Newsom v. STATE, DOTD

640 So. 2d 374, 1994 WL 102407
CourtLouisiana Court of Appeal
DecidedMarch 30, 1994
Docket93-815
StatusPublished
Cited by12 cases

This text of 640 So. 2d 374 (Newsom 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
Newsom v. STATE, DOTD, 640 So. 2d 374, 1994 WL 102407 (La. Ct. App. 1994).

Opinion

640 So.2d 374 (1994)

Sherry Elizabeth NEWSOM, et al., Plaintiffs-Appellees,
v.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.

No. 93-815.

Court of Appeal of Louisiana, Third Circuit.

March 30, 1994.

*376 J.B. Jones, Jr., Cameron, for plaintiff-appellee.

Scott James Pias, Lake Charles, for defendant-appellant.

Benjamin Wakefield Mount, Lake Charles, for defendant-appellee.

Before KNOLL and COOKS, JJ., and CULPEPPER[*], J. Pro Tem.

KNOLL, Judge.

This is a wrongful death action. Plaintiffs are the four major children of Juanita Domingue, the deceased driver of an automobile which collided with a loaded dump truck at the intersection of Arizona and Burton Streets in Sulphur, Louisiana. Plaintiffs settled with or dismissed all defendants except the State of Louisiana, Department of Transportation and Development (DOTD).

*377 The trial court held DOTD at fault in failing to adequately warn of the change from a four-way stop to a two-way stop at the intersection, and also held the decedent partially at fault; the trial court apportioned fault 70% to DOTD and 30% to the decedent. It awarded wrongful death damages of $70,000 each to three of decedent's major children and $40,000 to the fourth major child who was incarcerated at the time of his mother's accident and death. In addition, the trial court awarded $83,528 for decedent's loss of wages; made awards for medical specials and decedent's funeral expenses; and further recognized the intervention of Cigna Property & Casualty Companies, the worker's compensation carrier for decedent's employer, in the amount of $168,293.36.

DOTD appeals the trial court's finding of fault, causation and the damage award for decedent's loss of wages. We affirm.

FACTS

On July 17, 1991, at approximately 11:25 a.m., Mrs. Juanita Domingue was traveling east on Burton Street, a two-way two-lane roadway. As she approached the intersection with Arizona Street, a five-lane highway, she came to a complete stop. At the same time Allen Lee Breaux was driving a dump truck in the inside north bound lane of Arizona Street, approaching its intersection with Burton Street at a speed of approximately 35 m.p.h. When the dump truck was approximately 130 feet from the intersection, Mrs. Domingue started across Arizona Street. Breaux braked and swerved to his right, but he could not avoid the subsequent impact with Mrs. Domingue's car. Mrs. Domingue never regained consciousness after the collision and died 43 days later in St. Patrick Hospital.

For some time before the collision, the Arizona-Burton Street intersection was under construction. The construction at the intersection was part of a larger construction project which changed Arizona Street from a low volume, two-lane, part paved, part gravel street into a five-lane highway. Prior to the construction project, Burton Street (the Old Spanish Trail) was the favored street at this intersection. Cars traveling on Burton Street were not required to stop before crossing Arizona Street. Arizona Street was paved to the south of the Burton Street intersection, but was only a gravel road to the north of that intersection. Traffic on Arizona Street, traveling in either direction, was required to stop before crossing Burton.

During construction, the Burton-Arizona Street intersection was controlled by four-way stop signs. On July 8, 1991, the four-way stop signs on Arizona Street were removed and Arizona Street was barricaded to the north of its intersection with Burton Street. The four-way stop signs on Burton Street were also removed and replaced with oversized, 36 inch stop signs. "Stop Ahead" signs were also installed on Burton Street 600 to 800 feet from Arizona Street.

Mrs. Domingue lived in Westlake and traveled on Burton Street to Sulphur, Louisiana almost every day. On July 16, 1991, the barricades on Arizona Street north of Burton Street were removed and for the first time traffic on Arizona was allowed to proceed through this intersection without turning or stopping. Mrs. Domingue's collision with Breaux's dump truck was on the morning of the following day, July 17, 1991.

DOTD'S LIABILITY

DOTD contends that the trial court erred in finding it liable for the accident which caused Mrs. Domingue's death.

When there is evidence before a trier of fact which, upon reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, the appellate court, on review, may not disturb this factual finding in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In its argument before us, DOTD argues that it was not liable under negligence or strict liability. Since the enactment of LSA-R.S. 9:2800, the elements which a plaintiff must prove to recover damages from a public entity defendant based on the defective condition of a roadway are the same whether based on negligence or strict liability. Valet v. City of Hammond, 577 So.2d 155 (La.App. 1 Cir.1991). The plaintiff must *378 prove under either theory that: (1) the defendant owned or had custody of the thing which caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive notice of the defect or risk of harm posed thereby and failed to take corrective action within a reasonable time; and, (4) causation. Id.

DOTD first argues that it had no notice that the failure to post additional warning signs created an unreasonable risk of harm.

With regard to DOTD's argument relative to notice, we refer to Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289 (La.1993), where the Supreme Court stated at 293:

"A public body charged with maintaining a public route cannot claim lack of knowledge of the need to provide warnings where the danger is obvious and inherent in the design and construction of the facility."

We find the same principle applicable in the present case. DOTD significantly changed the priority of travel from Burton to Arizona Street and is charged with knowledge of the need for warnings inherent in the signing design it chose to meet this change. Since it configured the design and signing of this intersection, DOTD cannot now contend that it did not have notice of the dangers inherent in its choice.

DOTD next contends that the trial court erred in imposing a duty upon it to place additional warning signs at the intersection. DOTD argues that it did everything within the professional judgment of its engineers necessary to warn the public to stop at Burton Street, and that the trial court improperly premised liability on the ground that signing at the intersection might have been improved.

Generally, DOTD has a duty to construct and maintain state highways in a condition which is reasonably safe for persons exercising ordinary care and reasonable prudence. Burge v. City of Hammond, 509 So.2d 151 (La.App. 1 Cir.), writ denied, 513 So.2d 285 (La.1987). Additionally, included within the general duty stated above is the specific duty of DOTD to properly sign and mark highways to alert unwary drivers to unusually dangerous conditions, such as unexpected, unmarked or improperly marked intersections. Dartez v. Powell Oil Company, 499 So.2d 1046 (La.App. 3 Cir.1986). As stated in Ledbetter v. State, Dept. of Transp. & Dev., 502 So.2d 1383, 1387 (La.1987), DOTD's duty to warn of hazardous conditions extends "not only to prudent and attentive motorists, but also to those ...

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Bluebook (online)
640 So. 2d 374, 1994 WL 102407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newsom-v-state-dotd-lactapp-1994.