text:
    Ethel ROBINSON and Peter McClendon v. ALLSTATE INSURANCE COMPANY, et al.
    No. 82 CA 0189.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Gordon Hackman, Boutte, for plaintiffs and appellants.
    Carlos E. Lazarus, Jr., Houma, for defendant and appellee South Central Bell Telephone Co.
    Christopher Riviere, Thibodaux, for defendant and appellee Allstate Ins. Co.'
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is a tort action arising out of an automobile accident which occurred on November 3, 1977 in Houma, Louisiana. Plaintiffs, Ethel Robinson and Peter McClendon, filed suit against Daniel W. Martin (alleged tortfeasor), Allstate Insurance Company (plaintiffs’ uninsured motorist insurer), and South Central Bell Telephone Company. Allstate filed a third-party demand against Martin and South Central Bell. Plaintiffs entered into a compromise agreement with Allstate and dismissed their suit against Allstate only. Issue was not joined as to Martin on either demand, and he appeared only as a witness at trial.

The trial was limited by stipulation of all the parties and by agreement of the court to the issue of South Central Bell’s liability. The trial court rendered judgment in favor of South Central Bell and against plaintiffs on the main demand and in favor of South Central Bell and against Allstate Insurance Company on Allstate’s third party demand. Plaintiffs, Ethel Robinson and Peter McClendon, have appealed. The only issue before this court is the liability of South Central Bell.

East Main Street is a four-lane paved street, running generally east-west in the vicinity of the accident. The accident occurred in the inner lane of the two lanes running west, about thirty feet east of the intersection of East Main Street and Rose-lawn Street. Roselawn intersects East Main on the south (the side of the eastern bound lanes), but does not continue on the northern side of East Main. On the northern side of East Main, directly across from the eastern corner of Roselawn, is a utility pole that has a South Central Bell connection box. Also on that side is a property fence placed just a few feet from the street which runs parallel with the street. There are no shoulders on East Main.

Charles Collins, an employee of South Central Bell, parked the company’s truck in the outer lane of the two lanes running west on East Main Street directly in front of the utility pole and connection box. The truck blocked most of the outer westbound lane. Traffic was able to proceed unobstructed in the inner westbound lane (the lane in which the accident occurred). Both eastbound lanes were clear and unobstructed.

The trial judge found that Collins placed a “men working” sign about two hundred (200') feet east of the parked telephone truck in the outer westbound lane. Additionally, five other warning devices (cones) were placed at intervals between the sign and the truck forming an angle so as to direct traffic gently out of the outer lane into the inner lane by the time the traffic reached the telephone company truck.

Plaintiffs were proceeding west in the inner lane of East Main, but came to a stop about one or two car lengths east of the telephone company truck for reasons unrelated to the presence of the parked truck. Daniel Martin entered East Main Street by left turn from East Street (located about 250' east of Roselawn) and drove in the outer westbound lane of East Main for about ten feet. He then entered the inner westbound lane and, shortly thereafter, ran into the rear of plaintiffs’ car.

There was some variance in Martin’s testimony at trial and in his testimony at an earlier deposition. The trial court found that the preponderance of the evidence showed that Martin made the shift to the inner lane because of the parked telephone company truck and the warning signs located in the outer lane. The court found that he proceeded the remainder of the distance to the site of the accident (about 240 feet) in the inner lane.

The trial court found that Martin’s negligent acts and omissions were the sole, direct, and proximate cause-in-fact of the collision. The court found that Charles Collins, employee of South Central Bell, full-filled his duty to the plaintiffs and to the public by taking reasonable precautions which should have averted the accident. The court further found that had Charles Collins been negligent, that negligence was not a factor causing the accident.

Plaintiffs appealed the judgment saying that the trial court erred in failing to find South Central Bell liable. Plaintiffs base their argument mainly on South Central Bell’s alleged violation of several state and local highway statutes pertaining to vehicles parking and stopping along highways.

Violation of these statutes constitutes civil negligence but is actionable only when it is shown that failure to follow a statute was a legal cause of the accident. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Additionally, plaintiffs must prove that there was a duty imposed upon defendant under the circumstances of the case; that the risk of the particular injury which plaintiffs suffered was within the scope of the protection of that duty; that defendant breached that duty; and that such breach of duty requires a response in damages. Pierre v. Allstate Insurance Company, supra; Dixie Drive It Yourself Sys. v. American Beverage Co., supra; State Farm Mut. Ins. Co. v. South Cent. Bell, 343 So.2d 758 (La.App. 3rd Cir.1977).

Any discussion of the additional elements of this analysis is unnecessary as we agree with the trial judge and find that Charles Collins’s actions, even if they may have violated a statute or ordinance, were not a legal cause or a cause-in-fact of the accident. Cause-in-fact (or legal cause) has been defined as “a substantial factor in bringing about that harm.” Dixie Drive It Yourself Sys. v. American Beverage Co., supra. It is a “necessary antecedent.” Id.

Martin had travelled approximately two hundred forty feet in the inner lane before he hit plaintiffs’ vehicle. There were several cars in front of him. The record does not show why the first car stopped (it probably stopped to turn left onto Roselawn), but the record is clear that this stop was not caused by the presence of the South Central Bell truck in the outer lane. The inner lane was not obstructed in any way. The telephone truck itself was not involved in the accident. The other cars in the inner lane (including plaintiffs’ car) were able to stop; only Martin failed to stop. The accident was caused solely by Martin’s failure to keep a proper lookout of the road and vehicles ahead, his failure to follow at a safe distance, and his failure to stop when the traffic ahead stopped. Martin testified in his deposition as follows:

“I was driving. The car in front of the third car, it was slowing down. When I speeded up, it slowed completely down. I hit my brakes, just slid into it.”

Martin should have begun to slow down when he noticed the traffic ahead of him was slowing down. Instead, he accelerated.

We find that the presence of the telephone truck was not a “legal cause” of the accident. The judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: SAVOIE, Judge. SHORTESS, Judge,

license: Public Domain

text:
    Roy L. PAYNE v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Elliott WATSON and Mrs. Virgie McDonald Watson v. TRAVELERS INDEMNITY COMPANY, et al.
    Nos. 14822, 14826.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Hobart Pardue, Springfield, and Phillip Hagger, New Orleans, for plaintiffs Glen Murphy, E.L. Thornhill, Clarence Everett and Roy Payne.
    Paul Dué, Baton Rouge, for plaintiffs Elliot Watson, et al.
    William J. Doran, Baton Rouge, for defendants Louisiana Dept, of Transp. and Development et al.
    Before SHORTESS, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Five cases were consolidated for trial (Numbers 14,822; 14,823; 14,824; 14,825; and 14,826). The Louisiana Department of Transportation and Development (Department) is a common defendant and appellant in each case, which stem from four different automobile accidents, three of which involved single vehicles. The same approximate location is involved also: Louisiana Highway 43 in Livingston Parish, approximately 3.4 miles north of its intersection with U.S. Highway 190. In all four accidents, a southbound motorist left the roadway after failing to negotiate a curve. The curve was described as 400 feet long, turning through a delta angle of 20° to 30°, resulting in an estimated 5.9° curve. The road is 20 feet wide with 3 to 4 foot shoulders on each side. On the west side, the ditch is 12 to 14 feet from the road. On the east side, the ditch is flatter and its bank is about 22 feet off the road. The curve is not super-elevated and has an adverse crown at its end.

We dispose of these cases with separate opinions in order to promote a proper understanding of the factual situation surrounding each.

Defendant-appellant asserts the trial court’s award of damages in tort to plaintiffs-appellees, Mr. and Mrs. Payne, is in error. We affirm the holding of the trial court.

On April 16, 1978, Mrs. Payne and her eight-month old child, traveling south on La. Hwy. 43, were involved in a one-car accident. She failed to negotiate a curve after the right tires of her vehicle strayed onto the shoulder of the road. After slowing down, she attempted to regain the paved roadway but “lunged” across the proper lane of traffic into the path of Watson’s on-coming car, colliding with it. Mrs. Payne testified that after she slowed her vehicle to negotiate the curve (her child standing on the seat beside her), she remembered nothing until waking up in the hospital.

Louisiana State Police Trooper G. Van Dawson testified that he vaguely (emphasis added) remembered Mrs. Payne recalling she had reached for her child. However, his testimony does not reflect at what time in this accident sequence this “reaching” occurred. Trooper Dawson also testified there was a six to eight inch drop-off from the paved roadway to the shoulder running down the road “aways”.

