STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-73 GAYNELWYN SONNIER
VERSUS
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Consolidated With
18-74 MARILYN CLARK
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, ET AL.
Consolidated With
18-75 ELWOOD SONNIER
THE UNOPENED SUCCESSION OF LACY N. JOHNSON, ET AL.
**********
APPEAL FROM THE THIRTY-THIRD JUDICIAL DISTRICT COURT PARISH OF ALLEN, NOS. C-2007-190, C-2007-186 & C-2007-188 HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.
AFFIRMED. Stacey Allen Moak Special Assistant Attorney General P. O. Box 77651 Baton Rouge, LA 70879-7651 Telephone: (225) 751-6300 COUNSEL FOR: Defendant/Appellee – State of Louisiana, Department of Transportation and Development
Dorwan G. Vizzier Broussard, Halcomb & Vizzier P. O. Box 11875 Alexandria, LA 71315 Telephone: (318) 487-4589 COUNSEL FOR: Plaintiff/Appellant – Gaynelwyn Sonnier
Judi F. Abrusley P. O. Box 1114 Oakdale, LA 71463 Telephone: (318) 335-9771 COUNSEL FOR: Plaintiff/Appellee – Marilyn Clark THIBODEAUX, Chief Judge.
The plaintiff, Gaynelwyn Sonnier, appeals interlocutory judgments
limiting her experts’ testimony, along with a final judgment memorializing the
jury’s verdict in favor of the defendant, State of Louisiana, Department of
Transportation and Development (DOTD), involving a single vehicle accident
caused by an allegedly defective highway. Finding no abuse of discretion on the
part of the trial judge and no manifest error on the part of the jury, we affirm the
judgments of the trial court.
I.
ISSUES
We must decide:
(1) whether the trial court abused its discretion in limiting the testimony of traffic experts Duaine Evans and Douglas Robert, precluding their opinions on “unreasonable risk of harm”; and
(2) whether the trial court abused its discretion in limiting the testimony of traffic experts Duaine Evans and Douglas Robert, precluding their opinions on whether a 1949 DOTD project was a “major construction”; and
(3) whether the jury manifestly erred in finding that the accident site did not have defects that created an unreasonable risk of harm.
II.
FACTS AND PROCEDURAL HISTORY
This case involves a tragic accident on Louisiana Highway 10 in
Allen Parish near Oakdale. Two young women in their early twenties were killed
when their vehicle failed to navigate a curve in the road, traveled across the opposing lane and its shoulder, and hit a tree stump in the ditch opposite their lane
of travel. The driver of the vehicle was Lacy Johnson. Her passenger was Breann
Sonnier. Breann Sonnier’s mother, Gaynelwyn Sonnier, filed suit against the
DOTD, alleging faulty construction and maintenance of the roadway and the ditch.
Breann Sonnier’s father, Elwood Sonnier, and Lacy Johnson’s mother, Marilyn
Clark, filed similar suits. The three suits were consolidated.1 Prior to trial, the
suits of Marilyn Clark and Elwood Sonnier were settled.
Also prior to trial, the trial court made interlocutory rulings on various
motions in limine, two of which precluded the plaintiff’s traffic experts from
giving opinions on whether a DOTD project was a “major reconstruction” and on
whether the subject roadway created an “unreasonable risk of harm” for drivers.
The court also ruled that a lab report would be admitted at trial showing that Lacy
Johnson had a 0.10% blood alcohol concentration (BAC) at the time of her death.
Following an eight-day jury trial, the jury rendered a verdict finding
that the roadway at issue did not contain defects creating an unreasonable risk of
harm for drivers. The plaintiff, Gaynelwyn Sonnier, appeals the trial court’s
interlocutory judgments 2 limiting the testimony of her experts for trial, and she
appeals the final judgment dismissing her suit based upon the jury verdict in favor
of the DOTD. She asks this court to reverse those rulings, allocate fault between
1 The three consolidated suits are Gaynelwyn Sonnier v. State of Louisiana, Department of Transportation and Development, trial docket no. C-2007-190, appeal no. 18-73; Marilyn Clark v. State of Louisiana, Department of Transportation and Development, et al., trial docket no. C- 2007-186, appeal no. 18-74; Elwood Sonnier v. The Unopened Succession of Lacy N. Johnson, et al., trial docket no. C-2007-188, appeal no. 18-75. 2 “Although an interlocutory judgment may itself not be appealable, it is nevertheless subject to review on appeal when a final, appealable judgment has been rendered in the case.” Hayward v. Hayward, 12-720, p. 7 (La.App. 1 Cir. 3/18/13), 182 So.3d 966, 970.
