Opinion
2012 CA 0060
05-09-2013
CHESTER BARRILLEAUX, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF HIS MINOR CHILDREN, DUSTIN BARRILLEAUX AND HUNTER BARRILLEAUX, AND MELISSA BARRILLEAUX, AND TIFFANY BARRILLEAUX MEADOR v. STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
Aaron Broussard Lake Charles, Louisiana Counsel for Plaintiffs/Appellees Chester Barrilleaux, Melissa Barrilleaux, Dustin Barrilleaux, Hunter Barrilleaux, and Tiffany Barrilleaux Meador John H. Ayres, III Assistant Attorney General La. Dept. of Justice Baton Rouge, Louisiana Counsel for Defendant/Appellant State of Louisiana, Department of Transportation and Development
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 18th Judicial District Court
In and for the Parish of West Baton Rouge
Docket No. 36,286, Division "A"
Honorable James J. Best, Judge Presiding
Aaron Broussard
Lake Charles, Louisiana
Counsel for Plaintiffs/Appellees
Chester Barrilleaux, Melissa
Barrilleaux, Dustin Barrilleaux,
Hunter Barrilleaux, and Tiffany
Barrilleaux Meador
John H. Ayres, III
Assistant Attorney General
La. Dept. of Justice
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
State of Louisiana,
Department of Transportation and
Development
BEFORE: PARRO, HUGHES, AND WELCH, J J.
HUGHES , J.
This is an appeal from a judgment of the Eighteenth Judicial District Court that granted a motion for JNOV in favor of the plaintiffs, Chester and Melissa Barrilleaux, their minor children, Dustin and Hunter Barrilleaux, and their major daughter, Tiffany Barrilleaux Meador. The judgment held the defendant, the State of Louisiana, through the Department of Transportation and Development (DOTD), liable to the plaintiffs and awarded damages. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This action arose from a motorcycle accident that occurred in Lobdell, Louisiana on June 23, 2006. Chester and Melissa Barrilleaux were riding their Harley Davidson motorcycle along the portion of Louisiana Highway 415 known as Loop Road. Loop Road crosses under an overpass where the accident occurred. Just prior to the overpass begins the first of two successive curves. While the first curve is visible to approaching motorists, the second curve is hidden from view by the overpass. As traveled by Chester and Melissa, the first curve is less sharp than the second. Although he successfully negotiated the first curve, Mr. Barrilleaux was unable to remain in his lane in the second curve, crossed into oncoming traffic, and struck another vehicle. Chester and Melissa were injured in the accident.
On May 7, 2007 the Barrilleauxs filed suit against DOTD, as custodian of the roadway, alleging that the roadway contained a defect for which DOTD was liable. Specifically, they contended that without a warning sign, the sharp and hidden second curve was unreasonably dangerous.
The case went to a jury trial on November 8, 9, 10, and 12, 2010. At the close of the evidence, the jury returned a verdict finding that the roadway was defective and that the defect was the cause of the accident. However, the jury also found that because DOTD had no notice of the defect, it was not liable for the damages it caused. Thus, no damages were awarded.
The plaintiffs filed a motion for Judgment Notwithstanding the Verdict (JNOV) on the issue of notice. Therein, they alleged that because DOTD created the defect (by failing to warn motorists of the hidden curve), DOTD was charged with knowledge of the condition, and they were not required to prove notice at trial. The trial court granted the motion. In written reasons, the court stated that "[p]laintiffs need not have proven NOTICE as the State is deemed to have had actual or constructive NOTICE of the defective roadway. Furthermore, and for reasons stated in Plaintiffs' memorandum, the State nonetheless, in fact, had 'actual' NOTICE of the roadway's defectiveness. The evidence was most sufficient to prove to any rational, reasonable Jury of same." The court allocated 100% fault to DOTD and awarded damages, as follows:
Because we find no error in the trial court's ruling that DOTD's creation of the defect results in the conclusion that plaintiffs were absolved of their requirement to prove notice, we pretermit discussion of the sufficiency of the evidence of prior notice to DOTD at the trial. Particularly, it is not necessary for this court to consider testimony or other evidence regarding the damage and replacement of guardrails or the number of prior reported accidents along Loop Road.
A subsequent hearing was held that resulted in the lowering of some of the damage awards, in compliance with the statutory cap set forth in LSA-R.S. 13:5106.
+-------------------------------+ ¦Melissa Barrilleaux ¦ +-------------------------------¦ ¦Past Medicals ¦$ 243,083.78¦ +------------------+------------¦ ¦Future Medicals ¦$ 137,237.00¦ +------------------+------------¦ ¦Past Wages ¦$ 18,603.00 ¦ +------------------+------------¦ ¦Future Wages ¦$ 725,265.00¦ +------------------+------------¦ ¦General Damages ¦$ 700,000.00¦ +------------------+------------¦ ¦Household Services¦$ 300,000.00¦ +-------------------------------¦ ¦Chester Barrilleaux ¦ +-------------------------------¦ ¦Past Medicals ¦$ 3,530.96 ¦ +------------------+------------¦ ¦Past Wages ¦$ 27,617.00 ¦ +------------------+------------¦ ¦General Damages ¦$ 150,000.00¦ +------------------+------------¦ ¦Loss of Consortium¦$ 40,000.00 ¦ +-------------------------------+
+-------------------------------------------------+ ¦ ¦$ ¦ ¦Tiffany Meador's Loss of Consortium ¦ ¦ ¦ ¦10,000.00¦ +---------------------------------------+---------¦ ¦ ¦$ ¦ ¦Hunter Barrilleaux's Loss of Consortium¦ ¦ ¦ ¦7,500.00 ¦ +---------------------------------------+---------¦ ¦ ¦$ ¦ ¦Dustin Barrilleaux's Loss of Consortium¦ ¦ ¦ ¦2,500.00 ¦ +-------------------------------------------------+
DOTD appeals, and makes the following assignments of error:
1. The trial court erred in allowing portions of the "discovery" deposition of Ms. Lottie Clay to be read to the jury after the video of her "trial" deposition had been played to the jury;In the alternative, should this court not reinstate the jury verdict, DOTD alleges that comparative fault should be assessed to Chester Barrilleaux.