The sole eye-witness, David Wagner, testified Mrs. Payne appeared (emphasis added) to reach for her child after (emphasis added) the vehicle had “dropped” off the paved roadway. He stated she applied her brakes after “dropping” off the paved roadway and it appeared as though the vehicle might roll over. Further, he stated she appeared to regain control of her vehicle until she attempted to re-enter the paved roadway. Testimony indicates Mrs. Payne attempted to re-enter the roadway while in this six to eight inch drop-off.

Testimony also clearly indicates the Department had failed to erect any warning signs concerning the low shoulder despite a long history of accidents in this location.

The trial court found the road’s shoulder at the curve to be defective and the sole cause of the accident. Finding no evidence of any substandard conduct, the trial court awarded her damages. The trial court also awarded Mr. Payne damages for the loss of his vehicle and medical expenses incurred by Mrs. Payne.

Appellant lists the following specifications of error:

“I. The trial court erred in its finding that there was present on the roadway at the time of these accidents, a condition which was patently and obviously dangerous to a driver exercising ordinary care and reasonable prudence.
“II. The trial court erred in failing to find the drivers of the various vehicles guilty of negligent conduct which was the sole cause of these accidents, or in the alternative, from finding these drivers to be guilty of contributory negligence, or in the further alternative, for failure to find that the recovery of these plaintiffs was barred from “victim fault” or fault of a third party which would constitute an intervening cause of these accidents and would bar recovery under any doctrine of strict liability.
“III. The trial court erred in failing to reduce any award to the Watsons by its virile share based upon the settlement of the Watsons with Travelers Insurance Company and United States Fidelity & Guaranty Company, or in the alternative, erred in failing to grant credit to the Department of Transportation for amounts paid as a result of these settlements.
“IV. The trial court erred in awarding to plaintiffs an excessive amount of damages.”

At trial, appellees claimed damages under both strict liability and negligence. We find liability would attach under either theory of recovery.

Louisiana Civil Code Art. 2317 states:

“We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody....”

One may recover on the basis of strict liability under L.S.A.-C.C. 2317 by showing (1) that the thing which caused the damage was in the care or custody of defendant, (2) that it had a vice or defect, that is, some condition which occasioned an unreasonable risk of injury, and (3) that the injury was caused by the defect. Jones v. City of Baton Rouge, etc., 388 So.2d 737 (La.1980).

“Highway” is defined as a public way for vehicular, mounted and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes. L.S.A.-R.S. 48:1(11). “Shoulder” is defined as that portion of the highway contiguous with the roadway for accommodation of stopped vehicles, emergency use, and lateral support of base and surface. L.S.A.-R.S. 48:1(21). La. Hwy. 43 is defined as a state highway. L.S.A.-R.S. 48:191. As such, the road and shoulder of La. Hwy. 43 are in the care and custody of the Louisiana Department of Transportation and Development (Department). Foggan v. Louisiana Department of Transportation and Development, 402 So.2d 154 (La.App. 1st Cir.1981).

The Department 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. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). Appellees are within the ambit of the Department’s duty to maintain safe shoulders.

Appellees have proven by a preponderance of the evidence a six to eight inch drop-off existed in this curve between the roadway and the shoulder. Testimony of Hubert Stilley, Kenneth Johnston, and Donald Ray Morrison supports a finding the Department had actual knowledge of the defect at the time in question. Stilley, who lived only one mile east of the accident site, travels La. Hwy. 43 several times a day. After observing an accident in the summer or fall of 1976 at this spot, he notified the Department about the low shoulders which, he felt, warranted repair. Kenneth Johnston, the Department’s maintenance engineer, was in charge of an asphalt overlay project for La. Hwy. 43, which was completed March 3, 1976. He testified the asphalt applied to the highway raised the road’s elevation by one and one-half inches. Donald Ray Morrison, with the Department’s planning section, gathered data relative to the accident site. Morrison testified that from 1974 to 1978, there were eleven collisions at this location, most of which were one-car accidents. Additionally, no warning signs had been erected. The highway and its adjoining shoulder were a vice or defect that occasioned an unreasonable risk of injury.

Using Sinitiere’s, supra, “but for” test to determine cause-in-fact, we agree with the trial court’s conclusion that this accident would not have occurred had the shoulder been substantially even with the paved roadway. The trial court’s findings of fact will not be disturbed on appeal unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). There is also a substantial relationship between the failure to correct the highway defect and the accident, the risk encountered by appel-lees.

We find the trial court correctly found the Department liable under Art. 2317, as (1) the highway was in the care and custody of the Department, (2) the shoulder of the highway posed such a danger to motorists that it was a vice or defect in the highway, and (3) the defective shoulder was a substantial cause of appellees’ injuries.

We now consider whether the Department could also be held liable on the grounds of negligence.

All rules of conduct are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that can befall him, merely because it shows that the violation of the rule played a part in producing the injury.

The Department’s general duties toward motorists on the highway are set forth in Sinitiere v. Lavergne, supra, wherein our Supreme Court held as follows:

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of the hazardous condition and fails to take corrective action within a reasonable time.” Sinitiere, supra, p. 824-825. (Emphasis added).

Consequently, it is necessary that we carefully examine the facts in the present case to determine whether a legal duty is imposed upon the Department which protects against the particular risk involved. LeBlanc v. State of Louisiana and the Louisiana Department of Highways, 419 So.2d 853 (La.1982).

Appellees have proven that the highway at this location had a long history of accidents, dating back to 1974. They also proved that by March, 1976, an asphalt overlay of IV2 inches had been applied to the highway. Since that date, there had been no work on the shoulders to bring them flush with the roadway. Additionally, Hubert Stilley, a local resident, saw an accident in the general vicinity in the fall or summer of 1976. Upon investigation, he determined the shoulder to be a good bit lower than the roadway. He called the Highway Department office in Hammond to advise them of the dangerous condition which he felt warranted repair. These facts show by a clear preponderance of the evidence that the Department had actual notice of the highway’s defective condition, but failed to take corrective action within a reasonable time. Thus, liability under negligence may attach.

It is well settled in Louisiana that for a plaintiff to recover in negligence, he must prove: (1) that the act complained of was a cause-in-fact of the accident, (2) that the defendant had a duty, either statutory or non-statutory, to protect this plaintiff against the cause of harm complained of, (3) that the defendant breached this duty to protect this plaintiff, and (4) that the plaintiff was harmed by this breach of the duty owed. Mathews v. Elder International, 400 So.2d 251 (La.App. 4th Cir.1981); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir. 1979), writ denied, 369 So.2d 1366 (La.1979); also see generally Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1st Cir.1981).

The Department has a duty to see that the highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Sinitiere, supra; Smith v. State, Department of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir.1982); Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir.1980), writ denied, 400 So.2d 211 (La.1981). Included within these duties of the Department is the maintenance of the shoulders of the highways in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

The scope of the Department’s duty extends to protecting this motorist from this type of accident. Appellees are within the ambit of the Department’s duty.

Appellees have shown by a preponderance of the evidence that the Department breached its duty by not leveling the shoulder ; that in 1976, Hubert Stilley informed the Department the curve required maintenance of the low shoulders; that this curve had a history of accidents; and that no warning signs were present prior to the curve to warn motorists of the deep drop-off. These facts substantiate appellees’ claim that the Department breached its duty to maintain a safe roadway.

It is uncontested that appellees sustained the injuries claimed as a result of the accident. Although Mr. Payne did not allege any property damage in his original petition, the pleadings were enlarged sufficiently, without objection, to develop such loss. Therefore, the trial court found appellees had proven a prima facie case of negligence against the Department. We agree.

Appellant contends alternatively, that Mrs. Payne’s contributory negligence or fault should bar recovery. Contributory negligence is not a defense in strict liability. Loescher v. Parr, 324 So.2d 441 (La.1975); Canty v. Terrebonne Parish Police Jury, 397 So.2d 1370 (La.App. 1st Cir.1981), writ denied, 401 So.2d 988 (La.1981). A contrary view in dicta wherein the court with two Justices concurring and three Justices concurring in results, stated only that contributory negligence “should” bar recovery in strict liability based on a case by case basis. Dorry v. Lafleur, 399 So.2d 559 (La.1981). Contributory negligence as applied to the claim of strict liability in this instance is clearly inapplicable based upon established Louisiana jurisprudence and the factual distinctions between the instant case and Dorry. See Loescher, supra; Canty, supra.

