Barsayage v. State ex rel. Department of Transportation & Development

686 So. 2d 957
CourtLouisiana Court of Appeal
DecidedDecember 20, 1996
DocketNo. 96 CA 0688
StatusPublished
Cited by6 cases

This text of 686 So. 2d 957 (Barsayage v. State ex rel. Department of Transportation & Development) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barsayage v. State ex rel. Department of Transportation & Development, 686 So. 2d 957 (La. Ct. App. 1996).

Opinion

JaFITZSIMMONS, Judge.

In this suit for damages arising from a one vehicle accident in the east bound lane of I-[959]*95910 in Iberville Parish, the trial court apportioned fault and awarded damages to the plaintiff. We reverse in part, and affirm in part.

FACTS AND PROCEDURAL BACKGROUND

The accident that injured Ms. Barsavage occurred on October 11, 1988, at 10:30 p.m. Ms. Barsavage’s car left the paved surface on the left side of the east bound lane and briefly traveled on the dirt shoulder. When she tried to return to the highway, her tire blew out. The car flipped over several times on the surface of the highway. She suffered a herniated disc and cervical fracture.

Ms. Barsavage sued the'State of Louisiana, through the Department of Transportation and Development (DOTD). After a trial on the merits, the trial court apportioned 85% of the fault to Ms. Barsavage and 15% of the fault to the DOTD. The trial court awarded Ms. Barsavage $75,000 for past, present, and future physical pain and suffering, $25,-000 for mental anguish, $60,900 for past loss of wages, $178,624 for future earning capacity, $57,150 for future medical expenses, $30,-000 for future surgery, and $8,064.08 for past medical expenses. Ms. Barsavage filed a motion for a new trial, which was denied.

DOTD appealed and assigned error to (1) the apportionment of fault, (2) failure of the trial court to properly reduce the award of past and future lost wages because of plaintiffs failure to mitigate her damages, (3) the trial court’s failure to properly reduce the award for mental anguish because of plaintiff’s failure to mitigate, and (4) the award for future surgery when such an award was too speculative. No error was assigned to the award for past, present, and future physical pain and suffering or to the award for past and future medical expenses, with the exception of the $30,000 awarded for future |3surgery. Ms. Barsavage answered the appeal, and complained of the trial court’s apportionment of fault.1

TRIAL TESTIMONY AND EVIDENCE

Mr. Wayne Wess, an experienced truck driver, witnessed the accident. Mr. Wess testified that the night was dark and the black asphalt roadway surface was dark, rendering the area of the accident “pitch black.” Before the accident, he saw no warning signs or barricades that night to alert a driver to a construction zone. Signs were located further down the highway. As Ms. Barsavage passed Mr. Wess’ truck, he noticed that she was over quite a bit to the left. Mr. Wess saw Ms. Barsavage’s left tires go off of the paved portion of the highway onto the shoulder. When she tried to pull back onto the roadway, her tire blew and the car flipped over. After the accident, Mr. Wess inspected the drop off between the paved surface and the dirt shoulder at the point that Ms. Barsavage attempted to return to the roadway. He described a drop off differential between the two surfaces as eight inches. Mr. Wess testified that because of the darkness of the area and the roadway, and with no markings to delineate the shoulder, a driver could not tell where the roadway ended and the shoulder began.

Plaintiffs expert, Mr. Dwayne Evans, a registered electrical engineer, was qualified by the court as an expert in traffic engineering and accident reconstruction. In Mr. Evans’ opinion, the motorist entering a construction zone must be so advised and an atmosphere of safety must be created by the use of appropriate signs and barricades. The highway construction project log noted that the signs and barricades were “okay” on jAhe day of the accident, but the log does not say where they were placed. For safety [960]*960reasons, Mr. Evans stated that a shoulder drop off should not be more than two inches. A drop of more than two inches presented a hazard. Mr. Evans noted that in his review of the project contract, a drop off of more than two inches required the contractor to grade up the area to eliminate the difference. Mr. Evans opined that at night the outer limit of the paved surface would be very difficult to see. A temporary dashed center line is not a good guide to the edge of the roadway. Thus, under the conditions present at the time of the accident, it was substandard conduct not to have a line marking the edge of the roadway and the shoulder. In Mr. Evans’ opinion, the drop off of between six and eight inches caused the tire to blow out when Mr. Barsavage tried to return to the highway. The blow out caused the car to flip. DOTD offered no expert testimony on what caused the accident.

Christine Barsavage testified that at the time of the accident, she lived in Dallas, Texas. She was unfamiliar with the stretch of the interstate where the accident occurred. Ms. Barsavage had never experienced such a dark highway before that night. She remembered looking in the rear view mirror to check the position of the truck behind her. It was at that moment that her left tires left the paved portion of the highway. The dirt shoulder was very bumpy and the vehicle was hard to control. Ms. Barsavage testified that she slowed down a little, and immediately tried to return to the highway. She remembered no construction hazard warning signs; there were no lines on the edge of the roadway.

Approximately two weeks after the accident, Ms. Barsavage went back to the scene to view the area and try to find out what happened. She testified that the drop off was of varying depths between the dirt shoulder and the paved surface. The dirt was 15chunky and rocky. She estimated that the drop off at one point was the “length of a sixteen ounce Coke bottle.... ”

Bobby Roberts, plaintiffs expert in vocational evaluation, recommended a structured physical therapy program for Ms. Barsavage. However, when asked about the success of patients who had not had surgery within a short time after the accident, Mr. Roberts opined that the longer the patient goes “post-injury without remediating or resolving symptoms[,] the less likely we are to ever get that person rehabed.” Mr. Roberts noted that Dr. Llewellyn had told Ms. Barsavage to do certain exercises, but she had quit because the exercises were painful.

Ms. Barsavage called Glenn J. Delatte, Jr., the State Police Trooper who responded to the scene of the accident. The trooper testified that he had previously seen construction warning signs posted throughout the area, in the east and west bound lanes. He specifically mentioned a sign placed at the approximate beginning of the project. The accident scene was about four and one-half miles into the construction area. He confirmed that the tire blew out on the ear; there were no street lights; a dashed center line had been placed on the new asphalt; and, that the edge of the roadway had no lines marking it. The trooper opined that Ms. Barsavage over corrected when she tried to enter the highway. Trooper Delatte testified that the scene of the accident was in a particularly dark area of the interstate because the interstate lanes are divided by trees in that area. The east bound lane was forested on both sides. According to the trooper, the drop off between the paved portion of the roadway and the dirt shoulder was from two to three inches. The area he referred to was not where Ms. Barsavage went off the highway. Therefore, the drop off differential in that area could not have been created by the wheels on the soft dirt.

16James Tattie, a civil engineer for DOTD, testified that signs were placed at the beginning and end of the project, and every half mile between. DOTD had paved four feet more than the normal road width surface.

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Barsavage v. STATE DOTD
686 So. 2d 957 (Louisiana Court of Appeal, 1996)

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Bluebook (online)
686 So. 2d 957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barsayage-v-state-ex-rel-department-of-transportation-development-lactapp-1996.