2. The trial court erred in allowing the plaintiffs' attorney to "read" to the plaintiff his "discovery deposition," essentially testifying for the plaintiff;
3. The trial court erred in allowing the plaintiffs to admit as evidence a video of 18-wheelers traveling along the portion of the highway that the plaintiffs allege is defective;
4. The trial court erred in granting the motion for JNOV;
5. The jury erred in finding that the road was defective and in finding that the accident was caused by that defect;
6. The trial court erred in awarding damages for future loss of income and loss of future earning capacity to Melissa Barrilleaux, and in awarding her excessive general damages.
LAW AND ANALYSIS
A. EVIDENTIARY ERRORS
In its assignments of error numbered 1, 2, and 3, the defendant alleges evidentiary errors. An appellate court may not overturn a jury's findings of fact absent manifest error, or unless a finding is clearly wrong. However, if upon review, we find that the trial court committed one or more evidentiary errors that interdict the fact-finding process, we are required to instead conduct a de novo review. As such, because a finding of an evidentiary error may affect the standard of review we should apply, we will address the alleged evidentiary errors first in this appeal. See Wright v. Bennett, 2004-1944, p.6 (La. App. 1 Cir. 9/28/05), 924 So.2d 178, 182. We note, however, that in regard to the defendant's allegations of error as to whether the trial court improperly admitted certain evidence, the trial court is granted broad discretion in these rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Wright, 924 So.2d at 183, citing Turner v. Ostrowe, 2001-1935 (La. App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied. 2002-2940 (La. 2/7/03), 836 So.2d 107.
1. Video Deposition of Lottie Clay
In its first assignment of error, defendant argues that it was unduly prejudiced by the trial court's admission of a portion of the "discovery" deposition of Ms. Lottie Clay. Ms. Clay, the driver of the vehicle struck by Mr. Barrilleaux's motorcycle, lives in Shreveport, Louisiana.
Ms. Clay was deposed twice prior to the trial. The first deposition was conducted for discovery purposes; the second was taken in lieu of her live trial testimony. Because plaintiffs alleged that her testimony with regard to the roadway conditions on the day of the accident changed somewhat, plaintiffs sought to introduce not only her entire "trial" deposition, but also the alleged inconsistent portion of her "discovery" deposition. The defendant objected.
In her trial deposition, Ms. Clay testified as follows:
[Q.] Do you - - do you remember what kind of day it was?
[A.] Well, it was - - I think it was a fairly clear day, but it had started to rain, just as we came into Baton Rouge.
[Q.] When you got on the Loop Road, was it raining there?
[A.] There was some rain or it had rained there or it was - -the road was wet.
[Q.] The road on Loop Road was wet?
[A.] Uh-huh (affirmative).
[Q.] Okay. That's interesting to me.
[A.] Uh-huh (affirmative).
[Q.] The officer has said that the road was wet, [b]ut everybody else that we have talked to told us the road was hot and dry.
[A.] It was hot, but it had - - it either had started raining or it had finished raining. It hadn't - - it wasn't a downpour or a gully-washer, as you say. It was just kind of slick like.
[Q.] Summer showers?
[A.] Yes.
* * * *
[Q.] But, do you remember, specifically, where your car was when you got rained on?
[A.] No, I don't.
[Q.] Do you know, specifically, if you got rained on while you were on Loop Road, on that little sharp piece of Loop Road?
[A.] Well, like I say, it wasn't just raining, but it was - - it had rained. I'll say that, it had rained. It wasn't raining then, but it had rained.
The following portion of her discovery deposition was also read to the jury at the trial:
[Q.] Okay, do you remember if it was raining at the time of the accident?
[A.] No.
[Q.] It was not raining?
[A.] No. If I remember correctly, it had rained, but it wasn't raining then, I don't think.
[Q.] Do you recall if the road was wet?
[A.] No, I don't.
[Q.] You said you recall it had rained, when was the last - -
[A.] It may - - it's just been so long ago, until I don't really remember whether it had rained or not, or whether or not it had rained.
[Q.] Do you remember it raining on you while you were driving you think?
[A.] Maybe so.
[Q.] Do you recall - - if you recall it raining at any time, do you recall where you were? In other words, were you in Baton Rouge or were you in between New Orleans and Baton Rouge?
[A.] Maybe just coming into Baton Rouge.
[Q.] On the east side?
[A.] Yes, I guess so.
[Q.] In between Baton Rouge and New Orleans?
[A.] Yes.
[Q.] Once you got onto the west side of Baton Rouge, onto the Shreveport side, do you ever recall it raining?
[A.] Maybe I should tell you this. I know very little about Baton Rouge. I don't know. You're referring to the east side or west, I usually go - - get on the freeway and follow the signs to where I'm going.
[Q.] Yes, ma'am. When I refer to the west side, I'm talking about the side - the Shreveport side. In other words, after you've already passed through Baton Rouge on your way home.
[A.] Okay. I usually go through, what is it? What is that, Lobdell?
[Q.] Lobdell?
[A.] Uh-hum.
[Q.] Once you got into Lobdell, do you ever remember it raining?
[A.] No, I don't.
Any inconsistencies and objections to the testimony of Ms. Clay should have been addressed in her "trial" deposition. In both depositions she testified that it "had rained." In her trial deposition, she indicated the road was wet, while in her discovery deposition she indicated she could not recall whether the road was wet.
However, we find that any inconsistencies were minor and not material, and the testimony offered at trial was largely cumulative. The admission of cumulative evidence is largely within the discretion of the trial court. Brumfield v. Guilmino, 93-0366 (La. App. 1 Cir. 3/11/94), 633 So.2d 903, 912, writ denied, 94-0806 (La. 5/6/94), 637 So.2d 1056. We find no abuse of discretion by the trial court in its admission of Ms. Clay's testimony.
