Greenlee v. State ex rel. Department of Transportation & Development

753 So. 2d 364, 98 La.App. 1 Cir. 2522, 2000 La. App. LEXIS 329, 2000 WL 201835
CourtLouisiana Court of Appeal
DecidedFebruary 18, 2000
DocketNo. 98 CA 2522
StatusPublished
Cited by2 cases

This text of 753 So. 2d 364 (Greenlee v. State ex rel. 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
Greenlee v. State ex rel. Department of Transportation & Development, 753 So. 2d 364, 98 La.App. 1 Cir. 2522, 2000 La. App. LEXIS 329, 2000 WL 201835 (La. Ct. App. 2000).

Opinion

^CARTER, J.

This is an appeal by the State of Louisiana, through the Department of Transportation and Development (DOTD) from a judgment assessing it thirty-five percent fault in a single vehicle automobile accident.

FACTS

On July 26, 1993, Ronald Greenlee was killed in an automobile accident at the Manchac Bridge on LA Hwy. 73. The accident occurred as Greenlee was driving northbound on LA Hwy. 73. According to the record, as Greenlee exited the bridge, he lost control of his 1980 Chevrolet truck after he encountered a dip in the roadway. After striking the dip, Greenlee’s vehicle ran off the roadway to his right, traveled some distance on the shoulder, came back across the roadway and struck a tree on the left side of the roadway. As a result of the vehicle’s impact with the tree, Green-lee was killed.

A wrongful death suit was filed by Greenlee’s widow, Kim Vicaro Greenlee, individually and on behalf of her minor children, Thomas Keelan Greenlee and Ka-telynn Anne Greenlee, against DOTD. The suit alleged the cause of the accident was the unreasonably dangerous conditions caused by the roadway, bridge, roadside, embankment, slope, and signage at the accident location.

Prior to trial, the parties stipulated that Ronald Greenlee’s blood alcohol level was 0.16%, and that the plaintiffs’ total damages were valued at $1,100,000.00 After a trial on the merits, the trial court allocated fault of sixty-five percent to Ronald Green-lee and thirty-five percent to DOTD. A judgment was granted in favor of the plaintiffs in the amount of $385,000.00 plus legal interest.

DOTD appeals the judgment of the trial court, asserting that the trial court erred [366]*366in allowing accident data to be introduced into evidence, and that the trial court committed manifest error in finding LA Hwy. 73 and the surrounding area created an unreasonably dangerous condition that caused and/or contributed to this accident.

DISCUSSION

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). The supreme court has announced a two-part test for the reversal of a factfin-der’s determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the'finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

Stobart, 617 So.2d at 882.

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882.

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882.

The supreme court has recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Stobart, 617 So.2d at 883. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883.

A vice or defect is some flaw inherent in the thing itself that creates an unreasonable risk of harm to another. The unreasonable risk of harm criterion requires the court to balance the likelihood and magnitude of harm against the utility of the thing, as well as a broad range of social, economic, and moral factors, including the cost to the defendant of avoiding the harm, and the risk and the social utility of the plaintiffs conduct at the time of the accident. The court must carefully consider all the | circumstances surrounding the particular accident under review to determine whether allowing recovery to the particular plaintiff involved, for damages occurring in the particular manner in which the plaintiff was injured, is desirable from the standpoint of justice and the social utility of the conduct of the respective parties. Aetna Casualty & Surety Company v. State, Through Department of Transportation and Development, 97-0716, 97-0717, pp. 6-7 (La.App. 1st Cir 4/8/98), 712 So.2d 216, 219-220, writ denied, 98-1241 (La.7/2/98), 724 So.2d 209. The determination of whether something posed an unreasonable risk of harm is reviewed under the manifest error standard of review. Reed v. Wal-Mart Stores, Inc., 97-1174, p. 5 (La.3/4/98), 708 So.2d 362, 365.

In reviewing the record and the trial court’s oral reasons for judgment, we note that the trial court found the presence of three defects, which include the dip in the roadway at the base of the Bayou [367]*367Manchac bridge; the condition of the shoulder on the right side of northbound LA Hwy. 73 leaving the bridge; and the presence of the tree in the DOTD right of way on the left side of northbound LA Hwy. 73.

James Clary was qualified as an expert in highway design, highway safety, and highway signing. According to Clary, the dip in the roadway at the base of the Bayou Manchac bridge was caused by soil subsidence. J.B. Ensard, a pavement and geotechnical design engineer for DOTD, testified that the maximum amount of settlement acceptable on an approach slab is four inches. However, when Clary surveyed the area, he determined that the dip measured approximately nine to ten inches deep, far exceeding the minimum acceptable deviation.

In reviewing the record, we note that immediately after motorists cross the Bayou Manchac Bridge, they are confronted with a sharp curve to their left. Photographs of the accident location reveal that the dip can be identified by the presence of oil and gauge marks. According to Clary, the dip allows oil to drop onto the highway because of the sudden jolt, and gauge marks are created when a vehicle encounters the dip and “bottoms out.”

Gail Herrington, a witness to Greenlee’s accident, testified that Greenlee’s vehicle started swerving when he got to the bottom of the bridge. According to Herring-ton, Greenlee’s vehicle first went to his left, into her lane of travel, and then to his | aright and off the roadway. Herrington testified that she frequently traveled that portion of LA Hwy. 73 and based on her own experiences, she felt that the dip in the roadway affected how fast she drove over the bridge and negotiated the sharp left curve. '

The plaintiffs also presented testimony from Mark Lott, who was involved in a similar type of accident at this same location. Lott, like Greenlee, was legally intoxicated at the time of his accident.

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770 So. 2d 492 (Louisiana Court of Appeal, 2000)

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753 So. 2d 364, 98 La.App. 1 Cir. 2522, 2000 La. App. LEXIS 329, 2000 WL 201835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenlee-v-state-ex-rel-department-of-transportation-development-lactapp-2000.