Victim fault sufficient to preclude recovery under L.S.A.-C.C. 2317 must be conduct of such a nature as to constitute a cause-in-fact of the accident. Ferguson v. State Farm Fire and Casualty Company, 398 So.2d 72 (La.App. 4th Cir.1981). The trial court correctly determined the actions of Mrs. Payne fell short of conduct constituting a cause-in-faet of the accident, sufficient to defeat recovery.

This court must give great weight to the factual conclusions reached by the trial court, Canter v. Koehring Co., 283 So.2d 716 (La.1973), and may not substitute its own evaluations and inferences, for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ denied, 392 So.2d 690 (La.1980). The trial court found Mrs. Payne had not evidenced any substandard conduct sufficient to constitute contributory negligence. Absent any clear error as to the trial court’s findings of fact, it shall be upheld. Arceneaux, supra.

The Department asserts the Watsons’ award exceeded the great discretion of the trial court. A review of the medical evidence reveals that both received painful, severe, and permanent injuries. The trial court did not abuse its great discretion in its award of damages. Reck v. Stevens, 373 So.2d 498 (La.1979).

The trial court did not err in failing to reduce any award to the Watsons by its virile share because of the Watsons’ settlement with Payne. The Department was aware of the release of Payne prior to trial. In its third party petition, the Department raised the issue of Payne’s negligence and this issue was fully litigated. It was determined at trial that Payne was not negligent and, therefore, not a joint tort-feasor. Thus the settlement between Watson and Payne did not reduce the Watsons’ claim against the Department. Wall v. American Employers Insurance Company, et al., 386 So.2d 79 (La.1980).

Roy Payne was awarded $7,175.40 for loss of his vehicle and medical expenses incurred on behalf of his wife. Mrs. Payne was awarded $50,000.00 by the trial court for the injuries, residual adverse emotional developments, and physical pain she sustained as a result of the accident.

The Department argues that the trial court erred in awarding appellees excessive damages, but has failed in its brief or in argument to specify any reason to justify a reduction in the award. Our examination of the record indicates it does not abuse the great discretion afforded the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons set forth above, judgment of the trial court is affirmed at appellant’s costs!

AFFIRMED.

SHORTESS, Judge,

dissenting.

I respectfully dissent in Payne v. La. DOTD, Number 14,822, but agree with the majority’s treatment of Watson v. La. DOTD, Number 14,826.

The majority correctly concludes that the defect in the shoulder played a substantial causal role in this accident. However, Mrs. Payne’s substandard conduct set in motion the unfortunate events which were to follow, as she was guilty of negligence in leaving the highway and thereafter, in failing to maintain control of her vehicle. Mrs. Payne’s conduct was a substantial cause of the accident, and her fault should bar her recovery.

The record reveals the following facts: Carol Payne stated that she was traveling down La. Highway 43 in a 1978 Ford pickup truck; that her eight-month old son was standing on the seat next to her; and that the child was not in a baby seat or under any other restraint. Mrs. Payne stated that she had traveled La. 43 very frequently prior to the accident; that she was familiar with the highway and its curve; and that the location of the accident was near her home. In fact, she stated that she had slowed down just prior to the accident, because she was scared of the curves. The last thing Mrs. Payne remembered was slowing down for the curve. She was unable to recall her actions in leaving the highway or in maneuvering the shoulder.

G. Van Dawson, the State Trooper who investigated the accident, stated that there were no defects on the paved roadway itself, though he did find the shoulder defective; that the weather was clear; and that Mrs. Payne told him that her baby slid across the seat, and she was “fooling with him” just as the accident began to unfold.

A motorist has a duty of reasonable care which includes the duty to keep his vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir.1975), writ denied, 325 So.2d 608 (La.1976). A motorist also has a duty to maintain a proper lookout for hazards which by the use of ordinary care and observation he should be able to see in time to avoid running into them. Southern Farm Bureau Casualty Ins. Co. v. Gay, 276 So.2d 893 (La.App. 1st Cir.1973). Therefore, I would find that Mrs. Payne’s actions in leaving the highway constituted negligence.

Even assuming said conduct was “inadvertence” under the holding of Rue v. State, Dept. of Highways, 372 So.2d 1197 (La.1979), Mrs. Payne’s actions in maneuvering her vehicle, once on the shoulder, were also substandard. The Louisiana Supreme Court recently discussed the duty the Department of Highways owes to straying motorists in LeBlanc v. State of Louisiana, Dept. of Highways, 419 So.2d 853 (1982). The court stated:

“Of course, the duty imposed on the Department is tempered by common sense. As this court held in Sinitiere, it does not protect a motorist against a shoulder de-feet or obstruction of which he has knowledge and a reasonable opportunity to avoid.”

The only independent witness, David Wagner, testified that Mrs. Payne initially maintained control of her vehicle, when part of it left the highway; that she appeared to be able to negotiate the curve; that she went down a little ways and then brought it back, then her car lunged, went across the roadway and hit the Watson vehicle. The majority admits that testimony indicates Mrs. Payne attempted to re-enter the highway while in this six- to eight-inch drop-off. After straying from the highway, Mrs. Payne knew she was in a defective spot on the shoulder. She attempted to slow down and had a reasonable opportunity to continue slowing down or even to come to a complete stop if necessary. These facts are very similar to those in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) and compel a similar ruling. Here, as in Sinitiere, plaintiff successfully slowed down while traveling the shoulder, yet instead of continuing this type of action, attempted to jump back on the highway from a rut in the shoulder. The facts are inappo-site to those in LeBlanc, supra. Mrs. Le-Blanc had never driven on the road before and there were no signs to alert her to the drop-off. This factual difference between the two cases is critical. Here, Mrs. Payne lived in close proximity to the site of the accident, had traveled the road on numerous occasions, and even slowed down at the curves because she was scared of them. Thus, Mrs. Payne’s fault should preclude her recovery.

Accordingly, I dissent.

      . An adverse crown is present when the road slopes in the same direction as the centrifugal force. The centrifugal force, therefore, assists rather than opposes the force. In this case, the force created by the vehicle going through this curve would tend to throw the vehicle outward, and the adverse crown would tend to increase the outward force.

      . It is to be noted that the shoulder's drop-off was accentuated by the Department’s asphalt overlaying operation in 1975-76.

      . LeBlanc, supra, is factually almost identical with the instant case. In both cases, there was a severe “drop-off” from the road to the shoulder. In LeBlanc, the plaintiff inadvertently strayed onto the shoulder, whereas here, inadvertent straying and an adverse crown to the road at the curve tended to propel Mrs. Payne’s vehicle onto the shoulder. There was testimony in LeBlanc indicating that the driver was unfamiliar with the highway defect. Here, no testimony was adduced that the driver was familiar with the highway defect. The driver in LeBlanc instinctively sought to re-enter the road, whereas Mrs. Payne sought instinctively to protect her minor child. Evidence suggested that the driver in LeBlanc may have lost control while on the shoulder, while an eye-witness testified Mrs. Payne’s vehicle almost turned over onto its right side when it went on the shoulder. The particular facts of this case warrant recovery more so than those in LeBlanc.


text:
    E.L. THORNHILL v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 14823.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Hobart Pardue, Springfield, and Phillip Hagger, New Orleans, for plaintiffs Glen Murphy, E.L. Thornhill, Clarence Everett and Roy Payne.
    Paul Dué, Baton Rouge, for plaintiffs Elliot Watson, et al.
    William J. Doran, Baton Rouge, for defendants Louisiana Dept, of Transp. and Development et al.
    Before SHORTESS, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Five cases were consolidated for trial (Numbers 14,822; 14,823; 14,824; 14,825; and 14,826). The Louisiana Department of Transportation and Development (Department) is a common defendant and appellant in each case, which stem from four different automobile accidents, three of which involved single vehicles. The same proximate location is involved also: Louisiana Highway 43 in Livingston Parish, approximately 3.4 miles north of its intersection with U.S. Hwy. 190. In all four accidents, a southbound motorist left the roadway after failing to negotiate a curve. The curve was described as 400 feet long, turning through a delta angle of 20° to 30°, resulting in an estimated 5.9° curve. The road is 20 feet wide with 3 to 4 foot shoulders on each side. On the west side, the ditch is 12 to 14 feet from the road. On the east side, the ditch is flatter and its bank is about 22 feet off the road. The curve is not super-elevated and has an adverse crown at its end.

We dispose of these cases with separate opinions in order to promote a proper understanding of the factual situation surrounding each.

Defendant-appellant appeals the trial court’s award of damages in tort. We affirm.

