Miller v. Ouachita Parish Police Jury

550 So. 2d 904, 1989 La. App. LEXIS 1628, 1989 WL 112090
CourtLouisiana Court of Appeal
DecidedSeptember 27, 1989
DocketNo. 20843-CA
StatusPublished
Cited by3 cases

This text of 550 So. 2d 904 (Miller v. Ouachita Parish Police Jury) 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. Ouachita Parish Police Jury, 550 So. 2d 904, 1989 La. App. LEXIS 1628, 1989 WL 112090 (La. Ct. App. 1989).

Opinion

MARVIN, Judge.

From a judgment awarding damages arising out of a one-ear accident on a parish road, the driver and the police jury appeal, complaining of the trial court’s allocation of fault, 75 percent to the driver and 25 percent to the police jury.

Each litigant, of course in different respects, also complains of the monetary damages found by the trial court.

We find no clear error or abuse of discretion and affirm the judgment.

FACTS

Slocum Road, a two-lane north-south asphalt road in rural Ouachita Parish, extends for three miles and connects easterly and westerly highways, U.S. 80 and La. 15. About a month before the accident, the parish placed two “Low Shoulder” warning signs on each side of the road. The posted speed limit was 35 mph.

Susan Miller, the 19-year-old plaintiff driver, had traveled Slocum Road almost daily for about 1 — 1½ months before the accident, going to and from a vo-tech school near West Monroe in her stepfather’s 1981 Chevrolet pickup truck. As Ms. Miller was northbound from school on a clear, dry afternoon of July 24, 1985, she allowed the truck’s right wheels to drift onto the east shoulder of the road as she entered a curve. Ms. Miller took her foot off the accelerator, tapped the brakes and remained partially on the shoulder for about 170 feet, when she saw a mailbox on the east shoulder. Reacting, she steered sharply to the left to avoid the mailbox. Her abrupt maneuver headed the truck onto and obliquely across the paved road. Again reacting, Ms. Miller steered sharply to the right to keep the truck in its proper lane on the road, causing the truck to start sliding in a clockwise rotation.

There was virtually no shoulder on the opposite or west side of the road. The asphalt there abruptly ended in a drop-off of four to seven inches, perpendicular to the road surface. When the truck’s left rear wheel slid and dropped off the road, the wheel broke from the axle and the truck overturned, causing injury to Ms. Miller. She’ received emergency room treatment for a comminuted fracture of her left clavicle or collarbone.

Ms. Miller alleged that the west shoulder or side of the road where the truck overturned was unreasonably dangerous. She did not allege any defect in the east shoulder either as a cause of her injuries or as a cause of her driving on the east shoulder. Expert witnesses agreed that the sharp drop-off on the west side of the road caused the truck to overturn.

The sheriff's deputy who investigated the accident incorrectly reported the posted speed limit as 45 mph instead of 35. He wrote in the accident report that Ms. Miller was going 50 mph when she entered the curve before driving on the east shoulder. At trial, the deputy could not recall whether Ms. Miller told him of her speed or whether he merely estimated her speed from the physical evidence of the truck’s path. The deputy acknowledged, however, that he could not calculate her exact speed from the physical evidence. Ms. Miller was cited by the deputy with failure to maintain control of her vehicle.

Ms. Miller testified she was going 35-40 mph in what she thought was a 45 mph zone when she entered the curve. Her accident reconstruction expert, Ray Herd, estimated her speed was 35-40 when the truck began sliding after it re-entered the road, and opined she was going 40-45 mph when she first entered the curve. The police jury’s expert, Dr. Olin Dart, agreed [906]*906that her speed was about 35-40 when she began sliding but estimated her speed as high as 50 mph when she entered the curve. Both experts agreed she was going about 20 mph when the truck slid into the drop-off and overturned.

The sharp drop-off was located in front of a home on the west side of the road, where visitors often pulled vehicles directly off the road and parked in the front yard instead of using the driveway of the home. A resident of the home who heard tires squeal just before the accident saw that the truck was partially off the east side of the road in the curve. She saw the course of the truck thereafter until it overturned.

Tire squealing begins as a vehicle approaches the “critical speed” of a curve. This is the maximum speed at which the vehicle could travel through the curve without going completely off the road, according to the experts. Herd estimated the critical speed of this curve as 48 mph and Ms. Miller’s maximum speed going into the curve as 40-45 mph. Dart gave a higher estimate of both the critical speed, 50-55 mph, and Ms. Miller’s speed, 45-50 mph. Notwithstanding this slight difference in expert opinion of the curve’s critical speed, the experts agreed that Ms. Miller approached, but did not reach, the critical speed of the curve, under their respective estimations, when she drifted onto the east shoulder.

Herd estimated that the truck’s right wheels were a foot lower than the left wheels when Ms. Miller was partially on the east shoulder. He described the east shoulder slope as “gradual.” He gave this opinion of what caused the loss of control (with our emphasis):

When she came back on [the road] she had to [steer] a little bit more [to the left] than you would on level surface to get back — and she didn’t have time to turn back to the right before she crossed the center [line]. Then when she did turn it back she turned it too far and it went out of control.

Dart also opined that Ms. Miller's attempt to correct the truck’s path by steering sharply to the right after she re-entered the road caused the truck to slide out of control. He estimated the difference between the right and left wheels at the re-entry point as about seven inches. He also described the east shoulder slope as gradual, saying it was “very traversable.”

Ms. Miller said that she was “not alarmed” about the truck’s path until she encountered the drop-off on the west side of the road. Both experts agreed that the truck probably would have continued sliding to a stop, gradually and without overturning, had the west shoulder been level with the road.

FAULT

The trial court found that the abrupt and severe drop-off of four to seven inches on the west side of the road was unreasonably dangerous even for motorists driving on the east side of the road, and that the drop-off, more probably than not, caused or contributed to Ms. Miller’s injuries.

Because of Ms. Miller’s familiarity with the road, her excessive speed when entering the curve, and the manner in which she steered the truck thereafter, the court found that she “was grossly negligent ... [saying she] was an accident looking for a place to happen.”

Ms. Miller contends the court was clearly wrong in finding her 75 percent at fault. She argues that any negligence on her part was only moderate or slight compared to the “tripping mechanism of the drop-off on the west side of the road,” which caused the truck to overturn.

Ms. Miller argues that the only possible negligence on her part “would have been her speed prior to going off of the right [east] shoulder of the road.” This statement overlooks the fact that her own expert witness attributed her loss of control of the vehicle to her steering the truck “too far” to the right after she re-entered the road. We shall assume that her reaction to the mailbox on the east shoulder [her conscious choice to drive back on the paved roadway] was a reasonable reaction.

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Bluebook (online)
550 So. 2d 904, 1989 La. App. LEXIS 1628, 1989 WL 112090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-ouachita-parish-police-jury-lactapp-1989.