Julia Moss, Individually and On Behalf of Her Deceased Husband, Michael Moss, Caitrin H. Moss and Sean M. Moss VS State of Louisiana Through the Department of Transportation & Development
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 1686 JULIA S MOSS INDIVIDUALLY AND ON BEHALF OF HER DECEASED HUSBAND MICHAEL MOSS CAITRIN H MOSS AND SEAN M MOSS VERSUS STATE OF LOUISIANA AND STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT ET AL i tt S On j Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 454 874 Division Honorable R Michael Caldwell y LA Rouge for Plaintiffs Richard S Thomas Baton Judge Presiding Attorneys Iy wnn m c Section 24 I Appellees Appellants Julia S Moss individually and on behalf of her deceased husband Michael Moss Caitrin H Moss and Sean M Moss Buddy James D Caldwell Attorneys Attorney General Ronnie J Appellantl Appellee Through the of Transportation Department and Development State of Louisiana Berthelot Jeffrey K Cody Special Assistant Attorneys Baton Rouge General LA Travis R LeBleu Attorneys Musa Rahman Johnson Baton for Intervenor Stiltner Rouge for Defendant Appellant Compensation Corp Louisiana Workers Rahman LA BEFORE PARRO KUHN AND DOWNING JJ Judgment rendered 1 When this appeai was l lodged Charles S Foti was the Attorney General AUG that 8 2008 position is now held by PARRO J In this wrongful death and survival action arising fault to it appeals the assignment of 30 the defendant out of an the automobile accident plaintiffs appeal the quantum of wrongful death damages awarded and the intervenor seeks the amount awarded to it for its workers and affirm it as an increase in We amend the compensation lien judgment amended BACKGROUND Michael Moss was in an automobile accident in December 1997 Caitrin H and his two children Julia Moss the State of Louisiana alleging DOTD killed the through that when the non accident 2 Both Smith After a trial fault in the accident and of suffering 20 000 a The and loss of in the amount of support 10 715 Moss Services Louisiana 2005 to be According area to pronounced dead 25 000 in survival It awarded Julia in the amount of course at the paid LWCC damages for killed support The s pain in the amount 20 000 for plaintiffs appeal the were As its workers abusively low LWCC compensation insurer paid Julia death benefits of and the court of recognized 227 250 as priority basis out of the proceeds of the judgment appealed claiming the judgment to Moss at employment with Acadian Ambulance and scope of his parties that agreed of the 984 000 and funeral and burial expenses Compensation Corporation on a scene jury also awarded each of his children was center go to in order to avoid wrongful death damages 100 000 for loss of when he against at fault and DOTD was 30 70 was lien in favor of LWCC in the amount of 30 into between the 2 were LWCC intervened for reimbursement compensation plaintiffs the Acadian Workers 227 250 safe shoulder wrongful death damage awards which they contend was in Inc no jury awarded wrongful death damages and amount of the Moss The filed suit party tortfeasor Juanita Smith crossed the jury found Smith before he died Moss Department of Transportation and Development line and headed toward him Moss had the collision Moss and Sean M His wife was contrary to a a workers of March 25 in favor of the stipulation entered give LWCC the first dollar reimbursement to the briefs the Moss family settled their claims 2 against Smith s succession and also without any reduction for third party fault been reduced DOTD of fault assessed to the by the 70 appeals the assignment of 30 that Smith suffered from boat and driving was a its lien should not have claiming non party tortfeasor fault to it claiming the evidence shows seizure disorder had been up all at a night defect in Louisiana driving on where the accident occurred that may have caused her to be LA 964 Highway 964 the wrong side of the road condition since Smith inevitable Therefore fact of the accident casino in the wrong lane when her vehicle ran head on into Moss s It further claims there was no evidence of any material vehicle gambling driving was DOTD contends that on irrespective of the road the accident the wrong side of the road DOTD claims the road condition could not have been resulting s was a cause in in Moss s death LIABILITY OF DOTD Because other issues decision our we of fact is a any fault to it assigned factual finding and v 12 20 96 686 So 2d 957 State and 2 a by the trier cannot be overturned in the absence of manifest error 962 writs denied 96 0688 Dev appellate Hill 505 So 2d 1120 1127 La basis exists an the record in its Stobart v State entirety through it determines the factual Deo t of TranSD and Dev actual or 2317 Thus finding finding 692 is 1 no if a if there is additional no inquiry reasonable factual finding only if after reviewing finding clearly wrong was 617 So 2d 880 Louisiana Revised Statute 9 2800 governs claims LSA C C art 4 18 97 finding is not manifestly However court may set aside a factual appellate La finding of the trier of 1987 reasonable factual basis in the record for the trier of fact s is necessary to conclude there was manifest error App review of a factual reasonable factual basis in the record for the v 1st Cir La 97 0595 and 97 0634 whether the record further establishes that the Mart erroneous A determination of the allocation of fault arguments first The two part test for the So 2d 455 and 456 fact jury should s Throuah Deo t of Transo Barsavaae whether there is DOTD contends the will address DOTO not have to DOTD may affect the concerning the assignment of fault against a 882 See La 1993 public entity under limiting that liability by requiring proof that the public entity had constructive knowledge of the defect and 3 a reasonable opportunity to remedy the defect yet failed 2 6 04 La 03 606 La 96 0829 4 25 97 La 869 SO 2d 62 plaintiff of the 1st Cir App on public entity Pardon 2 the property 3 Article 2317 1 Article 2315 plaintiff stipulated that 97 0686 against the a custody condition that created a or was in constructive Forbes Cockerham v an knowledge of See Toston plaintiffs injury 798 99 custody and control of Therefore created contends that the condition of the constr v 05 1838 So 2d it had the care shoulder that or as Cook to succeed in an action defective due to was DOTD contends the record contains highway v writ denied property causing the damage 874 SO 2d 791 1997 183 s3gioh wn similar property for which it allegedly had responsibility 2008WL616113 of the accident December 8 However a a Hardenstein 691 So 2d 177 for Nissan Motor COrD v requires public entity had actual the 4 23 04 1st Cir 3 7 08 DOTD the 1 C Henderson the defect was a cause in fact of the 4 03 1747 La App Thus must show that the risk and the 9 2800 66 the condition of unreasonable risk of harm La 5 R 2 14 97 692 So 2d 1093 public entity based the LSA general negligence principles under do the Inc to do so an highway the first no LA 964 at the time requirement of liability is met evidence of any defective condition of unreasonable risk of harm was not a cause in and further fact of this accident Unreasonable Risk of Harm Whether the condition of a road is and the factual determination should Ledoux v Deo t of Transo this standard the jury s findings basis for the conclusions Transo Dev Dev or 97 1938 if 97 1967 only be reversed if 98 0024 are they unreasonably dangerous La reversible are La 9 18 98 it is 4 24 98 question of fact manifestly erroneous 719 SO 2d 43 44 45 only when there is clearly wrong is a Aucoin v no Under reasonable factual State throuah Deo t of 712 SO 2d 62 65 Neither the trial court nor this court may substitute its evaluation of the