2 the driver and the DOTD, and award damages to her between $500,000 and
$3,000,000 for the loss of her daughter Breann.
III.
STANDARDS OF REVIEW
A trial court has great discretion in evidentiary matters, and its
decisions regarding motions in limine are reviewed using the abuse of discretion
standard. See Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3 Cir. 4/23/03),
851 So.2d 1152, writ denied, 03-2005 (La. 10/31/03), 857 So.2d 487; see also
Heller v. Nobel Ins. Group, 00-261 (La. 2/2/00), 753 So.2d 841.
The long-standing standard for appellate review of jury
determinations of fact was set forth in Mart v. Hill, 505 So.2d 1120 (La.1987).
There, the court established a two-part test for the reversal of a factfinder’s
determinations: (1) The appellate court must find from the record that a reasonable
factual basis does not exist for the finding of the trial court, and (2) determine that
the record establishes that the trial court’s finding is clearly wrong (manifestly
erroneous). Id.
“[T]he issue to be resolved by a reviewing court is not whether the
trier of fact was right or wrong, but whether the factfinder’s conclusion was a
reasonable one.” Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993).
Additionally, “the reviewing court must always keep in mind that ‘if the trial court
or jury’s findings are reasonable in light of the record reviewed in its entirety, the
court of appeal may not reverse, even if convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.’” Id. at 882-83
(quoting Housley v. Cerise, 579 So.2d 973, 976 (La.1991)).
3 IV.
LAW AND DISCUSSION
The 1999 version of La.R.S. 48:35, which applies to this 2006
accident, imposes a duty upon DOTD “to maintain, repair, construct, or reconstruct
any public road, highway, bridge, or street, or portion thereof in a manner that is
not unreasonably dangerous for a reasonably prudent driver.” Specifically, this is
the language from La.R.S. 48:35(F)(1)(a)3 which was newly-enacted law in 1999,
along with subparagraphs (G) through (I).
The newly-enacted law from La.R.S. 48:35(F) through (I) was
promulgated from Section 1 of Act. No. 1223, originating with Senate Bill 858 of
the regular legislative session of 1999. Louisiana Revised Statutes 48:35(F)(1)(b)
provided that when a public road is maintained or constructed according to the
standards in place at the time, there “shall be a presumption” that the road was
maintained or constructed in a “reasonably safe condition.” Louisiana Revised
Statutes 48:35(F)(1)(c) provided that when a public road does not conform to
standards adopted “subsequent to” the approval of the maintenance or construction,
“such nonconformity shall not render any such public road . . . unreasonably
dangerous or defective.” Louisiana Revised Statutes 48:35(F)(2) provided that
“[w]hen determining whether or not an unreasonably dangerous condition exists . .
. if a standard, regulation, or guideline is not directly applicable to the
maintenance, repair, construction, or reconstruction, then evidence of failure to
adhere to such standard . . . shall not be admissible in a court proceeding for any
purpose.”
3 It is now La.R.S. 48:35(E)(1)(a).
4 Louisiana Revised Statutes 48:35(G) provided that the “provisions of
this Section shall not affect the requirement” that the DOTD “prioritize the repair,
maintenance, construction, or reconstruction of public roads . . . based on the need
for repair” beginning with those “most in need” and ending with those “least in
need” pursuant to “the priority program set forth in R.S. 48:228 through 233.”
