Jones v. Carolina Casualty Co.

547 So. 2d 1099, 1989 La. App. LEXIS 1287, 1989 WL 70425
CourtLouisiana Court of Appeal
DecidedJune 20, 1989
DocketNo. CA 88 0758
StatusPublished

This text of 547 So. 2d 1099 (Jones v. Carolina Casualty 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
Jones v. Carolina Casualty Co., 547 So. 2d 1099, 1989 La. App. LEXIS 1287, 1989 WL 70425 (La. Ct. App. 1989).

Opinion

ALFORD, Judge.

The defendant, Louisiana Department of Transportation and Development (DOTD), appeals the trial court’s judgment finding DOTD seventy-five percent (75%) at fault in a vehicular accident between the plaintiff, Earl E. Jones, and another defendant, Thomas W. Stillwell, which occurred on Louisiana Highway 16 (LA. 16) in Livingston Parish.

BACKGROUND

On April 17,1984, at approximately 11:40 a.m., Mr. Stillwell was operating a tractor-trailer rig loaded with wet sand southbound on LA. 16. It was his third trip along the same route that day. Mr. Jones was driving a tractor-trailer rig with an empty gravel trailer northbound on LA. 16. As they approached each other in a curve, both were close to the centerline. Mr. Still-well, upon noticing the oncoming vehicle, applied his brakes and jerked hard to his right. The trailer of the Stillwell vehicle began overturning and the vehicles collided when the overturning trailer swung over into the northbound lane. Mr. Jones, upon noting the trailer come into his lane of traffic, attempted unsuccessfully to pull onto the right shoulder to avoid the contact. The impact threw Mr. Jones through his windshield, and he suffered serious injuries.

On December 14, 1984, Mr. Jones and his wife filed suit against Carolina Casualty Company, United States Fidelity and Guaranty Company, Gaines Trucking Inc., Mears Sand Gravel Company, ABC Insurance Company, DOTD and Mr. Stillwell. Settlements were reached between the plaintiffs and most of the defendants, and all defendants were dismissed except for DOTD. The case was tried on July 8, 1986, and taken under advisement. On December 12, 1986, the judge issued written reasons holding DOTD negligent for its lack of proper maintenance of the roadway in the vicinity of the accident site and awarding plaintiffs $714,378.15 in damages, plus legal interest and court costs. On July 13, 1987, the judge issued supplemental written reasons assessing Mr. Stillwell with twenty-five percent (25%) negligence. The judgment was signed on September 1, 1987.

DOTD then perfected this suspensive appeal, contending the trial court erred (1) in finding DOTD negligent for lack of proper maintenance of the roadway when the potholes were on the shoulder and played no part in the accident and (2) in finding that the condition of the roadway was the legal cause of the accident. DOTD did not appeal the damage award. The plaintiffs did not appeal or answer the appeal.

After a thorough review of the record, we agree with DOTD and reverse in part.

DISCUSSION

It is well settled jurisprudentially that an appellate court will not disturb a trial court’s findings of fact in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). A review of the record of the instant case convinces us that the trial court was clearly wrong in assessing liability to DOTD.

As explained in Myers v. State Farm Mutual Automobile Insurance Company, 493 So.2d 1170, 1171-1172 (La.1986), under both strict liability and negligence articles (La.C.C. arts. 2317 and 2315):

liability hinges on whether the defendant has breached his duty to the plaintiff. While the basis for determining the existence of the duty is different in art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. DOTD’s duty to travelers is to keep the highways and their shoulders in a reasonably safe condition. Whether [1101]*1101DOTD had breached this duty, that is, whether the roadway and shoulders at the scene of the accident were in an unreasonably dangerous condition will depend upon the particular facts and circumstances of each case. [Citations omitted.]

The accident occurred in the northbound lane in the second part of an “S” type curve on a two-lane blacktop roadway divided by a solid double yellow no passing line. Each travel lane measured 10 feet in width. Additionally, there were hot patch strips adjacent to the main level lanes, located on the unimproved shoulder, which measured between one and one-half to three feet in width. Signs in place at the time of the accident facing southbound traffic included a 50 mph speed limit sign and a reverse curve sign.

On the day of the accident, the hot-patch area next to the southbound travel lane contained potholes approximately one and one-half inches in depth. The weather that day was dry.

Testimony revealed that LA. 16 has been part of the state maintained highway system since 1931. Over the years, the highway has been maintained by overlays on the existing roadway; no redesign has ever been undertaken. In 1980, the speed limit on the road was reduced from 55 mph to 50 mph as the result of a speed study. The curve at the accident site was established as 395 to 406 feet, and four accidents at the same location had been reported between January 1, 1980, and the date of the accident. Sometime after the accident, LA. 16 was designated a substandard roadway because of inadequate shoulder width (less than 5 feet wide).

In his reasons for judgment, the trial judge stated that “Mr. Stillwell positioned his rig so as to avoid the existing potholes and rough shoulder to his right, this adjustment placing his truck on or near the center line.” While not referring specifically to the speed limit on LA. 16, the trial judge also noted that Mr. Stillwell’s corrective measures in swerving to the right reduced the critical and rollover speeds and held that the accident was caused by DOTD’s failure to properly maintain the area.

It is clear from the record that Mr. Still-well’s vehicle never went onto the shoulder at any time before or during the accident and never struck any potholes. Mr. Still-well, while describing the road as a “little narrow” and “rough,” admitted that he did not have any trouble keeping his truck between the centerline and the potholes which were located off the travel portion of the roadway. He admitted that he braked and jerked his vehicle hard to the right when he realized he was on or near the center line and he saw the plaintiff’s oncoming vehicle. He also stated he had not had any trouble controlling his vehicle or negotiating the turn until he attempted to avoid the accident by jerking on his steering wheel.

Trooper Kenneth Williams, the state police officer who investigated the accident testified that he examined the roadway surface and found nothing wrong with it. Neither the plaintiffs’ expert, Raymond Charles Burkhart, Jr.,' nor the defendant’s expert, Dr. Olin Dart, found any defects on the travel portion of the roadway. However, Mr. Burkhart classified the highway as substandard and opined that the width of the travel portion, the lack of adequate shoulders and the presence of potholes on the hot patch area adjacent to the roadway travel lanes were factors which caused the accident. He also found no driver error on Mr. Stillwell’s part. Dr. Dart testified that the potholes located off the travel surface had no effect on the accident. He stated that even if the potholes had been rolled over by the Stillwell vehicle, the vehicle would have had no trouble negotiating them because they were apparently only about one and one-half inches deep.

As to whether or not the travel lanes were substandard because of width, Maurice’ Oliver Jourdon, District Maintenance Engineer for DOTD, testified that DOTD now classifies a roadway as substandard when each travel lane is nine feet or less. Each travel lane on LA. 16 is 10 feet wide.

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Related

Myers v. State Farm Mut. Auto. Ins. Co.
493 So. 2d 1170 (Supreme Court of Louisiana, 1986)
Manasco v. Poplus
530 So. 2d 548 (Supreme Court of Louisiana, 1988)
Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Jones v. State ex rel. Department of Transportation & Development
536 So. 2d 446 (Louisiana Court of Appeal, 1988)

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Bluebook (online)
547 So. 2d 1099, 1989 La. App. LEXIS 1287, 1989 WL 70425, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-carolina-casualty-co-lactapp-1989.