On the evening of April 14, 1978, plaintiff-appellee was proceeding south on La. Hwy. 43. Being familiar with the highway, having driven it “every day of his life”, he knew the roadway had been recently resurfaced with an asphalt overlay. The shoulders were not flush to the roadway in the curve, the Department having failed to regrade them after the asphalt overlay operation. Proceeding south, he noted a curve sign suggesting a speed of 40 — 45 miles per hour was required.

Appellee testified he was proceeding about 55 miles per hour as he approached the curve; that he reduced his speed as he entered the curve, as he always did, because it was sharp and motorists coming north had a tendency to drift over into the southbound lane; that it was night; that he saw lights coming from around the curve; that he slacked up; that the on-coming car came around the curve at a high rate of speed and drifted into his lane; that he knew he was going to be involved in a “pretty good wreck” if he did not get over and away from it; that he started easing off the road to his right and onto the shoulder; that when he did, the other car passed him; that after it passed, he started to get his car back onto the road; that he turned his steering wheel to the left and nothing happened because he was tracking around the curve; that he continued through the curve, steering to the left, thinking he had not turned it far enough; and that “all of a sudden” the car went roughly to the left, shot across the road, through the ditch, and into the trees on the other side of the road. When questioned, “Do you know what caused your car to go to the left so abruptly?”, appellee answered:

“The shoulder of the road had a drop-off and as you progressed through the curve, the shoulder slowly built back up to approximately the level of the highway, and once it had built back up enough, it just caught hold finally . .. got traction, and just shot me across the road.”

The following day, appellee returned to observe the accident scene. He found a drop-off, measuring approximately 5V2 to 7 inches, between the roadway and the shoulder.

Officers, investigating the Coates accident (No. 14,824) which occurred at the same location on April 15, 1978, made the following observations concerning the roadway and the shoulder. Louisiana State Police Trooper, Roy Gilfour, measured the drop-off in the curve to be approximately 6 to 8 inches deep. He testified that two factors contributed to the drop-off: (1) the roadway had been resurfaced and elevated, and (2) vehicular traffic, running off the roadway, had created a rut. Livingston Parish Deputy Sheriff, William E. Robinson, Jr., estimated the drop-off in the curve from 2 inches to 6-8 inches. He testified that at its deepest point, the drop-off was about 8 inches. Another Livingston Parish Deputy Sheriff, Bobby Gill, testified that he observed a 5-7 inch drop-off.

Testimony also clearly indicates the Department had failed to erect any warning signs concerning the low shoulder despite a long history of accidents in this location.

Appellant lists the following specifications of error:

“I. The trial court erred in its finding that there was present on the roadway at the time of these accidents, a condition which was patently and obviously dangerous to a driver exercising ordinary care and reasonable prudence.
“II. The trial court erred in failing to find the drivers of the various vehicles guilty of negligent conduct which was the sole cause of these accidents, or in the alternative, from finding these drivers to be guilty of contributory negligence, or in the further alternative, for failure to find that the recovery of these plaintiffs was barred by “victim fault” or fault of a third party which would constitute an intervening cause of these accidents and would bar recovery under any doctrine of strict liability.
“HI. The trial court erred in failing to reduce any award to the Watsons by its virile share based upon the settlement of the Watsons with Travelers Insurance Company and United States Fidelity & Guaranty Company, or in the alternative, erred in failing to grant credit to the Department of Transportation for amounts paid as a result of these settlements.
“IV. The trial court erred in awarding to plaintiffs an excessive amount of damages.”

All rules of conduct are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that can befall him, merely because it shows that the violation of the rule played a part in producing the injury.

The Department’s general duties toward motorists on the highway are set forth in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), wherein our Supreme Court held as follows:

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of the hazardous condition and fails to take corrective action within a reasonable time.” Sinitiere, supra, pp. 824-825. (Emphasis added).

Consequently, it is necessary that we carefully examine the facts in the present case to determine whether a legal duty is imposed upon the Department which protects against the particular risk involved. LeBlanc v. State of Louisiana and the Louisiana Department of Highways, 419 So.2d 853 (La.1982).

Appellee has shown by a clear preponderance of the evidence that on the date of this accident, a 6 to 8 inch rut was present between the roadway and the shoulder. This rut constituted a dangerous condition and a defect in the highway.

Appellee proved that the highway at this location had a long history of accidents, dating back to 1974. He also proved that by March, 1976, an asphalt overlay of IV2 inches had been applied to the highway. Since that date, there had been no work on the shoulders to bring them flush with the roadway. Additionally, Hubert Stilley, a local resident, saw an accident in the general vicinity in the fall or summer of 1976. Upon investigation, he determined the shoulder to be a good bit lower than the roadway. He called the Highway Department office in Hammond to advise them of the dangerous condition which he felt warranted repair. These facts show by a clear preponderance of the evidence that the Department had actual notice of the highway’s defective condition, but failed to take corrective action within a reasonable time. Thus, liability under negligence may attach.

It is well settled in Louisiana that for a plaintiff to recover in negligence, he must prove: (1) that the act complained of was a cause-in-fact of the accident, (2) that the defendant had a duty, either statutory or non-statutory, to protect this plaintiff against the cause of harm complained of, (3) that the defendant breached this duty to protect this plaintiff, and (4) that the plaintiff was harmed by this breach of the duty owed. Mathews v. Elder International, 400 So.2d 251 (La.App. 4th Cir.1981); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir. 1979), writ denied, 369 So.2d 1366 (La.1979); also see generally Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1st Cir.1981).

In the instant case, the trial court found as a matter of fact, that the defect in the shoulder was the cause-in-fact of the accident. Great weight is given the findings of the trial court, and only where its findings are clearly wrong will they be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Department has a duty to see that the highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Sinitiere, supra; Smith v. State, Department of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir.1982); Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir.1980), writ denied, 400 So.2d 211 (La.1981). Included within these duties of the Department is the maintenance of the shoulders of the highways in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

The scope of the Department’s duty extends to protecting this motorist from this type of accident. Appellee is within the ambit of the Department’s duty.

Appellee has shown by a preponderance of the evidence that the Department breached its duty by not leveling the shoulder; that in 1976 Hubert Stilley informed the Department the curve required maintenance of the low shoulders; that this curve had a history of accidents; and that no warning signs were present prior to the curve to warn motorists of the deep drop-off. These facts substantiate appellee’s claim that the Department breached its duty to maintain a safe roadway.

It is uncontested that appellee sustained injuries as a result of the accident. Therefore, the trial court found appellee had proven a prima facie case of negligence against the Department. We agree.

Appellant contends appellee’s contributory negligence or fault bars any recovery. A motorist’s duty of reasonable care includes the duty to keep his vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir.1975), writ denied, 325 So.2d 608 (La.1976). Further, a motorist has a duty to maintain proper look-out for hazards and by using ordinary care and observation, he should be able to see and to avoid running into them. Southern Farm Bureau Casualty Ins. Co. v. Gay, 276 So.2d 893 (La.App. 1st Cir.1973). The Department’s duty is not imposed to protect a motorist against a shoulder defect of which he has full knowledge and a reasonable opportunity to avoid. Sinitiere, supra; LeBlanc, supra.

Here, the uncontradicted evidence indicates that appellee, as he approached the curve, slowed his vehicle because he knew of past accidents in the curve; that as he slowed his vehicle, he saw lights approaching from the opposite direction from the vehicle which was drifting into his lane of traffic; that he slowed, drifted off the roadway onto the shoulder and was able, with this maneuver, to avoid a collision with the on-coming vehicle; that his right wheels caught the rut which he described, and Sergeant Gilfour found, and that his car tracked its way around the curve and bolted suddenly across the highway at the end of the curve. Thus, while appellee had full knowledge of the defect in the road, he had no reasonable opportunity to avoid driving onto the shoulder.

This court may not substitute its conclusion of fact for that of the trial court unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ refused, 392 So.2d 690 (La.1980). And only if the trial court is clearly wrong will its decision be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under the facts and circumstances outlined above, we cannot say that the trial court was in error in concluding that plaintiff was free of negligence. This conclusion will not be disturbed on appeal.

Appellee suffered a contusion to his left leg and left cheek, and separated his left shoulder. Dr. Herbert Plauche, an orthopedic surgeon, recommended surgery to repair appellee’s left shoulder, which to date, ap-pellee has declined. Dr. Plauche stated that appellee suffered a permanent disability of 20% loss of function of his left upper extremity. The court awarded general damages of $27,500.00 and special medical expenses of $150.29.

