McSweeney v. Dept. of Transp. & Development

442 So. 2d 659, 1983 La. App. LEXIS 9652
CourtLouisiana Court of Appeal
DecidedNovember 22, 1983
Docket83 CA 0193
StatusPublished
Cited by13 cases

This text of 442 So. 2d 659 (McSweeney 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
McSweeney v. Dept. of Transp. & Development, 442 So. 2d 659, 1983 La. App. LEXIS 9652 (La. Ct. App. 1983).

Opinion

442 So.2d 659 (1983)

John McSWEENEY, et al.
v.
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT OF LOUISIANA, et al.

No. 83 CA 0193.

Court of Appeal of Louisiana, First Circuit.

November 22, 1983.

*661 Orlando G. Bendana, New Orleans, for plaintiff and appellee.

Grady C. Weeks, Houma, for defendant and appellant.

Timothy G. Schafer, New Orleans, for defendant United Services Auto Ins.

Before COVINGTON, COLE and SAVOIE, JJ.

COLE, Judge.

This is a "strict liability" case (La.Civ. Code art. 2317) involving the condition of Louisiana Highway 659 near Houma, on March 17, 1980. The Department of Transportation and Development (DOTD) concedes proof has been made of the defect and its custody of the "thing." At issue is whether or not the defective condition of the highway, including its adjacent shoulder, was causative of the injuries sustained by four minor children when the car in which they were traveling left the highway, went onto the shoulder, and subsequently hit a utility pole. Our standard of review requires us to determine if the trial court was clearly wrong in resolving affirmatively this factual issue. The secondary issue in the case is the adequacy of the amounts awarded for damages.

*662 FACTS

The undisputed facts giving rise to this litigation are as follows. On March 17, 1980, at approximately 3:30 P.M., Karen McSweeney, the sixteen year old daughter of John McSweeney, was driving in a northerly direction on Louisiana Highway 659 near Houma, Louisiana. Karen's sisters, Peggy and Maureen McSweeney, and her nephew, Scott O'Rourke, were passengers in the car. It was raining and Karen had on her lights and windshield wipers. At one point Highway 659 is a two-lane roadway accommodating only northbound traffic, and at a point north of Houma, it changes suddenly to accommodate both north and southbound traffic. At the time of the accident, the double yellow lines were off center, reducing the width of the northbound lane by approximately fourteen inches. Along the shoulder of the narrowed northbound lane in which Karen was driving were ruts or depressions, containing holes of approximately four and one-half inches and six inches in depth. This was immediately adjacent to the main roadway, creating an abrupt difference in elevation between the roadway and the shoulder, which constitutes the conceded defect. Whether or not Karen left the highway at the location of this defective condition (drop-off) is disputed.

After the car left the roadway and the shoulder, it traveled through a muddy, grassy area and finally hit the utility pole. Karen and all of the passengers were injured.

PROCEDURAL HISTORY

John McSweeney and Mary Ann O'Rourke (mother of Scott O'Rourke), individually, and on behalf of the minor children, brought suit against DOTD and United Services Auto Insurance (USAI).[1] The plaintiffs claimed DOTD was solely liable under La.Civ.Code art. 2317[2] for the defective and unreasonably dangerous condition of Highway 659. Alternatively, USAI, the insurer of the McSweeney vehicle, was joined as a party defendant on behalf of Karen McSweeney, for medical pay coverage primarily; and, as a party defendant on behalf of Peggy McSweeney, Maureen McSweeney, and Scott O'Rourke, for liability coverage; in the event Karen McSweeney was found to be a negligent driver.[3]

After a trial on the merits, the court held DOTD liable under article 2317. It concluded it was more likely than not the McSweeney vehicle left the roadway at the location of the six inch deep rut and the narrowing of the highway by the yellow lines. The court found the plaintiffs had satisfied the burden of proving the highway-shoulder defect caused the vehicle to go out of control, resulting in the injuries received by its occupants. Since the court found the defect to be the main cause of the accident and found no fault on the part of the driver, the plaintiffs' demand against USAI and DOTD's third party demand against John McSweeney were dismissed with prejudice.

The court rendered judgment in favor of plaintiffs and awarded John McSweeney $3,000 on behalf of Peggy McSweeney; $1,000 on behalf of Karen McSweeney; $30,000 on behalf of Maureen McSweeney; and $11,480.65 individually. Mary Ann O'Rourke received $35,000 on behalf of Scott O'Rourke, and $9,127.93 individually.

*663 DOTD appealed, alleging the trial court erred in: (1) finding the defect in the shoulder of Highway 659 to be the cause in fact of the accident, (2) finding the defect in Highway 659 to be the legal cause of the accident, (3) according more probative value to the testimony of interested parties who were not eyewitnesses than to the testimony of disinterested eyewitnesses, (4) allowing an expert in traffic engineering to testify out of his tendered field and (5) failing to find the driver, Karen McSweeney, at fault in causing the accident.

John McSweeney, individually, and on behalf of Maureen McSweeney and Peggy McSweeney; and Mary Ann O'Rourke, individually, and on behalf of Scott O'Rourke; answered the appeal alleging the trial court was incorrect in not finding USAI liable jointly with DOTD, and was further incorrect in that the amount of damages awarded was inadequate.[4]

LIABILITY

To establish liability under article 2317, a plaintiff has the burden of proving three facts. First, the property which caused the plaintiff's damage was in the custody of the defendant. Second, the property which caused the plaintiff's damage was defective. Third, the damages incurred by plaintiff were caused by the defective thing. Loescher v. Parr, 324 So.2d 441 (La.1975), rehearing denied (1976). DOTD, having conceded the first two requirements are proven in this case, leaves for our consideration the third requirement, i.e., causation. See, Pitre v. Aetna Life and Cas. Co., 434 So.2d 191 (La.App. 3d Cir.1983).

In considering appellant's first argument that the defect in Highway 659 was not the cause in fact of the accident, it must first be determined whether or not the vehicle left the roadway at the location of the deep ruts.

Karen McSweeney testified the vehicle inadvertently left the highway where there were two deep ruts in the shoulder. DOTD contends, due to the fault of the driver, the vehicle skidded on the paved portion of the highway and left the road at a point past the ruts. The appellees contend the ruts caused the driver to lose control of the car and thus DOTD is liable for failing to maintain the highway shoulder in a safe condition. The trial court, relying upon the testimony and photographs of witnesses who visited the scene of the accident concluded the McSweeney vehicle left the roadway at the location of the six inch deep rut, causing the driver to lose control of the vehicle. Appellant argues the trial court erred in relying on the testimony of these witnesses because they were business associates of John McSweeney. In support of their testimony that the vehicle left the roadway at the location of the rut, they maintained car tracks could be traced from the utility pole back to the six inch deep rut. Although the tracks did not show up in the photographs taken the day after the accident, the trial court found no reason to doubt the veracity of plaintiffs' witnesses.

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Bluebook (online)
442 So. 2d 659, 1983 La. App. LEXIS 9652, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcsweeney-v-dept-of-transp-development-lactapp-1983.