In this case we determine the scope of the duty of the Department of Transportation and Development ("DOTD") to maintain that portion of land within its highway right-of-way that lies off the travel portion and shoulder of the highway. In particular, we must determine whether DOTD's duty to maintain the land off the shoulder of the highway encompasses the risk that a recreational, off-road motorcyclist travelling at a high rate of speed through high grass and against the flow of traffic on the adjacent highway, will strike a drainage ditch which has become overgrown with weeds. After conducting a trial on the issue of liability alone, the trial court found DOTD did not owe a duty to plaintiff's minor son because the drainage ditch did not pose an unreasonable risk of harm under the circumstances surrounding the accident. Consequently, the trial court denied recovery to plaintiff. The court of appeal reversed and found the ditch presented an unreasonable risk of harm because the DOTD had allowed the grass in the area to become overgrown, concealing the existence of the ditch. However, the court of appeal found that plaintiff's minor son, Gernard Casbon, was 50% at fault because, at the time of the accident, he was riding his motorcycle at a high rate of speed over unknown terrain. Oster v. Department of Transportation and Development, 572 So.2d 715 (La.App. 4th Cir.1990). Additionally, the court of appeal found that DOTD had constructive knowledge of the existence of the defect on its property for purposes of La.R.S. 9:2800 (West Supp.1991).
We granted writs and now reverse. We hold DOTD did not owe a duty to plaintiff because, under the facts and circumstances of this case, the drainage ditch did not pose an unreasonable risk of harm.
FACTS AND PROCEDURAL HISTORY
Plaintiff brought suit against St. Bernard Parish
Expert testimony at trial established the drainage ditch was six and one-half feet deep at its deepest point and twenty feet wide at its widest point. At the point where the accident occurred, Judge Perez Highway is a four-lane thoroughfare with a median. The river side of the highway consists of two north-bound lanes plus an adjacent emergency lane which is ten feet wide. The ditch begins approximately seven feet off of the emergency lane of the highway, about seventeen feet from the right travel lane. The ditch is marked by a hazard delimiter which faces south, in the direction of oncoming vehicular traffic. Gernard did not see the hazard marker because he was travelling in an opposite direction from the vehicular flow on the river side of Judge Perez Highway.
After a trial on the issue of liability alone, the trial court rendered judgment in favor of DOTD and dismissed plaintiff's suit. Focusing on the fact that Gernard was riding his dirt bike at a high rate of speed over unknown terrain, the trial court concluded the drainage ditch did not pose an unreasonable risk of harm to Gernard. The court stated: "[t]he court finds, in weighing all the testimony and facts of this accident, that the drainage ditch in question did not pose an unreasonable risk of harm to Gernard Casbon, nor did [DOTD] have a duty to protect Gernard Casbon from being injured by falling in the ditch while riding a dirt bike."
The court of appeal reversed and rendered judgment in favor of plaintiff, but found Gernard was 50% at fault for the injuries he sustained. The court concluded the grass-covered ditch presented an unreasonable risk of harm. The court recognized that the utility of the ditch was great, but also noted that "our analysis of the utility of the [ditch] must be tempered by recognition of the fact that the tall grass and weeds served no useful purpose whatsoever." 572 So.2d at 718. Focusing on the fact that the ditch was present in a residential area where various types of traffic off the shoulder of the road could be expected,
In addition to finding the drainage ditch presented an unreasonable risk of harm, the court of appeal found that DOTD had constructive notice of the defect for the
As explained more fully below, we find the land in question did not present an unreasonable risk of harm under the facts of this case. Gernard Casbon was driving his dirt bike at a high rate of speed in an area neither designed nor intended for vehicular use. The drainage ditch, which was clearly marked by a hazard delimiter facing in the direction of oncoming motorists, served the useful purpose of preventing water from draining onto the travel portion of Judge Perez Highway and causing a dangerous condition for motorists. Although the grass in and around the ditch was high, the facts indicate the ditch was visible to a person standing approximately forty-four to fifty-nine feet from the ditch. Had Gernard Casbon not been operating his vehicle at such a high rate of speed, he would have had time to notice the presence of the ditch and divert his path.
Because we find the drainage ditch did not present an unreasonable risk of harm under the facts of this case, we need not address the court of appeal's finding that DOTD had either actual or constructive knowledge of the alleged defect for purposes of La.R.S. 9:2800.
Plaintiff brought this suit essentially under negligence and strict liability theories. Although the two theories constitute separate and distinct avenues for relief for damages resulting from a dangerous condition on land, the analysis that courts utilize when applying the two theories is similar. Under either theory, the plaintiff must prove 1) the thing which caused the damage was in the custody of the defendant; 2) the thing contained a "defect" (i.e., it had a condition that created an unreasonable risk of harm to the plaintiff); and 3) the "defective" condition of the thing caused the plaintiff's injuries. Sistler v. Liberty Mutual Insurance Company, 558 So.2d 1106 (La.1990). In essence, the only difference between the negligence theory of recovery and the strict liability theory of recovery is that the plaintiff need not prove the defendant was aware of the existence of the "defect" under a strict liability theory.
In this case, neither party disputes the fact that the ditch into which Gernard Casbon crashed was in the care, custody, and control of DOTD. Thus, the critical issue is whether the drainage ditch presented an unreasonable risk of harm under the circumstances of this case. If the ditch did not present an unreasonable risk of harm to Gernard Casbon then DOTD, by definition, did not owe a duty to him and cannot be held liable for the damages he sustained.