The Department argues that the trial court erred in awarding appellee excessive damages, but has failed in its brief or in argument to specify any reason to justify a reduction in the award. Our examination of the record indicates that while the award is somewhat generous, it does not abuse the great discretion afforded the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons set forth above, judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

SHORTESS, J., concurs and assigns reasons.

SHORTESS, Judge,

concurring.

I respectfully concur.

The plaintiff herein operated his vehicle as a prudent motorist, observing his duty to keep a proper lookout and to maintain control of his vehicle. Hebert v. Lefty’s Moving Service, 389 So.2d 855 (La.App. 4th Cir.1980); Courtney v. Lambert Const. Co., Inc., 355 So.2d 72 (La.App. 1st Cir.1978), writ denied, 356 So.2d 430 (La.1978); Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir.1975), writ denied, 325 So.2d 608 (La.1976); and Southern Farm Bureau Casualty Ins. Co. v. Gay, 276 So.2d 893 (La.App. 1st Cir.1973). The uncontroverted evidence indicates that plaintiff, as he approached the curve, slowed his vehicle because he knew of past problems in the curve; that as he slowed his vehicle, he saw lights approaching from the opposite direction from a vehicle which was drifting into his lane of traffic; that he slowed, drifted off the roadway onto the shoulder and was able, with this maneuver, to avoid a collision with the oncoming vehicle; that his right wheels caught the rut, which he described and Sergeant Gilfour found, and his car tracked its way around the curve and bolted suddenly across the highway at the end of the curve. Clearly, plaintiff was confronted with an emergency situation not unlike that presented in McDaniel v. State, Dept. of Transp. & Etc., 398 So.2d 88 (La.App. 3d Cir.1981), writ denied, 404 So.2d 277, 279 (La.1981), where the plaintiff drove onto the shoulder because he felt it necessary in order to avoid an oncoming vehicle. The court in McDaniel found conflicting testimony as to whether the plaintiff ever regained sufficient control of his vehicle after leaving the highway, to attempt a safe reentry, and resolved said conflict in favor of plaintiff. Here, there is no conflicting evidence. The plaintiff lost control while attempting to safely maneuver the rut. His actions in leaving the highway and manuev-ering the shoulder with its defect, were reasonable.

Applying the Sinitiere “but for” test to determine cause-in-fact, plaintiff’s accident would not have happened had the shoulder been properly maintained. Further, there was a substantial causal relationship between the failure to correct the defect and the accident.

Accordingly, I concur.

      . An adverse crown is present when the road slopes in the same direction as the centrifugal force. The centrifugal force, therefore, assists rather than opposes the force. In this case, the force created by the vehicle going through this curve would tend to throw the vehicle outward, and the adverse crown would tend to increase the outward force.

      . It is to be noted that the shoulder’s drop-off was accentuated by the Department’s asphalt overlaying operation in 1975-76.


text:
    Clarence E. EVERETT, Jr. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 14824.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.

      Hobart Pardue, Springfield, and Phillip Hagger, New Orleans, for plaintiffs Glen Murphy, E.L. Thornhill, Clarence Everett and Roy Payne.
    Paul Dué, Baton Rouge, for plaintiffs Elliot Watson, et al.
    William J. Doran, Baton Rouge, for defendants Louisiana Dept, of Transp. and Development et al.
    Before SHORTESS, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Five cases were consolidated for trial (Numbers 14,822; 14,823; 14,824; 14,825; and 14,826). The Louisiana Department of Transportation and Development (Department) is a common defendant and appellant in each case, which stem from four different automobile accidents, three of which involved single vehicles. The same approximate location is involved also: Louisiana Highway 43 in Livingston Parish, approximately 3.4 miles north of its intersection with U.S. Highway 190. In all four accidents, a southbound motorist left the roadway after failing to negotiate a curve. The curve was described as 400 feet long, turning through a delta angle of 20° to 30°, resulting in an estimated 5.9° curve. The road is 20 feet wide with 3 to 4 foot shoulders on each side. • On the west side, the ditch is 12 to 14 feet from the road. On the east side, the ditch is flatter and its bank is about 22 feet off the road. The curve is not super-elevated and has an adverse crown.

We dispose of these cases with separate opinions in order to promote a proper understanding of the factual situation surrounding each.

Defendant-appellant appeals the trial court’s award of damages in tort. We affirm the holding of the trial court.

On the afternoon of April 15, 1978, Charles W. Coates, driving his 1973 Chevrolet pick-up truck south on La. Hwy. 43 in Livingston Parish, failed to negotiate a curve and ran off the road. The occupants of his truck were his wife, Rita Coates, and his two stepchildren, Danny Everett (age 8) and Tammy Everett (age 15). They had been swimming at the Tickfaw River Retreat picnic area and were enroute home at the time of the accident.

Louisiana State Police Trooper Roy Gilf-our investigated the accident and testified that the road curved to the left going south; that it was dry and the surface was blacktopped; that there was approximately a 6 to 8 inch drop-off between the shoulder and the paved roadway; that Coates’ vehicle left the roadway on the western side of the highway and traveled approximately 264 feet on the shoulder and along the ditch; that after traveling approximately 250 feet on the shoulder, Coates apparently started to straighten the vehicle in preparation for re-entry onto the highway; that the vehicle re-entered the highway, crossing both lanes sideways in an easterly direction for approximately 92 feet, leaving yaw marks as it crossed the highway; that it proceeded onto the northbound lane’s shoulder, hit the ditch bank approximately 23 feet east of the highway, overturned and finally, came to rest on its top; that Mrs. Coates was killed in the accident; and that an advance warning sign indicating a 45 mile per hour speed limit ahead, just north of the accident site, was present.

Danny Everett testified that his stepfather had one or two beers prior to the accident. He further testified that as his stepfather drove into the curve, one or two tires ran off the road and then, as he went to “whip it” back onto the road, the truck went over to the other side and started flipping.

Tammy Everett, the other surviving passenger in the truck, described the accident as follows:

“Well, we were coming around the curve and both the wheels just kind of skidded off the side of the road and hit loose gravel. And he went to pull it back up on and whenever ... the front wheel came back on the gravel, but the back wheel didn’t.”
And
“And he went to pull the truck back up on the road and the back tire didn’t come up. And it just caused the truck to turn around sideways and start flipping.” (Emphasis added).
And
“The front wheel re-entered the highway and the back one ... he was pulling it back up on, but it wouldn’t come up over the hook and it just skidded around. It wouldn’t come up on the road. It just skidded around, turning it sideways.”
And again,
“Because when the truck came up, it was sideways in the road. Back where we had swung around, the truck turned sideways.”

Upon cross examination, she also admitted that Mr. Coates had consumed beer during the day but was uncertain as to the exact amount. At the time of the accident, she testified that he either had a beer in his hand or between his legs.

Two samples of blood-alcohol content were taken from Mr. Coates. The first sample showed a blood-alcohol content of .103 per cent; the second sample a reading of .104 per cent. Mr. Coates subsequently pled guilty to driving while intoxicated. Trooper Gilfour stated that Mr. Coates admitted to him at the hospital in Hammond after the accident that he had been drinking prior thereto and that he had run off the road and had lost control of his vehicle.

Charles E. Everett, Jr., as natural tutor for his children, brought this action against the Department for wrongful death of their mother, Rita Coates.

Testimony also clearly indicates the Department had failed to erect any warning signs concerning the low shoulder despite a long history of accidents in this location.

The trial court, in written reasons for judgment, found the significant variation between the levels of paved roadway and the shoulder to be a proximate cause of the death of Mrs. Coates. Additionally, Mr. Coates’ intoxication was held not to defeat the claim of the surviving heirs in their survival and wrongful death actions.

Appellant lists the following specifications of error:

“I. The trial court erred in its finding that there was present on the roadway at the time of these accidents, a condition which was patently and obviously dangerous to a driver exercising ordinary care and reasonable prudence.
“II. The trial court erred in failing to find the drivers of the various vehicles guilty of negligent conduct which was the sole cause of these accidents, or in the alternative, from finding these drivers to be guilty of contributory negligence, or in the further alternative, for failure to find that the recovery of these plaintiffs was barred by “victim fault” or fault of a third party which would constitute an intervening cause of these accidents and would bar recovery under any doctrine of strict liability.
“HI. The trial court erred in failing to reduce any award to the Watsons by its virile share based upon the settlement of the Watsons with Travelers Insurance Company and United States Fidelity & Guaranty Company, or in the alternative, erred in failing to grant credit to the Department of Transportation for amounts paid as a result of these settlements.
“IV. The trial court erred in awarding to plaintiffs an excessive amount of damages.”