evidence for that of the unless the 3 jury jury s conclusions totally offend reasonable inferences from the evidence The or legislation enacting LSA C C art 2317 1 effective April 16 1996 abolished the concept of strict liability governed by prior interpretations of LsA C C art 2317 Since that date a more appropriate term for liability under Articles 2317 and 2317 1 and LSA s R 9 2800 might be custodia liability which now requires a finding of actual or constructive knowledge Moraan v City of Baton Rouae 06 0158 La App 1st Cir 4 4 07 960 So 2d 1013 1016 n 4 unless they 00 2162 La 11 1st cir App DOTD See clearly wrong are has 9 01 Templet v State right of way in such has in a La reasonably prudent 747 SO 2d 489 10 19 99 required DOTD to standards current AASHTO DOTD does not have unless a to a new construction or a Netecke bring condition that Netecke and maintain all old 4 possible on old a relevant factor is Even without a duty in to design standards 5 Because this accident occurred in 1997 additions of LSA See 1999 La Acts No 1223 through 99 1 3 reI DOTO 98 legislature conformity with 48 35 A 5 However 1 effective July a duty to correct liability whether DOTD has determining the ultimate issue of DOTD v question place when 545 SO 2d 994 to conform to current it was hard surfaced changes using 9 1999 which are At the time of this accident such as the applicable prospectively only in pertinent LSA R S 48 35 stated A The Department of Transportation and Development shall adopt minimum safety standards with respect to highway and bridge design construction and maintenance These standards shall correlate with and so far as possible conform to the system then current as approved by the American Association of State Highway and Transportation Officials Hereafter the state highway system shall conform to such safety standards The chief engineer may reconstruction American or repair Association reconstruction designate highways within the state highway system approved by at standards which are less than those as of State Highway and Transportation Officials however for the no be done on any highway under this Part which results in a pavement width of less than eighteen feet and all reconstruction or repair done under or this Part shall be repair shall accomplished within the existing right 5 or the law as it existed at that in the law since then part B La Highway and Transportation Officials we must evaluate this case decision cannot be influenced by our s R 48 35 F in are And while failure to Dill in AASHTO is an acronym for the American Association of State time ex an Id the road in update 4 Therefore State does have highways unreasonably dangerous the v LSA R S DOTD roadway or even to off the highways up to modern AASHTO standards Nevertheless conformed to those standards is design standards area they do not present highways adhere to AASHTO standards may not in itself attach 1989 Toston prudence Since 1968 the Louisiana state unreasonably dangerous conditions existing whether the that is major reconstruction of the highway has taken place So 2d at 495 747 495 to the extent duty a manner construct design Dev using the adjacent roadway when they unreasonable risk of harm to motorists 1182 and reasonable care condition a DOTD must also maintain the shoulders and the within its area in duty to maintain the public highways a 874 So 2d at 799 using the Dep t of Transp and 818 So 2d 54 58 reasonably safe for persons exercising ordinary shoulders reI ex of way liability for all unreasonably dangerous defects DOTD is not shielded from overlaid the road Petre So 2d 1107 v State whose house is Bennie Bell lived there for twenty was described by bam so on deep and the shoulder virtually away over nonexistent driven it countless times in both directions Mike Amrhein was He said that driving his as another vehicle that car on LA me there He said occur Bell also said the ditches 964 a just washed Greyhound bus and has carefully and without incident southbound behind Moss when the accident northbound toward the vehicle in front of and the since much of it had Moss s vehicle neared the was dangerous the he dials 911 many accidents However he also said that he drives the years real the road something like eight people done got killed up there were was stated at trial that he had and that the road had been two years operator is familiar with the address because was 817 lay and expert witnesses series of a to the accident site adjacent He said that when he hears entire time occurred La 4 3 02 1113 The condition of LA 964 its 01 0876 reI Deo t of TransD and Dev ex in And it was curve low and in When Amrhein first about 600 700 feet away from the Moss vehicle coming into that turn and headed lane the saw it our oncoming vehicle He described the sequence of events and his reaction as follows Well when I saw that it looked like the two of those were going to hit and I they pretty much were going to hit head on I looked looked to the right or to the side and just made a determination I couldn t go off the road There was no place to go off And I started putting my brakes on At that point in time I fishtailed a little bit And about then about the same point in time the two vehicles looked like they made a little bit of a correction like they might miss each other but they didn t and they hit And at that point you know there wasn t anywhere else for me to go So what I did was I let off and tried to straighten up and just it looked like go as close to the vehicle on my left which was the northbound vehicle because as I saw them hit when they started to come apart the first thing I could tell was that the northbound vehicle basically stationary where me moved off to the right Amrhein estimated his There had ditch was a no place it was and that was wet get off the road he said that he was to be staying And that the darker vehicle in front of speed before applying his brakes light drizzle and the road to appeared you know my mind Elaborating 50 55 miles per hour on his discovery that he looked to the side and there just processed 6 was no was a and then I looked back ahead After trying to brake and out and ride straighten fishtailing little between the two a estimated that the northbound Smith vehicle as they movement he did not just before the collision managed in the lane our southbound Other than the the Smith vehicle see to Amrhein coming apart completely not was were lane before the accident but at least seventy five percent in slight he the wet pavement on move to return to the northbound lane Don Erwin was the the Smith vehicle the Moss vehicle Erwin and the other edge at the time of trial was retired from the Louisiana State Police trooper who investigated the accident Cherokee Blazer who of the asphalt facing north in the ditch the striped pavement width of the highway area was 6 feet There The roadway itself Michael DOTD as an that highway impact marks pretty well and worn by an one pebbles and the travel lane was 10 2 feet skid mark near a slight both vehicles on the which turn to the were offset last second effort to avoid a nothing in saw or on the employee of Louisiana State Police Troop A testified for He noted that there foot and about three near There people drive was some a tire quarters of an inch was a cracking The in in the roadway concluded that both drivers were trying in was roadway surface rainy conditions to steer to their 7 right pothole It was on the inside blacktop and some depression where vehicles normally traveled Those depressions and the pothole held water small deep about 775 feet the center of the northbound lane most path that worn was one but Erwin said he accident reconstruction expert back from the accident