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Cox v. Moore12/12/2001
REVERSED IN PART; AMENDED IN PART; OTHERWISE AFFIRMED.
The State of Louisiana, Department of Transportation and Development (DOTD) appeals a trial court judgment which found it 100% liable for an accident which occurred at an intersection on U.S. Highway 171 near Fisher, Louisiana, in the Parish of Sabine. It appeals both the liability findings and the awards of damages. We reverse in part, amend in part, and otherwise affirm.
FACTS
The accident occurred at the intersection of Highway 171 and Main Street of the Village of Fisher. In the general area, Highway 171 is a two-lane highway going north and south. However, at a point south of the intersection where the accident occurred, the northbound lane splits into two lanes, creating a three-lane highway. Main Street, which leads west to the Village of Fisher, makes Highway 171 the top of a "T" intersection. There is an overhead, flashing caution light at this intersection. On November 10, 1989, Rebecca Cox was driving north on Highway 171 with her two minor daughters, Darlene and Brandie, in her car with her. It was a clear day. Intending to take a left turn onto Main Street which leads to Fisher, Rebecca stopped in the left lane of the two northbound lanes and activated her left-turn signal.
Meanwhile, Billie Moore was also traveling north on Highway 171. She changed lanes from the right lane to the left lane in order to move from behind a big dump truck. Moore struck Rebecca's vehicle from behind. Since Rebecca's wheels were turned left preparing to make a left turn, her vehicle, when it was hit from behind, was propelled into the path of a moving southbound tour bus. Rebecca's eleven-year-old daughter, Darlene, who was in the front passenger seat, was killed.
Rebecca filed suit against the DOTD and Moore and her automobile insurer. Moore and her insurer settled prior to trial. The case was tried on December 6, 2000. The trial judge found that the highway at this intersection was defective and that the DOTD was 100% liable for the accident. The trial judge awarded Rebecca $1,403,571.01 in damages. He also awarded damages for Brandie's injuries in the amount of $500,000. Jerry Cox, Rebecca's son, was awarded $250,000 in damages.
The DOTD appeals the trial court judgment asserting several assignments of error. The errors involve the trial judge's visit to the accident site, the findings and allocations of fault, and damages.
TRIAL JUDGE'S VISIT TO INTERSECTION
In his reasons for judgment the trial judge indicated that he visited the intersection where the accident occurred because of the conflicting expert testimony on the condition of the intersection presented at trial. The DOTD argues that it was reversible error for the trial judge to conduct a post-trial inspection of the site.
It is permissible for a trial judge to visit a site which is the subject of the litigation before it, not for the purpose of supplying new evidence, but for the purpose of determining, when the evidence regarding such site is in hopeless conflict, which version is worthy of belief. Landry v. Jefferson Davis Parish School Bd., 478 So.2d 194 (La.App. 3 Cir. 1985); Dodson v. Webster Parish Police Jury, 564 So.2d 760 (La.App. 2 Cir.), writ denied, 567 So.2d 1127 (La.1990); Estate of Thomas v. State, Dept. of Transp. and Development, 604 So.2d 617 (La.App. 2 Cir.), writ denied, 608 So.2d 167 (La.1992). "Whether such a physical inspection should be made is within the discretionary authority of the trial court." Landry, 478 So.2d at 196.
Reviewing the trial judge's reasons for judgment, it is clear that the court did not conduct experiments at the site, take a
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