Louisiana Revised Statutes 48:35(H) provided that the above priority program was
an administrative process and did not create “an independent cause of action for
personal injury or property damage.” Louisiana Revised Statutes 48:35(I)
provided that the provisions of Section 1 “shall not apply to regulations affecting
the installation or design of signs imposed by the United States Department of
Transportation.”
Section 2 of Act 1223 stated that “[t]he provisions of this Act are
intended to legislatively overrule that portion of Aucoin v. State Through the Dept.
of Transp. And Development, 97-1938 (La. 4/24/98), 712 So.2d 62, which imposes
liability on the [DOTD] for failing to maintain and/or reconstruct an existing
highway to modern standards.”4
DOTD has a duty to maintain the public roadways, including adjacent shoulders and areas in the DOTD’s right-of-way, in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. Campbell v. State, Through Depart. of Transportation and Development, 1994-1052, p. 6 (La.1/17/95), 648 So.2d 898, 901-902; Brown v. Louisiana Indem. Co., 1997-1344 p. 3 (La.3/4/98), 707 So.2d 1240, 1242; Oster v. Dept. of Transp. & Development, 582 So.2d 1285, 1289-91 (La.1991). This duty, however, does not render DOTD the guarantor for 4 In the partially overruled Aucoin, the supreme court had affirmed the trial court’s finding that the road at issue was unreasonably dangerous because of the combination of dangerous defects that DOTD allowed to accumulate on an older highway, including a drop off shoulder, a nonrecoverable sloping, and limited horizontal clearance. There, the trial court had also found that DOTD “failed to prioritize proper maintenance.” Id. at 64.
5 the safety of all of the motoring public or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Netecke v. State ex rel. DOTD, 1998- 1182, 1998-1197 p. 8 (La.10/19/99), 747 So.2d 489, 495. Further, this court has held that DOTD’s failure to design or maintain the state’s highways to modern standards does not establish the existence of a hazardous defect in and of itself. Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1173 (La.1986). Whether DOTD has breached its duty to the public depends on all the facts and circumstances determined on a case by case basis. Campbell, 1994-[1052,] p. 6, 648 So.2d at 901-902.
Forbes v. Cockerham, 08-762 (La. 1/21/09), 5 So.3d 839, 858-59.
A reviewing court should afford considerable weight to an administrative agency’s construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless they are found to be arbitrary, capricious, or manifestly contrary to its rules and regulations. See, Dixie Electric Membership Corp. v. Louisiana Public Service Comm’n., 441 So.2d 1208, 1211 (La.1983); see, also, In the Matter of Recovery I, Inc., 1993-0441 (La.App. 1st Cir.4/8/94), 635 So.2d 690, 696, writ denied, 1994-1232 (La.7/1/94), 639 So.2d 1169.
....
This court has previously described the unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing, all the while considering a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and the social utility of the party’s conduct at the time of the accident. Netecke, 1998-1182, 1998-1197 p. 14–15, 747 So.2d at 498. In every determination, all the circumstances surrounding the particular accident under review must be considered to determine whether DOTD’s legal duty encompassed the risk which caused the plaintiff’s damages. Oster, 582 So.2d at 1289.
Id. at 859-60.
The highway department’s duty to maintain safe shoulders encompasses the foreseeable risk that for any
6 number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. Id. This duty extends to drivers who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through Louisiana Dept. of Transp. and Development, 502 So.2d 1383 (La.1987). 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. Oster v. Department of Transp. and Development, State of La., 582 So.2d 1285 (La.1991) (where off road motorcyclist hit a drainage ditch within DOTD’s right of way, DOTD not liable because DOTD has no duty to maintain every inch of property within its control neatly mowed or face the prospect of tort liability).
Cormier v. Comeaux, 98-2378, p. 7 (La. 7/7/99), 748 So.2d 1123, 1127.
