Watts v. Tangipahoa Parish Council

576 So. 2d 1063, 1991 La. App. LEXIS 440, 1991 WL 35086
CourtLouisiana Court of Appeal
DecidedMarch 5, 1991
DocketNo. 90 CA 0973
StatusPublished
Cited by3 cases

This text of 576 So. 2d 1063 (Watts v. Tangipahoa Parish Council) 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
Watts v. Tangipahoa Parish Council, 576 So. 2d 1063, 1991 La. App. LEXIS 440, 1991 WL 35086 (La. Ct. App. 1991).

Opinion

SAVOIE, Judge.

This is a personal injury suit arising out of a single vehicle accident. The plaintiffs, Owen and Maggie Watts, brought an action against the defendant, Tangipahoa Parish Council (Parish).1 From a judgment in favor of Mrs. Watts, the Parish appeals.

FACTS

On December 6, 1985, at about 5:30 p.m., Owen D. Watts, owner and driver, and Maggie Watts, guest passenger, were driving down Wardline Road in Tangipahoa Parish in an easterly direction when the right front tire of their vehicle struck a pothole located in the road causing the vehicle to veer into the ditch and flip over on its side.

Mr. Watts sustained minor injuries as a result of the accident. Mrs. Watts sustained severe injuries to her upper back, neck and shoulder. The trial court awarded Mrs. Watts $396,266.72 in damages plus legal interest and court costs.

ACTION OF THE TRIAL COURT

The trial court found that the section of road where the accident took place was a parish road under the exclusive control of the Tangipahoa Parish Council. The trial court also found that a pothole caused the accident; that the pothole created an unreasonable risk of injury; that the condition was or should have been known by the Parish; and that no reasonable steps were taken to correct it.

ASSIGNMENTS OF ERROR AND ISSUES FOR REVIEW

1. The trial court erred in ruling an indention in Wardline Road was an unreasonable hazardous and dangerous defect because an accident occurred at the site of the indention.
2. The trial court erred in ruling that the Tangipahoa Parish Council had or should have had knowledge of an indention on Wardline Road and failed to correct the condition within a reasonable time when there was no testimony or evidence at trial showing the Parish’s actual knowledge of the indention nor was there testimony or evidence of the length of time the indention had existed [1065]*1065prior to the accident such that the Parish’s knowledge could be inferred.
3. The trial court erred in ruling that an indention of Wardline Road was the complete cause of the accident when the plaintiffs contradicted their original story, and had originally asserted that the accident was caused by the driver’s fault.
4. The trial court erred in finding plaintiff had a loss of future wages and/or earning capacity when the plaintiff left the workforce because of a preexisting heart condition, and never returned to the work force although she and all of her treating physician [sic] acknowledged that she was able to return.

ASSIGNMENTS OF ERROR NOS. 1, 2, and 3

The Parish contends that the trial court erred in finding that the sole cause of the accident was the pothole. The Parish supports this contention with the testimony of Cynthia Vernon, an employee of Louisiana Farm Bureau. Ms. Vernon testified from a claims report which she had taken over the phone from Mrs. Watts five days after the accident. Ms. Vernon testified that the report stated that Mr. Watts was traveling at 50 mph and that he overcorrected after he struck the pothole.

Mr. Watts testified that he was traveling at 40 mph and that because he was unaware of the pothole he had no time to react once his front tire struck it. At trial, Mrs. Watts testified that Mr. Watts was traveling 35 to 40 mph. John Francis, Deputy Sheriff of the Tangipahoa Parish Sheriff’s Office, the investigating officer, testified that the speed limit in the area was 35 mph. Deputy Francis’ testimony corroborated Mr. Watts’ version of the accident. According to Deputy Francis’ testimony, Mr. Watts committed no violations. He further testified that if a driver did not know the pothole was there he would be unable to see it as he approached it. Mr. Watts’ testimony is further corroborated by the testimony of Raymond Burkhart, an accident reconstructionist. Burkhart relying on Deputy Francis’ testimony about the location of the vehicle in the ditch, concluded that Mr. Watts’ reaction time was one second. Burkhart further stated that a one second reaction time at 40 mph would leave Mr. Watts no time to react.

A court of appeal may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). We cannot say that the trial court’s finding that the pothole was the sole cause of the accident is clearly wrong or manifestly erroneous. The trial court obviously considered all the evidence adduced at trial concerning the cause of the accident rather than focusing on the conflicting statements made by Mrs. Watts.

The record is clear that a pothole existed. Therefore, this court must next determine whether the pothole created an unreasonable risk of injury. The State has a duty to travelers to keep the state’s highways and their shoulders in a reasonably safe condition. Manasco v. Poplus, 530 So.2d 548, 549 (La.1988). In Michel v. Ascension Parish Police Jury, 524 So.2d 1369 (La.App. 1st Cir.), writ denied, 530 So.2d 567 (La.1988), this court found that the duty of a parish police jury in maintaining a highway in its control is the same as the duty of the state in maintaining a highway in the state highway system. Whether the parish has breached this duty, that is, whether the roadway and shoulders at the scene of the accident were in an unreasonably dangerous condition, will depend on the particular facts and circumstances of each case. Manasco, 530 So.2d at 549.

Wardline Road is a two lane rural road in Tangipahoa Parish. The lanes are approximately nine feet wide with shoulders approximately three and a half to four feet wide. The ditch bordering the road is approximately one and a half to two feet deep. No measurements of the pothole were taken at the time of the accident. In 1988 Burkhart took measurements of the patch over the pothole. He found the patch to be 11 feet in length and 4.2 feet in width. Although he did not take any precise measurements, Joe Costanza, a nearby resident, estimated the hole to be between six to eight inches deep and four and one [1066]*1066half feet wide. Costanza, who arrived at the scene shortly after the accident, also testified that if he had stepped into the hole on the night of the accident it would have gone over his boots. In the light of this testimony, we cannot say that the trial court was “clearly wrong” or manifestly erroneous in determining that this pothole created an unreasonable risk of injury. Rosell v. ESCO, 549 So.2d at 844.

Mrs. Watts has asserted theories of liability under both strict liability and under negligence. It is well settled that for a plaintiff to recover under a negligence theory he must prove that the parish had actual notice of the condition or that its existence continued over a period and that with the exercise of due diligence the parish or municipality would have had notice. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975). See Bou-doin v. City of Kenner, 556 So.2d 123 (La.App. 5th Cir.1990). A plaintiff seeking to recover under a strict liability theory against a public entity must now also prove that the public body had actual or constructive knowledge of the condition.2

Wardline Road was overlaid sometime in 19843 and potholes continued to develop after its overlay.

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637 So. 2d 636 (Louisiana Court of Appeal, 1994)
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581 So. 2d 690 (Supreme Court of Louisiana, 1991)

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576 So. 2d 1063, 1991 La. App. LEXIS 440, 1991 WL 35086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/watts-v-tangipahoa-parish-council-lactapp-1991.