2. Use of Mr. Barrilleaux's Prior Deposition
In its second assignment of error, defendant alleges that it was prejudiced by the trial court's erroneous admission of portions of Mr. Barrilleaux's deposition testimony during his direct examination, as opposed to during his cross examination. Stating his objection, DOTD's attorney explained, "I think I had a right to do a very thorough and tough cross because [Mr. Barrilleaux] changed his sworn testimony." Essentially, the defendant complains that because Mr. Barrilleaux was allowed to explain the change in his testimony during his own direct examination, it was deprived of the opportunity to impeach him with a prior inconsistent statement.
At the trial, Mr. Barrilleaux testified that on the day of the accident, he and his wife were traveling to Natchez, Mississippi to attend a "Chapter Rally." They crossed the railroad tracks and turned onto Loop Road, traveling at approximately 10-15 mph. He could only see the first curve. When asked at what rate of speed he was traveling at the end of the straight portion of the road, just prior to entering the first curve, Mr. Barrilleaux responded, "[I]n my deposition I estimated between twenty-five and thirty." He explained that as of the date of his deposition, he had not returned to the scene of the accident. Further, he stated that when the accident occurred, he was not looking at his speedometer. Therefore, at his deposition he had only been able to estimate his speed. However, after the deposition he had revisited the scene for the purpose of determining more accurately the speed he was traveling when the accident occurred. He drove the route 8-10 times and monitored his speedometer. As a result, he explained that he then knew that he had actually been traveling at a rate of speed between 30 and 40 mph.
During Mr. Barrilleaux's testimony, his attorney handed him a copy of his deposition and read a portion of it aloud. He essentially reiterated that Mr. Barrilleaux turned onto Loop Road traveling at 10-15 mph, proceeded down the road, and estimated that he was traveling 25-30 mph at the time he reached the beginning of the first curve. Defendant objected to the reading of the deposition.
At the trial, Mr. Barrilleaux said he was traveling 30-40 mph. In his deposition, he stated 25-30 mph. The deposition is thus inconsistent. However, there is nothing to prevent a witness from addressing or explaining a prior inconsistent statement on direct examination. The question is whether one may try to "steal your opponent's thunder" by bringing out impeaching material before he can. It is accepted practice to do so if a party's attorney determines that such a tactic would serve it is best interest. In fact, one authority encourages attorneys to err on the side of disclosure, advising "when in doubt, bring it out." James W. McElhaney, McElhaney's Trial Notebook 245 (2nd ed. 1978.) Such a strategy is akin to a criminal defendant bringing out his prior criminal conviction on direct in order to take the sting out of its disclosure during cross. We cannot say that the trial court abused its much discretion in allowing Mr. Barrilleaux to reference and explain his own prior testimony. He was still subject to cross examination on any inconsistencies.
3. Video of 18-Wheelers
Defendant's next assignment of error alleges that the trial court erroneously admitted a surveillance video. At the trial, Mr. Ron Gaspard testified that he was hired by the plaintiffs' attorney to conduct surveillance of the Loop Road curve over the course of a week. Mr. Gaspard testified that he recorded the Loop Road curve 24 hours a day for 7 days. During that time, 470 18-wheelers crossed the center line in the curve. Of those, 6 met head-on with an oncoming vehicle and had to come to a complete stop in order to avoid a collision. A video of those six instances was admitted at the trial and shown to the jury.
DOTD argues that the video is both irrelevant and highly prejudicial. In this case, plaintiffs are required to prove that the roadway is defective. Plaintiffs argue that the video is admissible because it tends to prove that the sharpness and non-visibility of the curve requires a warning sign and is unreasonably dangerous without one.
Obviously, this case involved a motorcycle, and the video was taken of only 18-wheelers. But roads should be safe for all vehicles. It is the function of the jury, which knew that Mr. and Ms. Barrilleaux were traveling on a motorcycle at the time of the accident, to determine what weight to give the evidence. Moreover, the trial court has much discretion in determining the relevancy of evidence, and we must place great weight on a trial court's ruling in the absence of a clear abuse of discretion. Strawder v. Zapata Haynie Corp., 94-453, 94-454 (La. App. 3 Cir. 11/2/94), 649 So.2d 554, 559-60. We do not find that the trial court abused its much discretion in finding that the video was relevant to the issues before the jury and therefore admissible as evidence to offer to the jury in this case.
After considering the defendant's objections to the evidence adduced at trial, we conclude, after considering the entire record, that there were no errors in the trial court's evidentiary rulings in this case. As such, a de novo review is not warranted, and we will proceed with our review of the remaining assignments of error under the manifest error standard.
B. EXISTENCE OF A DEFECT
Traditionally, DOTD could be held liable for damages based on negligence under LSA-C.C. art. 2315 or strict liability under LSA-C.C. art. 2317. Lee v. State through Dept. of Transp. and Dev., 97-350 (La. 10/21/97), 701 So.2d 676, 677. Louisiana Revised Statutes 9:2800 eliminated the distinction between the two theories by requiring proof of actual or constructive notice of the defect which causes damage. Id. at 677-78. Now, to succeed in an action, the plaintiffs must establish that:
(1) the thing which caused the damage was in the custody of DOTD;
(2) the thing was defective because it had a condition which created an unreasonable risk of harm;
(3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and
(4) the defect was a cause-in-fact of the plaintiff s injuries. Id. at 678.
It is not contested that La. Hwy. 415 was, at all times relevant to this cause of action, in the sole care, custody, and control of DOTD.
DOTD assigns error to the jury's factual finding that the roadway was defective because it had a condition which created an unreasonable risk of harm. A court of appeal may not set aside a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The supreme court has announced a two-part test for the reversal of a jury's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the jury, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). See also Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Thus, the issue to be resolved by a reviewing court is not whether a jury was right or wrong, but whether the jury's conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d at 882. Where factual findings are based on determinations regarding the credibility of witnesses, the jury's findings demand great deference. Boudreaux v. Jeff, 2003-1932, p. 9 (La. App. 1 Cir. 9/17/04), 884 So.2d 665, 671; Secret Cove, L.L.C. v. Thomas, 2002-2498, p. 6 (La. App. 1 Cir. 11/7/03), 862 So.2d 1010, 1016, writ denied, 2004-0447 (La. 4/2/04), 869 So.2d 889. The jury is empowered to accept or reject, in whole or in part, the testimony of any witness deemed lacking in credibility. See Verges v. Verges, 2001-0208, p. 10 (La. App. 1 Cir. 3/28/02), 815 So.2d 356, 363, writ denied, 2002-1528 (La. 9/20/02), 825 So.2d 1179. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the jury's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d at 844. Where there are two permissible views of the evidence, the jury's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d at 883; Wright v. Bennett, 2004-1944, p. 25 (La. App. 1 Cir. 9/28/05), 924 So.2d 178, 193.