part of the was wet to might have caused the accident Craig Jewell about three feet 19 8 feet edge Moss vehicle s left front tire establishing that both drivers turned toward their right in The Chevrolet From scene applied and the vehicle had made right just before the collision s Jeep s three gouge marks in the were Also there highway presumably from the indicated his brakes had been the collision Moss only 9 feet wide while the northbound lane was southbound lane where the collision occurred center line of the was Smith the southbound lane alongside investigating officers measured the accident of the southbound lane and the center was he arrived south in the northbound lane facing was When gravel on was debris the road Like Erwin Jewell to avoid the accident There one the southbound side between on site the grass the pavement had that area was on was four and a The ditch both vehicles had slowed to 47 came out of the approached the or 48 miles per hour 775 feet away curve fog line on was Moss vehicle Close to the last Although he did could have caused the Smith vehicle to pothole in her lane into the correct lane but there present but The cross was involves drifting it the on impact not measure for not seem to and continued possible minute there was only thing the road was an to as it attempt unsuccessful and the two in the northbound lane that the center line into the southbound lane to nothing Jewell also said that However which a curve the center line over but this effort vehicles collided in the southbound lane to He concluded that the Smith vehicle curve crossed northbound lane to the the southbound side center line for some distance on the wrong side of to steer back into the driving or Officer Jewell calculated that at the time of if any super elevation in the proceed down the the edge line commonly called banking he noticed that the road did super elevation prior Using barrier equivalent velocity calculations based driving crush conditions of the vehicles have much foot and two and hundred feet a steep especially was one half inch drop off from the pavement one An the shoulder pretty well eaten up where Moss was About half feet between the travel lane and the ditch impact was not much shoulder was prevent her from moving back people tend toward the to oncoming lane low bank as the when curve is negotiated Richard Savoie testified that when the this deputy chief engineer for DOTD accident occurred he was in s the office of road engineering design section supervising DOTD designers and consultants doing road design projects for DOTO brought LA 964 a 6 number of documents from DOTD records which showed various A 1924 shoulder and ditch a center line was 6 Savoie did not plan showed on gravel road only fourteen feet wide with each side of the thirty feet bring a roadway sixty feet total any documents showing the established that it had been built in 1916 8 The The ditch original right of way slopes were on He projects a on five foot each side of the shown construction of LA 964 as one and later testimony half to one the ditch meaning that one you will be as you move one foot one In 1958 there in 1955 which the whether and how much the roadbed on as built plans showed it was the last 1979 four feet wide steeper than 3 was He reviewed DOTD highway s The lanes with a standard minimum plan According on this lane was to aggregate shoulders 1977 as amended be eleven feet completed plans functioned minimum design standards In fact norm Savoie later admitted that such he said that in his twenty count on my ten fingers and pavement edge lines width of twenty 964 had edge there was seven nothing even though were edge lines to be marked it was less than in the directives to or in effect an exception only twenty feet 9 was he to the the was not probably could design exception all two lane roadways twenty prohibit edge exception According to DOTD on project explained that the as an years with OOTD two feet or more and on all multilane lines were 1979 Savoie ten toes how many times Ive seen a Savoie also testified concerning the directives which however the chief the classified at that time was 2 070 vehicles ten foot wide travel lanes on matching by the project specifications completed and approved with only engineer s signature was one to design standards for that volume of traffic the to DOTO s 1977 minimum of each traffic plans for the design standards for overlay and Average daily traffic project built The 1977 edition of the Louisiana DOTD stated specifications for roads and bridges shall govern width The as the 1979 ramp toward the ditch widening and overlay of rural highways dated April 29 before the 1979 project in 1979 completed Savoie stated that LA 964 1 withdrawn three inches asphalt surface project preceding the accident not was roadway averaging three feet wide and with existing slope but rural each side of the on two ten foot wide travel project showed foot wide eighteen asphalt overlay project Another three inch project an A built up was widening and overlay project for bituminous hot mix was a deep with three foot shoulders as a slopes varied all proposal for resurfacing and acquisition of additional right of way later the half feet away from the top of one He later clarified that the ditch deeper along the roadway depending and two feet lines when the s engineering roadways with When asked wide he why a LA replied that pavement width was The purpose of the ditches well as runoff water Savoie DOTD is water responsible for taking any points either pipe or a possible off the road surface as coming off the roadway coming toward the roadway from adjoining property and drain it to the low water catch the water was to a It is bridge According to sixty foot right of way into its coming as important to keep as much standing water deteriorates the because roadway Savoie said there had been reconstruction would not roadway could because used have unsafe because a new wider travel lanes but DOTD lanes on an older done in the overlay projects roadway crown two overlay projects of the roadway it was not on as an expert the Smith vehicle thought Moss might if over time not on LA doing a one newer However design standard does crown approaching impact on of the roadway sixty foot right of way Amrhein s testified for the testimony Andre six or seven hundred feet within which he could in his lane Based on his calculations of the closing Andre determined that Moss had between 3 7 and 4 5 react even Based done beyond neither of the Therefore beyond the reconstruction within the approximately cross In fact this is what was He also said that if any work is is considered a reconstruction a On not might widen the travel it space from the shoulders 964 AASHTO design standards recommended reconstruction in accident reconstruction perceive and to design standards from those built under was LA 964 had any work done distance of the two vehicles prior its who was retired from the Louisiana State Police concluded that Moss had down was possible to do Joseph Andre seconds to adopts The design standards design standards have been developed highway by taking the see DOTD A sixty feet of right of way by AASHTO and that those change periodically examination Savoie admitted that plaintiffs the have been reconstructed within recognizes that just because because it LA 964 before the accident required the purchase of additional right of way Savoie said that by DOTD it on reconstruction had to be done in accord with the latest a recommended make reconstruction no Based on the crush measurements done by Jewell he have had additional time because both vehicles had slowed In that time shoulder and avoided the head on Moss could have collision 