Appellee has claimed damages both under strict liability and negligence. We find liability would attach under either theory of recovery.

Louisiana Civil Code Aft. 2317 states: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody-”

One may recover on the basis of strict liability under L.S.A.-C.C. 2317 by showing (1) that the thing which caused the damage was in the care or custody of defendant, (2) that it had a vice or defect, that is, some condition which occasioned an unreasonable risk of injury, and (3) that the injury was caused by the defect. Jones v. City of Baton Rouge, etc., 388 So.2d 737, 739 (La.1980).

“Highway” is defined as a public way for vehicular, mounted and pedestrian traffic, including the entire area dedicated thereto, and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purposes. L.S.A.-R.S. 48:1(11). “Shoulder” is defined as that portion of the highway contiguous with the roadway for accommodation for stopped vehicles, emergency use, and lateral support of base and surface. L.S.A.-R.S. 48:1(21). La. Hwy. 43 is defined as a state highway. L.S.A.-R.S. 48:191. As such, the shoulder and road of La. Hwy. 43 are in the care and custody of the Louisiana Department of Transportation and Development (Department). Foggan v. Louisiana Department of Transportation and Development, 402 So.2d 154 (La.App. 1st Cir.1981).

The Department 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. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). Appellee is within the ambit of the Department’s duty to maintain safe shoulders.

Appellee has proven by a preponderance of the evidence that the shoulder was defective. Testimony of Trooper Gilfour, Hubert Stilley, Kenneth Johnston, and Donald Ray Morrison supports such a finding. Trooper Gilfour testified there was approximately a six to eight inch drop-off between the shoulder and the paved roadway. Stil-ley, who lived only one mile east of the accident site, traveled the road several times a day. After observing an accident in the summer or fall of 1976 at this spot, he notified the Department about the low shoulders which, he felt, warranted repair. Kenneth Johnston, the Department’s maintenance engineer, was in charge of an asphalt overlay project for La. Hwy. 43, which was completed March 3, 1976. He testified the asphalt applied to the highway raised its elevation by one and one-half inches. Donald Ray Morrison, with the Department’s planning section, relying on his study, testified that from 1974 to 1978, there were eleven collisions at this location, most of which were one-car accidents. Additionally, no warning signs had been erected. The highway and its adjoining shoulder were a vice or defect that occasioned an unreasonable risk of injury.

Appellant asserts that the defect was not the sole proximate cause-in-fact of the injury sustained. Alternatively, appellant contends Mr. Coates’ intoxication was the cause-in-fact and should preclude recovery. Testimony clearly indicates that the road’s defect was a cause-in-fact of the accident. At best, this indicates an instance of concurrent causes.

This court recently determined liability in instances of concurrent causes. Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir.1980), writ denied, 400 So.2d 211 (La.1981). In Sibley, the court found the Department’s liability was not absolved by the concurrent substandard conduct of a third party who lost control of his truck while attempting to negotiate a curve. The test postulated for concurrent cause-in-fact is whether the negligent conduct is a “substantial factor in bringing about harm to another.” Additionally, it is the proximate cause of the harm sustained even though negligence of others may have been attributed to the harm. Wall v. American Employers Insurance Company, 377 So.2d 369 (La.App. 2d Cir.1979), affirmed, 386 So.2d 79 (La.1980).

The instant to which we must address ourselves is the moment of re-entry of the Coates’ vehicle on to the road. Trooper Gilfour testified that Mr. Coates appeared, from his investigation, to have straightened the vehicle out and attempted to re-enter the road when he lost control.

Tammy Everett testified that when Mr. Coates attempted to pull the truck back up on the road, the back tire did not come up. She stated that “it” just caused the truck to turn around sideways and start flipping. She further testified that it wouldn’t come up over the hook and it just skidded around. The “it” to which Tammy Everett referred that caused the loss of control was the disparate levels between the shoulder and the paved roadway.

Great weight must be given to the factual conclusions reached by the trial court. Canter v. Koehring Co., 283 So.2d 716 (La.1973). This court may not substitute its own evaluation and inferences for the reasonable evaluation and inferences of the trier of fact, unless those conclusions are clearly wrong. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ denied, 392 So.2d 690 (La.1980). We find the trial court could reasonably conclude the disparate levels between shoulder and the paved roadway were a substantial factor and the cause-in-fact of the accident. Thus, appellee has proven a prima facie case of strict liability against the Department.

We now consider whether the Department could also be held liable on the grounds of negligence.

It is well settled in Louisiana that for a plaintiff to recover in negligence, he must prove: (1) that the act complained of was a cause-in-fact of the accident, (2) that the defendant had a duty, either statutory or non-statutory, to protect this plaintiff against the cause of harm complained of, (3) that the defendant breached this duty to protect this plaintiff, and (4) that the plaintiff was harmed by this breach of the duty owed. Mathews v. Elder International, et al, 400 So.2d 251 (La.App. 4th Cir.1981); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 1366 (La.1979); also see generally Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1st Cir.1981).

In the instant case, the trial court found as a matter of fact, that the defect in the shoulder was the cause-in-fact of the accident. Great weight is given the findings of the trial court, and only where its findings are clearly wrong will they be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Department has a duty to see that the highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Sinitiere, supra; Smith v. State, Department of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir.1982); Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir.1980), writ denied, 400 So.2d 211 (La.1981). Included within these duties of the Department is the maintenance of the shoulders of the highways in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

The scope of the Department’s duty extends to protecting this motorist from this type of accident. Appellee is within the ambit of the Department’s duty.

Appellee has shown by a preponderance of the evidence that the Department breached its duty by not leveling the shoulder ; that in 1976 Hubert Stilley informed the Department the curve required maintenance of the low shoulders; that this curve had a long history of accidents; and that no warning signs were present prior to the curve to warn motorists of the deep drop-off. These facts substantiate appellee’s claim that the Department breached its duty to maintain a safe roadway.

It is uncontested that appellee sustained injuries as a result of the accident. Therefore, the trial court found appellee had proven a prima facie case of negligence against the Department. We agree.

Appellant alternatively contends that fault of a third party (i.e., Mr. Coates by reason of intoxication), appellee’s assumption of the risk or appellee’s contributory negligence should preclude recovery. We find such contentions without merit.

While a conflict exists between the Circuits as to the proper test to establish third party fault, appellant fails to carry his burden under either test. In Godwin v. Government Employees Insurance Company, 394 So.2d 751 (La.App. 3rd Cir.1981), the Third Circuit stated the fault of a third party must be the “sole cause” of the accident. As previously stated, at best, this case presents a situation of concurrent causes. Coates’ intoxication was found not to be the sole cause of the accident. Therefore, appellant fails to meet his burden under the “sole cause” test.

Our court in American Road Insurance Company v. Montgomery, 354 So.2d 656 (La.App. 1st Cir.1977), writs denied, 356 So.2d 430 (La.1978), 356 So.2d 434 (La.1978), 356 So.2d 435 (La.1978) established that third party fault sufficient to preclude recovery must be a “substantial factor.” The trial court concluded that the shoulder’s defect was a “substantial factor” in the accident, not Coates’ intoxication. We may not substitute our own reasonable evaluations and inferences for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly erroneous. Abadie, supra; Esta, supra. And only in the case of clear wrong will the trial court be overruled. Arceneaux, supra.

The law is well settled in Louisiana that a “guest passenger riding with a driver who has been drinking excessively assumes the risk of injuries received in an accident caused in whole or in part by the driver’s negligence, ‘if the alcohol-induced impairment of the driver’s ability is a substantial contributory cause of the driver’s negligence’ and if the guest passenger ‘knows or should have known’ of the driver’s condition and nonetheless voluntarily rides with him.” Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971), rehearing denied, June 28, 1971; Jones v. Continental Casualty Co., 246 La. 921, 169 So.2d 50 (1964); Powell v. Heck, 378 So.2d 582 (La.App. 3rd Cir.1979). The defendant bears the burden of proving by a preponderance of the evidence that the driver’s intoxication was a “substantial factor” contributing to the accident. Marcotte, supra; Jones, supra.

In the instant case, the trial court found the shoulder’s defect to be a “substantial factor” contributing to the accident. Absent clear error, the holding of the trial court will be affirmed. Arceneaux, supra.

Additionally, an exception to the general guest passenger rule provides that minor children in a vehicle with an intoxicated driver are not chargeable with “contributory negligence or assumption of the risk.” Foy v. Ed Taussig, Inc., 220 So.2d 229 (La.App. 3rd Cir.1969). Therefore, the minor children are not barred from recovery.

