Vale v. Department of Transportation & Development

631 So. 2d 1327, 1994 La. App. LEXIS 86, 1994 WL 20918
Louisiana Court of Appeal·Decided January 27, 1994·No. No. 92-CA-2654·Published

Opinion

PLOTKIN, Judge.

Plaintiffs Elma Vale and Gerard Vale appeal a trial court judgment in favor of defendant, Louisiana State Department of Transportation and Development (DOTD). We affirm.

Both plaintiffs claim to have been injured when their car hit the median separating northbound and southbound traffic on Paris Road in St. Bernard Parish. The accident occurred on January 6,1990, during a driving rainstorm. Mr. Vale, who was driving, stated at trial that he had turned onto Paris Road about three blocks before the site of the accident and that he was unable to see the lane markings. He was trying to get from the left lane of traffic over to the shoulder of the road to wait out the rainstorm when the car struck “something.” Both plaintiffs testified to experiencing a sensation that all four tires of the car had left the road. The injuries, compression fractures of both plaintiffs’ backs, were allegedly a result of the “jolt” received when the tires came back into contact with the road.

Mr. Vale testified that he pulled over to the shoulder of the road and looked to see what he might have hit. However, he stated, he was unable to see anything at the time. The plaintiffs then drove home and their son took them for medical treatment. Two days later, on January 8, Mr. Vale went back to the scene of the accident. At that time, he surmised that he must have struck the median at the end of the center left-turning lane of the highway. He testified that he found a single tire track on the median on January 8; he admitted that he had no way of knowing whether the track was made by his ear.

The plaintiffs filed suit against the DOTD, claiming that their injuries were a result of the improper design and/or maintenance of the median in question. After a full trial on the merits, the trial judge entered judgment in favor of the DOTD, finding that the plaintiffs had “failed to carry their burden of proof; that is, to prove by a preponderance of the evidence that the design or construction of the neutral ground was in some way defective.” Plaintiffs appeal, claiming that the trial judge erred legally because he failed to consider whether the median in question was defective because of improper maintenance.

As noted by the plaintiffs, the burden of proof to entitle plaintiffs to recover damages from the DOTD for injuries allegedly caused by the defective condition of a roadway are identical, regardless of whether the suit is based on negligence or strict liability. Valet v. City of Hammond, 577 So.2d 155, 164 (La.App. 1st Cir.1991). Under either theory, the plaintiff must prove the following elements:

(1) that “the defendant owned or had custody of the thing which caused the damage”;
(2) that “the thing was defective in that it created an unreasonable risk of harm to others”;
(3) that “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.

In the instant ease, the DOTD unquestionably owned or had custody of the median, which is the thing which the plaintiffs allege caused their damages; the DOTD does not dispute that fact. Thus, the first element in the burden of proof is met. Additionally, the plaintiffs proved that the State had knowledge, through its employees of the condition of the median at the time of the accident, which would be sufficient proof of [1329]*1329the third element of the burden of proof. However, the record reveals, as the trial court found, that the plaintiffs failed to prove meet the second and fourth elements of the burden of proof. Concerning the second element, the plaintiffs failed to prove that “the thing,” the median “was defective in that it created an unreasonable risk of harm to others” because of improper maintenance. Additionally, and perhaps more importantly, the plaintiffs failed to prove causation.

On the second element, the alleged defective condition of the median, the plaintiffs make two separate arguments: (1) that the median was defectively designed, and (2) that the median was defectively maintained.1

Concerning the alleged defective design of the median, the plaintiffs claim that the fact that the center left-turn lane widens as it approaches the median, coupled with the fact that the highway curves two degrees at that point, placed the median directly in the left-lane line of travel. Additionally, the plaintiffs make a number of suggestions about how the median might have been “better” designed. However, the plaintiffs do not explain how those conditions make the median defective. Moreover, the testimony presented at trial indicates that both the median and the center turning lane which approached the median were properly designed according to proper DOTD standards. Thus, we find no merit in the plaintiffs’ arguments on this issue.

Concerning the alleged improper maintenance of the median, the plaintiffs point to the presence of a “mound of mud” on the median, which they claim made the surface of the median “discontinuous.” The mound of mud, they claim, was caused by large trucks making U-turns around the median. They cite testimony indicating that the median was not designed to contain that mound of mud, insinuating that the presence of the mound of mud therefore automatically made the median defective. The median was designed with a “rollover” curve, the plaintiffs claims, which means that the DOTD recognized the possibility that someone would hit the median. If the mound of mud had not been present, the plaintiffs claim, the car would simply have rolled off the median, and they would not have suffered damages. They speculate that it was the presence of this mound of mud which caused both the sensation that all four tires of the vehicle had left the roadway and the huge jolt which resulted in their injuries.

Although the trial court’s reasons for judgment do not specifically address the mound of mud, the trial judge make the following statements concerning the condition of the median.

... Paris Road does not suddenly become a divided highway, but is divided for its entire length in St. Bernard Parish. In the populated area south of Law Street the division is painted on so that vehicles can more safely and easily turn left and right. As Palis Road approaches an undeveloped area, a grassy neutral ground slopes gently up from the asphalt roadway. Signs indicating this fact were posted at the time of the accident. The layout of the road has been relatively unchanged for many years.

The above reasons for judgment indicate that the trial judge found that the highway in question was not defectively maintained despite the presence of the mound of mud, presumably because the mound of mud did not present an “unreasonable risk of harm” to the ordinary, prudent driver.2 We cannot [1330]*1330say that that finding was manifestly erroneous.

More importantly, as indicated by the trial judge, even if the mound of mud did create a defective condition, the plaintiffs failed to prove the fourth element of their cause of action — that the defective condition caused the accident in this case. In fact, we find that the plaintiffs failed to prove by a preponderance of the evidence that they even hit the median in question. Mr.

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Vale v. Department of Transportation & Development, 631 So. 2d 1327, 1994 La. App. LEXIS 86, 1994 WL 20918 (La. Ct. App. 1994).

631 So. 2d 1327 (Vale v. Department of Transportation & Development) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Valet v. City of Hammond
577 So. 2d 155 (Louisiana Court of Appeal, 1991)