10 The gotten off the road and photographs onto the of the vehicles showed that the Smith vehicle struck the Moss vehicle with the left front side of the Smith vehicle the in the center being left front on its degrees landing of the roadway collision at the Right three feet wide between the shoulder of the road Both simply by braking at the his conclusions at the time of edge of the road if point of impact the shoulder roadway and the ditch and there Because the road was wet just ahead spinning up southbound side of the road on the right ended pushed backwards and then spun 180 was And because there was laterally away from the oncoming vehicle he had move vehicles pavement Andre concluded that Moss vehicle were right wheels of the edge vehicle Moss left side in the ditch the gouge marks in the the the The Moss vehicle counterclockwise on of corner approximately of the Moss vehicle and then tore through not was was a Based impact the slightly off about two to culvert off the Moss could not avoid the insufficient shoulder for him to no options Andre summarized follows as I think that Mr Well Moss had time to slow his vehicle and tohe had slowed to about get it thirty place impact he could have easily gotten off on the shoulder had there been enough shoulder for him to move laterally far enough to avoid a head on collision which would have been about six under control and had he had three miles hour before an a feet I estimate He also said A nything would be better than a collision of this type except to run off in a ditch and hit a culvert If you go into a ditch of this type with slopes and the back slope the way they were in this particular the fore slope ditch you re going to start to tumble As you go into this ditch the front end is going to hit and you re going to tumble the vehicle and it s going to be a very serious collision Or if you hit the culvert it s going to tear the bottom out and tear the front out and well So there would be in this with the a roadway violent collision if he opposite lane for totally into the other very have taken some acknowledged feet some period of were as to run off the road quickly on a wet that if she why the Smith vehicle may have been because time road and time for the Smith vehicle to however the vehicle to overturn in this condition Andre further testified that he could understand in the cause was in 11 can t move especially from in a curve one lane So it would back into the northbound lane the wrong lane for six to she had sufficient distance to slow her collision move you seven He hundred speed and change lanes to avoid the John A Womack who the was in 1997 Mayor of Zachary Zachary Police Department for eleven years before being elected in his capacity two lane road shoulders mayor he as with very was very familiar with LA 964 to requesting DOTD a he had served relief in having the road improved In the in highway between the passage and publication of that resolution and were killed rains real bad He described it as a narrow two lane road that held water had no shoulder in deep ditches He said it place go if anything happened places and only was a a bad road to be He said there shoulder in others narrow very on you know you had no to go except into the superintendent whose duties was no place or a tree Albert Shields included LA 964 records a DOTD highway testified that he took maintenance records pertaining to this poorly maintained and were maintenance over the were supposed When he took not done roadway people regularly who had been would say area to the shoulder when he drove it they didn in 2003 He looked for all the at the accident site properly along but found the From those records the road to inspect he could although it to do so once every week or two weeks and note it in the records the over area highway not tell whether anyone from DOTO had driven the in the local newspaper Nothing and had they in better than one resulting published The mayor Womack could not recall any other similar resolution the accident site ditch to LA 964 L Waddell had lived all his life on LA 964 about three to four miles from Jimmy to resolution in 1991 two years some the accident in which Moss and Smith during the a twenty get as done to the was deteriorating rapidly The council had the resolution further effort to if any accidents and problems associated city council passed and adopted was capacity and narrow very grant priority and funding for improvements reported that the road accident per week In that He described the road as a most locations and Because of the numbers of fatalities with the condition of the road the resolution in deep ditches had been with the LA 964 was eroding or wearing away with a drop off from He also said the road seemed narrower than it had been in the 1970s When asked his impression regarding the maintaining the records and the roadway t do their job 12 Shields replied I James R licensed a Clary professional civil engineer testified lacked the basic not meet the standard under which it was constructed a road that the state has duty a southbound lane width for Moss 67 feet b oth said that Moss were 42 9 was a dropped one foot DOTD documents was and stated that the supposedly built shoulder two and dropped from the pavement about four inches foreslope of 2 16 feet one Moss also was was He also to half feet wide that confronted with to one which means for every two feet two inches This slope was feet and the northbound lane width for Smith below the ten feet that it confronted with was in safety features at the time of the accident provide and He had measured the lane width at the accident site hazardous was 9 to expert He concluded that LA 964 did highway design highway signing and land surveying of as an steeper than it should have been was ditch a the elevation based on Clary explained that the smaller the ratio the steeper the slope the He said And the steeper the slope if you get off on a slope of say three to one or under chances are you will not get back up that you will either overturn stop or strike something in the driveways with culverts If he avoid then he was going to strike you will ride down the ditch until you ditch And in Mr Moss s path were two or went off of the road to and he these culverts recover try from that With reference to Smith to evade or was was more confronted with than ditch that he could not a likely going to turn him over position he stated s coming from the south is coming through a curve and that curve was supposed to be super elevated banked so when you go around the curve the curve assists you by being banked to go around it And there are certain regulations for how much banking you need how much tilt you re going to have Well the road as You are in an area where Mrs Smith it existed at the time of the incident either nonexistent In many cases none it was original crown of the road or less So there was no assistance from banking in this curve and it was common for people in this area the ones that I saw and including myself coming through this curve to cut across By cutting across you use more pavement width easier to Based or You or about the can cut down the radius of the curve and make it get through on Clary s lane ten feet wide measurements of the lane width He reiterated that in 1977 design standard for overlay in the 1979 flat had or project According DOTD neither driver had came up with a new a travel minimum widening of highways which should have been followed to those standards there should have been eleven foot travel lanes 13 for the volume of traffic The cross on LA 964 section sheet for the 1979 two ten foot lanes project showed only and DOTD did not Clary had examined the public records variance for