The Department argues that the trial court erred in awarding excessive damages. In the award of damages, the trial court noted that Mrs. Coates lived a short period after the accident and was thus entitled to damages for pain and suffering in the amount of $10,000. This amount was to be distributed amongst the children. Danny Everett was awarded $100,000 for mental pain and suffering and loss of love and affection as was his sister, Tina Rogers. The trial court taking notice of the severe emotional trauma Tammy Everett suffered as a result of her mother’s death, awarded her $175,000. Examination of the record indicates that the awards are well within the discretion of the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the foregoing reasons, the trial court’s award of compensation is justified in law and in fact and is hereby affirmed. Appellant is to pay all costs.

AFFIRMED.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The Department of Highways in not a guarantor of the safety of all traveling motorists, but owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). There must also be a causal relationship between any alleged wrongful conduct or breach of said duty and the resulting harm before liability can attach. Mixon v. Allstate Insurance Company, 300 So.2d 232 (La.App.2d Cir.1974), writ denied, 303 So.2d 179 (La.1974). In order for negligent conduct to be a cause-in-fact of harm to another, it must be a substantial factor in bringing about that harm. Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). The facts of this accident do not reveal a non-negligent motorist, nor do they show any act or omission on the part of the Department, whether sounding in negligence (La.C.C.2315) or strict liability (La.C.C.2317), which played a substantial role in causing this accident.

I feel that the majority ignores the facts surrounding this accident, which clearly support a finding that this accident was not caused by any negligence on the part of the Department. Rather, they hold that the Department is liable, regardless of any causal connection between the activity of the State and the accident.

A motorist is under a duty to drive prudently, which includes the duty to control his vehicle and to keep a proper lookout. Hebert v. Lefty’s Moving Service, 389 So.2d 855 (La.App. 4th Cir.1980); Courtney v. Lambert Const. Co., Inc., 355 So.2d 72 (La.App. 1st Cir.1978), writ denied, 356 So.2d 430 (La.1978). There was no evidence presented that the paved roadway was itself defective in any way. The road was in good condition, and a driver exercising ordinary care and reasonable prudence should have easily negotiated that curve.

However, the record reveals the following facts: Both Danny Everett and his sister, Tammy, testified that their stepfather, Charles Coates, had been drinking prior to the accident. Tammy stated that he had consumed beer during the day; that he drank an 8-pack of 8-ounce Miller Ponies before they went swimming; that he had taken an ice chest with another 8-pack with him; and that there were a few beers left in the ice chest at the time of the accident. She also stated that at the time of the accident, Coates had a beer in his hand or between his legs. Coates himself admitted to Trooper Gilfour at the hospital after the accident that he had been drinking prior thereto, and stated that he had run off the road and lost control of his vehicle. Two blood samples were taken. One indicated Coates had a blood-alcohol content of .103% and the other revealed a content of .104%. Coates subsequently pled guilty to driving while intoxicated.

Secondly, both Danny and Tammy stated that Coates simply lost control as he rounded the curve. No emergency situation forced him off the highway; he just lost control, even before he reached the rut. Coates failed to maintain proper control, ran off the road, and traveled 264 feet before he re-entered the highway, crossed it and crashed into a ditch bank on the opposite side of the road. The length of travel, 264 feet, indicates that Coates was traveling at an excessive rate of speed. Had he been traveling at a proper speed, once on the shoulder he should have been able to slow his vehicle down and make a safe re-entry. The pictures introduced into evidence indicate that there were no obstructions to prevent him from gradually slowing down or coming to a complete stop if necessary, before maneuvering his vehicle back onto the highway. It is reasonable to conclude that the factors which may have contributed to Coates’ loss of control, were his impairment from alcoholic consumption and his speed. “But for” Coates’ failure to control his vehicle, this accident would not have happened. The shoulder defect played no substantial causal role in this accident.

Further, Coates’ fault, under our holding in American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La.App. 1st Cir.1977), writs denied, 356 So.2d 430, 434, 435, would have amounted to fault of a third party, thereby completely relieving the Department of any liability under La.C.C. art. 2317.

Accordingly, I dissent.

      . An adverse crown is present when the road slopes in the same direction as the centrifugal force. The centrifugal force, therefore, assists rather than opposes the force. In this case, the force created by the vehicle going through this curve would tend to throw the vehicle outward, and the adverse crown would tend to increase the outward force.

      . It is to be noted that the shoulder’s drop-off was accentuated by the Department’s asphalt overlaying operation in 1975-76.

      . The diagram in evidence reveals the vehicle’s path after leaving the roadway was not in the defective part of the shoulder.


text:
    Glen MURPHY, et al. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 14825.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 16, 1982.
    Rehearing Denied Jan. 14, 1983.
    Hobart Pardue, Springfield, and Phillip Hagger, New Orleans, for plaintiffs Glen Murphy, E.L. Thornhill Clarence Everett and Roy Payne.
    Paul Dué, Baton Rouge, for plaintiffs Elliot Watson, et al.
    William J. Doran, Baton Rouge, for defendants Louisiana Dept, of Transp. and Development et al.
    Before SHORTESS, SAVOIE and ELLIS, JJ.
   SAVOIE, Judge.

Five cases were consolidated for trial (Numbers 14,822; 14,823; 14,824; 14,825; and 14,826). The Louisiana Department of Transportation and Development (Department) is the common defendant and appellant in each case, which stem from four different automobile accidents, three of which involved single vehicles. The same approximate location is involved also: Louisiana Highway 43 in Livingston Parish, approximately 3.4 miles north of its intersection with U.S. Highway 190. In all four accidents, southbound motorists left the roadway after failing to negotiate a curve. The curve was described as 400 feet long, turning through a delta angle of 20° to 30°, resulting in an estimated 5.9 degrees curve. The road is 20 feet wide with a 3 to 4 foot shoulder on each side. On the west side, the ditch is 12 to 14 feet from the road. On the east side, the ditch is flatter and its bank is about 22 feet off the road. The curve is not super-elevated and has an adverse crown at its end.

We dispose of these cases with separate opinions in order to promote a proper understanding of the factual situations surrounding each.

Defendant-appellant appeals the trial court’s award of damages in tort. We affirm.

On the afternoon of June 16, 1977, plaintiff-appellee, Terry Murphy, was driving her 1975 Datsun south on La. Hwy. 43 in Livingston Parish. With her in the vehicle were her sister-in-law, Judy Murphy, and two children, Christina Murphy and Kimberly Anzalone. The trial court found the testimony of the Murphy sisters to show that as Terry Murphy was traveling south on La. Hwy. 43, a blue truck was approaching in her lane; that she moved to the right and applied her brakes; that the right wheels of her vehicle left the pavement, thus avoiding a collision with the on-coming truck; that she attempted to re-enter the paved roadway but was unable to do so; that she traveled an undetermined distance down the roadway before jerking the wheel “real hard” to get her car back on the road; that the vehicle “jumped back on the road” and threw her into her sister-in-law; and that at that moment, she lost control of the steering wheel, the car started spinning, went across the highway, and flipped over.

Louisiana State Police Trooper Herman A. Parker, the investigating officer, testified Terry Murphy related to him that as her car came out of the curve proceeding south, a blue pick-up truck was on her side of the road; that she ran off the roadway to her left to avoid a collision, and went into the ditch. Appellee, Terry Murphy, testified she did not talk to any police officer until after she had been taken to the hospital. Trooper Parker also testified he failed to investigate either side of the road or its shoulder to determine the path of the vehicle. Nor did he investigate the reason for the extensive damage to the vehicle.

Testimony also indicates that the Department had failed to erect any warning signs concerning the low shoulder despite a history of accidents in this spot.

Appellant lists the following specifications of error:

“I. The trial court erred in its finding that there was present on the roadway at the time of these accidents, a condition which was patently and obviously dangerous to a driver exercising ordinary care and reasonable prudence.
“II. The trial court erred in failing to find the drivers of the various vehicles guilty of negligent conduct which was the sole cause of these accidents, or in the alternative, from finding these drivers to be guilty of contributory negligence, or in the further alternative, for failure to find that the recovery of these plaintiffs was barred by “victim fault” or fault of a third party which would constitute an intervening cause of these accidents and would bar recovery under any doctrine of strict liability.
“HI. The trial court erred in failing to reduce any award to the Watsons by its virile share based upon the settlement of the Watsons with Travelers Insurance Company and United States Fidelity & Guaranty Company, or in the alternative, erred in failing to grant credit to the Department of Transportation for amounts paid as a result of these settlements.
“IV. The trial court erred in awarding to plaintiffs an excessive amount of damages.”

