Watson v. State ex rel. Department of Transportation & Development

529 So. 2d 427, 1988 La. App. LEXIS 1601, 1988 WL 66025
CourtLouisiana Court of Appeal
DecidedJune 21, 1988
DocketNo. 87 CA 0804
StatusPublished
Cited by10 cases

This text of 529 So. 2d 427 (Watson v. State ex rel. Department of Transportation & Development) 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
Watson v. State ex rel. Department of Transportation & Development, 529 So. 2d 427, 1988 La. App. LEXIS 1601, 1988 WL 66025 (La. Ct. App. 1988).

Opinion

CARTER, Judge.

This is an action for damages arising out of an automobile accident near the intersection of Oregon Street, North Alexander Street, and La. Highway 1 in West Baton Rouge Parish.

At this intersection, La. Highway 1 is a divided, four-lane highway running north and south. The northbound lanes and the southbound lanes of La. Highway 1 are separated by a median. North Alexander Street is a divided, two-lane service street, which parallels La. Highway 1. North Alexander Street and the northbound lanes of La. Highway 1 are separated by a thirty-two foot wide median. Oregon Street is a two-lane street which runs east and west and intersects both La. Highway 1 and North Alexander Street. North Alexander Street is the favored street at this intersection. The traffic exiting the northbound lane of La. Highway 1 is controlled by a yield sign, and the traffic on Oregon Street is controlled by stop signs. The following illustration depicts the intersection as it existed at the time of the accident:

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FACTS

On August 9, 1982, plaintiff, Barbara A. Watson, was traveling north on La. Highway 1, preparing to exit onto Oregon Street. As plaintiff executed a right turn onto Oregon Street, she failed to yield the right of way and collided with a vehicle traveling south on North Alexander Street. As a result of this collision, plaintiff claims to have sustained serious personal injuries.

On July 5, 1983, plaintiff filed suit for damages against the State of Louisiana, through the Department of Transportation and Development (Department), the Parish of West Baton Rouge, the West Baton Rouge Parish Police Jury, and the Town of Port Allen. The Department answered plaintiffs petition denying plaintiffs allegations and alleging comparative negligence. The Department also filed third party demands against the Parish of West Baton Rouge, the West Baton Rouge Police Jury, and the Town of Port Allen. By judgments dated August 14,1984, the original and third party demands against the [430]*430Parish of West Baton Rouge, the West Baton Rouge Parish Police Jury, and the Town of Port Allen were dismissed pursuant to motions for summary judgment. Thereafter, Louisiana Health Service and Indemnity Company, d/b/a Blue Cross of Louisiana, filed a petition of intervention, seeking reimbursement of $36,191.35 in medical expenses paid pursuant to a health insurance policy.

After trial, the trial judge determined that, although the design in signing the intersection did not create an unreasonable risk of harm, at the time of the accident the yield sign was twisted and could not be seen easily in time to avoid the accident. The trial judge determined that the misplacement of the yield sign contributed to the accident and that, as a result, the Department was liable for plaintiffs damages. The trial judge also determined that plaintiff was at fault in the accident and that her fault also contributed to the accident. The trial judge apportioned the fault as follows:

1) Department 70%
2) Plaintiff 30%

In assessing damages, the trial judge, after acknowledging that plaintiff was a difficult witness, determined that the evidence established that plaintiff’s initial cervical injuries and subsequent cervical problems were caused by the August 9, 1982, automobile accident. The trial judge awarded $300,000.00 in general damages and $45,480.28 in special damages. Of the $45,480.28 in special damages, intervenor was awarded $35,694.37, and plaintiff was awarded the remaining $9,785.91. All damage awards were reduced by plaintiffs percentage of fault.

From this judgment, the Department, the plaintiff, and the intervenor appeal. The Department assigns the following errors:

1.The trial court erred in assessing seventy percent (70%) of fault against the Department of Transportation and Development and only thirty percent (30%) of fault against the plaintiff where the evidence presented showed that the accident occurred solely because of the grossly negligent acts of the plaintiff.
2. The trial court erred in finding the accident in this case caused the injuries allegedly incurred by the plaintiff and the medical expenses resulting therefrom.
3. The trial court committed manifest error in awarding the excessive sum of $300,000.00 in general damages and $45,480.28 in special damages.

Plaintiff assigns the following errors:

1. The trial court erred in finding Barbara A. Watson contributorily negligent in causing this accident and, therefore, in finding her thirty (30%) percent at fault in causing the accident.
2. The award of Three Hundred Thousand and No/100 ($300,000.00) Dollars in general damages by the trial court was deficient.

Intervenor assigns the following error:

The trial judge erred in allocating thir-. ty percent of the fault for this accident to the plaintiff in this case.

LIABILITY

A governmental authority that undertakes to control traffic at an intersection has a duty to the motoring public to exercise a high degree of care in maintaining the devices installed for traffic control. Lochbaum v. Bowman, 353 So.2d 379 (La. App. 4th Cir.1977), writ denied, 354 So.2d 1380 (La.1978). A governmental authority may be held liable under theories of negligence (LSA-C.C. art. 2315) and/or strict liability (LSA-C.C. art. 2317). The distinction between recovery under these theories is that under strict liability the plaintiff is relieved of proving that the owner or custodian of the thing which caused the damage knew or should have known of the risk involved. Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982); Burge v. City of Hammond, 509 So.2d 151 (La. App. 1st Cir.1987), writ denied, 513 So.2d 285 (La.1987). Under both theories, plaintiff must still prove that: (1) defendant owned or had custody of the thing which caused the damage; (2) the thing was de[431]*431fective in that it created an unreasonable risk of harm to others; and (3) causation. Burge v. City of Hammond, supra; Farr v. Montgomery Ward and Company, Inc., 430 So.2d 1141 (La.App. 1st Cir.1983), writ denied, 435 So.2d 429 (La.1983).

NEGLIGENCE

To be liable in negligence, a governmental authority must have had actual or constructive notice that a danger existed. Ponthier v. City of New Orleans, 496 So. 2d 1050 (La.App. 4th Cir.1986), writ denied, 498 So.2d 15 (La.1986); Norris v. City of New Orleans, 433 So.2d 392 (La. App. 4th Cir.1983).

In the instant case, the evidence established that the yield sign controlling the traffic exiting the northbound lane of La. Highway 1 had been damaged prior to plaintiff’s accident. The record demonstrated that the yield sign was twisted in a northwesterly direction and was not easily visible to a motorist exiting La. Highway 1 onto Oregon Street until the driver began to negotiate the turn. However, the record is devoid of any evidence establishing the length of time the yield sign had been damaged or the Department’s actual or constructive knowledge of such damage.

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Bluebook (online)
529 So. 2d 427, 1988 La. App. LEXIS 1601, 1988 WL 66025, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watson-v-state-ex-rel-department-of-transportation-development-lactapp-1988.