Llorence v. State, Dept. of Transp. and Dev.

558 So. 2d 320, 1990 La. App. LEXIS 532, 1990 WL 27081
CourtLouisiana Court of Appeal
DecidedMarch 14, 1990
Docket88-1143
StatusPublished
Cited by8 cases

This text of 558 So. 2d 320 (Llorence v. State, Dept. of Transp. and Dev.) 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
Llorence v. State, Dept. of Transp. and Dev., 558 So. 2d 320, 1990 La. App. LEXIS 532, 1990 WL 27081 (La. Ct. App. 1990).

Opinion

558 So.2d 320 (1990)

James LLORENCE, et al., Plaintiffs-Appellees,
v.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.

No. 88-1143.

Court of Appeal of Louisiana, Third Circuit.

March 14, 1990.

*321 Robert L. Oliver, Baton Rouge, and Stafford, Stewart, Kay Michels, Alexandria, for defendant-appellant.

Brittain, Williams, Jack O. Brittain, Natchitoches, for plaintiffs-appellees.

Before DOMENGEAUX, C.J., and GUIDRY and YELVERTON, JJ.

DOMENGEAUX, Chief Judge.

Mr. and Mrs. James E. Llorence, Sr. filed this wrongful death suit against the Department of Transportation and Development (DOTD), after two of their children, Bryan, 17, and Florence Ann, 16, were killed in a one-car accident on Louisiana Highway 493 near Melrose, Louisiana.

After trial on the merits, the district judge concluded DOTD's negligence was the sole cause of the accident. He awarded each parent $150,000.00 for the loss of each child, plus special damages of $12,719.18, for a total award of $612,719.18. From this judgment, all parties have appealed.

This accident occurred on November 12, 1984, at approximately 8:45 p.m. While driving eastbound on Highway 493, Bryan Llorence lost control of his father's 1975 Oldsmobile Cutlass. His sister Florence Ann was also in the car. After spinning across the westbound lane, the Llorence vehicle struck the west concrete abutment of the Melrose Bridge. The car then vaulted into the air and traveled an additional 140 feet along the bridge railing before it plunged into the Cane River. Bryan and Florence Ann drowned.

Highway 493 is a two-lane blacktop road. An eastbound driver would encounter a gradual right hand curve just before the road intersects with Louisiana Highway 484, a north-south blacktop road that runs along the banks of the Cane River. The intersection is slightly offset, with the south section of Highway 484 closer to the river than the north section. Just beyond the intersection is the Melrose Bridge, a steel and concrete structure built in the 1940's. The posted speed limit for this section of Highway 493 is 55 miles per hour.

At trial the parties presented conflicting evidence regarding the path taken by the Llorence vehicle before it struck the concrete abutment. Two eyewitnesses testified the car went out of control when it struck a patch of loose gravel at or near the intersection of Highways 493 and 484. DOTD claimed Bryan lost control of his vehicle when, due to his excessive speed, he failed to negotiate the curve in Highway 493. It presented expert testimony which indicated the vehicle left the traveled portion of the highway as it exited the curve, well before the intersection, and it continued out of control along the left hand shoulder of Highway 493 until it struck the Melrose Bridge.

In written reasons for judgment, the trial judge found DOTD negligent in failing to remove the accumulation of gravel, which created an unreasonable risk of harm, and in failing to install guard rails at the base of the Melrose Bridge. He did not discuss the question of strict liability. The trial court failed to assess any fault to the driver, accepting the testimony of two eyewitnesses who estimated his speed at approximately 55 miles per hour.

LIABILITY OF DOTD

The jurisprudence defining DOTD's duty to the motoring public was succinctly summarized by this Circuit in Melder v. State, through Department of Highways, 512 So.2d 546 (La.App. 3rd Cir.1987):

DOTD's duty to travelers on state highways under La.C.C. art. 2315 is well settled. DOTD has a duty to construct and maintain the state's highways in a condition reasonably safe for persons using ordinary care and prudence. DOTD is not responsible for every accident which occurs on state highways, nor is it a guarantor of the safety of travelers or an insurer against all injury which may result from obstructions or defects in the highways. DOTD will be held liable, under the provisions of La.C.C. art. 2315, when the evidence shows that the condition complained of presented an unreasonable risk to prudent drivers and DOTD had actual or constructive notice *322 of the defect and failed to correct it within a reasonable time. [Citations omitted].

Under a strict liability theory of recovery (La.C.C. art. 2317), a plaintiff must establish that (1) the thing which caused the damage was in the care or custody of the defendant; (2) the thing had a vice or defect which caused an unreasonable risk of injury to another; and (3) the injury complained of was caused by the vice or defect. [Citations omitted].

La.R.S. 9:2800, which greatly limits the liability of the State under article 2317, is applied prospectively only. Landry v. State, 495 So.2d 1284 (La.1986). Because this accident occurred before July 12, 1985, the effective date of La.R.S. 9:2800, the statute has no application to this case. However, because we conclude, for the reasons assigned below, that the trial court correctly decided the case under the theory of negligence, we need not discuss the question of strict liability.

Billy Ray Hatchett, one of the two eyewitnesses, was sitting in a parked car on the right shoulder of Highway 493 near its intersection with Highway 484. Wilbert Moody, the other eyewitness, was standing near the Hatchett vehicle. Both Hatchett and Moody testified they saw the Llorence vehicle as it came around the curve on Highway 493. Both testified that the car was still under the driver's control at this point, with its headlights pointing toward the Melrose Bridge. Hatchett testified he heard the car hit some gravel as it approached the intersection. He then saw the car slide out of control. Moody testified he heard gravel popping against the car's fenders as it began "to fishtail" near the intersection. He stated he did not see the car go onto the shoulder until it began to spin. Both witnesses estimated the vehicle's speed at approximately 50 to 55 miles per hour.

Plaintiffs produced several witnesses, familiar with the general area, who testified that a large amount of gravel had accumulated on the north portion of Highway 484 near its intersection with Highway 493. They explained that traffic from heavy farm equipment and other vehicles tracked the gravel into the intersection and along the traveled portion of Highway 493. Anthony Moran, of the Natchitoches Parish Sheriff's Department, testified he was aware of the rock buildup on Highway 484, but that he knew of no concentration of gravel on 493. Trooper Ronald L. Dowden, who investigated the accident, testified he observed gravel on Highway 484, but not on Highway 493. However, both eyewitnesses testified the gravel was scattered around the entire intersection and was not confined to Highway 484 on the night of the accident.

Mr. Duaine Evans, accepted by the court as an expert in accident reconstruction and traffic engineering, testified on behalf of the plaintiffs. He explained the presence of gravel on a blacktop road creates a hazardous condition by reducing the surface co-efficient of friction, which causes a vehicle's tires to lose traction. When he visited the accident scene he saw no gravel on Highway 493, but observed a significant amount of gravel in the intersection.

In his opinion, the vehicle may have been in a slight rotation before it got to the intersection. However, when it hit the gravel at or near the intersection, the car began to rotate considerably. At this point, the driver lost control because he did not have enough traction to stop the rotation.

State Trooper Ronald L.

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Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 320, 1990 La. App. LEXIS 532, 1990 WL 27081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/llorence-v-state-dept-of-transp-and-dev-lactapp-1990.