Opinion
2015 CA 0667
02-04-2016
JESSICA HOPE BROWNE AND KATE NICOLE BROWNE v. STATE OF LOUISIANA THROUGH DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT
Frank Tomeny, III Catherine L. Plauche Kevin P. Kleinpeter Baton Rouge, Louisiana Counsel for Plaintiffs-Appellees Jessica Hope Browne and Kate Nicole Browne James D. "Buddy" Caldwell Attorney General Stacey A. Moak Special Assistant Attorney General Jonathan D. Mayeaux Christopher W. Stidham Breann Crane Baton Rouge, Louisiana Counsel for Defendant-Appellant State of Louisiana through Department of Transportation and Development
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT
NUMBER 40,050, DIVISION "D", PARISH OF WEST BATON ROUGE
STATE OF LOUISIANA HONORABLE WILLIAM C. DUPONT, JUDGE Frank Tomeny, III
Catherine L. Plauche
Kevin P. Kleinpeter
Baton Rouge, Louisiana Counsel for Plaintiffs-Appellees
Jessica Hope Browne and Kate Nicole
Browne James D. "Buddy" Caldwell
Attorney General
Stacey A. Moak
Special Assistant Attorney General
Jonathan D. Mayeaux
Christopher W. Stidham
Breann Crane
Baton Rouge, Louisiana Counsel for Defendant-Appellant
State of Louisiana through Department
of Transportation and Development BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Defendant-appellant, the State of Louisiana, through the Department of Transportation and Development ("DOTD"), appeals a judgment finding it forty percent at fault for the damages plaintiffs-appellees, Jessica Hope Browne and Kate Nicole Browne ("Plaintiffs"), sustained as a result of the death of their mother in a vehicular accident. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 22, 2011, Ann Hope Browne ("Ms. Browne') was driving eastbound on Sugar Plantation Parkway in West Baton Rouge Parish, approaching the intersection of Sugar Plantation Parkway with Louisiana State Highway 1 ("LA 1"), which at that point was a four-lane highway with a grass median. Simultaneously, Jeffrey Hale was driving his vehicle southbound in the right, outside lane of LA 1 as Tammy Ainsworth was driving southbound in the right turn lane of LA 1, approaching Sugar Plantation Parkway where she intended to turn right. The vehicles on LA 1 had the right-of-way since a stop sign and stop bar were located on Sugar Plantation Parkway at its intersection with LA 1.
A "stop bar" is a solid line, in this case 24-inchs wide, that is striped onto the pavement. A "stop bar" is supplemental to a stop sign and is intended to indicate where a vehicle should stop for the stop sign.
It is undisputed that Ms. Browne came to a stop at the stop sign on Sugar Plantation Parkway. According to Ms. Ainsworth, Ms. Browne then looked toward the north "a couple of times" while leaning against her steering wheel. It appeared she was attempting to see around Ms. Ainsworth's vehicle in the southbound turn lane. Each time Ms. Browne did so, she inched her vehicle a little closer to LA 1. Eventually, she drove her vehicle straight onto LA 1 at a normal rate of speed in an attempt to cross the two southbound lanes of LA 1. It is unclear whether her intent was to turn left and proceed northbound on LA 1 or to go straight across to the other side of LA 1. Mr. Hale reacted by steering toward the left, inside lane of the highway in an attempt to avoid a collision. As his truck straddled the center line, it struck Ms. Browne's vehicle broadside. Ms. Browne died at the scene as a result of the injuries she sustained.
Sugar Plantation Parkway consists of two eastbound lanes and one westbound lane. Prior to pulling into the intersection, Ms. Browne was in the middle lane of Sugar Plantation Parkway, from which it was permissible either to go straight across the highway or to turn left northbound onto LA 1.
On April 23, 2012, Ms. Browne's daughters, Plaintiffs, filed suit against DOTD in the 18th Judicial District Court seeking damages for the wrongful death of their mother. Among other allegations, they alleged DOTD was negligent for failing to install a traffic light or an alternative traffic control device at the intersection prior to Ms. Browne's accident. After answering the suit, DOTD filed a motion for summary judgment in which it argued there were no genuine issues of material fact and DOTD owed no duty to Ms. Browne due to her gross negligence. At the same time, DOTD also filed a motion in limine requesting that the trial court exclude at trial any evidence relating to how DOTD collected and catalogued information, including accident crash reports, concerning traffic accidents occurring from July 2005 through June 2012 at the intersection where Ms. Browne was killed. Following a hearing, the trial court denied DOTD's motion for summary judgment and its motion in limine.