In this appeal, DOTD's next-listed assignment of error is the JNOV. However, because the correctness of the jury's factual findings affects our review of the JNOV, we will address those findings first.
According to the undisputed testimony at the trial, the 2003 edition of the Manual on Uniform Traffic Control Devices (MUTCD) contains the rules and regulations regarding the placement of warning signs and was in effect at the time of the accident. While the MUTCD states that "this Manual provides Standards, Guidance, and Options for design and application of traffic control devices," it further states u[t]he decision to use a particular device at a particular location should be made on the basis of either an engineering study or the application of engineering judgment." Engineering judgment is defined in the Manual as:
[T]he evaluation of available pertinent information, and the application of appropriate principles, Standards, Guidance, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. Engineering judgment shall be exercised by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria established by the engineer. Documentation of engineering judgment is not required.
Engineering study is also defined in the Manual, and states:
[T]he comprehensive analysis and evaluation of available pertinent information, and the application of appropriate principles, Standards, Guidance, and practices as contained in this Manual and other sources, for the purpose of deciding upon the applicability, design, operation, or installation of a traffic control device. An engineering study shall be performed by an engineer, or by an individual working under the supervision of an engineer, through the application of procedures and criteria
established by the engineer. An engineering study shall be documented.
Chapter 2C.01 of the MUTCD states that "[w]arning signs call attention to unexpected conditions on or adjacent to a highway or street and to situations that might not be readily apparent to road users. Warning signs alert road users to conditions that might call for a reduction of speed or an action in the interest of safety and efficient traffic operations."
The experts at the trial agreed that the Loop Road curve is classified as a compound curve. A compound curve is two curves in succession that are not separated by a straight portion of road. Each of the two curves has a distinct radius, and therefore one curve may be sharper than the other.
Traveling in the direction that Mr. Barrilleaux was traveling at the time of the accident, the first curve is not as sharp as the second. It is not disputed that the first curve is visible to an approaching motorist, but the second (and sharper) curve is completely blocked from view by the overpass. The experts also agreed that, for purposes of sign usage and placement, the curves should be treated as one and signed as appropriate for the lowest speed required to safely maneuver the sharpest curve.
The plaintiffs called Mr. Duaine Evans to testify as an expert in traffic engineering. Mr. Evans stated that under the standards set forth in the MUTCD, and in his expert opinion, a curve warning sign, an advisory speed plaque, and a raised center line should have been used to warn motorists of this hidden curve. In support of his opinion, he referenced the language of the MUTCD that "DOTD should warn of hidden or unexpected conditions." Moreover, he explained that even in the event a curve is not hidden, a warning sign may be necessary because a driver does not know how sharp the curve is.
Additionally, Mr. Evans noted that the MUTCD states that DOTD should warn of curves that may require a reduction of speed, or if the advisory speed of the curve is lower than the posted speed limit. Mr. Evans testified that in order to determine the advisory speed of a curve, a "ball-bank" study should be performed, and stated that he conducted the ball-bank study on the Loop Road curves. According to the results, the first (and visible) curve can be safely travelled at 40 mph, but the appropriate advisory speed for the second (and hidden) curve is 25 mph. Mr. Evans stated that there were no posted speed limit signs on Loop Road at the time that he conducted his inspection. He further explained that in the absence of a posted speed limit, the speed limit of a highway defaults to 55 mph pursuant to statute. Therefore, Mr. Evans concluded that because the advisory speed is less than the speed limit, a reduction of speed is required, and thus a warning sign should have been placed by DOTD. Mr. Evans testified that in his expert opinion, a "sharp angled arrow" curve warning sign and a 25 mph advisory speed plaque were needed. He also suggested the use of a raised-button center line.
Mr. Peter Allain was called by DOTD to testify as an expert in the fields of traffic engineering and accident reconstruction. Mr. Allain agreed that dangerous curves necessitate warning signs and that drivers may reasonably expect to be warned of dangerous curves. However, he testified that the standards set forth in the MUTCD require the exercise of engineering judgment to determine whether a warning sign is necessary. In his opinion, no warning sign was needed in this case.
Mr. Allain testified that "at some date ten or fifteen years ago" the speed limit of Loop Road was lowered to 45 mph. But he did agree with Mr. Evans's calculations that the advisory speed for the curve should be 25 mph, which he acknowledged is less than the speed limit of the road and would therefore seem to require a reduction of speed. Nonetheless, he concluded that no warning sign was necessary in this case due to the short distance from the turn on to Loop Road and the beginning of the first curve. Essentially, Mr. Allain explained that a vehicle must slow to a low speed in order to make the turn on to Loop Road. Due to the short distance from that turn to the curve, a driver could not accelerate to 45 mph, the alleged speed limit of the road. Thus, while 25 mph is slower than 45 mph, he argues that 25 mph is not slower than the actual speed a driver would be able to attain. As such, he concluded that no actual reduction of speed should need to occur. Thus, no warning sign was necessary.
In his earlier deposition, Allain referenced Table 2C4 of the MUTCD in support of his conclusion. Table 2C4 is entitled "Guidelines for Advance Placement of Warning Signs." The table "is provided as an aid for determining warning sign location" and "lists suggested sign placement distances." In his deposition testimony, Allain indicated that because the table denotes "NA" as the suggested placement distance in the event the posted speed limit is 45 mph and the advisory speed is 20-30 mph, no sign should be placed. However, at trial, he acknowledged his earlier misinterpretation of the table and further acknowledged that "NA" referenced footnote 5, which states, "No suggested distances are provided for these speeds as a placement location is dependent on site conditions and other signage to provide an adequate advance warning for the driver."
