Roussel v. Berryhill

444 So. 2d 1286
CourtLouisiana Court of Appeal
DecidedJanuary 10, 1984
Docket83-CA-533, 83-CA-534
StatusPublished
Cited by4 cases

This text of 444 So. 2d 1286 (Roussel v. Berryhill) 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
Roussel v. Berryhill, 444 So. 2d 1286 (La. Ct. App. 1984).

Opinion

444 So.2d 1286 (1984)

Elaine Roussel, wife of/and Gaskin James ROUSSEL
v.
Eartha J. BERRYHILL, et al.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
v.
Eartha J. BERRYHILL.

Nos. 83-CA-533, 83-CA-534.

Court of Appeal of Louisiana, Fifth Circuit.

January 10, 1984.
Rehearing Denied February 17, 1984.
Writ Denied April 2, 1984.

*1288 Thomas J. Kliebert, Jr. and Michael K. Heltz, Gramercy, for plaintiffs-appellees.

Bernard, Cassia, Babst & Saporito, Joseph S. Palermo, Jr., Metairie, for defendants-appellees.

Jesse S. Guillot, New Orleans, for defendant-appellant.

Before BOUTALL, GRISBAUM and DUFRESNE, JJ.

GRISBAUM, Judge.

This consolidated action involves a twocar collision with resulting injuries. Defendant, Eartha Berryhill, while driving along Louisiana Highway 44, crossed the center line of the road and collided with plaintiff's, Roussel's, vehicle. Ms. Roussel and her husband, Gaskin James Roussel, filed suit individually and on behalf of their minor children for the injuries sustained. Made defendants are Ms. Berryhill; Dairyland Insurance Company, insurer of the Berryhill car; the State of Louisiana through the Louisiana Department of Transportation and Development (DOTD); and Southern Farm Bureau Casualty Insurance Company, the Roussel's motor vehicle insurer. The DOTD answered, denying liability and alleging negligence on the part of Ms. Roussel and Ms. Berryhill. Southern Farm, in a separate lawsuit, filed an action against Ms. Berryhill and Dairyland to recover by way of conventional subrogation monies paid to the Roussels under the terms of the medical payment and uninsured motorist coverage clauses of the Southern Farm insurance policy. This suit was consolidated with the Roussel's main demand. The trial was held in October and November of 1982.

The trial court awarded damages to Elaine Roussel, Dru Ann Roussel, and Sherie Roussel for personal injuries sustained in the accident. It further awarded medical expenses paid for treatment of injuries of all family members to Gaskin and Elaine Roussel and $1,000,000 to Shaun Roussel, the six-month old son of Mr. and Ms. Roussel, for all injuries, mental, physical, and economic, sustained by him. The trial court found the DOTD failed to properly maintain the highway in a safe condition and also found defendant Eartha Berryhill's negligent driving to be a concurrent cause of the injuries. The trial court held the DOTD liable for the full amount of damages awarded and Berryhill liable with the DOTD in solido for $10,000 of the damages, the limit of Berryhill's insurance policy. From this judgment, the DOTD suspensively appeals, alleging it was not negligent in the maintenance of Louisiana Highway 44, and that, even if the highway was poorly maintained, Berryhill's negligence was the proximate cause of the accident. Further, the DOTD claims damages awarded to Shaun Roussel are excessive. Shaun's parents, on his behalf, answer the appeal requesting the trial court's award be increased to $2,000,000. We affirm.

Two issues are presented:

(1) Whether the DOTD is strictly liable under article 2317 of the Louisiana Civil Code for the accident and the resulting *1289 injuries to the Roussels, and whether the DOTD was negligent under article 2315 of the Louisiana Civil Code in its failure to maintain the safety of its highway.

(2) Whether the record clearly reveals the trial court abused its discretion in awarding $1,000,000 in damages to Shaun Roussel.