the 1979 been used on the toward the center project narrower and it on LA even the failure to follow was in a roadway with with five feet left the 1979 have provided City of was a McHugh Baton on expert the East Baton He said there in traffic passing roadway a was a all it would have been and two three foot possible deep ditches plans for This would a on divided broken line edge on narrower roadways that one on lines no shoulders and at the center of the each are edge of designed they will run less than them on in his deposition he said this are was twenty because of to help drivers off the road 14 on two feet wide that see particularly all prohibiting he said DOTD a concern roadway a LA solid the traffic lanes to delineate but did not know of any standards However large ditches photographs of He reviewed requirement that edge lines be placed roadways that you didn t travel operations engineer for DOTD testified yellow line and white lines These having behalf of DOTD to lessen the chance that two feet wide or wider as district traffic engineering Zachary as LA 964 history of problems and many people had lost which he described He was familiar with the edge lines error at Rouge Parish for twelve years testified that most of the folks who lived in edge of the roadway of the the Zachary resident for 63 years and former Mayor President of Douglas Carter 964 and identified no a Rouge that road Ronald yellow margin for nor or minimum tolerable condition for the shoulders unless you had to as an no He based his calculations on the either side of the road on recognized by their lives He said the safety standard any project and measurements of the road shoulders and ditches Tom Ed the less lane speed width the edge line and the ditch two eleven foot lanes two four foot shoulders put a not have overlay and widening standard Clary testified that within the sixty foot right of way to approving people shy away from that line gives you the effect of having standard governing edge lines resulting to documentation no standard opinion edge lines should because DOTD did not follow the recommendation regard In his 964 traffic lanes greatest problem with the road with and found meet that even the edge at night roadways twenty the placement of typically does not place Carter an acknowledged that edge line may tempt a motorist to drive too close to the center line and critical line concern on a narrower DOTD would But if work is done road not remove it probably possibly because the invite a side road with on a is a swipe which an existing edge driving public was accustomed to having it there Dr Finally Joseph David Blaschke testified for DOTD With reference to the engineering and highway design out of got a he did Since the was a traffic speed limit there was one LA 964 was limit of southbound lane There because that percent which is edge of a very any flat was safely be driven elevation was at really irrelevant was it He to roadway from adjoining terrain area That sign showed an to be about two to three slope from the However curve center because the so curve was said this on it to be properly positioned was near sufficient lane safely and was keep water off the road He noted that the fore around two to 15 point of impact for a road because a road was not uncommon and also to collect water one His width for normal coming toward the From his observation of the ditches adequate of the accident including the dashed and solid edge of the pavement The ditches were there to becomes hazardous when water is ditch in the needed Blaschke also discussed to the normal edge lines appeared the roadway from edge drainage site appeared pavement markings standard automobiles and SUV s to travel he assumed the was in this case right about twenty feet built in 1916 warning sign The purpose of super elevation is to bank the road in the center and the measurement of meant that fifty five miles per hour Blaschke said the degree of super Blaschke noted that the yellow lines traveling and advisory speed for the driving was beyond the accident gentle slope comparable roadway the coming was He did not do a test on the curve in the noting that curve was in traffic warning sign for the northbound lane that it is easier for the driver to go around the could that Smith curve or not a curve was no curve fifty miles per hour the super elevation of the expert fifty five miles per hour that for the southbound lane where Moss advisory speed to the on engineering standpoint whether purely discretionary an test in the northbound lane where she was reading showing that fifty five miles per hour curve from ball bank a as alongside LA 964 slope of this particular characterizing that as very Even ditches steep which is not slope as is the probably not highways generally at which a driver can return going had at least a Blaschke said that research has shown that about steep point for old designed to get back up on the road foot wide lanes and six foot wide shoulders a if the slope is three to a one three to one steeper the vehicle is He said that in order to build twelve total reconstruction of the road would be needed Blaschke concluded that desirable not they were were had not worn so summary The pavement Blaschke concluded that cross was cross was edge to designed was as not was It in wet weather certainly was In not modern that he had not it He on was not that he slope but cases He did not know the necessary to know this because one in most agreed that it would be to have on any on an not on what it would be is based on what it is would like than two foot shoulders it is relative to this accident Based the slope of the shoulder preferable stating that highway engineers consider we measured He did not measure the ditch and its fore but said it the absolute minimum that more and functioning properly He did not measure the about two to from scratch than ten foot travel lanes prefer but still edge width of the roadway existing road the evaluation of the road were curve was pavement markings and losing control and sliding admitted about ten feet slope of the highway classification of the road if it was worn The not the most The cars five miles per hour although the roadway Blaschke the only widths could observe that it were were reasonably safe examination estimated each lane fifty of super elevation smooth that drivers individual lane the to lack appropriate functional and On or could be driven at navigate due signage was certainly adequate especially for passenger unreasonably sharp difficult to the lane widths of ten feet although to have more ten foot lanes to be highway They would also but that did not affect his evaluation of the road Blaschke said This roadway is what it is and it s not unsafe Based on the testimony from lay and expert witnesses photographs and other documentary evidence submitted testimony we conclude that the jury had a in along with connection with the their reasonable factual basis in the record for its 16 finding that LA 964 was unreasonably dangerous in normal lay witnesses testified that the shoulders sufficient space for all of the addition was a vehicle to and recover condition regain the highway surface project when the highway overlaid significantly improved without the need findings Actual on or entering it could steep ditch presented In fact the certainly flip There was further evidence that on each side this issue manifestly were to jury also even without to widen the Apparently purchase additional right of way or find that the we cannot the do a jury s erroneous constructive knowledae jury had sufficient evidence to conclude that DOTD had knowledge of the hazardous condition of the roadway recognized the problems of narrow before the