Lola Brooks, Bridgette Gosnay and Jesse Brooks, Jr. VS State of Louisiana Through the Department of Transportation and Development
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 1267 LOLA BROOKS BRIDGETTE GOSNAY AND JESSE BROOKS JR VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT DATE OF JUDGMENT t JUL 6 201D ON APPEAL FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT NUMBER 63 DIVISION C PARISH OF IBERVILLE 022 STATE OF LOUISIANA HONORABLE ALVIN BATISTE JR JUDGE Alton T Moran Counsel for Plaintiffs Appellees Baton Rouge Louisiana Lola Brooks Bridgette Gosnay and Jesse Brooks Jr John H Ayres III Baton Rouge Louisiana Counsel for Defendant Appellant State of Louisiana through the Department of Transportation and Development BEFORE WHIPPLE PARRO KUHN GAIDRY AND McDONALD JJ Disposition JUDGMENT RENDERED TRIAL COURT JUDGMENT AMENDED AND AS AMENDED AFFIRMED G tam f KUHN J Defendant the State of Louisiana through the Department of Transportation and Development DOTD appeals an adverse judgment in a wrongful death action filed by the decedent surviving widow Lola Brooks and his adult s children Bridgette Gosnay and Jesse Brooks Jr The decedent Jesse M Brooks Sr Mr Brooks was killed when the backhoe he was driving overturned on the shoulder of a state highway DOTD argues on appeal that 1 the duty it owes to the motoring public to maintain the state highways in a reasonably safe condition does not encompass the risk that a backhoe would turn over while traveling 10 to 15 miles per hour across a 2 to 4 inch depression on the shoulder of the highway 2 plaintiffs failed to establish that the depression in the shoulder was the cause of the accident 3 the jury erred in failing to assign fault to Mr Brooks and erred in assigning fault to DOTD and 4 the trial court erred in refusing to admit testimony establishing that Mr Brooks was not wearing the seat belt while operating the backhoe and that if he had done so such action would have prevented his death or serious injury Our review of the record reveals error in the jury instructions that interdicted some of the jury findings s After conducting a de novo review of these affected issues we conclude that Mr Brooks was negligent we allocate twenty percent fault to him and we amend the judgment accordingly As amended we affirm the judgment in favor of plaintiffs I FACTUAL AND PROCEDURAL BACKGROUND At around noon on June 20 2005 Mr Brooks an operating engineer who worked for Industrial Plant and Maintenance asked a coworker Steve Harris to follow him in a truck while he drove a backhoe along Louisiana Highway 30 in St 2 Gabriel Louisiana to deliver it to another company Syngenta Mr Brooks drove the backhoe on the shoulder of the highway while Harris followed behind him with his truck lights turned on Harris explained that they travelled on the shoulder of the road to avoid obstructing other traffic A short distance later Harris noticed that Mr Brooks failed to turn on the road that led to Syngenta but it appeared to Harris that Mr Brooks began to make a turn on the shoulder at the entrance of the driveway to Suttles Trucking Company Suttles Harris presumed that Mr Brooks was making a u turn to return in the opposite direction on the other side of the highway However Harris also reasoned that Mr Brooks may not have intended to turn left at that point He explained that Mr Brooks may have mentioned Syngenta in error as he had previously done and may have had another destination in mind that would have required him to continue travelling in the same direction Regardless of the intended destination Harris stated that when the backhoe reached the shoulder at the entrance of the driveway to Suttles it went up on its lefthand side and laid over Harris stated he did not see Mr Brooks steer the backhoe to the right and he did not know whether Mr Harris was actually going to turn left at that point but he did see the backhoe go to the right When the accident occurred Harris was 25 to 50 feet behind the backhoe Although he had been following Mr Brooks for a short distance Harris testified that he had not been paying attention to his speedometer his estimates regarding Mr Brooks speed were only a guess and he was not sure how fast Mr Brooks was travelling when the accident occurred While Harris stated that a backhoe can travel 10 to 20 miles per hour he estimated that Mr Brooks was probably 3 traveling 18 to 20 miles per hour that day on the shoulder of the road In his previous deposition testimony he had estimated 10 to 15 miles per hour Although he believed Mr Brooks was going too fast when he reached Suttles driveway Harris also testified that Mr Brooks had decreased