Sudduth v. State, Dept. of Transp. & Development

619 So. 2d 618, 1993 La. App. LEXIS 1769, 1993 WL 145249
Louisiana Court of Appeal·Decided May 5, 1993·No. 92-690·Published·Cited by 17 cases

Opinion

619 So.2d 618 (1993)

Theresa Steelman SUDDUTH, Plaintiff-Appellee,
v.
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT, et al., Defendant-Appellant.

No. 92-690.

Court of Appeal of Louisiana, Third Circuit.

May 5, 1993.
Rehearing Denied June 25, 1993.

*620 James Harvey Domengeaux, for Theresa Steelman Sudduth.

John Claiborne Young and Danial C. Vidrine, for State of Louisiana, D.O.T.D. et al.

Robert C. McCall, for Mathilda Jones.

James Edward Diaz Jr. and Chris Gerard Robbins, for Allstate.

Before STOKER and DECUIR, JJ., and CULPEPPER, J. Pro Tem.[*]

WILLIAM A. CULPEPPER, Judge Pro Tem.

This is a suit for damages caused when two automobiles traveling in opposite directions collided head-on in a detour zone at a construction site on U.S. Highway 167, just north of Abbeville.

Theresa Steelman Sudduth, the southbound driver, filed the present suit against (1) State of Louisiana, Department of Transportation and Development (DOTD), (2) H & S Construction Company (H & S), the highway construction contractor, (3) Dorothy S. Jones, the northbound driver, and Jones' insurers, (4) Allstate Insurance Company and (5) State Farm Mutual Automobile Insurance Company. Matilda Jones, a passenger in the northbound vehicle and wife of Claude Jones, also a passenger in the northbound vehicle, who died of injuries received, and Dorothy S. Jones, driver of the northbound vehicle, and Lawrence Jones, a major child of Claude Jones, filed a separate action against only DOTD and H & S. These two suits were consolidated for trial.

Prior to trial, H & S settled with all plaintiffs.

The trial court found DOTD and H & S at fault for creating a situation at the detour zone which posed a risk that northbound motorists would travel into the southbound lane. Simmons was found free of fault. The court assessed 65% fault to DOTD and 35% fault to H & S, and then made the following awards: to Theresa Steelman Sudduth $500,000 in general damages and $501,603.22 in special damages; to Matilda Jones $50,000 in general damages, $150,000 for the death of her husband, Claude Jones, and medical specials, totaling $19,468.20; to Lawrence Jones, son of Claude Jones, $35,000 for the loss of his father; and Dorothy Jones $2,500 in general damages, $50,000 for the loss of her father, Claude Jones, and medical specials, totaling $213. In addition, the trial court stated in its written reasons for judgment that it was awarding $100,000 for the pain and suffering Claude Jones experienced after the accident until his death, and medical specials, totaling $62,354.85, but the judgment signed does not include these awards.

On appeal, these cases have also been consolidated. Although we will discuss the issues in this opinion, we will render a separate judgment in the companion case, Jones v. State of Louisiana, Department of Transportation and Development, 619 So.2d 626 (La.App. 3rd Cir.1993).

Sudduth did not appeal or answer the appeal.

DOTD appeals, contending that the trial court erred: (1) in finding DOTD liable for the accident under either strict liability or negligence; (2) in finding that DOTD had notice of the alleged defects as mandated by LSA-R.S. 9:2800; (3) in failing to find Dorothy Jones, the driver of the northbound *621 automobile, 100% at fault; (4) in its reliance on the depositional testimony of Jabian Trahan, an eyewitness to the accident, that the detour was confusing; and, (5) in its assessment of Theresa Steelman Sudduth's damages.

The Jones family also appealed in their case, contending that the trial court erred in failing to incorporate into its judgment the $100,000 and $62,354.85 awards it discussed in its written reasons for judgment for Claude Jones's pain and suffering and his medical expenses. We amend the judgment to add the $100,000 and the $62,354.85 as requested by the Jones family, and in all other respects, we affirm.

FACTS

The record shows that on September 3, 1988, at approximately 1 p.m. Theresa Steelman Sudduth was traveling south on U.S. Highway 167 in her 1985 Pontiac Sunbird from Lafayette to Abbeville. It was raining and Highway 167 was under construction.

Traveling north on U.S. 167 at the same time was a brown 1984 Oldsmobile. The driver of the Oldsmobile, Dorothy Jones Simmons, her father, Claude Jones, her stepmother, Matilda Jones, and her sister had attended a family member's funeral in Abbeville and were returning to their homes in Texas. The record shows that the Jones vehicle had been going west on La. Highway 14 and mistakenly turned north onto U.S. 167, instead of continuing west on La. Highway 14. The driver of the Jones vehicle testified that when she realized her error, she started looking for a place to turn left and return to La. Highway 14. At a point in the construction detour phase of U.S. 167, approximately 165 feet south of the intersection of U.S. 167 and Alan Lane, the Jones's vehicle crossed the center line and partially entered the southbound lane. Shortly thereafter, the Jones vehicle collided head on with the Sudduth vehicle.

Sudduth, Matilda Jones, and Claude Jones were hospitalized with various injuries they received in the head-on collision. Sudduth received head injuries and abdominal bleeding which required surgery and a hospital stay; her injuries will be detailed later in this opinion. Matilda Jones underwent surgery to repair a broken leg and remained in a cast for approximately nine months. Claude Jones suffered severe throat injuries. He was hospitalized in Louisiana and Texas and died thirty-six (36) days after the accident from infections which were related to the injuries he received in the accident.

DOTD'S LIABILITY

DOTD contends that the trial court erred in finding it liable for the accident under either strict liability or negligence.

When there is evidence before a trier of fact which, upon reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, the appellate court, on review, may not disturb this factual finding in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La. 1989).

The trial court found DOTD negligent. In its argument before us, DOTD argues that it was not liable under either negligence or strict liability. Since the enactment of LSA-R.S. 9:2800, the elements which a plaintiff must prove to recover damages from a public entity defendant based on the defective condition of a roadway are the same whether based on negligence or strict liability. Valet v. City of Hammond, 577 So.2d 155 (La.App. 1st Cir. 1991). The plaintiff must prove under either theory that: (1) the defendant owned or had custody of the thing which caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or risk of harm posed thereby and failed to take corrective action within a reasonable time; and, (4) causation. Id.

DOTD argues that the detour zone did not pose an unreasonable risk of harm, that it had no notice, actual or constructive, of the dangerous condition of the detour zone, and that Dorothy Jones Simmons, the *622 driver of the northbound automobile, was solely at fault for the accident.

We cannot say that the trial court's finding that the detour zone was defective or unreasonably dangerous for normal use, was manifestly erroneous.

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Sudduth v. State, Dept. of Transp. & Development, 619 So. 2d 618, 1993 La. App. LEXIS 1769, 1993 WL 145249 (La. Ct. App. 1993).

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