accident the prioritize on LA an upgrade In addition to there hazardous a The over not not follow its own standards in the 1979 of the entire record on our review Based We also find that the actual In the testimony indicating that the road conditions could have been to believe reconstruction vehicle a travel lanes to eleven feet each with four foot shoulders jury chose provide into the ditch sixty foot right of way would have allowed DOTD the reconstruction was steep that it would almost entering not and did narrow the southbound side of the road where Moss experts that DOTD did heard from several a on the ditch was so in that a vehicle extremely were experts and All of the get off the highway without running experts stated that driving the slope of use newspaper reasonable Therefore opportunity to own employees lanes and shoulders and steep ditches Six years Zachary city council passed being 964 due to the sent to DOTO numerous a resolution asking accidents that this resolution the element of actual repair Its was knowledge were published DOTD to occurring in the local of the condition and a is also met Causation Cause in fact or would not have Louisiana Transit usually happened of one but for 96 1932 of of the an inquiry that tests whether the accident would but for the defendant s substandard conduct Inc Co are concurrent causes absence is a La 3 4 98 707 SO 2d 1225 1230 Bovkin v When there accident which nevertheless would have occurred in the causes the proper 17 inquiry is whether the conduct under consideration was Enterav COrD La a is 00 1372 substantial factor a Auto La 3 23 01 App 1st Cir 9 14 07 factual Ins 07 2228 Co 971 So 2d 323 to be La 06 0894 327 611 McCain Whether the defendant determined by the fact finder App 1st Cir Rideau Much of DOTD argument concerning causation focuses s The evidence revealed that some Rouge the riverboat casinos he realized drive her home return home not been to fault and When her husband awoke to the casino go The accident occurred about 7 regardless of that Smith was of whether occurred but she had no but for DOTD the condition of the on move have been functioned the fore would have been in flipped his vehicle Generally the Smith condition s go gambling she on one of gone and was offered He in a m to to it had been was solely her her system posits that the accident the collision would have occurred highway the wrong side of the road DOTD what should ascertain to s actions However that inactions or the a Photographs shoulder was slope of the ditch a more the fact but for happened begs the question accident would jury heard evidence that Moss had sufficient he could as on Blood tests revealed that Smith had doubt that the accident would not have driving The a m phenobarbitol shoulder of the road and avoid the collision onto which writ denied 574 in the wrong lane driving There is State Farm Mut v he drove there and found her to her for a seizure disorder due to her injuries but she said she could drive and she left the casino about 6 drinking alcohol prescribed was time after she and her husband had gone to bed Smith left her house and drove to Baton knowing she liked conduct fact of the 970 SO 2d 564 8 29 07 s v 06 1830 Howell v a cause in Perkins 972 SO 2d 1168 La 1 11 08 and behavior 782 So 2d 606 bringing about the harm and thus in question bringing about the accident factor in substantial a not have time to move onto the However there was virtually no shoulder in the record show that at the accident site Sloped to such Had Moss an extent attempted that it actually to use the shoulder he precarious position because he would almost certainly have in the ditch or hit a culvert when the court is victim s examining thought process in 18 a the fatal accident moments there is no way to preceding the accident However this found himself in the in that there was a witness in a unusual case is precarious and dangerous situation and had same choice about what to do to avoid harm shoulder to avoid the his first instinct Amrhein impending collision in his lane However when he looked and culvert Concluding there was no which slow down and was to Neither the jury nor try this court just ahead of him indeed that his mind said place he chose the to go can know with shoulder and made the realization as decision as same Smith would pull back into her lane Therefore narrow travel there was This Amrhein about we find error in shoulder and steep ditch His of the accident we but for hope affirm the was a s on to avoid the the entire record failure to take action to substantial factor in jury s allocation of 30 the Moss could have inability Based jury s conclusion that DOTD correct the hazardous conditions of LA 964 the accident Therefore to move to a in time narrow the right of his Amrhein to remain in his travel lane and was a concurrent cause manifest no same supports the inference that being unable avoided the accident and it would not have occurred impending collision far to the as reasonable evidence before the jury that extremely lane only other option certainty that Moss followed the possible before being hit by the Smith vehicle to the same was to steer around the Smith vehicle after the collision lane came a because of the ditch no thought But the evidence showed that he had moved Moss to make certainly would have moved to the train of as vehicle who following bringing about fault to DOTO DAMAGE AWARDS FOR WRONGFUL DEATH Much damages the discretion to the LSA C C art 2324 1 judge The initial or jury inquiry in the must assessment of always be directed general at whether jury s award for the particular injuries and their effects upon this particular injured person is a clear abuse as to the fact finder s much discretion Corning Fiberglas COrD denied 7 is left 04 1834 La 03 0248 12 17 04 La App 1st Cir 4 02 04 888 So 2d 863 In Roberts 878 SO 2d 631 reviewing an v Owens 643 writ award of general we might consider it somewhat less probative the jury also heard evidence from one of DOm s experts suggesting that Smith may have moved into the opposite lane to avoid a pothole holding water in her lane of travel and then stayed there to make negotiating the unbanked curve easier While own 19 court of damages the much discretion in 1257 1260 1994 La must determine whether the trier of fact has abused its appeal the award making cert 1993 Youn 510 U S denied only when the award is It is reasonable trier of fact could 114 S Ct 1114 that which beyond for the effects of the assess 127 L Ed 2d 379 1059 either direction in particular injury particular plaintiff under the particular circumstances that the appellate increase or reduce the award that there has been then only Coco v Yount 623 SO 2d at 1261 abuse of discretion is an to determine the highest or a lowest point of While it is impossible to place La an jurisprudential system has established that court should award within that discretion Rideau 970 So 2d at 579 the life of on is the monetary award a to the is determined Only after it 1976 monetary value a a prior awards appropriate and resort to 341 So 2d 332 335 IndusInc Winston 623 SO 2d Maritime Overseas COrD v a our person appropriate remedy to one who has suffered the loss of a loved one as a result of the fault of another Anderson v elements of services New 583 So 2d 829 Serv Inc Orleans Pub damage for wrongful death and support Danos 95 0545 La as well loss of love affection medical and funeral expenses as 1st Cir App are 664 So 2d 1383 12 15 95 1391 1991 La 833 The companionship See Duolantis v Rideau 970 So 2d at 580 In this well as case the jury made separate awards for medical and funeral expenses for loss of future their loss of love affection The evidence from the demonstrates