Plaintiff’s Experts and Unreasonable Risk of Harm
Ms. Sonnier contends that the trial court erred in excluding the
opinions of her professional engineering experts, Duaine Evans, P.E., and Douglas
Robert, P.E., on the narrow issue of whether the road contained a defect creating
an “unreasonable risk of harm” for reasonably prudent drivers. It should be noted
at this point that Mr. Evans and Mr. Robert did provide testimony regarding their
opinions that the roadway contained defects. Mr. Evans testified that the ten-foot
travel lanes were too narrow; that the two-foot-wide shoulders should have been
four feet wide; that the foreslope of the ditch was too steep at 1:1 and should have
been 1:3 to allow a vehicle to recover after leaving the pavement; and that the
stump “at the toe of the slope” was an impermissible obstruction.
However, Mr. Evans, who was testifying as an expert in traffic
engineering and accident reconstruction, did not reconstruct the accident; he did
not inspect the vehicle or perform a damage and crash analysis of the vehicle; he
7 did not calculate what path the vehicle would have taken if the shoulders had been
wider and flatter, or where the vehicle might have gone if it had not hit the stump.
He relied heavily on the police report regarding the stump as causing all of the
vehicle’s damage and regarding where the vehicle left the road. He thought the
police report said the driver was traveling almost parallel to the road when the left
tires left the pavement causing him to opine that she was “following the curve”
with no loss of control and still inputting steering, even though she was going
eastbound in the westbound lane when she left the road and entered the shoulder.
Mr. Evans opined that the opposing shoulders were designed to benefit even
drivers who crossed the opposing lane to access the shoulder driving in the wrong
direction, and he denied the characterization that the driver actually had twelve feet
of width, ten feet of travel lane width and two feet of shoulder width, to correct her
path after crossing the center line.
The trial court permitted all of Mr. Evans’s testimony except for a few
pages from his total deposition of over 160 pages. The reasoning of Judge Cole
that was adopted by Judge Deshotels was in part to preclude the terminology
“unreasonably dangerous” or “unreasonable risk of harm” because that language
constitutes the legal test to be decided by the jury. The plaintiff asserts that this
was error, quoting La.Code Evid. art. 704, which states:
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.
Here, the trial court had multiple reasons for limiting Mr. Evans’s
testimony which involved keeping his testimony within the bounds of his expertise.
8 [T]he Court is accepting Mr. Evans as an expert in the field of traffic engineering. He is not an expert in the fields of highway engineering, construction, or design, or human factors engineering. And he wasn’t proffered as that.
Whether the State has breached its duty by knowingly [] maintaining a defective or unreasonably dangerous roadway, depends on the facts and circumstances of each case. This is a task for the trier of fact. To determine this risk, the trier of fact will consider the broad range of social, economic and moral factors and the social utility of the plaintiff’s conduct at the time of the accident. Again he is not being offered as a human factors expert, although that is kind of - - it is a field that is not far from it, engineering expert. The cost to the State in avoiding the risk is one of the factors that has to be considered in this utility-risk evaluation. And that is up to the trier of fact. This includes not only the cost to fix the instant deviation but other similar deviations on Highway 10. The Court does not believe that he can give an opinion as to whether the roadway is unreasonably dangerous or not because it falls outside his area of expertise. It is not included in his education, training or methodology. The specialized knowledge of Mr. Evans [is] the field of traffic engineering so it cannot assist the trier of fact in making this utility-risk determination. So he can’t say, oh because of these factors it is unreasonably dangerous because he has told this Court that he doesn’t look at costs or those kinds of things, nor is he a human factors engineer. So I don’t believe that he can give an opinion as to whether the condition of the road at the site of the accident is unreasonably dangerous or not. He can’t make that statement. He can talk about what hazards are there.
The trial court’s reasoning follows the requirements set forth above in
Forbes, 5 So.3d 839. In addition, the trial court found that Mr. Evans did not
examine the crash history at the site or the work records on the road; nor did he
address feasible countermeasures or look at similar defects.
In support of her position, Ms. Sonnier cites Rosen v. State ex rel.
