Mathieu v. STATE, DOTD

598 So. 2d 676, 1992 WL 76748
CourtLouisiana Court of Appeal
DecidedApril 16, 1992
Docket90-1059
StatusPublished
Cited by27 cases

This text of 598 So. 2d 676 (Mathieu v. STATE, DOTD) 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
Mathieu v. STATE, DOTD, 598 So. 2d 676, 1992 WL 76748 (La. Ct. App. 1992).

Opinion

598 So.2d 676 (1992)

Norma Ray MATHIEU, et al., Plaintiffs-Appellees,
v.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.

No. 90-1059.

Court of Appeal of Louisiana, Third Circuit.

April 16, 1992.
Writ Denied June 26, 1992.

*677 Todd L. Farrar, Ball, for defendant-appellant.

Watson, Murchison, Crews, Arthur & Corkern, Steve Crews, A.J. Gregory, Jr., Natchitoches, for plaintiffs-appellees.

Before DOUCET and KNOLL, JJ., and JOSEPH E. COREIL,[*] J. Pro Tem.

KNOLL, Judge.

This appeal concerns the wrongful death of John Mathieu in an automobile accident resulting from a 4-6 inch shoulder drop-off in rural Sabine Parish. Defendant, State of Louisiana Department of Transportation and Development (DOTD), appeals the finding of liability and alternatively, that the court awarded excessive damages. We affirm.

*678 FACTS

On April 18, 1981, it was John Mathieu's birthday. He was 61 years of age. He was proceeding south on Louisiana Highway 475 in rural Sabine Parish to a local grocery store at approximately 4:38 p.m. His family had purposefully sent him on an errand so that they could complete the final preparations for his surprise birthday party later that afternoon.

Traveling north on that same highway, the driver, Huey Ferguson and his two passengers, Benjamin Rivers and David Rivers, were returning from a bar-b-que near Toledo Bend. All three had been drinking beer that day. As Ferguson entered a left hand curve known as "Coon Ridge", he inadvertently drifted onto the eroded dirt shoulder and attempted to reenter the northbound lane. His pickup truck left the shoulder, traveled across the northbound lane, crossed the center line and struck the Mathieu vehicle on the driver's side door and front fender. Mathieu was killed instantly.

Neither Ferguson nor his two passengers recall anything about the accident. Photographs taken at the accident scene that day show "yaw marks" (tire marks on a roadway resulting from an extreme steering maneuver) in a smooth arcing pattern from the edge of the roadway and into the southbound lane. The roadway edge where the right front tire of the Ferguson vehicle reentered is raveled with a 4-6 inch drop-off.

The surviving spouse, Norma Ray Matheiu, and their three children, Leah Mathieu Eddington, Robert J. Mathieu and Sara Beth Mathieu Loe, filed suit against DOTD, Louisiana Department of Public Safety, Huey Ferguson and his insurer, Dairyland Insurance Company. Following several supplemental and amending petitions, Ferguson and Dairyland were dismissed after tendering the policy limits of the Dairyland insurance policy.

At trial on the merits on March 1 and 2, 1990, Norma Ray Mathieu and DOTD filed three joint stipulations. First, the roadway was built according to the existing design standards in effect at the time of construction. Secondly, the Louisiana Department of Public Safety is not at fault for issuing driving privileges to Ferguson. Thirdly, if Ferguson and DOTD are adjudged as joint tortfeasors, then the recovery of Norma Ray Mathieu, individually, shall be reduced by 50%.

Following trial, the trial court adjudged DOTD liable to plaintiffs as follows:

A) Wrongful death claim of Norma Ray Mathieu: $350,000
B) Economic Loss of Norma Ray Mathieu: $100,000
C) Wrongful death claim of Robert Joseph Mathieu: $250,000
D) Wrongful death claim of Leah Mathieu Eddington: $250,000
E) Wrongful death claim of Sara Beth Mathieu Loe: $250,000
F) Burial expenses: $5,390.95.

The trial court also assessed expert witness fees of $10,850.80 and costs of trial to DOTD.

LIABILITY OF DOTD

In Coleman v. State, Through DOTD, 524 So.2d 1281, 1284-1285 (La.App. 3rd Cir. 1988), Judge Laborde, as organ for this court, summarized the law concerning highway shoulders:

"DOTD has the basic duty to maintain all highways in the state highway system. The maintenance of highway shoulders in a reasonably safe condition is included within the duties of DOTD, and this duty encompasses the obligation to protect a motorist who inadvertently drives onto the shoulder. Although DOTD is not an insurer of the safety of motorists using state highways, it can not knowingly allow a condition to exist which is hazardous to a reasonably prudent motorist. DOTD may be liable for negligence if it is actually or constructively aware of the hazardous condition or defect and fails to take corrective action within a reasonable time. DOTD may also be held strictly liable under LSA-C.C. art. 2317 as custodian of a defective shoulder in normal use. Under both a negligence theory of liability or strict liability, liability *679 will hinge on whether or not DOTD breached its duty to the plaintiff. Thus the State will be liable if it knew of the defect and even if it did not know of the defect under Article 2317. The strict liability of Article 2317 is subject to the defenses of victim fault, fault of a third party, or action by an irresistible force." (Citations omitted.)

An abrupt drop-off between a roadway and a shoulder constitutes a defect. LeBlanc v. State, Department of Highways, 419 So.2d 853 (La.1982). An implicit necessity for the use of a shoulder is a connection between the roadway and the shoulder that allows for safe, gradual movement from one to the other. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

Only upon a showing of manifest error will an appellate court disturb a trial court's factual findings. Hood v. State Through DOTD, 587 So.2d 755, 759 (La. App. 2nd Cir.1991), writ denied, 570 So.2d 81-82 (La.1991).

In the case sub judice, the record shows the following evidence.

James Napier, the state police officer who investigated the accident, testified that he arrived at the scene at approximately 4:45 p.m., seven minutes after the accident. Trooper Napier observed tire marks on the blacktop road beginning near the dirt shoulder of the northbound lane, across the center line and ending approximately six feet into the southbound lane. Trooper Napier characterized the tire marks as "skip skids"—tire marks left on the roadway when the front wheels are turned, but the vehicle does not proceed in the desired direction. He also testified that eyewitnesses to the accident referred to as "Turner" (who did not testify at trial) and Benjamin Rivers informed him that Ferguson entered the curve too fast, ran off the road and lost control of the pickup truck as he reentered the roadway. Based on his investigation at the accident scene, Trooper Napier concluded that Ferguson was intoxicated and also volunteered testimony that Ferguson subsequently pleaded guilty to negligent homicide (LSA-R.S. 14:32.1).

John List, a member of the Many Rescue Squad, testified that the shoulder area where the Ferguson truck entered the roadway was 4-6 inches lower. List elaborated on the shoulder washout as a common problem on that portion of the highway and that DOTD had repeatedly placed filler dirt in the eroded area. List explained that during every rain, the runoff water would carry away the filler dirt and expose the 4-6 inch dropoff again.

Bernice Green, the Sabine Parish DOTD superintendent at the time of the accident, testified that Louisiana Highway 475 is an old road and only emergency maintenance was done as needed.

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Bluebook (online)
598 So. 2d 676, 1992 WL 76748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathieu-v-state-dotd-lactapp-1992.