Worsham v. Walker

498 So. 2d 260
CourtLouisiana Court of Appeal
DecidedNovember 12, 1986
Docket85 CA 1038
StatusPublished
Cited by14 cases

This text of 498 So. 2d 260 (Worsham v. Walker) 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
Worsham v. Walker, 498 So. 2d 260 (La. Ct. App. 1986).

Opinion

498 So.2d 260 (1986)

Jo-Etta Lynn WORSHAM, et al.
v.
Rose T. WALKER, et al.

No. 85 CA 1038.

Court of Appeal of Louisiana, First Circuit.

November 12, 1986.
Writs Denied January 23, 1987.

*262 Robert S. Cooper, Terry B. Loup, Baton Rouge, for plaintiffs—1st appellants Jo-Etta Lyn Worsham, James Worsham and Dovie Worsham.

Clinton Hyatt, Baton Rouge, for defendant—2nd appellant Rose T. Walker.

Horace C. Lane, Baton Rouge, for State Farm Mut. Auto. Ins. Co.

Charles A. O'Brian, III, Baton Rouge, for defendant-appellee Safeco Ins. Co.

William R. Aaron, Baton Rouge, for City of Baton Rouge, East Baton Rouge Parish.

Harvey Lee Hall, Baton Rouge, for defendant-appellee State of La., Dept. of Transp. and Development.

Terrence C. McRea, Baton Rouge, for City of Baton Rouge.

Before SAVOIE, CRAIN and COVINGTON, JJ.

SAVOIE, Judge.

This litigation arose as a result of a severe automobile accident on September 22, 1982, involving Miss Jo-Etta Worsham and Mrs. Rose Walker. Mrs. Walker was traveling north on Flannery Road in East Baton Rouge Parish. While attempting to prevent a child from falling off the seat, Mrs. Walker's automobile strayed off the roadway and onto the shoulder. It is questionable whether she reached for the child before running off the roadway or while traveling on the shoulder. In the process of reentering the highway, Mrs. Walker traversed the grassy shoulder and then reentered the roadway at a point where it had been patched. Upon reentry Mrs. Walker's Oldsmobile crossed the centerline and collided head-on with Miss Worsham's Volkswagen. Mrs. Walker alleges that the shoulder of the road was defective, causing her to lose control of her car as she attempted to reenter the roadway.

Miss Worsham suffered severe injuries as a result of the accident. She filed suit against Mrs. Walker and her insurer, State Farm Mutual Insurance Company (State Farm), the City of Baton Rouge and the Parish of East Baton Rouge (City-Parish), and Safeco Insurance Company of America (Safeco), the alleged uninsured motorist insurer of the car she was driving. The suit alleged that the accident was caused by the fault of Mrs. Walker and the City-Parish.

Miss Worsham's parents sought damages for loss of consortium. Mrs. Walker reconvened against the City-Parish for her damages. All of the defendants denied liability and filed third-party claims against each other for indemnification and/or contribution.

The trial court granted Safeco's motion for summary judgment and dismissed them. At the conclusion of the trial, the court ruled that the conduct of Mrs. Walker was the sole and proximate cause of the accident. Judgment was rendered dismissing both the Worshams' and Mrs. Walker's claims against the City-Parish. Judgment was rendered in favor of Miss Worsham and against Mrs. Walker in the following amounts: $400,000.00 for general damages, $27,965.94 in medical expenses, and $21,276.00 in lost wages. Mr. & Mrs. Worsham received nothing for their loss of consortium claim. Miss Worsham, her parents, Mrs. Walker and her insurer, State Farm, have appealed.

Mrs. Walker has specified the following assignments of error:

1. The trial court was clearly wrong in ignoring the testimony of the maintenance supervisor for the City-Parish, which constituted a judicial admission of fault.
*263 2. The trial court committed manifest error by deciding that the sole and proximate cause of the accident was the action of Mrs. Walker and that the City-Parish was not at fault.
3. The trial court was clearly wrong in not awarding damages to Mrs. Walker for her injuries.

In their assignments of error, Miss Worsham and her parents contend that the trial court erred in:

1. failing to impose any liability on the City-Parish;
2. finding that the sole proximate cause of the accident was the negligence of Mrs. Walker;
3. failing to award Miss Worsham any damages for her future medical expenses;
4. failing to award Miss Worsham any damages for future loss of income and/or impaired earning capacity;
5. its award of general damages as it was so low that it was an abuse of discretion;
6. failing to award any damages to James and Dovie Worsham, Jo-Etta's parents, for loss of consortium; and
7. granting Safeco's motion for summary judgment.

Mrs. Walker's Assignments of Error

In Louisiana a plaintiff may recover damages under strict liability from the governing body for injuries sustained in an accident on a highway by showing that (1) the thing which caused damages was in the care and custody of the governing body, (2) it had a vice or defect which caused unreasonable risk or injury to another, (3) the injuries complained of were caused by the vice or defect. LSA-C.C. art. 2317; Collins v. Parish of East Baton Rouge, 398 So.2d 602 (La.App. 1st Cir.1981), Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980).

Under a negligence theory, the governing body is under a duty to maintain safe highways and shoulders, that duty extending to protect the people who may foreseeably be placed in danger by an unreasonably dangerous condition. This duty encompasses the risk of a vehicle straying onto the shoulder, attempting to reenter the highway, going out of control and striking another vehicle. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980).

Under either theory, strict liability or negligence, the plaintiff must prove a defect and that such defect caused the damages. Thus, the evidence must clearly show that the shoulder at the point at which Mrs. Walker reentered was defective and that the defective shoulder caused the accident.

After hearing the testimony of several experts and reviewing numerous photographs of the road shoulder, the trial court found that the sole cause of the accident was not the shoulder but the conduct of Mrs. Walker. In reviewing all of the evidence before us, we cannot say the trial court was manifestly erroneous.

The drop-off shown by the photographs may very well be a defect as to that portion of the shoulder. However, Mrs. Walker did not attempt to reenter the roadway at that point. The evidence does not prove a significant depression in the area over which Mrs. Walker's tires traveled. Lt. Lonnie Keller of the East Baton Rouge Sheriff's Office investigated the accident and rolled over the path of Mrs. Walker's tires with a measuring wheel. Lt. Keller testified that there was no significant hole or depression, stating, "[I]f it would have been a hole or something, a deep impression, I would have definitely been aware of it because I rolled right over it." We find that without such a depression the patch over which her car reentered[1] would not have been sufficient by itself to constitute a defective condition. *264 This finding is supported by the plaintiff's expert, Mr. Evans, who testified that the "patch alone would have been no problem."

Assuming arguendo that the testimony of Mr. Charles Collier, the maintenance supervisor for the City-Parish, does constitute a judicial admission of fact, it has no effect on our holding. Whether or not the drop-off on the shoulder constitutes a defect is of no consequence as we find that Mrs. Walker's car did not traverse this drop-off.

Because we find the trial court did not err in finding Mrs.

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498 So. 2d 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worsham-v-walker-lactapp-1986.