DOTD also argued it was immune from liability pursuant to La. R.S. 9:2798.1, but it has not raised that issue on appeal.
DOTD requested the exclusion of additional items of evidence in its motion, but no issue has been raised in this appeal regarding any of those items.
At the conclusion of a four-day trial, the jury returned a verdict finding Ms. Browne sixty percent at fault and DOTD forty percent at fault in causing Plaintiffs' damages. Each plaintiff was assessed damages of $625,000.00 for mental anguish, anxiety, and grief and $625,000.00 for loss of consortium, love, affection, and society. In accordance with the limitation provided by La. R.S. 13:5106(B)(2) on wrongful death damages against the state, the trial court rendered judgment in favor of Plaintiffs for a total of $500,000.00, plus legal interest and costs. DOTD now appeals, arguing in three assignments of error that: (1) the trial court abused its discretion in denying DOTD's motion in limine regarding evidence as to how DOTD collected and catalogued crash reports; (2) the trial court erred in denying DOTD's motion for summary judgment; and (3) the jury was manifestly erroneous in allocating DOTD with forty percent fault in causing Ms. Browne's accident.
MOTION IN LIMINE
(Assignment of Error Number One)
DOTD contends the trial court erred in denying its motion in limine regarding evidence as to the method by which it collected and catalogued crash reports related to traffic accidents occurring at the intersection at issue. DOTD argues this evidence should have been excluded under the evidentiary privilege provided by 23 U.S.C. § 409. DOTD additionally argues the erroneous admission of this evidence substantially affected the jury's verdict, thereby entitling it to a de novo review by this court.
As part of a comprehensive federal plan to promote highway safety, Section 409 provides a privilege that "bars discovery and introduction into evidence of all highway safety information collected or compiled by the State for the purpose of obtaining federal funds to enforce safety." Reichert v. State , Department of Transportation and Development , 96-1419 (La. 5/20/97), 694 So.2d 193, 197. The intent of this privilege is to "[f]oster the free flow of safety-related information by precluding the possibility that such information later would be admissible in civil suits." Reichert , 694 So.2d at 197 (quoting Perkins v. Ohio Department of Transportation , 65 Ohio App.3d 487, 584 N.E.2d 794 (1989)). However, because evidentiary privileges are in derogation of the search for truth, such privileges must be strictly construed. Goza v. Parish of West Baton Rouge , 08-0086 (La. App. 1st Cir. 5/5/09), 21 So.3d 320, 327, writ denied, 09-2146 (La. 12/11/09), 23 So.3d 919, cert. denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010).
Section 409 provides:
Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossing, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.
In order to apply the Section 409 privilege, DOTD must establish that each requirement for application of the privilege has been met. See Palacios v. Louisiana and Delta Railroad Inc., 98-2932 (La. 7/2/99), 740 So.2d 95, 100; Sevario v. State ex rel. Department of Transportation and Development , 98-1302 (La. App. 1st Cir. 11/10/99), 752 So.2d 221, 229, writ denied, 99-3457 (La. 4/7/00), 759 So.2d 760, writs not considered, 99-3638, 00-0044 (La. 4/7/00), 759 So.2d 81, 82. As it pertains to this case, the Section 409 privilege is applicable to: (1) reports, surveys, schedules, lists, or data; (2) compiled or collected; (3) for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites or hazardous roadway conditions; (4) in furtherance of state highway safety projects that are either implemented with federal funds or initiated pursuant to 23 U.S.C. § 148 ("Highway Safety Improvement Program"). See 23 U.S.C. § 409; Palacios , 740 So.2d at 97; Sevario , 752 So.2d at 228-29.
The substance of this section was formerly designated as "Section 152."
In this case, the specific evidence DOTD sought to exclude consists of several documentary exhibits detailing the intersection's accident history, as revealed by the pertinent crash reports, as well as testimony revealing that the vast majority of these crash reports were miscataloged prior to Ms. Browne's accident. The crash reports were not linked in DOTD's database to this particular intersection until the cataloguing error was discovered sometime after Ms. Browne's accident. Therefore, when a traffic engineer hired by the developer of Sugar Mill Plantation requested the intersection's accident history from DOTD in 2009 so that he could perform a traffic study, DOTD produced only two reports rather than the thirty-one crash reports that should have been provided from the database.