Dep’t of Transp. & Dev., 01-499 (La.App. 4 Cir. 1/30/02), 809 So.2d 498, writ
9 denied, 02-605 (La. 5/10/02), 815 So.2d 842, which affirmed the trial court’s
judgment in favor of the plaintiff after a bench trial. There, the plaintiff
hydroplaned into a bridge abutment that did not have a guardrail right after a
reconstructed portion of the roadway was prematurely opened to traffic and before
the 1994 plan was completed; the plan called for a guardrail, which was installed
only days after the accident. The trial court allowed one of the plaintiff’s experts,
Mr. James Clary, to testify that “an unguarded bridge end on a highway of [that]
classification [was] unreasonably dangerous.” Id. at 505. Even though he testified
that an AASHTO guidelines manual classified the absence of a guardrail as
unreasonably dangerous, and then was not able to produce corroborating evidence,
the appellate court did not find the trial court in error for allowing him to testify
regarding the “ultimate issue” under La.Code Evid. art. 704. Id. at 508. The only
reason the appellate court gave was that “DOTD did not object to a substantial
majority of Mr. Clary’s testimony; therefore, it cannot now complain that Mr.
Clary declared the accident site ‘unreasonably dangerous.’” Id. Moreover, Mr.
Clary was qualified in the fields of highway design, engineering, signage, safety,
and maintenance. This case is both factually distinguishable and not binding in
this court.
The stump was on the backslope of the ditch, not at the toe of the
foreslope as indicated by Mr. Evans. The jury heard testimony that DOTD
removed tree limbs after Hurricane Katrina came through in 2005, but the plaintiff
presented no work orders for tree removal. DOTD Maintenance Supervisor
Damon Cooley testified at trial that the National Guard was removing trees after
the hurricane. Wade Wilson testified that he saw DOTD cutting trees but admitted
that he did not see DOTD cut the stump at issue.
10 When Mr. Evans, who was eighty-five and in ill health, retired, the
plaintiff retained Mr. Robert, who had the same qualifications and used the same
methodology. DOTD again filed a motion to limit the testimony of the plaintiff’s
expert, Mr. Robert. When the plaintiff filed a motion for reconsideration of the
earlier ruling by Judge Cole, Judge Deshotels, after a hearing and after taking the
issue under advisement, denied the motion for reconsideration. Both experts
testified regarding conditions that in their opinions were hazardous. No proffer
was made of the excluded testimony. The question of unreasonable risk of harm is
a question of fact for the jury. Fontenot v. Patterson Ins., 09-669 (La. 10/20/09),
23 So.3d 259. The jury in this case found no defect creating an unreasonable risk
of harm. There is no manifest error.
Plaintiff’s Experts and Major Reconstruction
Ms. Sonnier contends that the trial judge erroneously excluded the
testimony of her experts regarding whether the roadway at issue had undergone a
“major reconstruction” such that certain standards had to be applied; and that not
meeting those standards constituted a breach of DOTD’s duty to maintain the
roadway. More specifically, Ms. Sonnier argues that the 1946 DOTD guidelines
for major reconstruction included four-foot-wide shoulders, a 3:1 side slope, and
twenty feet of horizontal clearance beyond the travel lanes, and that these
guidelines apply to the roadway which was converted from gravel to asphalt in
1949. Mr. Evans testified that he reviewed the final estimate for the 1949 project
and that it constituted a “major reconstruction” that required application of the
1946 guidelines. DOTD’s representative testified that the conversion to asphalt in
1949 was an overlay project, not a major reconstruction. Judge Cole found that
11 whether or not the project was a major reconstruction could only be determined by
design engineers or construction engineers and that Mr. Evans and Mr. Robert
were traffic engineers.
Mr. Evans’s bachelor’s degree in the 1950s was in electrical
engineering, and he took a post-graduate course in traffic engineering which he
said included geometric design of highways. His work has been largely consulting
work. Ms. Sonnier argues that Mr. Evans’s affidavit shows that he was qualified
by fifty years of experience. In his affidavit, however, he admits that he was “not
generally involved in the specific design or even in the maintenance of roads and
highways.”