that his knew Moss in representative often went to a The support companionship plaintiffs Moss professional for Acadian for many years a workers since as a very was a friends was Moss very close was house on there with his to Keith the Tom Ed local McHugh government personally and False River next to as one much time Moss Douglas owned family almost every weekend Thompson who worked with 20 community leaders buy gifts for Julia steady type of person who spent doing things with his family and But he also knew him boutique owned by McHugh s wife family and that Moss described him s co setting those for are and services from their husband and father relationship with his family Manship testified that his family owned the Moss only awards the plaintiffs contest as as by He possible Moss at Acadian and had known him and Julia since 1978 False River back come children He said almost every was Caitrin was a very get his message sister me a lot as a respectful towards mother and he us My fifteen and was has had now a a very she would have said formal how to treat your children expected losing respect him us to her father wedding without her father married at the beach with when his father died as no one in Julia wonderful described her She said he Julia said the years delay Supreme in Court 05 1963 bringing on a He was so She said that if that could happen imagine having senior in sporting fishing respectful she and her fiancé was a and my events skiing to a were high school together to When the trial picture of his father on the B relationship with her husband kind and very was were married respectful on as employer March 18 in 1981 wonderful absolutely of her and everyone else 1972 taught emergency medical technician the Acadian business from his State at False River for on car ambulance company and The Sean He said he and his dad went to LSU and Moss met at LSU and 8 attendance relationship because he Because Caitrin could not held ten years after the accident Sean still carried dashboard of his thing day of them spent two well to walk her down the aisle basketball games and to the camp was to school every He was 50 presence very close were strong effect very she had been asked at the time what would be the worst her they sister and my dad had a very close just had such Caitrin said her father taught without that family her father drove her his death special relationship and very across strong bond during this time that the Her brother Sean said together to the river and twenty years old and attending LSU when her father died had In addition to activities with the whole they developed on heard Moss raise his voice to his never worked with him at Acadian from the time she and with Moss of the house a co owner Friday both families would head the kind of guy who could who also Thompson said he Sunday night he was She Moss worked for the courses before buying She worked with him there for five family did almost everything together including balloon festivals this matter to trial was the issue of the La 4 4 06 production partially due to a writ action that admissibility of Smith s medical and 925 SO 2d 1185 21 went to the Louisiana records See Moss v fishing basketball baseball she to be his wife always proud was to just and the children to regard things that to the children we wonderful person somebody That was used to go to holidays especially Christmas worked on The damages the stained especially difficult because her husband The two of them had 20 000 in jury awarded Julia and each of the children We realize that ten years after the accident Moss s on our review based Yet of the record were an other jurisprudence to determine an mesothelioma victim and award of this court in O Connor writ not considered the adult children of a was funeral and medical expenses 100 000 in 125 000 in damages reI Dep t of Transo denied year old 03 1739 Philippine to man 03 0397 who 1 000 000 to the to his wife and in their we must look to v wrongful death was App 1st Cir 12 31 03 872 So 2d 1069 in an automobile 100 000 to each of the Davis surviving spouse A 200 000 to the child La 5 7 04 La Witt 02 3102 In a case affirmed by 864 So 2d brought by accident the jury award for surviving children La 7 2 03 well as 851 So 2d 1119 A as to each of the decedent s two minor children and each adult child 02 0733 10 10 03 Therefore 250 000 to each of his three children damages and Dev La jury awarded couple who died wrongful death damages jury award of the 04 0655 Moss was a appropriate award for each of the plaintiffs Litchfield v conclude that the positive energy and presence surviving spouse and 300 000 to the to in the immediate devoted was possibly be recompensed by the jury s award In Roberts 878 So 2d 631 a influence steadying The loss of his we display not abuse of discretion respected businessman and community leader who lives cannot also wrongful death family did jury the degree of grief and loss that would have been obvious children Not together were jury s awards for wrongful death damages 234 help you make glass projects together golfed and gone bird watching together aftermath of his death of to in your life very difficult very always very positive and excited about everything was She said sports When I go by myself I feel out of balance She said s Julia said that after his death I ts difficult after you ve had such a not have him any more and to have decisions with going and football games was La upheld by this App 855 SO 2d 350 1st Cir 3 28 03 In a case supported his parents this 22 court in Ratliff v State writ 844 SO 2d 926 involving the death of court found the ex a 26 jury s award of 75 000 in wrongful death damages 1st Cir App of 12 11 02 Acquets and Gains parents 150 000 for each parent and raised the award to to each of his Duzon 866 SO 2d 837 writ denied sub v Stallworth reduced a surviving spouse Wingfield v State ex rei Deo t of Transo 835 So 2d 785 writ denied The Wingfield case Dev Transp cited La 95 1418 and 95 1419 in considered in award of Rick 1784 worked fact s 1 14 94 La 350 000 award of So 2d 683 685 400 000 App La factors considered in in the Temple 6 27 03 858 So 2d 569 Shillina Cir ex v State reI Shillina 12 22 05 v ex 1993 Dep ex some killed when he years later that he although the father spent jury in that Dep t of State v 674 So 2d 996 writs close 93 1776 Dev t of Transp couple grounds for reinstating the trier of prior a La to his death La 857 So 2d 501 05 0172 Dev 4 24 06 La or Also in App 1st this to a young man the incident time with him on some weekends 1st Cir 926 So 2d 541 wrongful death award barely remembered his father In automobile App only four years old and who told 23 at 808 in an 02 1977 11 7 03 La were marriage loving spouse who had only and Dev 06 0151 70 000 and 27 year Winafield 835 So 2d reI Deo t of Transo divorced and he lived with his mother 93 a 75 000 to 03 2116 was was Terrebonne Parish Consol Gov t 625 v month 928 SO 2d 95 writ denied was as t of Transo court found no abuse of discretion in a whose father Dep 300 000 one writ denied State 4 4 96 loving relationship jury award of reI The 681 So 2d 373 and 374 App 1st Cir family business been married to the decedent for accident including Gibson State v in App 1st Cir 11 8 02 recovering from the death of her spouse affirming award of contrast to these awards is a 500 000 to support and funeral and medical expenses and Faucheaux 1st Cir This court supreme court considered the fact that 630 SO 2d 1271 together every day La La reI Community ex 845 So 2d 1059 and 96 1902 La 10 25 96 relationship and difficulty of wife 01 1187 842 So 2d 1101 01 2668 5 30 03 La Duzon wrongful death award previous jurisprudence 96 1862 96 1895 denied 03 