At the motion hearing, DOTD argued the Section 409 privilege was applicable but offered absolutely no evidence to establish any of the requisites for its application. Since evidentiary privileges must be strictly construed, it cannot be assumed on the basis of counsel's argument that the Section 409 privilege is applicable. In this case, DOTD did not prove that the evidence in question was within the scope of Section 409. Because DOTD failed to present evidence satisfying the requirements necessary to trigger the application of Section 409, the trial court properly denied DOTD's motion in limine. See Palacios , 740 So.2d at 100 ("The question before us is whether the defendant DOTD in this case has presented evidence sufficient to satisfy the [requirements] ... triggering the application of 23 U.S.C. § 409."); Sevario , 752 So.2d at 229 ("DOTD must establish that each requirement for the privilege under section 409 has been met.")
DENIAL OF MOTION FOR SUMMARY JUDGMENT
(Assignment of Error Number Two)
DOTD argues the trial court committed legal error in denying its motion for summary judgment because the undisputed facts demonstrate DOTD owed no duty to Ms. Browne since she was grossly negligent and failed to obey the intersection's existing signage.
Although a judgment denying a motion for summary judgment is an interlocutory judgment, as with other interlocutory rulings, the issues raised in the motion are reviewable when an appeal is subsequently taken from a final judgment and those issues are raised on appeal. See Toomy v. Louisiana State Employees' Ret. System , 10-1072 (La. App. 1st Cir. 3/25/11), 63 So.3d 198, 201 n.3, writ denied, 11-1118 (La. 10/21/11), 73 So.3d 383; McGregor v. Hospice Care of Louisiana in Baton Rouge , Inc., 08-2029, p. 21 (La. App. 1st Cir. 3/27/09) (unpublished), writ denied, 09-1232 (La. 9/18/09), 17 So.3d 980. However, the Louisiana Supreme Court has made it clear that after a full trial on the merits, the standard of review utilized in reviewing the denial of a motion for summary judgment is not the same standard of review utilized by appellate courts in reviewing the grant of a summary judgment. The Louisiana Supreme Court has explained that "once a case is fully tried, the affidavits and other limited evidence presented with a motion for summary judgment-later denied by the district court-are of little or no value." Hopkins v. American Cyanamid Company , 95-1088 (La. 1/16/96), 666 So.2d 615, 624. Instead, the entire record should be reviewed by an appellate court. Hopkins , 666 So.2d at 624.
An appellate court reviews the granting of a motion for summary judgment de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Gaspard v. Safeway Insurance Company , 14-1676 (La. App. 1st Cir. 6/5/15), 174 So.3d 692, 694, writ denied, 15-1588 (La. 10/23/15), ___ So.3d ___.
Thus, while the issue of duty raised by DOTD's motion for summary judgment is properly before us in this appeal, the limited evidence presented at the time of the trial court's pre-trial ruling denying the motion and the de novo standard of review for summary judgments are no longer pertinent. The issue raised by DOTD in its motion for summary judgment must be considered by this court after review of the entire record. See Pamplin v. Bossier Parish Community College , 38,533 (La. App. 2d Cir. 7/14/04), 878 So.2d 889, 892, writ denied, 04-2310 (La. 1/14/05), 889 So.2d 266. Accordingly, this issue will be considered in conjunction with DOTD's remaining assignment of error in which DOTD alleges the jury erred in finding it forty percent at fault for Plaintiffs' damages.
DETERMINATION OF FAULT
(Assignment of Error Number Three)
DOTD asserts Ms. Browne entering the intersection when she lacked a clear view of approaching traffic constituted gross negligence and was the sole cause of the accident. DOTD contends it, therefore, owed no duty to Ms. Browne. It argues the only possible basis for the jury verdict allocating it with forty percent fault was the erroneous admission of the evidence that DOTD miscoded the crash reports, which was not a cause-in-fact of Ms. Browne's accident and essentially created a non-existent independent theory of negligence against DOTD.
