Rodgers v. National Dealer Services, Inc.

508 So. 2d 1007
CourtLouisiana Court of Appeal
DecidedJune 10, 1987
Docket18725-CA
StatusPublished
Cited by18 cases

This text of 508 So. 2d 1007 (Rodgers v. National Dealer Services, Inc.) 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
Rodgers v. National Dealer Services, Inc., 508 So. 2d 1007 (La. Ct. App. 1987).

Opinion

508 So.2d 1007 (1987)

Fred A. RODGERS, Jr., et ux., Plaintiffs-Appellants,
v.
NATIONAL DEALER SERVICES, INC., et al., Defendants-Appellees,
DOTD-Office of Highways, Defendant-Appellant.

No. 18725-CA.

Court of Appeal of Louisiana, Second Circuit.

June 10, 1987.
Rehearing Denied July 9, 1987.

Charles W. Seaman, Natchitoches, for plaintiffs-appellants.

John W. King, Baton Rouge, for DOTD-Ofc. of Highways, for defendant-appellant.

*1008 Cook, Yancey, King & Galloway by Benjamin C. King and Benjamin C. King, Jr., Shreveport, for George S. Dement and Bill Hanna Ford, Inc., for defendants-appellees.

Before HALL, C.J., and MARVIN and LINDSAY, JJ.

MARVIN, Judge.

From a judgment awarding almost $283,000 damages and allocating fault 60 percent to the State DOTD and 40 percent to the driver of a car that went out of control in an improperly marked and dangerous curve on a state highway, these appeals were taken by DOTD, by Rodgers, the plaintiff-passenger in a pickup who suffered injury when the car collided with the pickup, and by Rodgers' wife.

DOTD seeks to reverse the judgment insofar as it finds DOTD's fault caused or contributed to the accident. Rodgers seeks to increase the damage award and to recover damages for loss of future earnings. Rodgers' wife seeks to increase the $7,500 that was awarded her for loss of consortium.

We amend to allow damages for loss of earning capacity. Folse v. Fakouri, 371 So.2d 1120 (La.1979). As amended, and in all other respects, we affirm.

SCOPE OF REVIEW

We review the evidence in the light which most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions. Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978). Allocation of fault is a factual finding which an appellate court does not disturb unless, upon articulated and detailed analysis and reasons, that finding is demonstrated to be clearly wrong. Reck v. Stevens, 373 So.2d 498 (La.1979); Abraham v. Hanover Ins. Co., 420 So.2d 526 (La.App. 2d Cir.1982); Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3d Cir.1984); Thomas v. Missouri-Pacific R. Co., 451 So.2d 1152 (La.App. 3d Cir. 1984); Varnado v. Continental Ins. Co., 446 So.2d 1343 (La.App. 1st Cir.1984).

A trier of fact may accept or reject in whole or in part either the opinions of experts such as an accident reconstruction expert, or the testimony of other witnesses who are not experts but who were involved or were present at the scene. Tyler v. Richardson, 476 So.2d 899 (La.App. 2d Cir. 1985). We find no error in the trial court's assessment of the evidence.

FACTUAL FINDINGS

The trial court's conclusions that DOTD had not posted a speed limit sign or a curve sign and had not "recently" painted readily-visible edge lines on the highway are clearly supported by the DOTD witnesses and records. The highway became a part of the state highway system April 27,1982. The accident occurred at 10:20 p.m. on March 3, 1983. The highway was not "striped" between July 1982 and April 1984. No signs were installed or erected on the highway before September 20, 1983. DOTD's inspector was not informed that the highway had become a part of the state highway system until August 22, 1983. DOTD did not inspect the highway as it is required to do until on or after August 22, 1983.

The curve was downhill from the negligent car driver and was difficult to see at night. Twenty similar accidents had occurred at the unmarked curve in about eight years when a motorist found himself or herself in the curve at an unsafe speed and lost control of the vehicle.

We agree with the analysis of DOTD and of the trial court that shows the car driver was negligent in his speed, observation, and control of his automobile. We do not agree with DOTD's contention that it was not at fault in causing the accident.

DOTD'S FAULT

DOTD did not comply with its Manual for Uniform Traffic Control Devices in this instance as LRS 32:235(A) requires and did not timely act between April 27, 1982, and August 22, 1983, to determine what control devices were needed on this highway. Hatcher v. State, Through Dept. of *1009 Transp. & Dev., 467 So.2d 584 (La.App. 3d Cir.1985).

DOTD owes a duty to highway traffic to warn of a dangerous curve. A motorist is not required to anticipate a curve to which his attention is not directed. Craft v. Caldwell Parish Police Jury, 455 So.2d 1226 (La.App. 2d Cir.1984). The governing agency is not relieved of its duty to erect warning signs because the motorist was negligent. DOTD's duty extends to protect even the negligent motorist. Gadman v. State, Through D. of Transp. & Dev., 493 So.2d 661 (La.App. 2d Cir.1986).

In Gadman, supra, we recognized the presumption that a motorist will obey an appropriately placed sign warning of a dangerous curve as well as DOTD's burden to rebut that presumption. We also increased the allocation of fault to DOTD from 60 percent to 75 percent, while lowering the motorist's fault from 40 to 25 percent. Compare Ledbetter v. State, Thru Dept. of Transp. & Dev., 502 So.2d 1383, 1388 (La.1987), where it was noted that "adequate warning," more likely than not, would have prevented the accident. We apply Ledbetter's reasoning here:

"[The] total lack of any warning signs whatsoever was a cause-in-fact of the accident. Since the Department had a duty to warn ... and since the risk to plaintiff was within the scope of that duty, the Department's breach of that duty ... was a concurrent legal cause of the accident.
* * * * * *
We cannot say that the allocation of sixty percent fault to the Department was not just and proper on the record, and we would not have granted certiorari on this issue alone."

The essence of DOTD's argument is that the trial court was clearly wrong in not accepting the testimony of DOTD's accident reconstruction expert that the car never left the paved roadway and was traveling in excess of 65 mph. Conflicting testimony by others who were involved in the accident and by the officer who investigated the accident, as well as photographs in the record, which were accepted as credible by the trial court, established that the pickup had been driven onto the right shoulder of the highway in an attempt to avoid the out-of-control car and that the car was not being driven in excess of 65 mph and was off the highway when the left side of the car struck the left front side of the truck.

We adopt the trial court's reasons allocating fault which we have here summarized. The trial court's reasons are clearly supported by the law and the record.

QUANTUM

The trial court awarded Rodgers damages in the amount of $275,437.77 and awarded $7,500 to his wife for her loss of consortium. Rodgers' damages were itemized by the trial court as follows:

Pain, suffering and disability    $120,000.00
Loss of past income                 81,608.79
Past medicals                       41,295.20
Future medicals                     25,033.80
Loss of future services              7,500.00
                                  ___________
total                             $275,437.77

PAIN-DISABILITY

Rodgers argues that the trial court's general damage award was too low and an abuse of discretion. Before an appellate court can disturb a quantum award, the record must clearly reveal that the trier of fact abused its discretion.

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