Lewis v. State

642 So. 2d 260, 1994 La. App. LEXIS 2290, 1994 WL 460684
CourtLouisiana Court of Appeal
DecidedAugust 17, 1994
DocketNo. 25961-CA
StatusPublished
Cited by2 cases

This text of 642 So. 2d 260 (Lewis v. State) 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, 642 So. 2d 260, 1994 La. App. LEXIS 2290, 1994 WL 460684 (La. Ct. App. 1994).

Opinion

| iNORRIS, Judge.

Candice and Richard Lewis appeal a judgment absolving the State of Louisiana, through the Department of Transportation and Development (“DOTD”) of liability in an accident in which their car collided with a tree falling across a state highway. For the reasons expressed, the trial court was plainly wrong to find that DOTD neither knew nor should have known of the dead and hazardous condition of the tree. We therefore reverse and render.

Factual background

The accident occurred on January 13,1992 as the Lewises were returning to West Monroe from a family trip in Arkansas. Richard was driving their 1982 Chevy Caprice south on La. Hwy. 15 in Union Parish between Farmerville and the Ouachita Parish line. Candice was sitting in the front passenger seat with their infant daughter; their other two children were in the back seat. Suddenly Richard noticed a movement to his right; when he glanced that way, he saw a large tree falling down toward the highway. He immediately shouted for Candice to lie down, and he hit his brakes. Despite this precaution, the car collided with the tree just as it landed on the road; both car and tree were thrown into a pond of water off the west shoulder. The tree had fallen from the west side, spanning not only the paved road but also beyond the east shoulder. Candice was seriously injured by the impact, sustaining a large gash wound to the middle of her face. Richard and the children sustained minor injuries.

The tree in question, a large sweet gum, was actually situated on private property belonging to the Ouachita Valley Council of the Boy Scouts of America some 44.6' from the centerline of the highway and 14.6' from the edge of DOTD’s right-of-way. The Lewises originally sued both DOTD and the Ouachita Valley Council, but they settled with the latter in April 1993, reserving their claims against DOTD. The trial evidence therefore centered on the alleged negligence of DOTD in failing to detect hand remove an obviously dead tree which, even though located on ad[263]*263joining, private property, posed a risk to the motoring public.

Dr. F.F. Jewell Sr., professor of forestry at Louisiana Tech University and accepted as an expert in forest pathology, examined the site about one month after the accident. He testified for the plaintiffs that the sweet gum was dead when it fell, and was “well involved in wood rot” as almost all the debris he found on the ground had some rot. He conservatively estimated that the tree had been dead for two years, and probably for five. He testified that the first sign of trouble in a tree appears in the crown, so he tells his students to look up to determine if a tree is dead or dying. A sweet gum’s bark remains firmly attached to the trunk even after death, and so a person looking at only the bottom 40' of the tree would not see that it was dead, but Dr. Jewell testified that “most folks” would look at the whole tree. Moreover, Dr. Jewell found that this tree had apparently lost most of its small branches, a clear indication that it was dead. He admitted that in January, when the accident occurred, deciduous trees were bare, whether live or dead, but for eight months of the year they have greenery. The subject tree, the sweet giim, would have presented itself as an obvious “dead stob” (a stem with only large branches still attached) for several summers before it fell. Dr. Jewell paced off the stem of the tree, which was still on the site, and estimated its length at 60'. He also testified that a stump of some 18-24" high was still in the ground, and a large amount of top debris, perhaps 20', was still present on the east side of the highway right-of-way. Dr. Jewell also testified that if the tree had not been dead, it would not have fallen when it did.

At the time of the accident there were two smaller trees standing within a few feet of the sweet gum. Shortly before trial, both of these trees were down, having fallen or been cut.1 However, based on their trunk size, Dr. Jewell estimated they |3were about one-third to one-half the size of the sweet gum. He could not be certain, but conceded they may have been 40' tall. During spring and summer these trees were green while the sweet gum was a “dead stob.” Although he did not measure these trees, he expressed the opinion that the sweet gum was tall enough that “it certainly should’ve been visible” over them. Even on cross examination, when DOTD’s counsel advanced the theory that the surrounding trees probably obscured the view of the sweet gum’s dead stob, Dr. Jewell was insistent that this tree was “sticking well above the canopy” of the other trees and that a person driving south on Hwy. 15 “would have seen it quite well.” R.pp. 147, 148.

The Lewises’ other expert, Mr. Barry M. Preaus, was accepted as an expert in forestry. He testified that in order to determine whether a tree is dead, one must look up in its canopy to see whether it has toned colors or lost its foliage and small limbs. A sweet gum, in particular, shows its death by the loss of leaves and small branches. Mr. Preaus further testified that the lack of foliage is “readily observable” in spring and summer. Like Dr. Jewell, he felt this sweet gum had been dead for at least two years. He testified that had he driven by the site in the spring or summer of 1991, he would have noticed this bare tree sticking above the smaller green trees and realized that it was dead. He added that a live tree probably would not have fallen.

On cross examination he admitted that this sweet gum had apparently stood straight up, and was not leaning. He also answered DOTD’s questions as to whether the surrounding trees would have obscured the view of the sweet gum. The two smaller trees had trunk diameters of about 10", considerably less than the sweet gum’s 24" trunk, and would not have produced as much of a canopy as the sweet gum. He estimated that one of the smaller trees may have been 40' tall. He admitted that after the sweet gum died, over time the smaller trees’ canopy would have expanded and could have obscured, to some degree, the craggy top of the dead sweet gum. He agreed it was probable that the smaller trees obscured “some portions” of it. On | ¿redirect, however, he reiterated that had he been cruising Hwy. 15, he could [264]*264have looked up and seen that the sweet gum, which was considerably taller than the surrounding trees, was dead.

Mr. Preaus also testified that the area where the sweet gum stood was a problem location because standing water was so often present there. Standing water creates concern on the part of foresters, and Mr. Preaus had noticed other dead trees in the area. R.p. 231. Another witness, Trooper Odom, who investigated the accident, corroborated that the area was under water part of the year, and he had noticed three or so dead trees (but not this particular sweet gum) in the vicinity. R.pp. 174-175.

The Lewises also called Russell Barnes, the camp ranger at Camp T.L. James, the boy scout property on which the sweet gum was located. On cross examination he admitted he had been on the job only since August 1991 (about five months before the accident) and testified' that he had not yet inspected the entire property. He also testified that he does not specifically inspect for dead trees. He testified that he had never noticed the dead sweet gum, but “it’s possible” the two smaller trees nearby would have obscured his view of the bare top of the dead tree.

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Bluebook (online)
642 So. 2d 260, 1994 La. App. LEXIS 2290, 1994 WL 460684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-lactapp-1994.