Further, Mr. Allain admitted that the MUTCD states that DOTD should warn of unexpected conditions and that the second curve is blocked from view by the overpass and is not visible to oncoming drivers. However, he determined that because the first curve is visible, neither a curve warning sign nor an advisory speed plaque is necessary: "It's apparent. It's there and we don't do warning signs for things that are apparent to the driver."
Mr. Ronald Carter also testified on behalf of DOTD. At the time of the accident, Mr. Carter was employed by DOTD as the "Traffic Operations Engineer for the Baton Rouge District." He had held that position for thirteen years. He did not dispute that the MUTCD was authoritative and stated that DOTD should warn of hidden or unexpected conditions. He, too, agreed that drivers have a justified expectation to be warned of dangerous curves. He also agreed that only the first of the two curves is visible. However, he stated that he did not believe that any warning signs were necessary at the Loop Road curve, concluding that the road was adequately signed.
Both Mr. Allain and Mr. Carter testified that Tom Buckley, Mr. Carter's predecessor, was the "engineer of record" for the Loop Road curve area. Mr, Buckley evaluated the area in 1991. While he stated in his report that "[s]igning in this area is confusing, somewhat misplaced, and inadequately accommodates the erratic geometric alignment of La 415," he did not recommend a curve warning sign or an advisory speed plaque. When generating his report, Mr. Buckley did not conduct a ball-bank study of the curves. Moreover, Mr. Carter testified that DOTD had never ball-banked the Loop Road curve. When asked the cost of placing a warning sign at the curve, Mr. Carter responded that a sign would cost $100.
After a thorough review of the record before this court, we are unable to say that there is no factual basis in the record for the jury's finding that with no warning signs of the sharp, hidden curve, the road was defective because it had a condition which created an unreasonable risk of harm. Moreover, we cannot say that the finding is manifestly erroneous or clearly wrong. Regardless of whether the jury believed the speed limit to be 55 or 45 mph, it is undisputed that the advisory speed of the curve is 25 and that drivers cannot see the second curve as they approach.
C. CAUSE OF THE ACCIDENT
DOTD also assigns error to the jury's factual finding that the defect was the cause of the accident in this case. Instead, DOTD contends that Mr. Barrilleaux's negligence caused this accident. Specifically, DOTD alleges that Mr. Barrilleaux was speeding and improperly applied his brakes.
Testifying as an expert in accident reconstruction, Mr. Allain urged that motorists have a duty to be prudent and reasonable at all times. Mr. Allain testified that under normal acceleration, a motorist could reach a speed of 38 mph by the start of the first curve and that he had successfully maneuvered both curves on a motorcycle at 35 mph. At that speed, Mr. Allain testified that Mr. Barrilleaux should have had time to readjust his speed down to 25 mph and successfully complete the second curve. Moreover, Mr. Allain testified that if Mr. Barrilleaux had accelerated quickly, he could have reached a speed in the fifties, but maintained that "[i]f he would have been aware of his surroundings, and been alert, and acted reasonably, I believe he could have managed both curves in either situation."
Further, Mr. Allain testified that he believed Mr. Barrilleaux "knowingly" entered the curve at an unsafe and unreasonable rate of speed, thereby breaching his duty as a motorist to be prudent. However, when questioned, he admitted that he had stated in his deposition that it was not unreasonable for Mr. Barrilleaux to take the first curve at a speed even up to 40 mph, and conceded that Mr. Barrilleaux only actually knew of the curve that he could see.
Additionally, Mr. Allain opined that Mr. Barrilleaux did not properly apply his brakes. Specifically, Mr. Allain testified that in an emergency situation, a driver should be familiar enough with the bike to use both the front and rear brakes, and that Mr. Barrilleaux should have done so in this case. Mr. Allain concluded that this accident was directly caused by the negligence of Mr. Barrilleaux, explaining that "because [Mr. Barrilleaux] panicked, he locked his wheels and slid into the other lane and collided with the other vehicle."
Mr. Barrilleaux has consistently described the accident as follows. He and his wife were traveling to a motorcycle rally in Natchez, Mississippi on the day of the accident. He was not familiar with the area or roadways. They drove along Plantation Road, crossed the railroad tracks, and made the turn onto Loop Road at a rate of speed of approximately 10-15 mph. He accelerated along the straightaway and he could see the first curve ahead. He entered the first curve traveling between 30 and 40 mph, a speed he considered to be reasonable and appropriate. However, he could not see and was unaware of the second sharper curve. Neither could he initially see any oncoming traffic, as it was also blocked by the overpass. Nearly simultaneously, he realized that he was traveling too fast to complete the second curve, and that a vehicle was coming towards him. He realized that a collision was unavoidable and he panicked. He was forced to slam his brakes in order to avoid the collision occurring head-on. When he hit his brakes, the bike slid into the other lane.
Melissa Barrilleaux corroborated that they were traveling approximately 35 mph when they reached the beginning of the first curve. She also stated that they "had no clue what was on the other side of that [first] curve."
After review, we cannot say that the jury was manifestly erroneous or clearly wrong in finding that the direct cause of this accident was the failure of DOTD to provide warning signs, which rendered the roadway where the accident occurred defective. There is clearly an evidentiary basis for the jury to find that, without any warning of the condition ahead, Mr. Barrilleaux was absolved of any fault in this case under the sudden emergency doctrine. The doctrine was explained by the supreme court in Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385, 389 (La. 1972):
One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.It is the condition itself that caused the sudden emergency and culminated in the accident made the basis of this lawsuit,
D. JNOV
Louisiana Code of Civil Procedure article 1811 provides that a party may move for a Judgment Notwithstanding the Verdict (JNOV) and that a motion for new trial may be joined with the motion. A JNOV can be granted only when the trial court finds that reasonable minds could not reach a contrary verdict. Adams v. Parish of East Baton Rouge, 00-0424 (La. App. 1 Cir. 11/14/01), 804 So.2d 679, 687; Davis v. Wal-Mart Stores, Inc., 00-0445 (La. 11/28/00), 774 So.2d 84, 89. The court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Adams v. Parish of East Baton Rouge, 804 So.2d at 687.