DOTD is not a guarantor of the safety of all motorists under every circumstance. DOTD has a general duty to maintain the public roadways 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. La. R.S. 48:35(E)(l)(a); Brooks v. State ex rel. Department of Transportation and Development , 10-1908 (La. 7/1/11), 74 So.3d 187, 189. This general duty includes a duty to maintain appropriate signs and traffic signals along roadways. It is well settled that a governmental authority that undertakes to control traffic at an intersection must exercise a high degree of care for the safety of the motoring public. Lee v. State , Department of Transportation and Development , 97-0350 (La. 10/21/97), 701 So.2d 676, 678; see Charan v. Bowman , 06-0882 (La. App. 1st Cir. 8/1/07), 965 So.2d 466, 473, writ denied, 07-1773 (La. 11/9/07), 967 So.2d 505. DOTD's duty extends not only to prudent drivers, but also to motorists who are slightly exceeding the speed limit or are momentarily inattentive. Brooks , 74 So.3d at 189. However, the duty owed by DOTD does not include the obligation to protect a plaintiff against harm that would not have occurred but for the grossly negligent operation of the motor vehicle by the plaintiff. Surge v. City of Hammond , 509 So.2d 151, 156 (La. App. 1st Cir.), writ denied, 513 So.2d 285 (La. 1987). The existence of a duty is a question of law subject to de novo review on appeal. Perkins v. Entergy Corporation , 98-2081 (La. App. 1st Cir. 12/28/99), 756 So.2d 388, 404, affirmed, 00-1372 (La. 3/23/01), 782 So.2d 606.
In support of its contention that it owed no duty to Ms. Browne due to her gross negligence in entering the intersection directly in the path of Mr. Hale's closely approaching vehicle, DOTD cites this court's decision in Stewart v. State ex rel. Department of Transportation and Development , 08-0772 (La. App. 1st Cir. 3/20/09), 9 So.3d 957, 960, writ denied, 09-1228 (La. 9/18/09), 17 So.3d 968. According to DOTD, the facts in Stewart are virtually identical to those in this case. In Stewart , the defendant driver was found to be grossly negligent when she failed to yield the right-of-way at an intersection where she was confronted with a stop sign and a red blinking traffic light. The holding was based on this court's conclusion that it constituted gross negligence for a motorist to stop at an intersection and then to proceed into the immediate path of oncoming traffic. Stewart , 9 So.3d at 963-65.
Contrary to DOTD's contentions, Stewart is factually distinguishable from the instant case in several respects. First, in Stewart , "it was a matter of some conjecture whether [the defendant driver] stopped at the stop sign and then proceeded, or whether she 'blew through' the intersection without even stopping." Stewart , 9 So.3d at 961. In the instant case, it is undisputed that Ms. Browne came to a complete stop at the stop sign before proceeding. Second, no evidence was presented in Stewart that the defendant driver ever stopped to check for oncoming traffic before proceeding into the intersection. In the instant matter, Ms. Ainsworth specifically testified at trial that before entering the intersection, Ms. Browne inched forward as she attempted a few times to see around Ms. Ainsworth's vehicle for oncoming traffic.
The Louisiana Supreme Court has defined gross negligence as "the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise." Lenard v. Dilley , 01-1522 (La. 1/15/02), 805 So.2d 175, 180, citing State v. Vinzant , 200 La. 301, 7 So.2d 917 (1942). The record reflects that Ms. Browne's negligence did not rise to the level of gross negligence because she stopped at the stop sign and did not utterly ignore her duty to check for oncoming traffic before entering the intersection. Although she inadequately performed this duty, it cannot be said that there was a total want of care and diligence on her part. Ms. Browne failed to see Mr. Hale's approaching vehicle as she should have, but she did attempt to exercise some caution before entering the intersection. Under these circumstances, Stewart does not support DOTD's contention that it owed no duty to Ms. Browne.
