In order for DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff has the burden of proving: 1) that the thing that caused the damage was in the DOTD's care, custody, and control; 2) that the thing had a vice, ruin, or defect that presented an unreasonable risk of harm; and 3) that the vice, ruin, or defect was the cause-in-fact of the plaintiff's damages. Ferrouillet v. State ex rel. Dept. of Transp. and Development, 2002-0576, p. 2 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, 687. The DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising care and reasonable prudence, but also for those who are slightly exceeding the speed limit or who are momentarily inattentive.
Netecke v. State ex rel. DOTD , 98–1182, 98-1197 (La. 10/19/99), 747 So.2d 489. "DOTD's duty to maintain highways in a safe manner does not include the risk of injury or death caused by the gross negligence of a third party motorist." Ferrouillet v. State ex rel. Dep't of Transp.& Dev. , 02–576, 02-577, p. 3 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, 688, writs denied , 03-751 (La. 5/9/03), 843 So.2d 402 ; 03–756 (La. 5/9/03), 843 So.2d 403. At the Intersection, Highway 90 is a two-way, two-lane highway situated in an east-west direction.
Contrary to the assertion of DOTD, the duty to “momentarily inattentive drivers” applies outside the context of defective shoulder cases. See Ferrouillet v. State ex rel. Dep't of Transp. & Dev., 02–576 (La.App. 4 Cir. 1/15/03), 836 So.2d 686, writs denied, 03–751, 03–756 (La.5/9/03), 843 So.2d 402, 403. Additionally, the duty has been applied in the context of conditions considered to be “extremely dangerous,” much like a railroad crossing.