Lawrence v. Department of Transportation & Development

665 So. 2d 551, 95 La.App. 5 Cir. 452, 1995 La. App. LEXIS 3386, 1995 WL 697710
CourtLouisiana Court of Appeal
DecidedNovember 28, 1995
DocketNo. 95-CA-452
StatusPublished
Cited by1 cases

This text of 665 So. 2d 551 (Lawrence v. 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.

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Lawrence v. Department of Transportation & Development, 665 So. 2d 551, 95 La.App. 5 Cir. 452, 1995 La. App. LEXIS 3386, 1995 WL 697710 (La. Ct. App. 1995).

Opinion

DUFRESNE, Judge.

This appeal arises from a suit filed on behalf of Adrian Lawrence (Lawrence), plaintiff/cross appellant, against the Department of Transportation and Development (DOTD), defendant/appellant, for damages sustained in a motor vehicle accident. The trial judge granted judgment in favor of Lawrence and against DOTD for the sum of $233,474.85, interest and costs. DOTD appeals the finding of liability and Lawrence appeals quantum. We amend and as amended, affirm.

On August 23,1984, Lawrence was a guest passenger in a pick up truck driven by his supervisor, Douglas Batiste (Batiste). Batiste testified he was employed by Chemical Spray Company from 1980 to 1984 as a supervisor. Lawrence was a member of his crew. Their task was to spray a herbicide to kill weeds.

ROn the date of the accident they were supposed to spray but it rained. They headed home on LA 308 to Thibodeaux, Louisiana from Valentine, Louisiana. Visibility was “real bad” because it rained hard. It was raining so hard he had to get close to the steering wheel in order to see. Batiste was driving a three-quarter to a one-ton pick up truck with a cab on the back. Seated next to him was Troy Jocko. Lawrence was seated next to the passenger door. There were three others in the back of the truck.

There were two tanks bolted to the back of the truck. Each was full and contained 110 gallons of herbicide. When he approached the “S” curve in the road he felt the liquid in the tanks shift. The next thing he noticed the truck was headed downhill. The accident occurred midway between the first and second curves.

[553]*553Batiste and Lawrence both testified Batiste was traveling 35 miles per hour. Batiste estimated the speed limit in the curve to be no more than 45 miles per hour. His testimony regarding the speed limit was corroborated by Steven C. Strength whose deposition was introduced into evidence. Strength, the District Operations Engineer for District 02 for DOTD, testified in 1984 to the present the advisory speed limit in the curve has been 35 miles per hour.

Lawrence testified the condition of the road has not changed since the date of the accident.

Batiste stated he had traveled this road with a loaded truck before the accident on a number of occasions and had never lost control before. At the time of the accident he had driven for the company approximately six months. Although he had not driven a Isloaded truck in blinding rain before, he had driven a loaded truck when the road was wet with no problems.

When he came into the curve, he stated, “the tail end” of the truck began to slide a little toward his right. He tried to straighten the truck by turning the wheel to the right.

The tires on the right got off the highway; there was no shoulder. There was only a steep embankment. He stated, “the tires wouldn’t bite and down we went.”

The truck was out of control and went rolling downhill. It came to rest on the passenger side. Both Batiste and Jocko were on top of Lawrence. The truck caught on fire almost immediately after the men climbed out a window. All three men were taken to the hospital by ambulance.

Bobby Hebert testified he was District Maintenance Engineer from October 1990 until January 1994 for DOTD. In 1984 he was the project engineer in charge of construction on LA 308. This project involved a resurfacing and a widening of the roadway. It was an overlay project. He stated the location of the accident was the only place where the road was five to six feet above the surrounding area. The road was originally built on a levee; however, this section was not knocked down. After the 1984 eonstruction there was only a minute shoulder possibly less than one foot. He has personally seen motorists running into the Bollinger Shipyard fence “a lot of times.” He did not know the reason. He has also seen cars run off the road on either side. He opined that there were people who did not follow the Uadvisory speed limit of 35 miles per hour and sped while on the curve.

Hebert testified that at least since 1938 this road has always been a state road maintained by the state. The road was first a dirt road. Shells were later added. He learned that in 1953 the road was hard surfaced.

• The trial judge concluded the driver of the vehicle was partially at fault but did not quantify this fault since it was fault attributable to the employer. The judge also found the condition of the road constituted an unreasonable risk of harm. He awarded Lawrence damages for low back and neck injuries. He found that Lawrence was unlikely to return to work in the manual labor field in the future.

On appeal, DOTD specifies the following errors:

1. The trial court erred in finding DOTD liable for plaintiffs injuries, and
2. Assuming arguendo that DOTD is liable for plaintiffs injuries, DOTD is only partially liable because of the Louisiana Comparative Fault Standard.

FAULT OF EMPLOYER

The trial judge concluded the non-party driver of the vehicle, Batiste, was partially at fault. However, he did not apportion Batiste’s fault because Batiste was a co-employee.

DOTD alternatively argues that if it is liable then it is only partially liable because of the comparative fault of the co-employee. The Supreme Court has recently held in Cavalier v. Cain’s Hydrostatic Testing, Inc., 94-1496 (La. 6/30/95), 657 So.2d 975, 982-984:

We conclude that while quantification of the | ¿fault of a non-party settling tortfeasor is entirely appropriate and was probably contemplated by La.Code Civ.Proc. art. 1812C, quantification of the fault of an [554]*554employer is not necessary or appropriate under Article 1812C in an action against a third party tortfeasor.
* * * * * *
We reconsider and reject the holding in Gauthier [v. O’Brien, 618 So.2d 825 (La.1993) ] relative to mandatory quantification of employer fault. Neither the pre-1987 nor the post-1987 version of Article 2324B requires the quantification of employer fault.
* * * * * *
We therefore overrule the holding of Gauthier that quantification of employer fault either is suggested by La.Code Civ.Proc. art. 1812C or is made mandatory by La. Civ.Code art. 2324B.

In Cain, as in the instant ease, the plaintiff was not contributorily negligent. The court concluded that since the employer’s fault should not be quantified there was only one blameworthy party. That party was liable for 100% of the plaintiffs damages.

DEFECT

The following experts evaluated the accident area: Dr. Robert Lipp, Dr. Olin K. Dart, Jr., and Richard Glenn Robertson. All three experts agreed the slope was a hazard to motorists.

Dr. Dart measured the slope in the area of the accident. The slope was 2 to 1 or 1½ to 1, which is a nonnegotiable slope. This slope was far too steep. There was essentially a two-foot shoulder which is not desirable. He explained the reason it was hazardous was | (¡because there was no room to maneuver back onto the road it a motorist strayed from the highway.

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665 So. 2d 551, 95 La.App. 5 Cir. 452, 1995 La. App. LEXIS 3386, 1995 WL 697710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-v-department-of-transportation-development-lactapp-1995.