his speed immediately before the backhoe made the turn Harris also testified that there had been no problems on the shoulder of the road until Mr Brooks reached that point After the accident occurred Harris found Mr Brooks unconscious under the cab of the backhoe Sergeant Jamal Carter a patrolman with the St Gabriel Police Department who investigated the accident scene testified that when he arrived he found the backhoe turned over on Mr Brooks in the gravel section of Suttles driveway He stated that he did not take photographs of the condition of the shoulder or driveway on the day of the accident Initially he stated he did not have reason to believe that anything inherent in the driveway caused the backhoe to turn over Upon viewing a photograph of the depression in the shoulder however Sergeant Carter admitted that it was possible that he overlooked the problem in the shoulder because he was concerned with tending to Mr Brooks When questioned regarding his opinion of the cause of the accident Sergeant Carter testified that Mr Brooks might have been going too fast and caused the backhoe to turn over However when questioned during cross examination by plaintiffs counsel Sergeant Carter explained that he did not say that the road did not contribute to the accident During trial several experts testified regarding the condition of the shoulder and gave their opinions regarding the cause of the accident Plaintiffs offered the 4 testimony of Andrew Jefferson McPhate an expert in the fields of mechanical engineering accident reconstruction and vehicle dynamics and Duaine Evans an expert in the field of traffic engineering DOTD offered the testimony of Dr John Mounce an expert in the fields of accident reconstruction highway design and maintenance and highway operations and safety McPhate who evaluated the accident site and took photographs in November 2005 before any remedial work was performed by DOTD testified that Suttles driveway which was perpendicular to Highway 30 was at least 70 feet wide He stated the 10 foot wide paved asphalt shoulder was crumbling and broken where the driveway met the highway He estimated the depth of the irregularities and depressions in the shoulder surface as 2 to 4 four inches deep He also described the area as a region in which the elevation changed suddenly Regarding the backhoe that Mr Brooks operated on the day of the accident McPhate testified that it had a 2 wheel drive rather than a 4 wheel drive and it was equipped with a front end loader He stated that when the outriggers were pulled up on the backhoe as they would have been when Mr Brooks was operating it on the shoulder of the highway the backhoe had a fairly high center of gravity with a relatively large inertia for rocking front to back He explained it had no springs and no shock absorbers When asked whether backhoes had an equilibrium problem McPhate answered that when executing a turn if the backhoe encountered significant friction it would turn over relatively easily He described one area of the depression in the shoulder as having a 4inch rise or lift He stated that if Mr Brooks had travelled through the depression at a speed of close to 15 miles per 5 hour he would have expected the front wheels of the backhoe to bounce a few inches He further opined that if the backhoe had been traveling in a straight line it should have been able to traverse that particular surface without a lot of difficulty although it would have bounced some Regarding the cause of the accident McPhate initially opined that Mr Brooks was traveling down the shoulder and attempted to execute a turn into the area ofthe depression McPhate believed that in all likelihood the left front wheel or both wheels engaged the irregularities of the depression and very likely increased the steering angle and Mr Brooks entered that particular pavement turning too sharply for the speed he was travelling McPhate also stated that Mr Brooks was going too fast for the sharpness of his turn McPhate later qualified his testimony by acknowledging that the sharpness of the turn could have been exaggerated because of the conditions Mr Brooks encountered on the shoulder McPhate also testified that the rubble on the shoulder would have increased the steering and have taken all the slack ouf of the backhoe When plaintiffs counsel asked So it might not have all been Mr Brooks doing some of it had s to do with the rubble and the condition of the highway McPhate answered Oh yes Right And as the vehicle starts to tip the loading on the wheel is such that it would increase the steering and cause it to turn even more If the surface had been flat and the irregularities in