Having determined that Ms. Browne was a member of the class of motorists to whom DOTD owed a duty, we must now determine whether the jury erred in finding DOTD at fault based upon a breach of its duty to maintain the intersection in a reasonably safe condition. A plaintiff may proceed against DOTD under either a theory of negligence, based on La. C.C. art. 2315, or a theory of strict liability, based on La. C.C. art. 2317, as limited by La. R.S. 9:2800. The burden of proof is the same under either theory. Netecke v. State ex rel. DOTD , 98-1182 (La. 10/19/99), 747 So.2d 489, 494. The plaintiff bears the burden of proving: (1) DOTD had custody of the thing that caused the plaintiff's injuries; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive knowledge 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. Goza , 21 So.3d at 329. In the instant case, the jury specifically found that the intersection of LA 1 and Sugar Plantation Parkway had a defect creating an unreasonable risk of harm, DOTD had actual or constructive notice of the defect and a reasonable time to correct the defect but failed to do so, and the defect was a cause of Ms. Browne's accident. (R 471)
There was no dispute at trial that the intersection was in the custody and control of DOTD.
Under the manifest error standard, an appellate court may not set aside a jury's finding of fact unless it is manifestly erroneous or clearly wrong. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). Under the manifest error standard, an appellate court may not disturb a jury's finding of fact unless the record reviewed in its entirety establishes that a reasonable factual basis does not exist and the finding is clearly wrong or manifestly erroneous. Stobart v. State , Department of Transportation and Development , 617 So.2d 880, 882 (La. 1993). The court of appeal must always be mindful that if the jury's findings "are reasonable in light of the record reviewed in its entirety ... [it] may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Rosell , 549 So.2d at 844.
We must now examine the entire record to determine whether the jury's findings were clearly wrong or manifestly erroneous. Condition Creating an Unreasonable Risk of Harm :
There is no fixed rule for determining whether a thing presents an unreasonable risk of harm. Basically, the trier-of-fact must decide whether the social value and utility of the hazard outweigh and, thus, justify its potential harm to others. This determination is subject to review on appeal under the manifest error standard of review. Reed v. Wal-Mart Stores , Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 365.
Plaintiffs do not contend there was any defect in the geometric design of the intersection of LA 1 and Sugar Plantation Parkway. Plaintiffs primarily argue the intersection was unreasonably dangerous because it was not controlled by a traffic light at the time of Ms. Browne's accident, despite the large number of accidents that had previously occurred there. At trial, Plaintiffs presented evidence that years before Ms. Browne's 2011 accident, Carol Bourgeois the mayor of Addis, and Calvin Blunt, the developer of Sugar Mill Plantation subdivision, approached DOTD about installing a traffic light at the intersection. Mayor Bourgeois was concerned about the number of crashes at the intersection. DOTD also was receiving letters from politicians regarding this matter. Because DOTD indicated a traffic study was required in order for a traffic light to be considered, Mr. Blunt paid for a traffic study to be conducted in 2009. Following completion of the traffic study, DOTD concluded a traffic light at the intersection was not warranted.
Plaintiffs stipulated before trial that they would not contend at trial that their mother's accident was caused by any defect in the geometric design of the intersection.
Extensive evidence was presented at trial regarding whether the intersection met the following three requisites to qualify for consideration of a traffic light under Warrant 7 ("Crash Experience") of the Manual on Uniform Traffic Control Devices (MUTCD) prior to Ms. Browne's accident: (A) an adequate trial of alternatives to a traffic light that failed to reduce crash frequency; (B) five or more crashes susceptible to correction by a traffic light within a twelve-month period; and (C) certain delineated volumes of traffic on both the main-street and minor-street approach to the intersection. DOTD conceded the requirement of five crashes susceptible to correction within a twelve-month period was met in this case. Plaintiffs' expert in traffic engineering, Dr. P. Brian Wolshon, opined that the traffic volume requirement also was met if DOTD utilized both future traffic volume projections included in the 2009 traffic study and a discretionary variance allowing lower traffic volume counts in rural areas involving high speed roadways. However, Mr. Herbert Moore, II, DOTD's traffic operations engineer in charge of the district where the intersection is located, testified that in determining whether Warrant 7 is met, DOTD uses actual traffic volumes and does not utilize the discretionary traffic volume variance referenced by Dr. Wolshon.
DOTD is mandated by La. R.S. 32:235(A)(1) to conform, as far as possible, with the provisions of the MUTCD. --------
Regardless, even assuming arguendo that requisites (B) and (C) of Warrant 7 were met, no evidence was presented that requisite (A) was satisfied. Specifically, the record reflects that no remedial or alternative measures to a traffic light were attempted by DOTD to improve the safety of the intersection. Without an adequate trial of alternatives to a traffic light, Warrant 7 cannot be satisfied. Moreover, Plaintiffs' own experts conceded that even when all the requirements of Warrant 7 are satisfied, installation of a traffic light is still not mandated by the MUTCD.
