Ponder v. Groendyke Transport, Inc.

454 So. 2d 823
Louisiana Court of Appeal·Decided June 13, 1984·No. 83-503·Published·Cited by 32 cases

Opinion

454 So.2d 823 (1984)

Connie Sue PONDER, Ind. & as Natural Tutrix, et als., Plaintiffs-Appellees,
v.
GROENDYKE TRANSPORT, INC., et als., Defendants-Appellants.

No. 83-503.

Court of Appeal of Louisiana, Third Circuit.

June 12, 1984.
Concurring Opinion June 13, 1984.
Writs Denied October 5, 1984.

*825 Gold, Little, Simon, Weems & Bruser, John F. Simon, Alexandria, for defendant-appellant.

Morrow & Morrow, Patrick C. Morrow, Opelousas, Ronald R. Thompson, Baton Rouge, Bernard Whetstone, Little Rock, Ark., for defendant-appellee.

Paul Wilkins, Columbia, for plaintiff-appellee.

Before DOMENGEAUX, GUIDRY and DOUCET, JJ.

DOUCET, Judge.

In this tragic vehicular collision case, a northbound 18-wheel truck failed to stay in its lane of traffic, at a point where the highway expanded from a two-lane undivided roadway into a four-lane divided highway, striking a southbound vehicle, killing two and seriously injuring another. In consolidated actions which ensued, a jury awarded plaintiffs damages approaching four million dollars against defendant trucking company and its insurers. In accordance with law, the trial judge adjudicated the claims against the State of Louisiana, Department of Transportation and Development (DOTD), and found this defendant free of fault. Issues presented on appeal are: (1) the finding of no liability on the part of DOTD; (2) whether the award was excessive; and (3) whether the trial court erred in permitting the jury to know the policy limits of all insurance carriers. We amend and affirm.

*826 On March 30, 1982, at approximately 1:30 A.M., Stuart A. Thevenot was driving an 18-wheel vehicle belonging to Groendyke Transport, Inc., north of Cheneyville, Louisiana heading north toward Lecompte, Louisiana on Highway 71. South of Lecompte the highway changes from a two-lane undivided road to a four-lane divided highway. The southbound traffic continued in a straight line upon reaching the two lane section, whereas the northbound lane forked-off in a trapezoid fashion towards the two northbound lanes. The truck traveled some 600 feet through a painted gore equipped with raised markers, struck and ran through a number of barrels standing well inside the perimeter of the neutral zone between the divided highway. The truck rolled through the barrels for approximately 200 feet then jackknifed from the neutral zone into the southbound portion of the divided Highway 71. There, the Thevenot truck, without warning, smashed into a vehicle being driven by Nickie D. Ponder, instantly killing Nickie Ponder and his brother Donald Ponder. The other occupant in the Ponder vehicle, Michael Molsbee, suffered numerous injuries; Molsbee's left arm and shoulder were severely and permanently mangled. The Ponder vehicle was in its right-hand lane traveling at a reasonable speed. On the other hand, it is clear the Thevenot vehicle was in the wrong lane albeit at an undetermined speed.

Connie Sue Ponder, individually and on behalf of her minor son, brought suit to recover damages occasioned by Donald Ponder's death, naming as defendants Stuart A. Thevenot, Groendyke Transport, Inc., North Star Reinsurance Corp., and Mission Insurance Co. Linda Ponder brought suit against the same defendants, to recover damages individually and on behalf of her three children as a result of the death of Nickie Ponder. Michael Molsbee also brought suit against all of the aforementioned defendants except Mission Insurance Co. Stuart Thevenot brought suit against DOTD and the aforesaid defendants brought third party demands against DOTD.

Original defendants and third party plaintiffs, Groendyke Transport, Inc., North Star Reinsurance Corporation and Mission Insurance Company together with original plaintiff Stuart A. Thevenot presented their claims against the State of Louisiana, DOTD. The demands against the State were determined by the trial judge whereas plaintiff's claims against the original defendants and third-party plaintiffs were tried by a jury. All claims were consolidated for trial.

The jury determined that Stuart A. Thevenot was 80% at fault, thereby implying that another party, presumably DOTD, was 20% at fault. The trial judge found there was no evidence to support a finding of any fault on the part of DOTD, stating: "[t]he highway was properly designed at the accident site. Also, the brightly marked metal barrels with sand in the bottom for ballast were placed well within the neutral ground by the DOTD and created no hazard whatsoever for an ordinarily prudent driver. After Mr. Thevenot ignored the clearly visible early warning signs, Mr. Thevenot's truck had to progress in a straight line through the no travel zone of the painted point (gore) at least 600 feet over raised markers before he ever got to the neutral ground which was outlined by reflector marked barrels placed well back within the perimeter but outlining the perimeter of the neutral ground. Then the Thevenot truck ran through the barrels for about 200 feet before it swerved in the southbound lanes of the four-lane highway. Third party plaintiffs contend that a brake air hose was severed in the accident. Perhaps so, but how and when? It could have been by one of the barrels overrun in the neutral ground or by the accident impact itself in the southbound lane of U.S. Highway 71.

Even if one of the barrels had become lodged underneath the truck and severed an air hose to the brakes, the cause of the accident remains the fault of the driver, Thevenot, who without any known reason traveled some 600 feet across a no travel zone and then into the neutral zone where the barrels were standing as markers to *827 outline the said neutral zone. Mr. Thevenot left his travel lane portion of the highway; this was an act on his part which falls below the reasonable standard of care demanded of any motorist...

... The highway area near the accident site was neither hazardous nor defective. Third party plaintiffs, Groendyke Transport, Inc., North Star Reinsurance, and Mission Insurance Company, and original plaintiff, Stuart A. Thevenot, have failed to prove by a preponderance of the evidence (1) that the highway design was defective, or (2) that the highway construction was faulty or (3) that the highway regulations imposed were unreasonable or inadequate or (4) that the highway inspection or highway maintenance was inadequate or (5) that the highway marking or highway signing was improper or inadequate.

On the contrary, the highway area here involved posed no surprises. There was an adequate early advance warning sign system, an effective positive route guidance system, a reasonably safe recovery area and the installation of the best available cross over prevention measures. In this matter the DOTD was neither negligent nor in custody of a defective or hazardous highway."

The jury awarded the following sums to the plaintiffs:

(a) Connie Sue Ponder (individually)
    1) Loss of love and affection                    $150,000.00
    2) Loss of support, earnings, maintenance        $750,000.00
    3) Special damages (funeral, etc.)                  5,032.00
                                                     ___________
                                     TOTAL           $905,032.00
                                                     -----------
(b) Connie Sue Ponder, on behalf of minor
    Donald R. 

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Ponder v. Groendyke Transport, Inc., 454 So. 2d 823 (La. Ct. App. 1984).

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