0313 Stallworth v nom 5 2 03 Dev 70 000 in loss of had also awarded case 1 000 000 s La 03 0589 abuse of discretion was an the child a counselor In that s case parents were In reviewing this jurisprudence involving surviving spouses with long we given the greatest weight have stable and to cases and to those happy marriages involving adult children who had very close and positive relationships with their parent With those considerations in mind we jury could have awarded for Moss 100 000 each to Caitrin and Sean conclude that the lowest reasonable amounts the s wrongful death We will amend the 300 000 to Julia and were judgment accordingly REIMBURSEMENT TO WORKERS COMPENSATION INSURER LWCC seeks reimbursement of the full amount of death benefits than 30 pursuant to Acadian s workers of that amount as awarded in the stipulation entered into between the parties and In the Moss was when the insurance stipulation entered was in accident occurred policy issued 227 250 to and or on legally contractually to Acadian entitling on a on and it to the the course in LWCC admitted that and scope of his effect a workers paid death benefits of March 25 on a 5 R 23 1101 B LWCC and Julia LWCC had as LSA rather LWCC bases its claim judgment that LWCC had behalf of Julia and that in the event of agree that the that paid to Julia in compensation insurance policy into between employed by Acadian and 227 250 that it 2005 that LWCC employment compensation in the amount of was subrogated equitably to the full extent of its past and future payments a judgment against DOTD compensation lien of the the Intervenor statutory first dollar recovery out of the parties jointly stipulate and LWCC shall be recognized proceeds of such Judgment priority basis with interest from the date of judicial demand including those amounts paid as from March 25 becomes final and 2005 through the date that the Judgment ultimately paid With reference to LWCC s IT IS ORDERED compensation lien the judgment stated ADJUDGED AND DECREED that the workers compensation lien in favor of the Intervenor Louisiana Workers of 227 250 00 Compensation Corporation LWCC in the amount of 30 as of March 25 2005 is recognized entitling LWCC to the statutory first dollar recovery out of the proceeds of this judgment on a priority basis with interest as stated above from March 25 2005 through the date this However this statutory lien is judgment becomes final and paid subject to percentages of comparative fault found by the jury as stated above and this lien amount is not a separate damage award but shall be paid out of the amounts stated above 24 Both the stipulation and the judgment refer recovery out of the 1101 B to the first dollar statutory statute is LSA R S proceeds of the judgment The referenced 23 which states Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person and where the recovery of the employee is decreased as a result of comparative negligence the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage The amount of any credit due the employer may be set in the judgment of the district court if agreed to by the parties otherwise it 5 R 23 1102 A will be determined pursuant to the provisions of 9 Emphasis added Subsection C defines third person the time of his as any party who causes the reduction of LWCC s lien based the governing states that stipulation its reimbursement reimbursement of shall be identical in the fault of a LWCC filed percentage the third a was no on to LSA B the employee The equitably stipulation also to the full extent of its substitution of 9 Although accident 257 in this case are limited to the states that LWCC one person to the was 25 his or dependents to the in this statutory The payment by DOTD of 30 was no LSA C C art language of subsection legal analysis regarding this claim i1 and in reduction of LWCC s subrogated legally contractually and rights of another there have been two amendments to the 1 Emphasis added past and future payments neither of those is relevant to the noted suit for comparative negligence by Moss damages suffered by the plaintiffs and thus there for the recovery allowed LWCC stipulation provides that LWCC will be entitled proceeds of such Judgment lien at provisions in this 23 1102 A 5 R as statutOry statutory intervention to the recovery of since there However party first dollar recovery out of the oroceed5 of such Judament of the employee language allowing no LWCC s recovery is based provisions of LSA R S 23 1101 against the third person Moreover on compensation benefits pursuant accordance with the matter to an employment LWCC s first argument is that the stipulation contained above injury Subrogation 1825 B Thus is the LWCCs since the date of the See 2005 La Acts No cannot be rights found to be 70 at fault the party was 30 fault to DOTD and based to that same only for However subrogation LWCC s recovery RS allowing a was 23 1101 B 5 R 23 1101 B LSA as clearly employee or states that the recovery of the writes out the first The suit was filed was DOTD damages awarded to Moss s LWCC would percentage jury determined that partially at fault portion of the We injuries would have damages from a against DOTD was third party limited plaintiffs ie legal manifest error in or only 30 Our so an but who to Julia was as it to essentially accept LWCC s argument at fault for his compensation payor less than can only recover a paid to Julia of action percentage Accordingly the court s determination that LWCC is entitled to which is identical in percentage an portion of his cause 5 R 23 1101 B to recovery identical in to Julia under reduction in the recovery statutory provisions LWCC s we to find recover to the recovery family against DOTD holding on this because with apportioned in the issue respect does not to the damages recovered dependent violate the provisions of LSA Emphasis added over that of the The reference to such 26 5 R such damaaes shall judgment that the claim of the employer compensation actually paid shall take precedence his a employee who is partially of the death benefits paid 1 23 1103 A be 30 of the benefits it of the Moss Under the by LSA that of the no Moreover to reimburse the workers is not at fault in any way paid it reject that interpretation sentence employee who Therefore family ignore the first portion of the only the second portion which allows would result in the anomalous situation that own party In this case set at that identical is found a dependents against the third person his correctly employee its percentage to the wording of the statute LWCC s recovery of death benefits sentence and enforce of in of the liable for 30 reduction but not for the fault of negligence s the clear if the correctly limited was injured employee an only third person against whom DOTD recovery is limited to the allocation of paid workers compensation benefits shall be identical recovery of the the interprets LSA also reimbursement who has on plaintiffs percentage LWCC third party In this case because the non greater than the rights of the plaintiffs s insurer for the injured employee damages or in the context of the facts of this Therefore the case relates to the award of 30 judgment of the trial court of the death benefits paid to Julia correctly provided for the payment of this sum CONCLUSION Based wrongful on death the foregoing amend the judgment of June 1 2007 to award Julia damages in the amount of wrongful death damages respects the judgment are we in the amount of is affirmed 300 000 and to award Caitrin and Sean 100 000 for each of them All costs of this appeal assessed to DOTD AMENDED AND AFFIRMED AS AMENDED 27 In all other in the amount of 9 896 76
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