Thus, Plaintiffs failed to establish that DOTD's refusal to install a traffic light prior to Ms. Browne's accident violated the provisions of the MUTCD and breached its duty of care to the motoring public on that basis. Compliance with the MUTCD constitutes prima facie evidence of DOTD's absence of fault when an injured party attempts to predicate DOTD's liability on improper signalization or road markings. La. R.S. 32:235(E); Jacques v. State ex rel. Dept. of Transportation and Development , 03-2226 (La. App. 1st Cir. 9/17/04), 905 So.2d 294, 299, writ denied, 04-3013 (La. 2/18/05), 896 So.2d 36. This presumption is rebuttable, however, and does not preclude a finding, based on other evidence, that the highway actually was unreasonably dangerous and that DOTD was negligent. Hager v. State ex rel. Department of Transportation and Development , 06-1557 (La. App. 1st Cir. 1/16/08), 978 So.2d 454, 467, writs denied, 08-0347, 08-0385 (La. 4/18/08), 978 So.2d 349; Wingfield v. State ex rel. Department of Transportation and Development , 01-2668 (La. App. 1st Cir. 11/8/02), 835 So.2d 785, 800, writs denied, 03-0313, 03-0339, 03-0349 (La. 5/30/03), 845 So.2d 1059 & 60, cert. denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003). See also La. C.E. arts. 304 & 308.
In this case, although Plaintiffs failed to prove DOTD was negligent for not installing a traffic light at the intersection prior to Ms. Browne's accident, the totality of the evidence rebuts the presumption that DOTD was entirely free of fault. The record supports the jury's findings that the intersection was defective in that it presented an unreasonable risk of harm and that DOTD failed to correct the defect within a reasonable time.
Plaintiffs introduced evidence showing that from the time construction of Sugar Plantation Parkway was completed in 2005 until Ms. Browne's accident in April 2011, over forty-five reported accidents occurred at the intersection of Sugar Plantation Parkway and LA 1. In the approximately two-year period preceding Ms. Browne's April 2011 accident alone, twenty reported accidents occurred there, including ten that were right-angle collisions such as Ms. Browne's accident. These right-angle crashes occurred as motorists attempted to cross multiple traffic lanes either to turn left onto LA 1 or to proceed all the way across the highway to the frontage road. Dr. Wolshon explained that such right-angle crashes are of greater concern because they typically result in a much higher level of injuries and fatalities. Jeffrey Milburn, an expert traffic engineer who testified for DOTD, explained that a problem with the intersection was not the failure of motorists to obey the stop sign, but it was the difficulty that motorists encountered in attempting to maneuver across LA 1.
Dr. Wolshon further testified that the frequency and severity of the crashes at the intersection "was a clear indication that there was some type of improvement that needed to be done out there." According to Dr. Wolshon, the clear trend of the crashes at the intersection established a "safety problem." Nick Ferlito, the civil engineer who conducted the 2009 traffic study, indicated that if he had received all of the pertinent crash reports at the time of the study it would have "obviously raised a flag that there was an issue at the intersection and that ... some type of alternative measure should've been considered." Even DOTD's own traffic engineer, Mr. Moore, admitted during his testimony that when sometime after Ms. Browne's accident he received the additional twenty-eight miscataloged crash reports involving the intersection, his response was that "some sort of safety improvement would need to be implemented based on the crashes."
Considering the totality of the evidence, we find no manifest error in the jury's conclusion that the intersection created an unreasonable risk of harm to motorists. The frequency and nature of the accidents occurring there clearly indicated the stop sign and stop bar alone were inadequate in preventing crashes at the intersection, particularly the type of right-angle crash that Ms. Browne suffered. DOTD breached its duty of care to the motoring public by failing to take corrective action to improve the intersection's safety by installing additional signage or by taking other alternate measures. Notice & Opportunity to Correct Dangerous Condition:
Next, we will review the jury's finding that DOTD had actual and/or constructive notice of the defect and a reasonable amount of time to correct it but failed to do so.