The court stated as follows:
As I said earlier a traffic engineer, they are not responsible for infrastructure of the highway system. The Court doesn’t believe that his education, experience and methodology qualifies him to . . . evaluate the project proposed, the cost of same, and make a determination that this is or is not major reconstruction. The Court believes it is beyond his area of expertise and not included in his methodology. Therefore, the Court does not believe he can give an opinion that the 1949 project for Highway 10 was a major reconstruction. He can talk about the AASHTO Standards and, you know, why it is unsafe there. I don’t think he can make that one opinion. But he can certainly talk about the roadway and what he believes are a hazard there.
We find no abuse of discretion in the trial court’s ruling on this issue.
In Forbes, 5 So.3d 839, which is virtually on-point with the present case, the
Louisiana Supreme Court reversed the first circuit’s judgment in favor of the
plaintiff, finding that the evidence did not support a reconstruction of the roadway
at issue. There, a legally intoxicated driver with a 0.12% BAC was “straightening
out the curves” in a section of Highway 37 by driving south in the opposing north-
12 bound lane of the two-lane highway as he approached each curve. Id. at 843. The
driver’s car went into a ditch, struck at least one tree, caving in the roof and
ejecting both the front-seat passenger and the rear-seat passenger. The front-seat
passenger was killed, and the back-seat passenger, who was the driver’s nine-year-
old nephew, was thrown into the road and hit by another vehicle. He survived.
The child’s expert in Forbes testified that the roadway at the accident
site had been reconstructed in 1975 and that DOTD had failed to comply with its
own and AASHTO’s design standards. He further testified that the substandard
lane width, shoulder width, shoulder slope ratio, and right of way with trees was a
cause-in-fact and legal cause of the accident. The jury found the driver 60% at
fault and DOTD 40% at fault. The trial court granted DOTD’s motion for a
judgment notwithstanding the verdict (JNOV), and the first circuit reversed on
appeal, reinstating the jury’s verdict. The Louisiana Supreme Court reversed,
finding that the car was already out of control before it left the road, finding the
driver to be 100% at fault, and reinstating the trial court’s JNOV in favor of
DOTD. In addressing the design and maintenance of the roadway, the supreme
court found that the 1975 project/plan, which had “Reconstruct Base and
Surfacing” in its title, was nevertheless not a “major reconstruction” requiring the
application of 1975 standards. DOTD experts had testified that the plaintiff’s
expert was the only person who would characterize the 1975 overlay or
preservation project as a major reconstruction. Those witnesses testified that
reconstruction projects took four to five years to develop, cost $500,000 to
$600,000 per mile in the 1970s, involved federal funds, required a full topographic
survey, required upgrades to the vertical and horizontal geometry of the road, and
required the purchase of land for additional rights-of-way. Conversely, the project
13 in Forbes was done by an independent contractor, to be completed in sixty days at
$520,000 for all 4.5 miles, did not require additional rights-of-way, and required
no work on the existing shoulders.
We note that the plaintiff’s expert in Forbes was Mr. James Clary, and
he was allowed to give his opinion on what constituted a major reconstruction.
However, as seen above in Rosen, 809 So.2d 498, Mr. Clary had qualifications in
the fields of highway design, engineering, signage, safety, and maintenance. In the
present case, Mr. Evans did not have those qualifications; nor did he support his
opinion on major reconstruction with proper evidence, such as the kind of
information as that testified to by DOTD’s engineers in Forbes. The plaintiff’s
other traffic engineer, Mr. Robert, also testified that Highway 10 had undergone a
major reconstruction in 1949, using the same reasoning that the travel surface went
from gravel to asphalt. Accordingly, the record supports the trial court’s limitation
on the testimony of the plaintiff’s experts. This is no abuse of discretion in this
ruling.
Jury’s Verdict
Ms. Sonnier contends that the jury manifestly erred in finding that the
roadway contained no defect resulting in an unreasonable risk of harm that caused
the passenger’s injuries. We disagree. Over eight days of trial, the jury heard and
saw ample evidence to support its verdict. DOTD’s accident reconstructionist,
Jeremy Hoffpauir, testified that Lacy Johnson simply drove her vehicle straight off
the road. Trooper Anthony Scott Farris, Mr. Hoffpauir, Mr. Evans, and Mr. Robert
all testified that there was no physical evidence, such as tire marks, indicating that
the driver attempted to apply her brakes or input steering before she left the
14 roadway. Contrary to Mr. Evans’s belief expressed in his deposition testimony,
Trooper Farris did not believe that the driver was parallel to the road when she
entered the shoulder on the other side of the highway. Trooper Farris testified at
trial that the driver’s car travelled straight from the east-bound lane, crossed the
center line, and went off the edge of the road in a straight path with no evidence of
steering or breaking.