All rules of conduct are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that can befall him, merely because it shows that the violation of the rule played a part in producing the injury.

The Department’s general duties toward motorists on the highway are set forth in Sinitiere v. Lavergne, 391 So.2d 821 (La.1980), wherein our Supreme Court held as follows:

“It has been repeatedly stated that the Department is not a guarantor of the safety of travelers but, rather, owes a duty to keep the highways and its shoulders reasonably safe for non-negligent motorists. Liability based upon negligence is imposed when the Department is actually or constructively aware of the hazardous condition and fails to take corrective action within a reasonable time.” Sinitiere, supra, p. 824-825. (Emphasis added).

Consequently, it is necessary that we carefully examine the facts in the present case to determine whether a legal duty is imposed upon the Department which protects against the particular risk involved. LeBlanc v. State of Louisiana and the Louisiana Department of Highways, 419 So.2d 853 (La., 1982).

Appellee proved that the highway at this location had a long history of accidents, dating back to 1974. They also proved that by March, 1976, an asphalt overlay of IV2 inches had been applied to the highway. Since that date, there had been no work on the shoulders to bring them flush with the roadway. Additionally, Hubert Stilley, a local resident, saw an accident in the general vicinity in the fall or summer of 1976. Upon investigation, he determined the shoulder to be a good bit lower than the roadway. He called the Highway Department office in Hammond to advise them of the dangerous condition which he felt warranted repair. These facts show by a clear preponderance of the evidence that the Department had actual notice of the highway’s defective condition, but failed to take corrective action within a reasonable time. Thus, liability under negligence may attach.

It is well settled in Louisiana that for a plaintiff to recover in negligence, he must prove: (1) that the act complained of was a cause-in-fact of the accident, (2) that the defendant had a duty, either statutory or non-statutory, to protect this plaintiff against the cause of harm complained of, (3) that the defendant breached this duty to protect this plaintiff, and (4) that the plaintiff was harmed by this breach of the duty owed. Mathews v. Elder International, 400 So.2d 251 (La.App. 4th Cir.1981); Kane v. Braquet, 368 So.2d 1176 (La.App. 3rd Cir.1979), writ denied, 369 So.2d 1366 (La.1979); also see generally Pierrotti v. Associated Indemnity Corp., 399 So.2d 679 (La.App. 1st Cir.1981).

In the instant case, the trial court found as a matter of fact, that the defect in the shoulder was the cause-in-fact of the accident. Great weight is given the findings of the trial court, and only where its findings are clearly wrong will they be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The Department has a duty to see that the highways are reasonably safe for persons exercising ordinary care and reasonable prudence. Sinitiere, supra; Smith v. State, Department of Transportation and Development, 412 So.2d 685 (La.App. 2d Cir.1982); Sibley v. Menard, 398 So.2d 590 (La.App. 1st Cir.1980), writ denied, 400 So.2d 211 (La.1981). Included within these duties of the Department is the maintenance of the shoulders of the highway in a reasonably safe condition. Rue v. State, Department of Highways, 372 So.2d 1197 (La.1979).

The scope of the Department’s duty extends to protecting this motorist from this type of accident. Appellee is within the ambit of the Department’s duty.

Appellees have shown by a preponderance of the evidence the Department breached its duty by not leveling the shoulder; that in 1976 Hubert Stilley informed the Department the curve required maintenance of the low shoulders; that this curve had a history of accidents; and that no warning signs were present prior to the curve to warn motorists of the deep drop-off. These facts substantiate appellees’ claim that the Department breached its duty to maintain a safe roadway.

It is uncontested that appellees sustained injuries as a result of the accident. Therefore, the trial court found appellees had proven a prima facie case of negligence against the Department. We agree.

Appellant contends Terry Murphy’s contributory negligence or fault bars any recovery. A motorist’s duty of reasonable care includes the duty to keep his vehicle under control. Russo v. Guillory, 322 So.2d 233 (La.App. 4th Cir.1975), writ denied, 325 So.2d 608 (La.1976). Further, a motorist has a duty to maintain proper look-out for hazards and by using ordinary care and observation, he should be able to see and to avoid running into them. Southern Farm Bureau Casualty Ins. Co. v. Gay, 276 So.2d 893 (La.App. 1st Cir.1973). The Department’s duty is not imposed to protect a motorist against known defects which one has reasonable opportunity to avoid. Sinitiere, supra; LeBlanc, supra.

In the instant case, the evidence indicates that appellee, Terry Murphy, was familiar with the highway, living only IV2 miles from the accident site; that she traveled this highway daily; that she was traveling 40-45 miles per hour; that as she entered the curve, a truck was coming toward her in her lane; that she hit her brakes and moved to the right; that the wheels of her car left the pavement and she avoided a collision with the on-coming truck; that she was uncertain of the distance she traveled after leaving the roadway; that she jerked the wheel “real hard” to get her car back on the road and was thrown into her sister-in-law; that she could not get back to the steering wheel; that her car started spinning and went across the highway, flipping over; and that she was knocked unconscious.

This court may not substitute its conclusion of fact for that of the trial court unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980); Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980), writ refused, 392 So.2d 690 (La.1980). And only if the trial court is clearly wrong will their decision be reversed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under these facts and circumstances outlined above, we cannot say that the trial court was clearly wrong in concluding that appellee was free of negligence. This conclusion will not be disturbed on appeal.

Appellee, Judy Murphy, sustained neck and back injuries with a hematoma on the back of her head. For these injuries and her two-day hospital stay, the court awarded $3,000.00. Appellee, Terry Murphy, suffered trauma that caused numbness on the left side of her face, blurred vision, and a shoulder injury. Due to these injuries, she lost six (6) months employment. The court awarded her $3,000.00 for her pain and suffering and $4,420.00 for lost wages.

The Department argues that the trial court erred in awarding appellees excessive damages, but has failed in its brief or in argument to specify any reason to justify a reduction in the award. Our examination of the record indicates that while the award is somewhat generous, it does not abuse the great discretion afforded the trial court. Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons set forth above, judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

SHORTESS, Judge,

dissenting.

I respectfully dissent.

The trial court was clearly wrong in finding for plaintiffs, because they failed to carry their burden of proof by showing that a defect in this highway was a substantial cause of this accident. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The burden of proof is upon the plaintiff to prove every essential element of his case by a preponderance of the evidence. In an action based on negligence, plaintiff must show that defendant’s negligence was a cause in fact of the injuries sustained. In an action based on La.C.C. art. 2317, plaintiff has the burden of proving that the shoulder of the highway posed such a danger that it was a vice or defect in the highway and also a substantial cause of the accident. Here, plaintiffs failed to prove that the defect in the highway on the date of the accident was a substantial cause thereof.

Plaintiffs’ version was contradicted by the only independent witness, Trooper Herman Parker, who investigated the accident. Parker testified that Terry Murphy told him at the hospital right after the accident that as her car came out of the curve, proceeding south, a blue pickup truck was on her side of the road; that she steered to her left, ran off the roadway, went in the ditch and apparently hit a dirt bank. He made no specific reference to shoulders and did not examine them, as Terry Murphy had not mentioned such in her original explanation to him of the accident. He testified that she did not go off the road to the right, but to her left; that she steered to the left into the northbound lane and onto the opposite shoulder to miss the vehicle which was in her lane. His investigation of the accident was consistent with Terry Murphy’s original explanation, and was in striking contrast to her testimony at trial. Additionally, Parker stated that Terry Murphy had complained of no road condition which had caused her to take the action she took.

At trial, Terry Murphy could not describe the defect or the condition of the shoulder on the date of the accident. Her testimony was limited to feeling a drop-off when she left the road. Her testimony was only corroborated by the testimony of her sister-in-law, the passenger in her car, and co-plaintiff in the suit.

Under these facts and circumstances, plaintiffs have failed to carry their burden of proof by a preponderance of the evidence.

Accordingly, I dissent.

      . An adverse crown is present when the road slopes in the same direction as the centrifugal force. The centrifugal force, therefore, assists rather than opposes the force. In this case, the force created by the vehicle going through this curve would tend to throw the vehicle outward, and the adverse crown would tend to increase the outward force.

      . It is to be noted that the shoulder’s drop-off was accentuated by the Department’s asphalt overlaying operation in 1975-76.