Grappe v. State, Dept. of Transp. & Dev.

462 So. 2d 1337, 1985 La. App. LEXIS 8131
CourtLouisiana Court of Appeal
DecidedJanuary 30, 1985
Docket84-49
StatusPublished
Cited by15 cases

This text of 462 So. 2d 1337 (Grappe 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
Grappe v. State, Dept. of Transp. & Dev., 462 So. 2d 1337, 1985 La. App. LEXIS 8131 (La. Ct. App. 1985).

Opinion

462 So.2d 1337 (1985)

Sharon Ruth GRAPPE, Plaintiff-Appellee,
v.
STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.

No. 84-49.

Court of Appeal of Louisiana, Third Circuit.

January 30, 1985.
Writ Denied April 12, 1985.

*1338 Thomas L. Crabson, Asst. Gen. Counsel, Baton Rouge, for defendant-appellant.

John Makar, Natchitoches, Gahagan & Gahagan, Marvin F. Gahagan, Natchitoches, for plaintiff-appellee.

Before DOMENGEAUX, STOKER and KING, JJ.

KING, Judge.

This is a suit for damages, brought against the State of Louisiana, Dept. of Transportation and Development, for injuries received by plaintiff, who was a guest passenger in a vehicle driven by Miss Mary Janette Graham, as a result of a one vehicle automobile accident which occurred when Miss Graham's vehicle left the state highway, encountering a low highway shoulder and loose gravel on the highway shoulder, and subsequently went out of control.

This case was consolidated for trial with the suit of Mary Janette Graham v. State of Louisiana, through the Department of Transportation and Development, Number 49-223 on the trial court docket. These suits remained consolidated on appeal and, since the law and relevant facts are common to both, our opinion here is equally applicable. However, we render a separate judgment in the consolidated case of Graham v. State of Louisiana, through the Department of Transportation and Development, ___ So.2d ___ (La.App. 3rd Cir.1985).

This appeal arises out of a one-car accident which occurred on May 26, 1980, *1339 around 5:30 P.M., on Louisiana State Highway 9, in Natchitoches Parish. The case involves a "defective shoulder" along a state highway. As a result of the accident plaintiffs, Mary Janette Graham and Sharon Ruth Grappe, were seriously injured. They filed suits against the Louisiana Department of Transportation and Development (DOTD), alleging that DOTD was negligent in failing to maintain the roadway and shoulder and in permitting the shoulder to be dangerously lower than the roadway. They also alleged that DOTD was negligent in failing to post signs to warn drivers of a low shoulder and for leaving the shoulders in an unfinished condition. The trial judge rendered judgment in favor of the plaintiffs. DOTD appealed. Sharon Ruth Grappe answered the appeal seeking to increase the award for pain and suffering to twice the amount awarded. We affirm.

FACTS

On the day of the accident, the plaintiffs had been enjoying the Memorial Day holiday at a lake near Saline, Louisiana. At the beach, they had a picnic where each of the girls consumed two or three beers during the course of the day.[1] They remained at the lake until approximately 5:00 P. M., when they left to return home. It was on the trip home that the accident occurred.

At the time of the accident, Miss Graham was proceeding South on Louisiana Highway 9, accompanied by her friend, Miss Grappe. Miss Graham testified that she had traveled this road at least once a week during the summertime for the preceding five years. She testified that this was one of the first times she had traveled this road since the previous summer and that the traveled roadway surface had an even surface and there were no potholes or defects. She estimated her speed to be between 50 and 55 miles per hour in a speed limit zone of 55 miles per hour. Miss Graham stated the area on which they were traveling appeared to her to have been recently resurfaced. Miss Graham testified that she did not know that the shoulders had not been raised to the level of the new roadbed. Testimony and photographs subsequently introduced at trial indicate the shoulder was at least six to eight inches lower than the traveled roadway surface. Sharon Graham's brother, Maurice Pardee, observed the area following the accident, and also observed and took pictures of the drop-off and noted there were no "low shoulder" signs present.

While traveling on a straight and level portion of the highway Miss Graham's vehicle, or the right wheels of the vehicle, inadvertently left the roadway surface and the vehicle traveled approximately 125 feet on the low shoulder. As she attempted to gradually reenter the roadway her vehicle encountered loose gravel on the shoulder, went out of control, crossed the highway and ran over a small concrete culvert in a driveway. Her car then rolled over at least once before striking a large pine tree and coming to rest. Both Miss Graham and Miss Grappe were thrown from the vehicle and suffered serious injuries.

A state trooper called to the scene immediately after the accident was the only witness to testify for the DOTD. The trooper made an estimate of the speed of the Graham vehicle at the time of the accident and testified that there were no low shoulders in the area of the accident. The trial judge found that his testimony was unreliable and apparently did not accept it as evidenced by a quote from his opinion:

"The only defense witness was State Trooper Donald R. Shropshire, who testified that when he arrived at the scene and investigated the wreck, he found that the vehicle being driven by Ms. Graham was traveling North, and that all other aspects of his testimony concerning his investigation was as true and accurate as this statement concerning the direction that Ms. Graham was driving.
*1340 "The truth of the matter was that Ms. Graham was not going North, she was traveling South.....
"The trooper further testified inaccurately as to the particular type of vehicle Ms. Graham was driving at the time of the accident."

After trial on the merits, the trial judge found the shoulder was defective and was the sole and proximate cause of the accident. The trial judge found that Miss Graham was not negligent. In his reasons for judgment, the trial judge stated:

"The Court finds that she was driving at a reasonable rate of speed; she was not inattentive or distracted, and that the sole and proximate cause of the accident was the negligence of the State of Louisiana, Department of Transportation and Development, in maintaining an unsafe highway; that Ms. Graham was not negligent in any manner."

Judgment was rendered, awarding Miss Graham $42,543.60 and Miss Grappe $75,256.49, with $12,500.00 included in each award for pain and suffering. The court also awarded intervenor, State Farm Mutual Automobile Insurance Company, the insuror of the Graham vehicle, the sum of $18,767.60 that it had paid on behalf of plaintiffs.

From that judgment, DOTD appeals, alleging the trial court erred in:

(1) Finding a defect;
(2) Finding the condition of the highway was a proximate cause of the accident;
(3) Failing to find Miss Graham's action were the sole and proximate cause of the accident; and
(4) The amount of damages awarded to plaintiffs.

ERROR NO. 1

An abrupt drop-off between a roadway and shoulder constitutes a defect. LeBlanc v. State Dept. of Highways, 419 So.2d 853 (La.1982); Lang v. Prince, 447 So.2d 1112 (La.App. 1st Cir.1984). The DOTD has the basic responsibility for maintenance of all highways and highway shoulders in the state highway system. LSA-R.S. 48:21, 191; Palermo v. Allstate Ins. Co., 415 So.2d 437 (La.App. 1st Cir. 1982); LeBlanc, supra.

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Bluebook (online)
462 So. 2d 1337, 1985 La. App. LEXIS 8131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grappe-v-state-dept-of-transp-dev-lactapp-1985.