FACTS

On the afternoon of July 24, 1978, Elaine Roussel was driving her truck in a northerly direction along Louisiana Highway 44, and the defendant, Eartha Berryhill, was driving her car in a southerly direction along the highway. As both vehicles were entering what is commonly called the "Welham Curve", the Berryhill car skidded across the center line of the highway, entered the northbound lane of traffic, and collided with the Roussel vehicle.

As a result of the accident, the occupants of the Roussel truck, Elaine and her children, Dru Ann, Sherie, and Shaun, sustained serious personal injuries. Immediately following the accident, Shaun was rushed to St. James Parish Hospital in Lutcher, Louisiana for emergency treatment. Dr. Carl Poche, a family practitioner, was called to the emergency room. He testified at trial Shaun was crying and screaming which, he said, indicated the child was in pain. Upon examination Dr. Poche discovered a "large mushy probable hematoma of the entire right side of the head." His interpretation was there were multiple fractures radiating in different directions and a depressed fragment of skull bone in the right temporal and right parietal areas of the skull, which indicated a severe injury to the head. He referred Shaun to Ochsner Foundation Hospital, and upon arrival there, Shaun was examined by Dr. Richard A. Coulon, Jr., a specialist in the field of pediatric neurosurgery. Dr. Coulon's examination revealed a cephalhematoma, a swelling over the right side of the head under the scalp. Dr. Coulon noticed a decreased movement in the upper and lower extremities and a weakness in the left upper extremity consistent with brain damage. He stated at trial Shaun had abnormal eye findings, which were consistent with damage to the right side of the head. X-rays taken of Shaun's skull showed a quite significant right skull fracture which ran from the front all the way to the back on the left side of the head. According to Dr. Coulon the child developed an epileptic seizure within 24 hours of the examination and was started on the drug, phenobarbital. At one point the doctor was concerned with the possibility of a blood clot in the infant's head, and he decided to perform exploratory surgery on August 4, 1978 at Ochsner Foundation Hospital at the fracture site to see if part of the brain was working its way through the fractured bone. The surgery revealed the brain was extruding throughout the entire length of the fracture so that the bones were forcefully separated, the covering of the brain torn. It was necessary for Dr. Coulon to remove devitalized tissue from the fracture site. According to Dr. Coulon's orders, Shaun is to be kept indefinitely on phenobarbital to prevent subsequent epileptic seizures.

In addressing the initial issue, it is necessary to determine whether article 2317 of the Louisiana Civil Code is applicable. Louisiana jurisprudence permits recovery on the basis of strict liability under article 2317 of the Louisiana Civil Code when (1) the thing which caused the damage was in the care or custody of the defendant, (2) the thing had a vice or defect, that is, some condition which occasioned an unreasonable risk of injury, and (3) the injury was caused by the defect. Jones v. City of Baton Rouge, 388 So.2d 737, 739 (La.1980); Alleman v. State of Louisiana Department of Highways, 416 So.2d 272, 276 (3d Cir.1982); and Everett v. Louisiana Department of Transportation and Development, 424 So.2d 336, 339 (1st Cir.1982).

CUSTODY

The DOTD admits Louisiana Highway 44 is in the care and custody of the State by virtue of L.S.A.-R.S. 48:191.

*1290 DEFECT

The plaintiffs introduced several letters and presented testimony to substantiate their allegation that Welham Curve was so hazardous as to warrant state action. On October 3, 1977, Mr. J.C. McGrew, District Engineer of the Louisiana Department of Highways, wrote to Mr. George A. Fischer, Secretary DOTD, stating:

Realignment of Welham Plantation
State Route La.

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Related

Hood v. State Through DOTD
587 So. 2d 755 (Louisiana Court of Appeal, 1991)
Thissel v. Commercial Union Ins. Co.
476 So. 2d 851 (Louisiana Court of Appeal, 1985)
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467 So. 2d 574 (Louisiana Court of Appeal, 1985)
Roussel v. Berryhill
447 So. 2d 1081 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
444 So. 2d 1286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roussel-v-berryhill-lactapp-1984.