McKinnie v. Dept. of Transp. & Development

426 So. 2d 344, 1983 La. App. LEXIS 7655
CourtLouisiana Court of Appeal
DecidedJanuary 17, 1983
Docket15119-CA
StatusPublished
Cited by27 cases

This text of 426 So. 2d 344 (McKinnie v. Dept. of Transp. & 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.

Bluebook
McKinnie v. Dept. of Transp. & Development, 426 So. 2d 344, 1983 La. App. LEXIS 7655 (La. Ct. App. 1983).

Opinion

426 So.2d 344 (1983)

Lila Mae McKINNIE, Plaintiff-Appellant,
v.
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellee.

No. 15119-CA.

Court of Appeal of Louisiana, Second Circuit.

January 17, 1983.
Writ Denied March 18, 1983.

*345 Davenport, Files & Kelly by Mike C. Sanders, Monroe, for plaintiff-appellant.

Marshall W. Wroten, Harvey Lee Hall, Thomas L. Crabson, Frank A. Betanski, Jr., Baton Rouge, for defendant-appellee.

Before PRICE, SEXTON and NORRIS, JJ.

NORRIS, Judge.

Plaintiff, Lila Mae McKinnie, appeals a judgment of the trial court rejecting her demand against the Department of Transportation and Development, hereinafter referred to as the "Department," for damages sustained as a result of a one vehicle accident. We affirm.

FACTS

Between 8:30 and 9:30 a.m. on January 8, 1979, Mrs. McKinnie was driving a Ford pick up truck on Highway 33 in Union Parish enroute from Marion to Farmerville to visit her hospitalized aunt with her daughter, Debra Reeves, as her only passenger. The weather was clear and cold. As Mrs. McKinnie approached a curve in the road at a point where it intersects with a driveway on its north perimeter, she encountered what appeared to be a "strip of ice" extending at least partially across the highway. Mrs. Reeves observed what appeared to be a "little stream of water" as the vehicle approached the curve and warned her mother to watch out for it. Mrs. McKinnie was driving at a speed of approximately 45 miles per hour when her vehicle struck the substance on the road. At that point, the truck began swerving, Mrs. McKinnie applied her brakes, the truck went out of control, and the truck with its passengers came to a halt in a ditch on the North side of the road.

As a result of this accident, Mrs. McKinnie suffered mild to moderate injuries to her neck, left shoulder, lower back and right knee. On November 15, 1979, plaintiff filed a petition, couched in terms of negligence, against the Department. Trial of this case was held on April 9, 1981, and on January 18, 1982, the trial court filed written "Reasons for Judgment" rejecting Mrs. McKinnie's demands. It is from the judgment signed in accordance with those reasons that Mrs. McKinnie appeals specifying the following errors:

1) The Trial Court erred in failing to find that the Department was strictly liable *346 for the injuries suffered by Mrs. McKinnie and in failing to treat this as a strict liability case.
2) The Trial Court erred in finding that the highway in question was in a reasonably safe condition.
3) The Trial Court erred in failing to find that the Department had actual or constructive notice of a dangerous condition.
4) The Trial Court erred in failing to find negligence on the part of the Appellee. [and]
5) The Trial Court erred in finding that a reasonably prudent driver would have anticipated and avoided the patch of ice.

In substance, Mrs. McKinnie argues that she is entitled to recover against the Department under either the theory of strict liability or a theory of negligence.

LIABILITY UNDER LA. C.C. ARTICLE 2317

Under La.C.C. Art. 2317,[1] when harm results from a defect in a thing which creates an unreasonable risk of harm to others, the person in whose custody the thing is when the harm results, is liable for the damage thus caused. Loescher v. Parr, 324 So.2d 441 (La.1975). However, the burden is on the plaintiff to prove the vice or defect in the thing which creates an unreasonable risk of harm to others and that the damage resulted from such vice of defect. Sikes v. McLean Trucking Co., 383 So.2d 111 (La.App. 3d Cir.1980). In other words, in a strict liability case, the claimant is relieved only of proving that the owner or custodian knew or should have known of the risk involved and must still prove that under the circumstances, the thing was defective. A defect is some flaw or fault existing or inherent in the thing itself that creates an unreasonable risk of harm to others. Naylor v. Louisiana Dept. of Public Highways, et al., 423 So.2d 674 (La.App. 1982); Brown v. Winn-Dixie Louisiana, Inc., 417 So.2d 44 (La.App. 1st Cir.1982).

Counsel for Mrs. McKinnie has suggested to this court in oral argument that the defect existing in the highway was that of improper construction of the road which caused faulty drainage thereby allowing water to cross the road. However, there is no evidence in the record, expert or otherwise, that addresses or pertains to the issue of what constituted the defect in the road. After hearing all of the evidence and actually visiting the site of the accident, the trial judge, without amplification or explanation, concluded that water drained from the dirt driveway leading from an abandoned home and across the road and that this drainage was because of the general elevation on the north side of the road. Nevertheless, the trial judge also concluded that plaintiff failed to prove that the road, shoulder or ditches were improperly constructed.

Our review of the record convinces us that the trial court was not "clearly wrong" in concluding that Mrs. McKinnie had failed to prove that the road, shoulder and ditches were constructed or maintained improperly so as to constitute a defect therein which created an unreasonable risk of harm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, Co., et al., 283 So.2d 716 (La.1973).

Furthermore, our review of the record compels us to conclude that not only did plaintiff fail to prove any defect in the construction and maintenance of the road, shoulder or ditches at the location of the accident, but also that the only fact actually proven by the evidence was the presence of a foreign substance [ice or water] on the road at the time of the accident. The temporary presence of a foreign substance on a curved roadway, in and of itself, is not a defect for the purpose of imposing liability under Article 2317. [Brown v. Winn-Dixie Louisiana, Inc., supra; Naylor v. Louisiana Dept. of Public Highways, et al., supra.] because such substances obviously are not *347 flaws or faults which exist or are inherent in the thing itself. They are not imperfections in the road itself; and even if they were deemed to be such, not every imperfection in a road is so unreasonable as to justify the imposition of non negligent liability. Shipp v. City of Alexandria, 395 So.2d 727 (La.1981).

Accordingly, we conclude that Mrs. McKinnie is not entitled to prevail in this instance under a theory of strict liability, and the trial court was not wrong in rejecting recovery on that basis.

LIABILITY UNDER LA. C.C. ARTICLE 2315

In order to determine whether or not Mrs. McKinnie is entitled to recover under Art. 2315,[2] it is necessary that we summarize briefly the evidence adduced at trial.

James Edward Thrascher, a witness who lived in the same community with Mrs. McKinnie and had known her for twenty years, testified that earlier on the morning of the accident, he had traveled Highway 33 to and from Farmerville and had encountered ice on the road at the accident site. He further testified that it was the only ice he saw on the road and that it had caused him to nearly wreck his vehicle on his return trip from Farmerville.

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426 So. 2d 344, 1983 La. App. LEXIS 7655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckinnie-v-dept-of-transp-development-lactapp-1983.