, custody and control.

At trial, in addition to those mentioned above, the following key facts were revealed. The plaintiff testified that he was driving below the posted speed limit, saw the single reverse curve sign immediately before entering the first curve and slowed his rate of speed. As he came out of the first curve, plaintiff testified that he could not entirely see the second curve and thus could not ascertain its severity.

*665 This latter fact was substantially corroborated by the plaintiff's expert, Mr. Duaine Evans, who testified that no driver could ascertain the severity of the second curve. He conducted a ball bank test and made measurements of the roadway. He found the second curve where the plaintiff's vehicle left the roadway had a radius of 294 feet and a curvature of 19-½ degrees. Based on his tests, measurements and the standards set forth in the Uniform Traffic Control Manual and the Policy on Geometric Designs of Rural Highways, he concluded that the area where the accident occurred was unreasonably dangerous and inadequately signed. He characterized the curve as a trap that motorists entered without sufficient warning. Evans opined adequate signing of the curve required an advisory speed limit sign of 25 mph, a reverse turn sign, as opposed to the reverse curve sign actually in place, and several chevron type signs. The reverse turn sign indicates a much sharper curve than the reverse curve sign and is recommended by the Uniform Traffic Control Manual whenever the advisory speed is less than 30 mph. The chevron type signs are horizontal Vs that are placed around the curve and serve to forewarn motorists of the existence and severity of a curve. In Mr. Evans' professional opinion, if these additional warning signs had been in place, plaintiff would have heeded them, had no trouble in negotiating the curve and the accident would not have happened.

In contrast, the defendant's traffic expert, Mr. Walter E. Reed, a district engineer for the DOTD, testified that he believed the plaintiff should have been able to negotiate the curve at the speed he estimated he was traveling. He disagreed with the manner in which Mr. Evans conducted his ball bank test, and with the results of that test. However, he did not offer any independent test or measurements of his own. He also disagreed with Mr. Evans' opinion that the DOTD had a mandatory duty to put up the additional warning signs. However, he did admit that the curve in question was dangerous and that the signing scheme suggested by Mr. Evans was more appropriate than that existing at the time of the accident. He also admitted that under the more conservative guidelines the DOTD actually followed, if he had obtained the same test results as Evans, he would have erected an advisory speed sign of 25 mph.

At the time of the accident the estimated traffic flow on La. Hwy. 168 was approximately 340 cars per day. The DOTD contends on appeal that thousands of motorists used Hwy. 168 without incident prior to plaintiff's accident. However, Mr. Archie Parker testified at trial that he had lived in close proximity to the accident site for two years prior to plaintiff's accident and that during this time there had been two other one-vehicle accidents on that same curve by motorists traveling in the eastbound direction.

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Bluebook (online)
493 So. 2d 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gadman-v-state-dept-of-transp-dev-lactapp-1986.