Smith v. ZimmerSmith v. Zimmer
Plaintiff appeals the district court‘s judgment in favor of the Louisiana Department of Transportation and Development (DOTD). We affirm, but for reasons other than those given by the trial court.
This case arose from a collision between two motorcycles and a car at the intersection of St. Claude Avenue and Forestall Street in New Orleans. The accident occurred on September 25, 1982. Plaintiff, a passenger on one of the motorcycles traveling eastbound on St. Claude, was injured
Plaintiff sued Julius Zimmer, the driver of the car; Mr. Zimmer‘s insurer, State Farm; the City of New Orleans; and Transyt Corporation, the manufacturer of the traffic signal which controlled the intersection. Plaintiff later amended his petition to add as a defendant DOTD, asserting that DOTD had custody of the traffic signal because the accident occurred on a state highway. In its answer, DOTD third-partied the city of New Orleans, alleging that the city was solely responsible for the operation and maintenance of the signal.
All parties with the exception of DOTD settled out-of-court with plaintiff for various amounts. On January 14, 1988, trial proceeded before a Commissioner of the district court against DOTD alone. At trial, plaintiff attempted to prove that the accident was caused by a malfunction of the traffic signal, for which DOTD is strictly liable as custodian under
We do not agree with the lower court‘s finding that DOTD is not the custodian of the traffic light under
This conclusion does not comport with the law. In Hardy v. State, Dept. of Highways, 404 So.2d 981, 986 (La.App. 3d Cir. 1981) writ denied, 407 So.2d 741 (La. 1981) a case involving a collision at the intersection of two state highways within the city of Nachitoches, the court unequivocably held: “Custody of signal lights was in the State and no contract with the City of Nachitoches could relieve the State of control and custody as contemplated by
Several courts have held that although the state cannot escape its 2317 liability to the plaintiff by means of a contract, if the particular problem is covered by a maintenance contract with a city or parish, the city or parish may be liable to indemnify the state. See Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir.1977), writ denied, 356 So.2d 434 (La. 1978); Garrison v. State, Dept. of Highways, 401 So.2d 528 (La.App. 2d Cir. 1981). In addition, one court has found both the state and city to have 2317 custody of a state road where the city was negligent in failing to fix a known pothole. Durrett v. State, 416 So.2d 562, 568 (La.App. 1st Cir.1982), writ denied, 421 So.2d 247 (La. 1982). We have found no cases, however, in which the state has been completely exonerated from primary liability to the plaintiff on the grounds that some party other than the state had custody of a state highway.
Immediately following the accident, all drivers maintained that they had a green light. At trial, plaintiff attempted to show that the amber signal for the eastbound lanes of St. Claude, in which the motorcycles were traveling, was too short. Plaintiff‘s theory of recovery against DOTD was that if the amber signal had been timed correctly, the motorcycles would have cleared the intersection before the automobile entered it, thus preventing the collision.
Mr. Zimmer, driver of the automobile, testified that right after the accident, he drove around and timed the amber signal for the westbound lanes of St. Claude at 2½ to 4 seconds. He did not time the signal for the eastbound lanes. Mr. George, an insurance investigator, testified that on September 30, 1982, about a week after the accident, he observed that the St. Claude signal changed directly from green to red with no amber light. Mr. Gautreaux, a traffic engineer for the city, testified that the amber light should have been four seconds long. Finally, Mr. Rigol, an expert in accident reconstruction, gave his opinion that if the amber light had been at least three seconds long, the accident would have been prevented.
Defendant countered this testimony with that of Officer Griffin, the policeman who investigated the accident, who stated that he observed all the lights to be functioning normally and reported them as such, although he did not actually time them. Defendant also introduced records of the city of New Orleans showing that there had been no complaints about the traffic signal malfunctioning or any adjustments made for a month following the accident. Finally, Mr. Edwards, an eyewitness to the accident who was following the motorcycles, stated that at the time of impact, the signal for eastbound St. Claude was still amber.
Considering all the evidence, we conclude that plaintiff failed to prove that the malfunction of the traffic signal caused the accident. The condition of the signal a week after the accident is of no probative value. Mr. Zimmer‘s timing of the westbound signal, between 2½ and 4 seconds, was within the range of what Mr. Gautreaux stated was the correct interval—4 seconds. Moreover, the timing of the westbound signal is irrelevant in the absence of evidence showing that the eastbound signal was the same. Most importantly, however, plaintiff‘s case was undermined by the testimony of Mr. Edwards, the eyewitness to the accident who stated that the St. Claude light was still amber at the time of the impact. This testimony from an uninterested observer completely refutes plaintiff‘s theory that if the amber signal had been longer, the accident would not have occurred.
Considering all the evidence, we find that plaintiff failed to show that a malfunction
Accordingly, for the reasons stated, we affirm the judgment of the district court dismissing plaintiff‘s suit at his costs.
AFFIRMED.