In general, the standard of review of a JNOV on appeal is twofold. First, we must determine whether the jury verdict is supported by competent evidence and is not wholly unreasonable. To make this determination, we must, after considering all of the evidence in the light most favorable to the party opposing the motion, find that it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue. Second, after determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Daigle v. United States Fidelity and Guaranty Insurance Company, 94-0304, pp. 6-7 (La. App. 1 Cir. 5/5/95), 655 So.2d 431, 436.
The plaintiffs' main contention at trial was that the portion of the road where the accident occurred was defective for the failure of DOTD to place a warning sign. The jury agreed and found that a defect existed in the roadway and that the defect was the cause-in-fact of the plaintiffs' injuries. However, the jury also found that the plaintiffs failed to prove that DOTD had notice of the road defect and therefore was not liable to the plaintiffs for damages. Plaintiffs filed a motion for JNOV, arguing that, as a matter of law, they were not required to prove notice, because DOTD created the dangerous condition and is therefore charged with knowledge of that condition. DOTD argues that pursuant to LSA-R.S. 9:2800, the plaintiffs were required to prove notice of the defect.
Regarding the notice requirement, the Louisiana Supreme Court has held that:
The court of appeal erroneously determined, however, that the parish had no duty to provide warnings in this instance because it was not proved that the parish had knowledge of any danger presented by the gate and its manner of operation. Cited as authority were cases where defects developed after constructionFaucheaux v. Terrebonne Consol. Gov., 615 So.2d 289, 293 (La. 1993). We recognize that LSA-R.S. 9:2800 was amended and re-enacted after the Faucheaux decision; however, the notice exception therein has consistently been applied and upheld to the present date.
of the facility, such as where a sign had been removed or where a defect developed over a period of time. These cases and their requirement of knowledge are not applicable where the need to provide warnings arises from a danger inherent in the design and construction of the facility. A public body charged with maintaining a public route cannot claim lack of knowledge of the need to provide warnings where the danger is obvious and inherent in the design and construction of the facility. A public body is held to know of the danger of an unmarked intersection, or a sharp curve, or a draw bridge, or, as in this case, a gate that raises and lowers automatically so as to block a canal used by boat operators. Likewise, the public authority must provide adequate warnings of unusual obstructions or perilous conditions so as to make the route reasonably safe for those traveling on it.
In Whatley v. City of Winnfield, 35,132 (La. App. 2 Cir. 12/5/01), 802 So.2d 983, 986, writ denied, 02-0015 (La. 3/22/02), 811 So.2d 939, the Second Circuit recognized that the requirement of notice to a public body is inapplicable in a case where the dangerous condition was attributable to the public body or its employees. Plaintiffs are only required to prove notice when the defective condition is not caused by the public body's own act or negligence. Id.
On numerous occasions, the Third Circuit has also recognized the Faucheaux notice exception. In Johnson v. State ex rel. DOTD, 06-898, 06- 899, 06-900 (La. App. 3 Cir. 12/13/06), 946 So.2d 682, 691, writ denied, 07- 510 (La. 4/27/07), 955 So.2d 693, an accident occurred because a stop sign at an intersection in a construction zone had been obscured from view by detour signs. The court found that DOTD was not entitled to notice of defective signage that it created. Johnson v. State ex rel. DOTD, 946 So.2d at 690-691.
In Rogers v. State ex rel. DOTD, 02-809 (La. App. 3 Cir. 2/5/03), 838 So.2d 849, 852-53, writ denied, 03-668 (La. 5/2/03), 842 So.2d 1107, the court held that DOTD had actual knowledge of the dangerous condition created by changing a fixed light to a flashing red light at an intersection. The court found that DOTD was aware of the special dangers that the intersection presented due to the skewed angle design and the high speeds of those traveling in the area and was thus charged with the knowledge of the unreasonably dangerous condition it had created by changing the traffic light.
Most similar to the instant case is the recent decision of Raymond v. Government Employees Ins. Co., 09-1327 (La. App. 3 Cir. 6/2/10), 40 So.3d 1179, 1186-87, writ denied, 10-1569 (La. 10/8/10), 46 So.3d 1268, wherein the court held that plaintiffs need not prove notice when DOTD makes a decision not to use a particular sign. In that case, DOTD engineers used discretionary judgment and determined that a no-passing zone pennant sign was unwarranted. The jury found that without the warning sign, the roadway was defective. As such, the court held that DOTD's decision not to post the warning sign created an unreasonably safe condition, and the plaintiffs were therefore not required to prove notice.
Likewise, in this case it is undisputed that DOTD's engineer used discretionary engineering judgment and determined that no warning sign was warranted. The jury found that, without a warning of the curve, the road was defective, because it contained a condition that created an unreasonable risk of harm. Therefore, DOTD, in its exercise of engineering judgment, created that defect. The jurisprudence clearly holds that the plaintiffs in this case were not required to prove notice at the trial. As this is a conclusion reached as a matter of law, a contrary verdict could not be reached on this issue. As such, the trial court correctly applied its standard of review to the jury verdict. Moreover, we cannot find that its judgment is manifestly erroneous or clearly wrong. The JNOV is affirmed on this issue.
E. DAMAGES
DOTD next alleges error in the amounts of some of the damage awards to Ms. Barrilleaux. Specifically, DOTD alleges the trial court erred in awarding Ms. Barrilleaux $725,265.00 in future lost income and earning capacity and $700,000.00 (adjusted to $459,900.00 pursuant to LSA-R.S. 13:5106) in general damages.
1. General Damages
On appellate review, general damage awards will be disturbed only when there has been a clear abuse of the trier of fact's discretion. The initial inquiry must always be directed at whether the trier of fact's award for the particular injuries and their effects upon the particular injured person is a clear abuse of the trier of fact's much discretion. Cole v. State, Department of Public Safety and Corrections, 2003-2269, p. 5 (La. App. 1 Cir. 6/25/04), 886 So.2d 463, 465, writ denied, 2004-1836 (La. 10/29/04), 885 So.2d 589.
The discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert-denied, 510 U.S. 1114, 114 S. Ct. 1059, 127 L.Ed.2d 379 (1994). Only after making a finding that the record supports that the factfinder abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that factfinder. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976).
