Miller v. Fields

570 So. 2d 39, 1990 La. App. LEXIS 2238, 1990 WL 151394
CourtLouisiana Court of Appeal
DecidedOctober 11, 1990
DocketNo. 89-CA-2025
StatusPublished
Cited by5 cases

This text of 570 So. 2d 39 (Miller v. Fields) 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
Miller v. Fields, 570 So. 2d 39, 1990 La. App. LEXIS 2238, 1990 WL 151394 (La. Ct. App. 1990).

Opinion

WILLIAMS, Judge.

Plaintiffs, Judy Dupclay Miller and Earl Miller, Sr., appeal the trial court judgment in favor of defendant, State of Louisiana, Department of Transportation and Development (DOTD). The issues before this Court are: 1) whether the trial court was clearly wrong in its finding that plaintiffs failed to prove that their deceased son violated the control of access to Interstate-10 just before he was struck and killed by a vehicle on the service road; 2) if so, whether a gap in the control of access barrier to Interstate 10 was a cause-in-fact of the accident in this case; and 3) whether defendant owed a duty to the decedent as he crossed the service road to the interstate. We affirm.

At 6:15 p.m. on February 16, 1986, plaintiffs’ fourteen year old son, Earl Miller, Jr., was struck by a car and killed on the north I — 10 service road in New Orleans East. Plaintiffs alleged that the decedent had crossed I — 10 under an overpass near his home in order to reach the cinema on the north side of the highway. He allegedly traversed the highway along the Citrus Canal,1 an area that was restricted but apparently used by pedestrians as a shortcut under I — 10, as evidenced by testimony of a well worn foot path in the area. After successfully crossing I — 10, the decedent attempted to cross the north service road, where he was struck and killed. The point of impact was approximately seventy-five feet from the service road bridge over the Citrus Canal.

The service road bridge over the Citrus Canal is bordered on either side by a cement guardrail approximately three feet high. The approaches to the bridge are bordered on either side by metal guardrails which stand approximately two feet above ground level. This metal guardrail along the approach to the bridge extends just beyond the point where decedent was killed, so that decedent evidently crossed over this guardrail and into the path of an oncoming vehicle.

A five foot chain link fence separates the I — 10 service road from the main traveled sections of the interstate. The fence controls access to the main section of the interstate. Near the Citrus Canal, this fence “overlaps” the service road guardrail for a distance of 100 — 125 feet and the concrete bridge rail for several feet on [41]*41either side of the canal. However, at the time of the accident, the fence ended at or near the canal without a “tie-in” to the bridge railing, so that there was an area of approximately six feet through which a pedestrian could pass and thereby cross under the I—10 overpass along the canal.

Plaintiffs filed suit against the DOTD and several other defendants, alleging in pertinent part that the DOTD was negligent and/or strictly liable for the faulty control of access to the I—10 which resulted in their son’s death.2 After a bench trial, the court below found in favor of the DOTD, holding that there was “inconclusive” evidence to show that the decedent crossed the I—10 in the restricted area of the Citrus Canal rather than through Read Road or some alternate route. The trial court further held that, even if decedent did cross the I—10 in the manner asserted by plaintiffs, the DOTD owed no duty to decedent once he traversed the main highway and reached a “position of relative safety” on the service road. Plaintiffs filed this appeal.

Plaintiffs first allege that the trial court misapplied the causation test in its analysis of the facts of this case and that the ineffective control of access along the interstate in the area of the Citrus Canal was a cause-in-fact of decedent’s injury. Incorporated into plaintiffs’ first assignment of error is the argument that the trial court erred in finding that they did not sustain their burden of proving that the decedent actually crossed the interstate via the Citrus Canal. This assignment of error has merit.

The trial court found the record void of any evidence that the decedent arrived at the service road in the manner asserted by the plaintiffs and held that, in the absence of conclusive evidence, plaintiffs failed to carry their burden of proof. After careful review of the record, we conclude that the trial court clearly erred.

Although the record contains no direct evidence of the route taken by the decedent before his fatal accident, the record does contain considerable circumstantial evidence that decedent traversed the interstate along the Citrus Canal. A path was worn along the alleged route, and the testimony of Jeffrey Trammelle, decedent’s “best friend”, established that the route along the Citrus Canal was well known to young people in the area as a short cut for traversing I—10 and was known to decedent. On the night of the accident, decedent was in a hurry to catch up with his friends at the cinema on the opposite side of I—10. The distance between decedent’s street and the point of impact was considerably shorter along the alleged route than along the alternate route of Read Road. Finally, the police diagram in evidence shows that decedent was struck on the Citrus Canal side of the cinema, indicating that he was approaching from that side.

Thus, contrary to the trial court’s reasons for judgment, the record contains more than plaintiffs’ mere assertion that the decedent crossed I—10 via the Citrus Canal short cut. Accordingly, we hold that the trial court clearly erred in holding that plaintiffs failed to prove the route taken by the decedent. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1978).

Having found that the trial court erred in finding that the record contained no evidence that decedent crossed I—10 in the manner alleged, we now consider whether the gap in the control of access was a cause-in-fact of the accident. We hold that it was.

Louisiana has adopted the duty-risk approach to determine whether liability exists in a particular case. Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406 (La. 1976); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (La.1972). Under the duty-risk analysis, the first inquiry is whether the conduct complained of was a eause-in-fact of plaintiff’s injury. Shelton v. Aetna Casualty & Surety Co., 334 So.2d at 409; Mang v. Palmer, 557 So.2d 973, [42]*42974 (La.App. 4th Cir.1989). In determining causation, we do not consider whether the conduct was negligent or look to policy considerations, but only whether the conduct was a substantial factor leading to the accident, i.e., whether it had a direct relationship to the accident. Id. In making this determination, we consider whether, more probably than not, the conduct complained of was a necessary ingredient of the accident. Laird v. Travelers Insurance Co., 263 La. 199, 267 So.2d 714 (1972).

In the instant case, had there not been a gap in the control of access near the Citrus Canal, decedent probably would not have taken this route and, more probably than not, would not have crossed the service road where he was killed. Therefore, the gap in the fence may have been a cause-in-fact of the accident.

Finding causation-in-fact, however, does not establish liability. Plaintiffs must also prove that DOTD owed a duty to decedent once he reached the service road; that there was a breach of this duty; and that the harm caused fell within the scope of protection afforded by the duty. Hill v. Lundin & Associates, Inc., supra; Annis v. Shapiro, 517 So.2d 1237, 1238 (La.App. 4th Cir.1987).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Perkins v. Entergy Corp.
756 So. 2d 388 (Louisiana Court of Appeal, 2000)
Estate of Thomas v. STATE, DOTD
604 So. 2d 617 (Louisiana Court of Appeal, 1992)
Miller v. Fields
575 So. 2d 374 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
570 So. 2d 39, 1990 La. App. LEXIS 2238, 1990 WL 151394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-fields-lactapp-1990.