Trooper Farris further testified that the warning sign of the curve
ahead and the advisory speed was in place. DOTD’s traffic engineering expert, Dr.
Joseph Blaschke, and the plaintiff’s expert, Mr. Robert, testified that the signage
met the requirements of the Manual on Uniform Traffic Control Devices
(MUTCD). Dr. Blaschke also said there was no defect in the striping, design, or
speed limit. Additionally, he said the shoulder width and slope did not violate
DOTD policy. Typically, plans and guidelines are adjusted because of the
geometry and conditions present. Further, the stump was in a heavily wooded
area, and removal of the tree would make no difference because other trees were
next to the stump.
Testimony at trial indicated that the driver drove this highway every
day and was familiar with the road. Mr. Hoffpauir testified that the driver could
see the curve ten seconds in advance of reaching it and had time to react. He said
the curve was not severe and required only nine degrees of steering, which most
drivers do on a daily basis. Mr. Evans also testified that the curve was not severe
and that a driver could safely negotiate the curve. All agreed that the driver had a
ten-foot travel lane and a two-foot unimproved shoulder on the other side of the
center line within which to correct her path and get back into her own lane. DOTD
Maintenance Engineer Damon Cooley said he inspected the area and did not
15 observe a defect in the roadbed or the shoulder that could have caused this
accident. Trooper Farris said no defect caused the driver to leave the road.
As previously discussed, the DOTD owes a duty to a prudent driver
who is momentarily distracted, but Dr. Blaschke testified that Lacy Johnson, the
driver, was more than momentarily inattentive. The plaintiff’s toxicologist, Dr.
Ernest Lykessa agreed. DOTD’s toxicologist, Dr. Gary Wimbish, and Dr. Lykessa
testified that 0.10% BAC results in cognitive impairment, blurred vision, decreased
hand-to-foot-to-eye coordination, decreased perception-reaction time, and impaired
judgment and reasoning. Dr. Wimbish further stated that the driver’s BAC
impairment more probably than not included a reduced ability to timely input a
steering maneuver before the crash. Dr. Blaschke said that driver perception-
reaction time is impaired at 0.08% BAC. The plaintiff’s own expert, Mr. Evans,
stated in his report that alcohol may have played a part in the driver’s having left
the roadway.
The purpose of a roadside ditch is to drain the highway. La.R.S.
48:1(17). In cases involving alcohol and/or injuries occurring in ditches, the courts
usually do not find a duty of DOTD to protect against such risks. That is because
the utility of the ditch is high while the conduct of the driver is not.
In Oster v. Department of Transportation and Development, State of
Louisiana, 582 So.2d 1285, 1289 (La.1991) (emphasis added), the court stated the
following:
We begin by recognizing, as did the court of appeal, that the drainage ditch in question serves a useful purpose. Draining 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
16 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.
In Miller v. State, Dep’t of Transp. & Dev., 95-548, pp. 4-5 (La.App.
3 Cir. 3/20/96), 679 So.2d 134, 137-38, writ denied, 96-1674 (La. 10/11/96), 680
So.2d 650, we held:
[U]nder the facts of this case, we must ask: was the risk that a speeding and intoxicated motorist, driving an A- frame vehicle of this size and design, might lose control of his vehicle, travel across the opposite lane of travel, then traverse the shoulder and ditch beyond, and strike this tree at the precise angle it did, within the ambit of duty that DOTD owes motorists?