The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically. As we stated in Landry v. State of Louisiana and the
Id. at 1287 (quoting Entrevia v. Hood, 427 So.2d 1146 (La. 1983)). Although courts, including this court, have described the unreasonable risk of harm criterion as requiring the court to balance the likelihood and magnitude of harm against the utility of the thing,
In essence, the unreasonable risk of harm analysis is similar to the duty-risk analysis which is performed in a negligence case. The obligation placed by article 2317 upon a landowner to maintain his land free from defects does not encompass every injury that happens to occur on his land. See Socorro v. City of New Orleans, 579 So.2d 931 (La.1991) (because an owner cannot be held responsible for all injuries resulting from any risk, the court's duty is to decide which risks are unreasonable). Just as in a negligence analysis, a court utilizing an article 2317 strict liability analysis must determine whether the codal duty imposed upon a custodian of the thing was placed upon him to prevent the type of accident involved in the case before the court. Landry v. State of Louisiana and the Board of Levee Commissioners of the Orleans Levee District, supra; Entrevia v. Hood, supra, (Lemmon, J., concurring). The court must carefully consider all the circumstances surrounding the particular accident under review to determine whether allowing recovery to the particular plaintiff involved, for damages occurring in the particular manner in which the plaintiff was injured, is desirable from the standpoint of justice and the social utility of the conduct of the respective parties.
APPLICATION OF THE LAW TO THE FACTS
We begin by recognizing, as did the court of appeal, that the drainage ditch in question serves a useful purpose. Drainage ditches similar to the one involved in this case are a common feature along the roads and highways throughout this State. The ditch into which Gernard Casbon rode his dirt bike is but one of a series of drainage ditches along Judge Perez Highway. The purpose of these ditches is to keep water from draining onto the travel portion of the Highway and causing a dangerous situation for motorists. Because drainage ditches help make travel along the roads of this state more safe, their utility is great.
Having found the ditch in question is of great utility, we next must determine whether the ditch and the surrounding grass nevertheless presented an unreasonable risk of harm. In determining whether a condition existing on property owned by a defendant presents an unreasonable risk of harm, one invariably must consider the uses to which the land in question is intended to be put. U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780, 785 (La. 1976) (the requirement of reasonable safety implies reasonable safety for any lawful or proper purpose). What presents an unreasonable risk of harm on a playground may
In addition to the fact that Gernard Casbon was using the right of way in a manner in which it was not intended or designed to be used, we deem it important that, contrary to the court of appeal's characterization of it, the drainage ditch was not truly "concealed."
In finding the ditch presented an unreasonable risk of harm, the court of appeal found the likelihood of the type of accident that occurred in this case was high because the ditch was located in a residential area where people "regularly use the area adjacent to the roadways while moving from place to place, for walking, jogging, riding bicycles, etc." 572 So.2d at 718. We do not find the court's conclusion compelling. Whether the area in question is frequented by pedestrians, joggers, or bicycle riders is of little relevance; this case does not involve a pedestrian, a jogger, or a bicycle rider. We are here concerned with a dirt bike rider operating his vehicle some seven to ten feet off the shoulder of the highway, over unknown terrain, through high grass, at a high rate of speed, and in an opposite direction from the flow of traffic on the adjacent roadway. It is highly unlikely that a jogger, pedestrian, or a cyclist would be seven to ten feet off of the shoulder of the road, in high grass, when there is a well-maintained, ten foot shoulder available for use. Furthermore, if Gernard Casbon had been walking, jogging, or riding a bicycle, the facts clearly indicate he would have been able to notice the ditch from a distance more than adequate to allow him to divert his path.
It is true, as the court of appeal noted, the presence of the grass in the ditch served no useful purpose. However, the same would be true even if the grass in and around the ditch at the time of the accident was well-mowed. We think the question is not so much whether the grass was useful; rather, the question is whether it is reasonable to impose a rule of law which would require DOTD to maintain every inch of property within its control neatly mowed or face the prospect of tort liability. DOTD's jurisdiction extends over thousands of miles of roads in this state. Considering the effect of Louisiana's climatic conditions upon the rate at which grass grows, especially during the spring and summer months, maintaining in a wellmowed condition the grass along all of the highways in this state would require a Herculean effort on the part of DOTD, as well as a Herculean budget. We do not believe the law requires such efforts. Rather, the law requires DOTD to maintain the roadways and shoulders of the roads under its control in a reasonably safe condition for vehicular travel. Manasco v. Poplus, 530 So.2d 548 (La. 1988). As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner.
In her brief to this Court, plaintiff refers to several pedestrian injury cases to support her contention that DOTD is liable under the facts of this case.
We also find unpersuasive the court of appeal's reliance on Turner v. Louisiana Department of Highways, 319 So.2d 840 (La.App. 1st Cir.1975).
The court of appeal in Turner held merely that plaintiff's petition stated a cause of action. Referring to La.R.S. 48:21, the court found that DOTD has a duty to maintain drainage ditches it constructs across another person's property in such a manner that the ditch does not cause physical damage to the person's property. As the court of appeal in this case candidly noted, the facts of Turner are clearly distinguishable from facts of this case. Therefore, we decline to apply the overly broad language used by the court in Turner to a vastly different factual situation which involves policy concerns clearly not considered by that court.
For the reasons set forth above, we find the drainage ditch in question did not present an unreasonable risk of harm under the facts of this case. Because of this holding, we need not address the court of appeal's finding that DOTD had constructive notice of the condition of the ditch for purposes of La.R.S. 9:2800. The judgment of the court of appeal is reversed, and the judgment of the trial court in favor of DOTD dismissing plaintiff's suit is reinstated.
REVERSED AND RENDERED.
CALOGERO, C.J., concurs in the result.
DENNIS, J., dissents for the reasons assigned by the Court of Appeal.