the shoulder had not existed he opined that Mr Brooks could have executed the turn He stated The irregularities in the surface are right in the travel lane t I will interact with this backhoe T Plaintiffs other expert Evans testified that he did not visit the accident scene until January 2007 and by that time some patchwork repairs had been performed on the depression in question He stated that McPhate had relayed information to him describing the prior deterioration of the surfacing material in that area He had also viewed photographs of the depression taken before the repair work was performed With regard to the deteriorated condition of the shoulder Evans explained that it could disrupt steering and cause reduced steering control When asked whether someone could have successfully maneuvered a turn with a backhoe while travelling over the deteriorated area he replied that the driver would have trouble on that type of surface He testified the maneuver could have been successfully performed on a flat smooth surface Based on photographs of the accident scene Evans further opined that the backhoe would have had to traverse the area of the depression to reach the point where it overturned He also stated that Mr Brooks had no reason to make a sharp turn because he had a wide driveway within which to negotiate his turn Additionally he opined that a I inch depression in a shoulder or travel way is an unreasonably dangerous condition Evans also testified that the deterioration that was present when the accident occurred took many months possibly even years to develop Evans had also reviewed DOTD Maintenance Planning Manual and s related that it indicated that all roads should be inspected once a week and at a minimum every 2 weeks The manual further provided that shoulder depressions should be repaired when depressions are greater than one inch deep over a ten foot area or when water ponds over a half inch deep Evans also addressed a separate publication DOTD Maintenance Manual and related that Section 7 s 06 VA of the manual prescribed that shoulders should receive the same maintenance as prescribed for rigid or flexible pavements Further Section 7 prescribed that 02 sections of shoulders that are used repeatedly as a turnout should be given special attention Section 7 further requires that shoulders should be maintained 02 reasonably smooth and flush with the edge of the surfacing sexpert Dr Mounce who had observed photographs of the accident DOTD scene testified that although he believed Mr Brooks had encountered the depression prior to the accident he also believed the depression could not have been a cause of the accident Factoring in the backhoe high center of gravity he s opined that more probably than not the cause of the accident was Mr Brooks s rate of speed and his sharp turning maneuver Dr Mounce acknowledged however that pavement roughness can have an effect on steering and loose material has less ability to retard force and he agreed that sections of shoulders with repeated activity should receive special care Based on the evidence the jury determined that 1 on the date of the accident there was a defect at the accident scene that created an unreasonable risk of harm 2 the defect was a cause in fact of the accident that resulted in Mr s Brooks death and 3 Mr Brooks was not negligent in his operation of the backhoe The jury also answered questions quantifying plaintiffs damages Because the jury found Mr Brooks was not negligent it did not reach the interrogatory which asked it to apportion fault between Mr Brooks and DOTD On appeal DOTD does not challenge the quantum of damages assessed 8 Based on the jury findings the trial court signed a judgment in favor ofplaintiffs s and against DOTD and it is from this judgment that DOTD appeals I1 A ANALYSIS Standard of Review It is well settled that an appellate court may not disturb a jury findings of s fact unless the record establishes that a reasonable factual basis does not exist and the finding is clearly wrong or manifestly erroneous See Syrie v Schilhab 96 1027 p 4 La 5 693 So 1173 1176 An appellate court must do more 97 20 2d than simply review the record for some evidence which supports or controverts the findings Stobart v State of La through Dept of Transp Dev 617 So 2d 880 882 La 1993 It must instead review the record in its entirety to determine whether the factual findings were clearly wrong or manifestly erroneous Fontenot v Patterson Ins 090669 p 8 La 10 23 So 259 267 09 20 3d When legal error interdicts the fact finding process however the manifest error standard no longer applies to any findings affected by that legal error If the record