Johnson v. State, Dept. of Transportation & Development

85 So. 3d 204, 11 La.App. 3 Cir. 826, 2012 WL 469858, 2012 La. App. LEXIS 172
CourtLouisiana Court of Appeal
DecidedFebruary 15, 2012
DocketNo. 11-826
StatusPublished
Cited by1 cases

This text of 85 So. 3d 204 (Johnson v. State, Dept. 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
Johnson v. State, Dept. of Transportation & Development, 85 So. 3d 204, 11 La.App. 3 Cir. 826, 2012 WL 469858, 2012 La. App. LEXIS 172 (La. Ct. App. 2012).

Opinion

Cooks, Judge.

■ h FACTS AND PROCEDURAL HISTORY

Seventeen-year-old Casey Johnson, (Casey) the son of Donna D. Johnson and Anthony W. Johnson (Plaintiffs), died in a one-car automobile accident on Louisiana Highway 102 in Jefferson Davis Parish. Casey was returning from a visit at his girlfriend’s home around 8:00 o’clock P.M. The road surface was wet. As Casey’s vehicle entered a curve to the right, he lost control of it leaving the roadway to the right. His vehicle struck the headwall of a cement culvert running under the roadway, rolled over into the ditch, partially ejecting Casey, and trapping his head and neck between the vehicle and the ditch. Casey died as a result of his injuries. His parents filed suit for wrongful death against the State of Louisiana, Department of Transportation and Development (DOTD) alleging DOTD was either strictly liable, negligent, or partially at fault for the death of their son. Plaintiffs alleged the roadway was maintained in a hazardous condition because the headwall of the concrete culvert was slightly above grade and because the slope of the ditch was steeper than it should have been. DOTD maintained that the accident was caused solely by the negligence of Casey in failing to maintain control of his vehicle under the conditions at the time of the accident. DOTD further maintained there was no defect in the roadway, and that the head-wall and pitch of the slope were not a cause of Casey’s fatal injuries.

The jury returned a verdict in favor of DOTD finding it was not negligent, denying recovery to Plaintiffs. Judgment was signed dismissing Plaintiffs’ claims with prejudice. Plaintiffs appeal alleging four assignments of error. In Plaintiffs’ first assignment of error it is alleged the trial court erred in allowing DOTD to introduce a document into evidence which DOTD had not produced during discovery thus subjecting Plaintiffs to trial by ambush. The second assignment of error maintains that the trial court erred in allowing DOTD’s attorney to question 12Plaintiffs’ expert, Dean Tekell (Tekell), in the area of accident reconstruction even though he had not been tendered as an expert in accident reconstruction. Tekell testified [206]*206that he did not perform an accident reconstruction of this accident. Third, Plaintiffs contend the trial court erred in allowing DOTD’s expert, Dr. Joseph Blaschke, (Blaschke), to testify as to accident reconstruction given that he admitted in pretrial discovery, and traversal, that he was not retained as an accident reconstruction expert nor had he conducted an accident reconstruction analysis of this accident. Lastly, Plaintiffs assert the jury’s finding of no negligence on the part of DOTD is manifestly erroneous because the record establishes “no reasonable factual basis for the findings of the trial court.” Finding no error in the trial court’s rulings, we affirm.

DISCUSSION AND LEGAL ANALYSIS

We have frequently set forth and explained the manifest error standard of review. In Billings v. State ex rel. Dept. of Transp. and Development, 01-131 (La.App. 3 Cir. 6/13/01), 826 So.2d 1133, 1140, we stated:

We may not set aside a jury’s finding of fact in absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). In applying the manifest error-clearly wrong standard, we must determine not whether the jury was right or wrong, but whether its conclusion as factfinder was a reasonable one. Mart v. Hill, 505 So.2d 1120 (La.1987). We are compelled to review the record in its entirety to determine whether the jury's finding was clearly wrong or manifestly erroneous. Id. We may not reverse if the jury’s findings are reasonable in light of the record when reviewed in its entirety, even if convinced that if we had been sitting as the trier of fact, we would have weighed the evidence differently. Sistler v. Liberty Mututal Ins. Co., 558 So.2d 1106 (La.1990).

After a full review of this record we cannot say the jury manifestly erred in concluding that DOTD was not liable for the injuries which caused Casey’s death. The jury’s finding was reasonable under the evidence presented. The evidence showed that Casey was travelling on a wet roadway at night and lost control of his vehicle. Although there was no evidence that he was exceeding the posted speed lalimit, there was expert testimony which opined that he was travelling too fast for the roadway conditions that night. Casey’s girlfriend testified that Casey was familiar with this stretch of highway as he had travelled it several times visiting her. Additionally, there was proper signage ahead of the curve warning motorists of the approaching curve.

Plaintiffs and Defendant offered expert testimony concerning whether the roadway was properly maintained and/or properly constructed. Plaintiffs’ experts, Defendant’s expert, and State Trooper Richard Fox all agreed that Casey’s vehicle was out of control when it left the roadway due solely to his own actions and 1) even if the slope would have been a typical slope for which a 3:1 slope would be required, Casey could not have regained control of his vehicle after it left the roadway; and 2) even if Casey’s vehicle had not collided with the concrete culvert it would have entered the ditch and rolled over as it was out of control when it left the roadway. Additionally, the jury heard expert testimony that the area of roadway where the accident occurred was not a typical cross-section requiring a 3:1 slope. Don Romero testified that he measured the slope at the scene and found the actual slope at this location was a gentler 3:1.8 slope. Plaintiffs’ expert disagreed. It was for the jury to make credibility determinations regarding expert testimony. We cannot say the [207]*207jury manifestly erred in concluding that the decedent’s injuries were caused by his own negligence and in assigning no fault to DOTD. These were reasonable findings of fact.

Plaintiffs also assert that there should have been a “clear-zone” or established set-back for the purpose of allowing a motorist to go off the roadway without “the threat of serious bodily harm.” The evidence shows this roadway was built in 1936 and overlaid in 1962 at which time, as both Plaintiffs’ and Defendant’s experts agreed, there was no “clear zone” concept in place. Plaintiffs’ expert, Tekell, testified there has never been a major reconstruction or new |,(alignment of this roadway which would have required DOTD to bring this roadway up to existing standards. He also testified that this roadway was built in compliance with the American Association of State Highway Transportation Officials (AASHTO) standards in effect at the time it was constructed. Tekell testified at trial that the concrete abutment was “unreasonably hazardous” but also admitted that he did not reach that conclusion in his initial report. He testified that it was after he prepared his report when he discussed this terminology with Plaintiffs’ counsel. He further testified that as an expert witness in other accident cases he had described concrete headwalls like this one as acceptable and as not being unreasonably dangerous. Most importantly, Tekell testified that in his expert opinion, even if Casey’s vehicle had not hit the portion of the concrete culvert sticking up three inches above the ground, his automobile would have flipped over once he went into the ditch. He further testified that even if the slope had been maintained at a 4:1 ratio Casey’s vehicle would not have made it back onto the roadway.

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Bluebook (online)
85 So. 3d 204, 11 La.App. 3 Cir. 826, 2012 WL 469858, 2012 La. App. LEXIS 172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-dept-of-transportation-development-lactapp-2012.