Lewis v. State, Department of Highways

510 So. 2d 710, 1987 La. App. LEXIS 9643
CourtLouisiana Court of Appeal
DecidedMay 27, 1987
DocketNo. 86 CA 0570
StatusPublished
Cited by2 cases

This text of 510 So. 2d 710 (Lewis v. State, Department of Highways) 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
Lewis v. State, Department of Highways, 510 So. 2d 710, 1987 La. App. LEXIS 9643 (La. Ct. App. 1987).

Opinion

SAVOIE, Judge.

This is a tort action. Plaintiff, Richard Lewis, filed suit against defendants, State of Louisiana, through the Department of Highways; City of Baton Rouge; and Parish of East Baton Rouge. The City and Parish were dismissed on an exception of no cause of action. The case went to trial against the remaining defendant, State of Louisiana, through the Department of Highways and Transportation (currently Department of Transportation and Development, which shall be referred to as DOTD). The trial judge found in favor of the defendant, and plaintiff now appeals.

This suit arises out of the following facts. Plaintiff Lewis was riding a motorcycle on Interstate 12 in the city of Baton Rouge at about 9:00 p.m. on Friday, July 22, 1977. Lewis was heading in a westbound direction on the interstate in the right lane. He changed lanes to pass a car being driven in the right lane by James Lawn, and then returned to the right lane. Plaintiff was traveling at 55-60 m.p.h. As Lewis approached the 1-12 interchange with Drusilla, he felt a jolt and his motorcycle began shaking violently. He tried to control the motorcycle; unable to do so, he went off,the road and struck a breakaway light pole. He sustained serious injuries to his right leg.

Plaintiff filed suit alleging that the interstate was defective, causing his accident. Plaintiff alleged that the defect was a hole in an expansion joint. DOTD is responsible for that section of the interstate where plaintiff’s accident occurred. Plaintiff contended that defendant was liable under LSA-C.C. arts. 2315 and 2317.

The case was tried on January 16, 1986. The trial court found in favor of defendant. In his oral reasons for judgment, the trial judge questioned whether plaintiff had proved the existence of a defect in the interstate at the time of the accident. He then assumed that the interstate was defective in order to .determine the issue of liability. Under LSA-C.C. art. 2315, the judge found that DOTD was not negligent because plaintiff did not prove that DOTD had actual or constructive knowledge of the defect. Under LSA-C.C. art. 2317, he assumed liability but found that plaintiff was contributorily negligent, a form of victim fault which is a defense to LSA-C.C. art. 2317 strict liability. Plaintiff’s contributory negligence bars him from any recovery since the accident occurred prior to the adoption of comparative negligence.

The plaintiff raises three assignments of error:

1. the trial court committed manifest error in attributing plaintiff-appellant’s injuries and damages to his own contributory negligence when by a preponderance of the evidence plaintiff-appellant proved that the sole and proximate cause of injuries was the defective condition of the roadway under the custody and control of defendant-appellee.
2. The trial court committed manifest error in failing to accord the testimony of plaintiff-appellant’s expert witnesses the full weight that it deserved.
3. The trial court erred in ruling from the bench less than two hours after the [712]*712close of testimony since the Court was asked to consider the technical testimony of three expert witnesses, deposition testimony and additionally had to rule on such complicated legal issues as the relationship of the State of Louisiana to plaintiff-appellant and the accident sued upon under pre-1980 law.

Plaintiffs assignments of error basically present this court with one issue: whether the trial court’s findings are manifestly erroneous.

Plaintiff does not contest the trial court’s ruling that the defendant was not liable under LSA-C.C. art. 2315. Thus, we must examine the trial court’s findings under LSA-C.C. art. 2317. In order to recover under LSA-C.C. art. 2317, the plaintiff must prove that the thing which caused the damage was in the care, custody, or control of the defendant, that the thing contained a vice or defect, and that plaintiff’s damages were due to the vice or defect. Loescher v. Parr, 324 So.2d 441 (La.1975). One defense to 2317 strict liability is victim fault, which includes contributory negligence.

The only evidence showing the alleged defect is a photograph of the expansion joint containing a hole or rut taken by plaintiff approximately one month after the accident. An expansion joint is a space between concrete slabs to allow for the expansion of the concrete in hot weather; expansion joints are usually filled with some substance. All the experts based their testimony upon this photograph because they did not become involved in the case until 1984, by which time the expansion joint had been repaired. The plaintiff did not actually see the hole in the expansion joint at the time of the accident; he only saw the expansion joint and felt a jolt as he passed over it, whereupon his motorcycle began shaking. Although plaintiff did not see the hole in the expansion joint, he told police officers at the scene that he had hit a hole in the road. The driver of the car immediately following plaintiff, James Lawn, who witnessed the accident, testified that he did not see or feel any hole or bump when passing over the expansion joint.

Defendant contends that plaintiff did not prove that the photograph of the expansion joint taken on August 29, 1977, was representative of the condition of the joint on July 22, 1977. Defendant’s expert, Dr. Olin Dart, testified that the filler material placed within this expansion joint was probably a polyurethane foam. Dr. Dart testified that due to weather, pressure from the concrete, and traffic action, filler material deteriorates. Dr. Dart testified that it was possible that the level of deterioration as shown in plaintiff’s August 29th photograph could have started within a few days prior to the taking of the picture. However, in the same sentence, he said, “it could have been going on for a long time, probably — possibly before the — accident.” (Emphasis added).

Plaintiff's photograph shows a wide expansion joint. In the middle of the expansion joint, pieces of filler material appear to be missing; the remainder of the material is compressed deeply into the joint, creating a hole or rut within the joint. The cement is chipped away on one side of the joint, further enlarging the rut or hole. From this photograph it appears that this rut or hole did not develop in a short time; thus, we find that plaintiff's photograph fairly depicts the condition of the road as it existed at the time of the accident.

The plaintiff's expert witnesses did not testify as to the size or depth of the hole; both of plaintiff’s expert witnesses testified that expansion joints were not normally as wide as this one. Based on the photograph, the plaintiff’s expert witness, Duaine Evans, testified that in his opinion, this hole would pose a “serious problem” for any two wheel vehicle such as a motorcycle; the hole would not present any hazard to a four wheel vehicle. Mr. Evans opined that the hole was an emergency situation requiring immediate repair. He further testified that some motorcycles may have no problem traversing the hole while others could possibly go out of control, depending upon how the motorcycle hit the hole, what part of the hole the motorcycle hit, the individual motorcycle, and the individual driver.

[713]*713Plaintiff’s other expert witness, Alvin Doyle, Jr., testified that he had never seen an expansion joint as big as the one plaintiff had traversed. Mr.

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Kitchura v. STATE, DEPT. OF TRANSP.
583 So. 2d 52 (Louisiana Court of Appeal, 1991)
Lewis v. State, Department of Highways
514 So. 2d 128 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
510 So. 2d 710, 1987 La. App. LEXIS 9643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-department-of-highways-lactapp-1987.