Pardee v. Natchitoches Parish Police Jury

539 So. 2d 1265, 1989 La. App. LEXIS 439, 1989 WL 22856
CourtLouisiana Court of Appeal
DecidedMarch 15, 1989
DocketNo. 87-1362
StatusPublished

This text of 539 So. 2d 1265 (Pardee v. Natchitoches 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
Pardee v. Natchitoches Parish Police Jury, 539 So. 2d 1265, 1989 La. App. LEXIS 439, 1989 WL 22856 (La. Ct. App. 1989).

Opinion

KING, Judge.

The issue presented in this appeal is whether the trial court erred in finding that there existed no hazard in the roadway which caused the plaintiffs damages.

Rosemary Pardee (hereinafter plaintiff) filed suit against the Natchitoches Parish Police Jury (hereinafter defendant) seeking to recover damages for personal injuries received when her automobile went out of control, allegedly because of a pothole in the roadway, and left the roadway striking a tree. The matter was tried and the trial court rendered judgment rejecting the plaintiffs claim and dismissed her suit. Plaintiff timely appeals. We affirm. .

FACTS

On January 21, 1986, at approximately 5:30 A.M., plaintiff was involved in an automobile accident on Hart Road, a public road in Natchitoches Parish, Louisiana, maintained by defendant. Plaintiff alleges that she was the owner and operator of the vehicle involved in the accident and that she was traveling at a lawful rate of speed. She claims that her car struck a large pothole as she proceeded north on Hart Road. This pothole allegedly caused plaintiff to immediately lose control of her vehicle which left the road and struck a tree. Plaintiff sustained injury to her right shoulder and clavicle as well as bruises, abrasions and contusions. She filed suit to recover $44,29^15 for her pain, shock, distress, medical expenses and lost wages. In an amending and supplemental petition, plaintiff increased her claimed damages to $44,568.15. Defendant answered denying plaintiffs claims.

[1266]*1266The matter was tried to the court on June 18, 1987, and at the conclusion of the trial the matter was taken under advisement. The trial court rendered written reasons for judgment on August 11, 1987 denying plaintiffs claims and dismissing her suit. A formal written judgment was signed on August 20, 1987, dismissing plaintiff’s demands at her cost. Plaintiff filed a timely devolutive appeal. We affirm the judgment of the trial court.

LAW

It is well settled that an appellate court should not disturb the factual finding of a trial court in the absence of manifest error. Manifest error, in its simplest terms, means “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The trial court in this case rendered judgment in favor of the defendant. In its written reasons for judgment, the trial court placed great emphasis on the testimony of State Trooper Sanders. Sanders testified that he received a radio call, while patrolling in his state trooper’s vehicle, advising him of the accident and telling him the plaintiff had been taken to the emergency room of the Natchitoches Parish Hospital. Trooper Sanders first went to the hospital to interview plaintiff. Relevant parts of Trooper Sanders’ testimony are as follows:

“Q. And was Ms. Pardee already at the hospital when you went by the first time?
A. Yes, she was.
Q. Did you have occasion to speak with her at that time?
A. Yes, I recall I did.
Q. Is that when you spoke with her and inquired about how the accident occurred?
A. Yes.
Q. And did she indicate to you in that conversation that she was attempting to pass a slower moving vehicle when she lost control of her vehicle?
A. Yes.
Q. Did she make any mention to you in that conversation of having struck a pothole?
A. No.
Q. Did she make any mention to you of any defect in this roadway being a contributing factor to this accident?
A. No.
# * # * * *
Q. The only thing she mentioned to you was that when she was attempting to pass another vehicle, she lost control of her vehicle?
A. Yes.”

This version of the accident given by the plaintiff to Trooper Sanders shortly after the accident was entirely different from her version of the accident given at the trial on June 18, 1987, which was almost a year and a half after the accident and after suit was filed.

After taking plaintiff’s statement at the hospital, Trooper Sanders then drove to the scene of the accident which was approximately twenty miles northwest of Natchi-toches, Louisiana, to complete his investigation of the accident. When Trooper Sanders arrived at the scene of the accident, he paced off scuff marks left by the plaintiff’s vehicle. Trooper Sanders’ testimony in this regard was as follows:

“Q. Did you make any measurements in connection with your investigation?
A. Yes, I stepped off distances.
Q. These were not made with a tape measure?
A. No.
Q. These were made by pacing?
A. Yes.
Q. What distances did you specifically step off?
A. I stepped off the distance where the vehicle actually left the roadway — where it actually left the— left the roadway as it was heading northbound. I checked the distance on the right shoulder. The vehicle was heading northbound. I gath[1267]*1267ered the distance on the right shoulder that the vehicle was traveling, then I stepped off the distance from there until where the vehicle came in contact with the tree.
Q. Okay, now you didn’t see this accident actually happen, is that right?
A. No.
Q. What were you stepping off on this right shoulder?
A. Striation marks — tire striation marks — scuffs marks.
Q. It would be tire marks? Is that what we are referring to?
A. Yes.
Q. What was the distance of those tíre marks?
A. The distance of those tire marks. I’ll have to look at my notes if it’s okay.
MR. CORKERN: Sure
Q. In order to refresh your memory, yes.
A. Okay, it was approximately 60 feet.
Q. And did you make any other measurements, or do any other stepping off?
A. Yes, from there onto the right shoulder of the roadway — to the left shoulder of the roadway.
Q. What was the step-off on that?
A. Approximately 91 feet.”

With reference to the question of the pothole, Trooper Sanders testified as follows:

“Q. Do you recall specifically where these tire marks began and ended in connection with any landmarks?
A. No.
Q. Do you recall specifically seeing any pothole, or holes in this road?
A. No, I don’t.”

Mr.

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Related

Arceneaux v. Domingue
365 So. 2d 1330 (Supreme Court of Louisiana, 1978)
Canter v. Koehring Company
283 So. 2d 716 (Supreme Court of Louisiana, 1973)

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Bluebook (online)
539 So. 2d 1265, 1989 La. App. LEXIS 439, 1989 WL 22856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pardee-v-natchitoches-parish-police-jury-lactapp-1989.