Kimble v. East Baton Rouge Parish

673 So. 2d 682, 1996 WL 242962
CourtLouisiana Court of Appeal
DecidedMay 10, 1996
DocketNo. 95 CA 1973
StatusPublished
Cited by3 cases

This text of 673 So. 2d 682 (Kimble v. East Baton Rouge Parish) 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
Kimble v. East Baton Rouge Parish, 673 So. 2d 682, 1996 WL 242962 (La. Ct. App. 1996).

Opinion

J2SHORTESS, Judge.

Charles Kimball (plaintiff) was driving on Dyer Road in East Baton Rouge Parish on September 12, 1987, at approximately 5:15 a.m. He encountered a patch of heavy fog and ran off the roadway, down an embankment, and into a ditch, and sustained personal injuries. Plaintiff sued the City and Parish of East Baton Rouge (defendant), claiming it failed to properly maintain the roadway and shoulder, failed to install warning signs, and failed to properly construct shoulders on the roadway. After a bench trial, the trial court found plaintiff was free from fault. Plaintiff was awarded $86,-287.11, which included special damages.2 Defendant appealed, contending that the cause of the accident was plaintiffs driving, not the roadway or the signs and that the testimony regarding lack of signs was inconclusive. Defendant also contends the trial court erred by not attributing any fault to plaintiff.

A. Signs

Plaintiff presented uncontradicted expert testimony from Duaine T. Evans, a traffic engineer. Evans felt appropriate signing for the curve in question would include two signs: (1) a curve warning sign with an advisory speed limit of 35 miles per hour located before the curve, and (2) black chevron arrows on a yellow reflective sign located in the curve. The posted speed limit for the road is 55 miles per hour, and Evans stated 35 to 40 miles per hour would be appropriate for the curve.3

Joseph E. Hughes, an East Baton Rouge Parish deputy sheriff, responded to the accident. He testified the posted speed limit for the entire road is 55 miles per hour. He did Jj¡not recall any road signs and did not mark any signs on his report. However, he stated he generally indicates only three types of signs on a report: stop signs, signs indicating intersections with stop signs, and speed limit signs. He also notes if signs have been knocked down in the accident. He stated he generally marks the speed limit for the whole road and would not note a 35-mile-per-hour advisory speed limit on a curve warning sign.

Plaintiff said he was not aware he was near the curve because no signs warned him. He testified the curve warning sign was not in place at the time of the accident because he did not see it. He testified he “would have seen it because it was clear there.”

Marlin M. Kimball, plaintiffs son, went to the accident site about 6:45 a.m. the day of the accident. He said it was daylight and the fog was burning off. He testified Dyer Road is only four to four and one-half miles long. He walked down the road approximately 200 feet before and 150 feet past the accident site to look for signs but did not locate any.

Sue Kimball, plaintiffs wife, testified she went back to the accident site that evening to look for her husband’s watch and glasses. She testified she did not see any signs, but she could not say specifically where she looked and acknowledged she was looking for glasses and a watch, not signs.

Plaintiffs photographs, taken one month following the accident, indicate several downed chevron signs, but they do not show a curve warning sign with an advisory speed limit of 35 miles per hour. Plaintiff could not state where these photos were taken in relation to the curve. Defendant’s maintenance records showed no maintenance work on the signs and no other work on the road after April 1987.

A Department of Public Works diagram of Dyer Road at the Comite Bridge shows curve advisory and chevron signs, but defendant presented no direct evidence to show they were in Aplace at the time of the accident. Defendant’s photo of the road, taken eight months after the accident, shows a curve advisory sign with a 35-mile-per-hour speed advisory approximately 1,000 feet ahead of the curve. Defendant contends plaintiffs ev-[685]*685idenee that signs were not up at the time of the accident was inconclusive.

B. The Shoulder

The shoulder of the road is approximately two feet wide and grassy. Evans testified a two-foot shoulder is inadequate by state and federal standards. The minimum acceptable shoulder width for the lowest class road is four feet. Because the curve is on a six-to-eight foot embankment, this shoulder creates a “non-recoverable slope.” This means a vehicle cannot recover if it goes off the road onto the shoulder because gravity is too great. Evans did not believe plaintiff had a “meaningful chance” to recover control of his vehicle at 45 miles per hour because of the characteristics of the slope.

However, Evans also stated if plaintiff had encountered this problem within 25 to 30 feet of the curve, he would not have had time to react. He also stated if the fog was as heavy as plaintiff stated, the inadequate shoulder would not have mattered.

Plaintiff testified he “hit the fog and it blindfolded me. I felt my wheel drop off the shoulder. And then I tried to pull it back and I lost control.” He testified only a few seconds elapsed between hitting the fog and going into the ditch. He testified he traveled approximately 25 to 30 feet before going down the embankment. He also testified he was going 45, or maybe 50, miles per hour at the time he hit the patch of fog and the accident occurred.

Hughes did not observe any skid marks, and his understanding of the accident was that “the vehicle ... encountered the curve and simply went over the edge.” A photo ls(plaintiffs) of the accident scene shows tracks going directly off the roadway down the embankment.

C. The Fog

The statement Hughes obtained from plaintiff “was that it was foggy that morning and that he couldn’t see. He couldn’t see the roadway.”

Plaintiff testified he drove through several other patches of fog but they were not as thick as the fog he encountered at the site of the accident. In approaching this patch of fog, he said he did not think it would be any thicker than the fog he encountered previously. However, when he went into this patch, “it blindfolded me.”

Plaintiff stated this route was not the usual route he took to work, but he had driven it two or three times and knew he would encounter a curve. He stated, however, “I didn’t know I was that close on the curve when I hit the fog.... I was coming to the curve. I didn’t realize I was already in the curve.” He knew, however, the curve “was somewhere along in that line of the road....”

D.Analysis

The standard of appellate review of factual findings is a two-part test: 1) the appellate court must find from the record there is a reasonable factual basis for the finding of the trial court, and 2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106,1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or ^clearly wrong. Stobart v. State, 617 So.2d 880, 883 (La.1993); Housley v. Cerise, 579 So.2d 973, 976 (La.1991).

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673 So. 2d 682, 1996 WL 242962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimble-v-east-baton-rouge-parish-lactapp-1996.