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Gates v. Honey8/19/2005
travel.
Following trial, the trial court assessed DOTD with 25% fault. The court of appeal reversed the judgment against DOTD, finding that Theriot had failed to prove the existence of an unreasonably dangerous condition or that the drop-off caused the accident. Specifically, the court determined that the physical and eyewitness testimony failed to support Theriot's claims regarding his losing control of the vehicle as he re-entered the roadway. The trooper who investigated the accident reported that the tracks left by the driver were clearly visible and showed that the driver left the roadway as easily as he entered it, with no evidence that the tires rubbed against the pavement. No physical evidence on the vehicle's tires supported Theriot's contentions. In finding the drop-off did not cause the accident, the court concluded:
Although we note the drop-off between the shoulder and highway did reach four inches at some point along Theriot's path, there was no evidence presented which indicated the four inch drop-off played any part in this accident by creating an obstacle to Theriot's safe re-entry. Theriot's version of the accident was completely contradicted by the physical evidence presented and the testimony. . . .
Id. at 222.
As we initially observed, Honey's suit against DOTD did not assert that the condition of the narrow shoulder of Highway 142 was substandard and that the DOTD was negligent by failing to widen and improve the shoulder area along its right-of-way to comport with modern highway standards. Nevertheless, her reported difficulties controlling the vehicle involved the general condition of the shoulder and its slope toward the nearby trees. She did not testify that the drop-off from the surface of the road to the shoulder was encountered by the truck's right tires in such a manner causing the loss of vehicle control by the slingshot effect. Instead, she testified to her deliberate maneuver of the vehicle off of the sloping shoulder back onto the road's surface. Under these conditions, in view of the Myers/Cormier jurisprudence, we find no fault attributable to the DOTD.
Conclusion
We reverse the jury verdict finding DOTD 15% at fault in causing this accident. This determination moots the issues raised by Honey's appeal regarding the sufficiency of damages. Costs of this appeal are assessed to Honey.
REVERSED.
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