Dr. Soleau, a neurosurgeon with a concentration in spine surgery, and Ms. Barrilleaux's treating physician, was accepted as an expert in the field of neurosurgery at the trial. He testified that Ms. Barrilleaux broke her back in the accident. Specifically, she suffered a "burst type" fracture of the LT vertebrae and a possible compression fracture at the LI level as well. He explained that a "burst type" fracture occurs when the vertebrae are crushed, and the broken pieces of bone are pushed toward the nerves. The injury was considered unstable and required surgery. Following the accident, she was immediately admitted to the hospital where she underwent routine neurologic examinations to assure that she was not experiencing any neurologic deterioration. She remained on bed rest and was given pain medications until surgery could be performed.
On June 27, 2006 Dr. Soleau performed a lumbar pedical screw fusion with decompression and laminectomy. He inserted rods and screws into her back above and below the fracture. Ultimately, four levels of her spine (T12-L4) were linked, or fused, together during that procedure. As a result, she had limited mobility and flexibility. Thereafter, she remained in a back brace for three months. However, she continued to suffer from residual pain after the surgery and was therefore placed under pain management supervision.
A November 2008 MRJ revealed a disc bulge at L4-5. Because she continued to have pain and also began experiencing leg pain and numbness, a second MRI was taken on March 12, 2010. That MRI revealed a severe worsening of the L4-5 level disc bulge; the disc had herniated and was compressing the nerve, causing her leg numbness and pain. Dr. Soleau testified that in his expert opinion, the excess stress that was placed on the L4-5 vertebrae by the prior fusion at the other levels caused the herniation. This event is referred to as adjacent segment breakdown, and is a known risk of Ms. Barrilleaux's prior surgery. On March 19, 2010 an epidural steroid injection was performed in an attempt to alleviate the pain and radiculopathy caused by the herniated disc. However, Ms. Barrilleaux's symptoms did not improve with the less aggressive treatment, and a second surgery became necessary. In that procedure, the L4-5 level of Ms. Barrilleaux's spine was also fused.
Dr. Soleau testified that the disc herniation was a result of the stress of the intial surgery and that there was "no question" that the first surgery was necessitated by the accident made the basis of this lawsuit.
Ms. Barrilleaux continues to suffer from residual pain, and Dr. Soleau stated that is normal in about 20% of patients. As a result, she will require narcotic pain medication for the remainder of her life. Further, it is his opinion that Ms. Barrilleaux will more likely than not suffer a decrease in functional capacity within the next ten years.
Melissa Barrilleaux testified at the trial that prior to the accident, she was very active and involved with her family. She spoke fondly of trips and other family vacations she enjoyed, particularly the houseboat vacation on Lake Travis the summer before the accident. She stated that she "loved" and "completely enjoyed" riding the motorcycle with her husband and explained that it was an activity the two of them shared together. Her life, however, changed dramatically after the accident.
She testified that at no time since the accident had she been pain free. "It hurts to sit. It hurts to stand. It hurts to walk. It hurts to lay down for any extended period." While she still attempted to do housework, she was unable to accomplish those chores as well as she had previously, and she did not like to ask her family for help.
After the first surgery, she returned to work part-time in January of 2007 and increased her hours as she could. But as her pain grew worse and she began experiencing numbness and pain in her legs, she had to undergo the additional fusion and missed more time at work. She stated that even since the second surgery, she still experiences pain and that the numbness has returned. She is "resigned to the fact that I'm always gonna have pain in my back." She explained that while her employer has "taken great care" of her, since the second surgery she has had more difficulty getting back to work. It was difficult, she said, to "stay with it." She stated that by the time she gets home from work in the evenings, "I'm pretty much dead." She divulged that she has many responsibilities at work and that the pain has affected her ability to concentrate. At the time of the trial, she was still working, but explained that she worked in pain because she had to and that her family could not survive if she did not. If her pain worsens, she will no longer be able to work. She said, "It's gonna come to a point where it just - - where I just can't. I - - you know, it's a fight to get out of bed." She understands and accepts that she will require pain medication for the remainder of her life, and testified that it scared her.
Several witnesses testified at the trial in regard to the effects of the injury on Ms, Barrilleaux, and how it has changed her life and their relationships with her. Ms. Jewell Duhon (Ms. Barrilleaux's mother) recounted how she cared for Melissa at her home following her release from the hospital. She noted in detail Melissa's inability to feed, dress, or bathe herself due to the pain and the immobility the injury and subsequent surgeries had caused. She also stated that before the accident, she and Melissa used to go shopping and took trips with the children, but that since the accident, they no longer took trips and when they went shopping, Melissa had to bring a wheelchair because she tired so quickly.
Hunter Barrilleaux (Melissa's 16-year-old son) spoke of his mother's need for him to take on more responsibilities in order to help her maintain the family home. Tiffany Barrilleaux Meador (Melissa's daughter) also testified regarding her mother's decreased ability to care for herself or for the family home.
Mr. Barrilleaux testified that prior to the accident, he and Melissa enjoyed riding the motorcycle together and would take weekend trips alone or with other couples. Since the accident, Melissa could no longer accompany him. Because they could no longer spend that time together, and because his wife needed him to help her more at home, Mr. Barrilleaux now rode only locally and much less often.
Danny Miller, a friend whom the couple met at a bike rally in Austin, Texas, confirmed that Melissa and Chester quit attending motorcycle events after the accident. Moreover, he testified that he and his wife used to meet the Barrilleauxs for dinner every Wednesday night, but that since the accident, Melissa stopped participating.
Based on the testimony provided at the trial, we cannot determine that the adjusted general damage award of $459,900.00 is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances of this case. Thus, we must refrain from disturbing the award.
2. Future Loss of Income and Earning Capacity
DOTD also alleges that the trial court erred in awarding damages in the amount of $725,265.00 to Ms. Barrilleaux for future loss of income and future loss of earning capacity. DOTD argues that the evidence is insufficient to prove, more likely than not, that Ms. Barrilleaux will incur a future loss of income or earning capacity.