Constructive notice is defined as the existence of facts that imply actual knowledge, and this definition allows a person to infer actual knowledge on the part of a public entity when the facts demonstrate that the defective condition existed for such a period of time that the defect should have been discovered and repaired. La. R.S. 9:2800; Goza , 21 So.3d at 329-30. Although DOTD cannot be imputed with knowledge of every defect on its roadways, neither can DOTD escape liability by negligently failing to discover that which is easily discoverable. Goza , 21 So.3d at 329.
During his testimony, Mr. Moore acknowledged that DOTD was notified by the City of Addis as to concerns it had regarding the intersection due to the amount of development occurring in close proximity thereto. In 2009, Mayor Bourgeois again approached DOTD about concerns raised by the frequency of crashes at the intersection. Additionally, Addis Police Chief Ricky Anderson testified that DOTD had refused several times prior to Ms. Browne's 2011 accident to install a traffic light at the intersection. Therefore, DOTD clearly was put on notice by local officials no later than 2009 about concerns as to the intersection's safety. Further, the frequency of crashes at the intersection over a period of several years should have put DOTD on notice that it was unreasonably dangerous. As of 2009, DOTD had access to no less than thirty crash reports prepared by the Addis Police Department that involved the intersection. The fact that the reports were not routed to the correct department within DOTD due to their being miscataloged did not relieve DOTD of its duty to know what it should have known and take corrective measures based on that knowledge. See Falcon v. Louisiana Department of Transportation , 13-1404 (La. App. 1st Cir. 12/19/14), 168 So.3d 476, 485 writ denied, 15-0133 (La. 4/10/15), 163 So.3d 813; see also Goza , 21 So.3d at 329.
Based on our review of the record, we cannot say the jury was clearly wrong or unreasonable in finding DOTD had actual and/or constructive notice of the unreasonably dangerous condition created by the intersection and a reasonable opportunity to correct it prior to Ms. Browne's accident in April 2011. Causation :
Whether an unreasonably dangerous defect caused the plaintiffs' damages is a finding of fact and an appellate court may not overturn a jury's finding of fact in the absence of manifest error or unless clearly wrong. Goza , 21 So.3d at 334. Generally, when more than one cause combines to bring about a plaintiff's harm, the substantial factor test is used to determine whether a particular defendant's conduct is a cause-in-fact in bringing about the plaintiff's harm. Graves v. Page , 96-2201 (La. 11/7/97), 703 So.2d 566, 570; Goza , 21 So.3d at 334. The substantial factor test works well where there are multiple causes-in-fact, but the trier-of-fact may not be able to conclude that the accident would more probably than not have happened "but for" any one of the causes. Graves , 703 So.2d at 570.
Based on our review of the record, including the testimony of Ms. Ainsworth describing Ms. Browne's actions immediately prior to the accident, we find no error in the jury's conclusion that the accident was the result of multiple causes. Ms. Browne entered the intersection without ensuring that her path was clear and it was safe for her to proceed. Her conduct in failing to see what she should have seen and in failing to yield the right-of-way to Mr. Hale's closely approaching vehicle was certainly a "substantial factor" in bringing about the accident. However, Ms. Browne's actions were not the sole cause-in-fact of the accident.
The unreasonably dangerous condition of the intersection also was a substantial factor in bringing about the accident. Mr. Milburn, DOTD's expert traffic engineer, pointed out that a problem with the intersection was the difficulty motorists encountered in attempting to maneuver across multiple lanes of LA 1. This crossing maneuver was exactly what Ms. Browne was attempting when the fatal accident occurred.
As previously noted, DOTD had actual and/or constructive notice of the hazardous condition of the intersection but failed to try any alternatives to a traffic light or to take any other steps to correct the situation. Even though installation of a traffic light may have been unwarranted, DOTD should have taken some action to improve the safety of the intersection and reduce the hazard to motorists attempting to maneuver across LA 1.
Mr. Milburn suggested the problem could have been improved and crossing crashes reduced by some sort of channelization of vehicles or even a traffic sign restricting motorists from attempting a crossing maneuver. He opined that even without a physical barrier, a restrictive sign may have been effective because most motorists obey traffic signs and when they do not, it tends to be when no one is around, which naturally reduces the danger of a crash. Plaintiffs' expert, Dr. Wolshon, also indicated there were numerous alternatives to installing a traffic light that DOTD could have attempted, including closing the median and channelization. Each of these alternatives would have restricted the dangerous crossing maneuvers that both Dr. Wolshon and Mr. Milburn indicated were a problem at the intersection. The record reflects there were many other options DOTD also could have pursued to reduce the unreasonable risk of harm created by the intersection and to improve its safety.
