Nix v. Brasly

489 So. 2d 1038
CourtLouisiana Court of Appeal
DecidedMay 28, 1986
DocketCA 85 0362
StatusPublished
Cited by18 cases

This text of 489 So. 2d 1038 (Nix v. Brasly) 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
Nix v. Brasly, 489 So. 2d 1038 (La. Ct. App. 1986).

Opinion

489 So.2d 1038 (1986)

James E. NIX, et al.
v.
Norman S. BRASLY, et al.

No. CA 85 0362.

Court of Appeal of Louisiana, First Circuit.

May 28, 1986.

*1040 John L. Avant, Baton Rouge, for James E. Nix and Debbs N. Nelson 1st appellants-plaintiffs.

W. Arthur Abercrombie, Jr., Baton Rouge, for Norman S. Brasly, Electronics Transport, Inc. and Travelers Ins. Co. appellees-defendants.

Geralyn Garvey, New Orleans, for Nat. Union Fire Ins. Co. Intervenor-2nd appellant.

Ben Vega, Jr., Donaldsonville, for State of La. through Dept. of Public Safety appellee-defendant.

William J. Doran, Jr., Baton Rouge, for State of La., Dept. of Transp. and Development appellee-defendant.

Before LOTTINGER, EDWARDS and CRAIN, JJ.

EDWARDS, Judge.

This is a suit for personal injuries filed by plaintiffs, James E. Nix and Debbs N. Nelson, against the State of Louisiana through the Departments of Transportation and Development (DOTD) and Public Safety (DPS).[1] A petition of intervention was filed by National Union Fire Insurance Company of Pittsburg, Pennsylvania seeking recovery for worker's compensation benefits and medical benefits paid to plaintiff James Nix. Plaintiffs and intervenor now appeal from a decision in favor of defendants.

FACTS

The personal injuries for which plaintiffs seek recovery were sustained in a vehicular collision which occurred on Interstate 10 (I-10) at the U.S. Hwy. 61 overpass bridge at approximately 6:00 to 6:15 A.M. on January 12, 1982. At this time a major ice storm was passing through the area and had caused the bridge to ice over. The point in time at which this first occurred was not clearly established, but, it is not disputed the bridge was iced over as plaintiffs approached it at approximately 6:15 A.M.

At this time plaintiffs were on their way to work, driving west on I-10 toward Baton Rouge. Nix was driving while Nelson slept in the front passenger seat. As they began ascending the bridge in the right lane, they encountered ice and Nix lost control of the vehicle, which spun around and came to rest parallel to and almost touching the left guardrail. In this position the vehicle was facing east against the flow of oncoming traffic and blocked the small left emergency lane and part of the left traffic lane. The vehicle sustained only minor damages.

Plaintiffs briefly discussed their situation and decided to move the car into the right emergency lane facing west with the flow of traffic. After allowing an oncoming car to pass, Nix attempted to make a U-turn but again lost control and slid on the ice, ending up perpendicular to the right guardrail *1041 blocking both lanes of traffic. Nix intended to back-up and then drive forward into the right emergency lane facing west, but as he looked over his shoulder, he saw a large truck approaching. Nix immediately exited the vehicle, but Nelson was unable to do so before the truck struck the car. The impact pushed the car forward striking Nix. Both plaintiffs suffered personal injuries as a result of the collision. Nelson's injuries were relatively minor, but Nix sustained a serious injury to his hip.

Norman Brasly, the driver of the truck which struck plaintiffs' vehicle, testified he attempted to slow down and maneuver around plaintiffs' vehicle, but when he applied his brakes the truck began sliding on ice and he lost control. Brasly stated that plaintiffs' vehicle blocked both lanes of traffic prior to the collision.

Both Nix and Brasly stated they did not see a sign warning of ice on the bridge as they approached it. However, it was never positively verified whether such a sign was displayed. In addition, all of the parties involved testified no sand, aggregate or other abrasive material had been spread on the bridge at the time of the accident.

ACTION OF TRIAL COURT

In their suit plaintiffs contend their personal injuries resulted from the negligence of DPS and DOTD, which consisted of: 1) failing to warn motorists of the presence of ice on the bridge; and 2) failing to place sand, aggregate or other abrasive materials on the bridge to provide traction and prevent skidding. The trial court concluded DPS was not negligent since it was not shown it had any notice of the hazardous condition of the bridge. The court further concluded DOTD was also not liable under a theory of negligence because its conduct or its failure to act as complained of by plaintiffs was not a cause-in-fact of the accident. The court found the accident was caused solely by plaintiffs' own actions in maneuvering their vehicle in such a manner as to block both lanes of traffic.

LAW

In order to recover under the theory of negligence, a plaintiff must prove: 1) the conduct complained of was a cause-in-fact of the accident; 2) the defendant had a duty to protect plaintiff against the harm complained of; 3) defendant breached this duty; and, 4) plaintiff was harmed by this breach of duty. Payne v. Louisiana Dept. of Transp., Etc., 424 So.2d 324 (La. App. 1st Cir.1982). A defendant's conduct is considered to be a cause-in-fact of harm to another if but for his conduct the harm would not have occurred, or if his conduct is a substantial factor in bringing about the harm. Bickham v. Goings, 460 So.2d 646 (La.App. 1st Cir.1984), writ denied, 462 So.2d 1246 (La.1985). A determination as to whether certain conduct is a cause-in-fact is a factual finding which is entitled to great weight on appeal, and will not be reversed in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In the present case, we agree with the trial court's conclusion that the activities of plaintiffs in voluntarily maneuvering their car into a position which exposed them to an increased risk of harm was a cause-in-fact of their accident. However, we disagree this conduct was the sole cause-in-fact of the accident. There can be more than one cause-in-fact of an accident as long as each cause bears a proximate relation to the harm which occurs and it is substantial in nature. Bodoin v. Daigle, 452 So.2d 828 (La.App.3d Cir.1984), writ denied, 458 So.2d 485 (La.1984). We have no difficulty whatsoever in finding the absence of aggregate or another abrasive material to provide traction was a substantial factor in bringing about the accident. Had such a substance been present, it is unlikely either driver would have lost control of their vehicles and the accident would have been avoided. We find the trial court committed manifest error in concluding the failure to spread aggregate on the bridge was not one of the causes-in-fact of the accident.

*1042 However, we find no manifest error in the trial court's conclusion that the conduct of DOTD with regard to warning of ice on the bridge was not a cause-in-fact of the accident. First, it was not clearly established whether or not the ice warning sign was open at the time of the accident. Nix and Brasly testified they did not see such a sign, but they did not affirmatively state such a sign was not present. It may be appropriate to observe at this point that Nix and Brasly also testified they did not see each other's vehicles until a collision was imminent, even though both had their lights on, it was not foggy and the road approaching the bridge was straight.

Further, whether the warning sign was opened or closed may not have made any difference in the outcome of this incident. Nix admitted he had encountered ice, which caused his car to "fishtail," on the bridge immediately prior to the one in question. In fact, he slowed down to 25 m.p.h.

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Bluebook (online)
489 So. 2d 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nix-v-brasly-lactapp-1986.