is otherwise complete the reviewing court should conduct a de novo review of the interdicted findings See Picou v Ferrara 483 So 915 918 La 1986 2d Abney v Smith 09 0794 p 6 La App 1st Cir 2 10 8 denied 100547 La 5 10 7 3d So writ 3d So Mr Brooks Negligence s DOTD alleges that the jury erred in failing to find that Mr Brooks was negligent Our review of the record reveals error in the jury instructions 2 DOTD also filed a motion for judgment notwithstanding the verdict or alternatively for a new trial but these motions were denied z pertaining to Mr Brooks conduct of driving on the shoulder of the highway As explained below this error interdicted the jury finding regarding whether Mr s Brooks was negligent in the operation ofthe backhoe The trial court is required to instruct jurors on the law applicable to the cause submitted to them 3d So at La C art 179213 Abney 09 0794 at p 4 P The charge must correctly state the law and be based on evidence adduced at trial Id Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues LeBlanc v Landry 081643 p 5 La App 1st Cir 09 24 6 21 So 353 358 59 writ denied 09 1705 La 10 18 So 117 3d 09 2 3d Although the trial judge is under no obligation to give any specific jury instructions that may be submitted by either party the judge must correctly charge the jury Id 08 1643 at pp 56 21 So at 358 If the trial court omits an 3d applicable essential legal principle its instruction does not adequately set forth the law applicable to the issues to be decided by the jury and may constitute reversible error Id 08 1643 at p 6 21 So at 35859 3d Correlative to the s judge duty to charge the jury as to the law applicable in a case is a responsibility to require that the jury receives only the correct law Id In assessing whether the jury instruction was erroneous it is the duty of the reviewing court to assess such impropriety in light of the entire jury charge to determine if the charges adequately provided the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberation Ultimately the determinative question is whether the jury instructions misled the jury to the extent 10 that it was prevented from dispensing justice Adams v Rhodia Inc 07 2110 p 7 La 5 983 So 798 804 When a jury is erroneously instructed and 08 21 2d the error probably contributed to the verdict an appellate court must set aside the verdict LeBlanc 08 1643 at p 6 21 So at 359 3d Because the adequacy of a jury instruction must be determined in the light of jury instructions as a whole when small portions of the instructions are isolated from the context and are erroneous error is not necessarily prejudicial 07 2110 at p 7 983 So at 805 2d Adams Furthermore the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts Id Thus on appellate review of a jury trial the mere discovery of an error in the judge instructions does not of itself justify the appellate court conducting s the equivalent of a trial de novo without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case M 072110 at pp 7 8 983 So at 805 2d In the instant case the jury was instructed regarding DOTD duty to s maintain and repair its roadways and shoulders and was further instructed that Louisiana Revised Statutes 32 provides Offroad vehicles may travel on 2 299A the shoulders of all public roads or highways except interstate highways during each day starting thirty minutes after sunrise and ending thirty minutes before sunset113 3 Shoulder is defined as the portion of the highway contiguous with the roadway for accommodation of stopped vehicles for emergency use and for lateral support of base and surface La R 32 A highway is defined as the entire width between the boundary S1 65 lines of every way or place of whatever nature publicly maintained and open to the use of the public for the purpose of vehicular travel synonymous with the word street 25 1 32 11 La R S Louisiana Revised Statutes 32 provides in pertinent part as 1 299A follows Offroad vehicles including but not limited to three wheelers four wheelers or other allterrain vehicles which are not specifically designated for road use may travel on the shoulders of all public roads and highways except interstate highways in the manner provided for in this Section solely for the purposes of farmrelated activities within a fivemile radius of a farmer farm provided that s the operator possesses a valid Class E driver license The owner s or operator of the offroad vehicle shall carry a copy of the motor vehicle registration upon his person or on the offroad vehicle to prove he owns at least one motor vehicle which is registered as a vehicle engaged in the business of actual farming under the provisions