Additionally, when determining whether a condition or defect presented an unreasonable risk of harm, courts balance several factors, including the probability and gravity of the harm presented by the risk against the social utility of the thing involved, the cost to the defendant of avoiding the risk, and the social utility of the plaintiff’s conduct at the time of the accident. Nicks v. Teche Elec. Co-op. Inc., 93-1418 (La.App. 3 Cir. 6/1/94), 640 So.2d 723, writ denied, 94-1710 (La.10/7/94), 644 So.2d 640.
The tree in question was part of a vast wooded area. The evidence reveals that there is no reason to believe that the risk of harm this tree posed to this driver was in any way different from that presented by the trees around it. Plaintiffs’ own expert, Mr. Moody, testified that “[i]f that tree hadn’t been there, and he’d gone off that curve, then there are other trees that he could’ve hit,” some further away, and been killed at his calculated speed. This tree had been there for approximately thirty years, and Allen had driven that road many times, and made that curve, all without incident. Thus, plaintiffs postulate that this tree, with its odd shape and unique position, posed an unreasonable risk of harm, and without it Allen would be alive today, is pure speculation. Moreover, given the “lay of the land,” it is a most unlikely scenario.
17 Furthermore, the record does not substantiate that, indeed, DOTD intended that area to be a “recovery zone,” nor that it had any obligation to create and maintain one. In fact, DOTD did not design the highway. We also note that “recovery zones” are intended to aid those drivers, traveling adjacent to them who slightly veer off the road, to return safely onto their own lane of travel. Id. Plaintiffs’ position implies that had such a zone existed, it would have allowed this driver to regain control of his vehicle and return to the road. However, there is no evidentiary basis for this. It is simply academic, especially in light of plaintiffs’ expert’s speculation that Allen had fallen asleep at the wheel. Even if DOTD had an obligation to maintain such a recovery zone, and did so, likely, it would have served no purpose to this driver who never took evasive action nor attempted to regain control of his vehicle.
Holmes v. State, through Dept. of Highways, 466 So.2d 811, 821 (La.App. 3 Cir.), writ denied, 472 So.2d 31 (La.1985), speaks directly to this situation: “[t]he Highway Department’s duty to maintain a safe shoulder does not encompass the foreseeable risk of injury to a motorist who strays completely off the traveled portion of the highway because his driving ability is impaired by reason of intoxication....” (Emphasis added). In another case similar to the present one, the court found that a utility pole located near the highway did not create an unreasonable risk of harm such that the state was liable for resulting injuries, where evidence indicated that the driver lost control of the auto and was intoxicated at the time of the accident. Beecher v. Keel, 94-314 (La.App. 4 Cir. 9/29/94), 645 So.2d 666; writ denied, 95-0108 (La.3/10/95), 650 So.2d 1185.
As to the area off the shoulder of the road, but within the right-of-way, DOTD owes a duty to maintain that area in such a condition that it does not present an unreasonable risk of harm to motorists or others using the roadway in a reasonably prudent manner. Oster, 582 So.2d 1285. The logic of the holdings in Holmes, Beecher and Oster would apply with even greater force to the more removed area where Allen had his accident.
In Cormier, 748 So.2d 1123, the driver of a vehicle apparently went to
sleep, drove off the roadway across the shoulder and into the back embankment of
the roadside ditch. The trial court denied recovery, and the court of appeal
18 reversed. The Supreme Court reversed the court of appeal, and reinstated the trial
court’s judgment, observing: “Generally, in other cases such as this one, where no
road defect caused the driver to leave the road and the driver hit an object in the
DOTD’s right of way, the DOTD has been relieved of liability.” Id. at 1129-30.
In this case, the jury’s verdict is supported by the evidence in the
record, and it is in alignment with the statutory and jurisprudential law on the
issues surrounding an unreasonable risk of harm. The jury’s verdict is not clearly
erroneous.
V.
CONCLUSION
Based upon the foregoing, the trial court’s interlocutory judgments
limiting expert testimony and its final judgment memorializing the jury’s verdict in
favor of the State of Louisiana, Department of Transportation and Development,
are affirmed. Costs of this appeal are assessed to the plaintiff, Gaynelwyn Sonnier.
AFFIRMED.