Moreover, the jury reasonably could have concluded Ms. Browne more probably than not would have complied with any alternative measures implemented by DOTD, and the accident could have thereby been prevented had DOTD taken measures to improve the intersection's safety. The evidence showing that Ms. Browne came to a complete stop at the stop sign and that she inched her vehicle forward into the intersection demonstrated she was not totally devoid of care and was, at least, trying to exercise caution. Moreover, the fact that she drove into the intersection at a normal rate of speed suggests she failed to see Mr. Hale's approaching vehicle and was not trying to beat his vehicle across multiple lanes of traffic. One possible explanation raised by Dr. Wolshon's testimony was the concept of "inattentional blindness," which occurs when a motorist "miss[es] some obvious things when [they are] looking back and forth, back and forth [and] vehicles can get missed." Therefore, the overall evidence suggests Ms. Browne was not a reckless motorist and would have complied with any additional traffic control devices or measures implemented by DOTD to reduce the crashes occurring at the intersection.
However, due to DOTD's failure to implement any corrective measures or add additional traffic control devices, the motoring public - including Ms. Browne - continued to be confronted with negotiating an unreasonably dangerous intersection. The hazardous condition of the intersection was a substantial factor in bringing about Ms. Browne's accident. The record supports the jury's conclusion that the unreasonably dangerous condition of the intersection was a cause of the accident. Fault Allocation :
Lastly, we address whether the jury was manifestly erroneous in apportioning Ms. Browne with sixty percent fault and DOTD with forty percent fault. The allocation of fault is within the sound discretion of the trier-of-fact and will not be disturbed on appeal in the absence of manifest error. Edmond v. Cherokee Insurance Company , 14-1509 (La. App. 1st Cir. 4/24/15), 170 So.3d 1029, 1036-37.
In allocating fault between the parties, the trier-of-fact is bound to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages claimed. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967, 974 (La. 1985). In assessing the nature of the parties' conduct, factors that may influence the degree of fault allocated include: (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 that might require the actor to proceed in haste, without proper thought. Watson , 469 So.2d at 974; Goza , 21 So.3d at 331.
In the present case, the primary conduct of the parties to be compared is the failure of Ms. Browne to see what she should have seen and to yield the right-of-way to Mr. Hale's vehicle and the unreasonably dangerous condition of the intersection at issue. Based on our review, we find no error in the jury's allocation of the majority of the fault to Ms. Browne. Upon being confronted with a stop sign, it was her duty not only to come to a complete stop, but also to assess traffic and to make certain the way was clear before she proceeded onto the favored highway. La. R.S. 32:123(B); Irion v. State ex rel. Department of Transportation and Development , 98-2616 (La. App. 1st Cir. 5/12/00), 760 So.2d 1220, 1231, writ denied, 00-2365 (La. 11/13/00), 773 So.2d 727. While Ms. Browne came to a complete stop before proceeding into the intersection, she failed to see what she should have seen and failed to yield to Mr. Hale's vehicle, which was approaching so closely on LA 1 as to constitute an immediate hazard. However, it appears Ms. Browne's conduct was due to inadvertence without any awareness of the danger created by her actions.
As to DOTD, it had actual and/or constructive notice for several years prior to Ms. Browne's accident of the unreasonable risk of harm created by the intersection, particularly to motorists such as Ms. Browne attempting to maneuver across LA 1. Nevertheless, DOTD took no action whatsoever to improve the safety of the intersection. Moreover, the continued hazardous condition of the intersection presented a great risk of harm, not just to Ms. Browne, but also to the motoring public at large.
Considering the totality of the evidence, we find the jury's allocation of fault is reasonable and does not constitute manifest error.
CONCLUSION
For the above reasons, the judgment of the trial court is affirmed. Defendant-appellant, the State of Louisiana, through the Department of Transportation and Development is to pay all costs of this appeal in the amount of $13,909.00.
AFFIRMED.