Awards for lost future income are inherently speculative and are intrinsically insusceptible of being calculated with mathematical certainty. The courts must exercise sound judicial discretion in determining these awards and render awards which are consistent with the record and which do not work a hardship upon either party. Steadman v. Georgia-Pacific Corp., 95-1463 (La. App. 1 Cir. 4/6/96), 672 So.2d 420, 426-27, writ denied, 96-1495 (La. 9/20/96), 679 So.2d 440; Daigle v. United States Fidelity and Guaranty Insurance Company, 655 So.2d at 442.
Factors to be considered in determining a proper award for loss of future income are the plaintiffs physical condition before and after the injury, the plaintiffs past work history and consistency thereof, the amount the plaintiff probably would have earned absent the injury complained of, and the probability that the plaintiff would have continued to earn wages over the remainder of her working life. Steadman v. Georgia-Pacific Corp., 672 So.2d at 427; Morgan v. Willis-Knighton Medical Center, 456 So.2d 650, 658-59 (La. App. 2 Cir. 1984).
For thirteen years prior to the date of this accident, Ms. Barrilleaux worked as an accountant. Ms. Barrilleaux had not missed a day of work in the three years prior to the accident. She stated that while she had continued to remain working as of the time of the trial, she did so in pain and only because she had to. She explained that her family could not survive if she did not work. She testified that, "It's gonna come to a point where it just - - where I just can't. I - - you know, it's a fight to get out of bed,"
Dr. Bettinger, an economist and statistician, provided expert testimony at the trial. He testified that according to the most current data of the Bureau of Labor Statistics, Ms. Barrilleaux should have remained in the work force until the age of 65, or for another 21 years. He further stated that on the date Ms. Barrilleaux is unable to continue working, her lost income will not only include her actual hourly pay, but also the value of her significant fringe benefits package, including employer-paid health insurance premiums, 3% matching 40IK, 3 weeks of paid vacation, 3% profit share, and overtime. Upon completion of his anaylsis, Dr. Bettinger concluded that if Ms. Barrilleaux were unable to maintain her employment in ten years' time, her lost income and earning capacity would amount to $725,265.00.
The defendant's expert witness, Dr. Culbertson, simply testified that he did not disagree with Dr. Bettinger's calculations.
While DOTD argues that the evidence is not sufficient to support an award of future loss of income and earning capacity, Ms. Barrilleaux's testimony that she will not be able to continue working if her pain worsens, coupled with Dr. Soleau's testimony that in his expert medical opinion, she will, more likely than not, suffer a decrease in functional capacity within the next ten years, provides a sufficient basis for the court's award. Moreover, the amounts of the awards are supported by the calculations of Dr. Bettinger, and are not disputed by DOTD's economist, Dr. Culbertson. As such, we cannot find that the trial court erred in its award of future loss of income and earning capacity in the amount of $725,265.00.
F. COMPARATIVE NEGLIGENCE
Lastly, DOTD requests that if the JNOV is maintained, this court should apportion some degree of fault for the accident to Mr. Barrilleaux.
Louisiana Civil Code article 2323 governs the application of comparative fault and states, in pertinent part:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
A trier of fact's finding of percentages of fault is a factual determination, and is owed some deference. Duncan v. Kansas City S. Ry. Co., 00-0066 (La. 10/30/00), 773 So.2d 670, 680-81, cert dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact's allocation of fault is also subject to the manifest error or clearly wrong standard of review. Smegal v. Gettys, 10-0648 (La. App. 1 Cir. 10/29/10), 48 So.3d 431, 439. Allocation of fault is not an exact science or the search for a precise ratio, but rather an acceptable range, and any allocation by the factfinder within that range cannot be clearly wrong. Foley v. Entergy Louisiana, Inc., 06-0983 (La. 11/29/06), 946 So.2d 144, 166. As with general damage awards, only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the apportionment, and then only to the extent of lowering it or raising it to the highest or lowest point respectively that is reasonably within the trier of fact's discretion. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607, 611.
In making its determination, the trier of fact should consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). These same factors guide the appellate court's evaluation of the respective fault allocations. Smegal v. Gettys, 48 So.3d at 439; see Clement v. Frey, 666 So.2d at 611.
The testimony establishes that Mr. Barrilleaux was not traveling at an excessive or unreasonable rate of speed for the only curve that was visible to him and that under normal acceleration, Mr. Barrilleaux could reach a speed of 38 mph by the time he reached the curve. There were no warning signs or other devices to alert Mr. Barrilleaux that conditions would require a sudden need to reduce his speed. In fact, DOTD's own expert admits that Mr. Barrilleaux was not unreasonable to enter the first curve at 35 mph, which is below a 45 or 55 mph rate of speed. As stated herein, given that DOTD created an unreasonable risk of harm in failing to warn of the hidden curve, it is presumed to have had an awareness of the danger. Mr. Barrilleaux, on the other hand, did not. Under the factors listed above, we cannot find that the trial court was manifestly erroneous or clearly wrong in apportioning 100% of the fault for this accident to DOTD. Thus, we are constrained to uphold the judgment.
CONCLUSION
For the reasons stated herein, the judgment of the 18th Judicial District Court is affirmed. All costs of this appeal, in the amount of $9,367.00, are assessed to defendant/appellant, State of Louisiana, through the Department of Transportation and Development.
AFFIRMED.
NOT DESIGNATED FOR PUBLICATION
2012 CA 0060
CHESTER BARRILLEAUX, ET AL.
VERSUS
STATE OF LOUISIANA,
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
BEFORE: PARRO, HUGHES, AND WELCH, J J.
PARRO, J., dissenting in part.
I concur with the majority's decision to affirm the trial court's entry of a judgment notwithstanding the verdict in favor of the plaintiffs on the issue of liability, but disagree with the allocation of 100% fault to DOTD and no fault to Chester Barrilleaux.
Based on the photographs of the scene of the accident in this case, I would assign some degree of fault to Mr. Barrilleaux. Those photographs show that as he approached the overpass, he could have seen that the curve continued beyond it, even though he could not see that the degree of the curve increased. Therefore, because he could not tell how sharp the curve would be, he should have exercised some caution and slowed his speed. Therefore, I dissent in part concerning the issue of allocation of fault.
For these reasons, I respectfully dissent in part from the majority opinion.