Opinion
No. 11067.
May 13, 1980.
APPEAL FROM TWENTY-FIFTH JUDICIAL DISTRICT COURT, PARISH OF PLAQUEMINES, DIVISION "A", STATE OF LOUISIANA, HONORABLE PRESTON H. HUFFT, J.
Robert L. Lobrano, Belle Chasse, for plaintiffs-appellants.
Woodrow W. Wyatt, Baton Rouge, for defendant-appellee.
Before BOUTALL, GARRISON and BARRY, JJ.
Mr. and Mrs. Kenneth Moorman claim damages primarily for personal injuries sustained by Mrs. Moorman and her three year old daughter. The defendant is the State of Louisiana, through the Department of Highways, for allegedly failing to maintain and keep in repair Louisiana Highway 39 near Wills Point. The trial court dismissed plaintiff's lawsuit but unfortunately did not provide reasons for judgment.
An accident occurred when Mrs. Moorman allegedly lost control of her vehicle after hitting an unrepaired portion of the roadway. As a result her vehicle crossed over into the opposite traffic lane and struck an oncoming vehicle.
The defendant, Department of Highways, did not contest the existence of the damaged roadway, but urged it did not have actual or constructive notice of the defect in sufficient time to effect repairs.
The record is void that the defendant received actual notification of the road condition. Therefore, plaintiffs have the burden to show that defendant had constructive notice plus sufficient time to make repairs prior to the accident.
Two police officers briefly testified they had knowledge of the road condition from two to four days before the accident and it was normal to notify headquarters of road defects. However, neither officer testified that the defendant was advised of the road condition.
Constructive notice can be shown by producing evidence that the defect was permitted to remain in its dangerous state for such a length of time as to warrant the conclusion that the Department of Highways was negligent in failing to discover it. Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir., 1973).
The shortest length of time to conclude constructive notice of a defect has been two weeks. Jones v. Louisiana Dept. of Highways, 338 So.2d 338 (La.App. 3rd Cir., 1976). The time period here falls short of the two week period enunciated in Jones, supra.
Plaintiffs placed in evidence several color photographs of the road defect which were taken immediately following the accident. From any angle the damaged roadway appears to fall short of being classified a "pot hole" necessitating immediate repair.
Plaintiffs failed to sustain their burden of proof. Accordingly, the judgment of the District Court is affirmed with costs of this appeal assessed against the plaintiffs-appellants.
AFFIRMED.