of R 47 As an alternative to the ownership of the S 462 motor vehicle the operator of the offroad vehicle may carry a sworn affidavit attesting that he is engaged in the business of actual farming under the provisions of R 47 S 462 Emphasis added This Subsection makes clear that the authorization for offroad vehicles to travel on the shoulders of roads and highways is limited to farm related activities within a five mile radius of a farmer farm The evidence in the instant case does not s establish that the backhoe was being used as farm equipment Thus La R S 2 299A 32 is inapplicable to the facts of this case and Mr Brooks was not authorized to travel the shoulder of the highway with the backhoe Accordingly the trial court erred in including this statutory provision in its jury instructions Rather the trial court should have instructed the jury in accordance with La S 71 R 32 which provides in pertinent part that a vehicle shall be driven upon the right half of the roadwayi and in accordance with La R 32 S 79 1which 4 The jury was not instructed regarding this Subsection 5 Roadway is defined in pertinent part as that portion of a highway improved designed or ordinarily used for vehicular traffic exclusive of the berm or shoulder Emphasis added 12 La R 32 S 1 59 provides A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety Since the jury was instructed contrary to the applicable law the inaccurate instructions misled the jury regarding the appropriateness of Mr Brooks conduct Thus we find the instructions contained a plain and fundamental error that probably contributed to the jury finding that Mr Brooks was not negligent in the operation of the s backhoe Accordingly we must conduct a de novo review of this issue Because Mr Brooks violated La R 32 and 32 by traveling on the S 71 79 shoulder rather than within the travel lane of the roadway we conclude his conduct was negligent We further acknowledge that the record contains testimony suggesting that Mr Brooks may have been travelling too fast to safely negotiate a turn and that he may have executed his turn too sharply However the testimony to that effect was strictly conjecture The record reveals Harris did not know how fast Mr Brooks was traveling when the accident occurred and he did not know whether Mr Brooks was attempting to execute a turn We additionally note that Harris testified that Mr Brooks had slowed down immediately before the accident occurred Thus we find the record does not establish that Mr Brooks was travelling at an excessive rate of speed at the time he encountered the depression in the shoulder 6 Although DOTD did not object to the jury instruction in question the contemporaneous objection requirement of La C art 1793C is relaxed where there is plain and fundamental P error in the jury instructions In such instance an appellate court may recognize and review the issue See Berg v Zummo 00 1699 p 13 n 5 La 4786 So 708 716 n 5 Nicholas 01 25 2d v Allstate Ins Co 992522 pp 610 La 8 765 So 1017 1022 24 00 31 2d 13 C s DOTD Liability Because the error in the jury instructions pertained only to the law as it related to Mr Brooks conduct we find the error affected only the jury finding s regarding whether Mr Brooks was negligent and the determination regarding the percentage of fault attributed to his conduct in causing the accident i the e interrogatory which the jury pretermitted based on its finding that Mr Brooks was not negligent Otherwise the jury was properly instructed so the error in the jury instructions did not affect the jury findings on the issues of whether the highway s had a defect that created an unreasonable risk of harm on the date of the accident and whether the defect was a cause in fact of the resulting accident Accordingly the manifest error standard of review applies to these findings See Picou 483 2d So at 918 Lam ex rel Lam v State Farm Mut Auto Ins Co 05 1139 p 3 6 La 11 946 So 133 135 36 06 29 2d 137 38 Regarding DOTD liability tort claims may be pursued against a public s entity under strict liability pursuant to La C art 2317 as modified by La C art 2317 and La R 9 as well as in negligence pursuant to La C art 1 S 2800 2315 Fontenot 090669 at pp 910 23 So at 267 3d When addressing an action under either theory the legal analysis is the same The plaintiff bears the burden of showing that 1 DOTD had custody of the thing that caused the plaintiffs injuries or damages 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 did not take corrective measures within a reasonable time and 4 the defect in the thing was a causein fact of the plaintiff s injuries Id 09 0669 at pp 9 10 23 So at 267 68 2d 14 DOTD has a duty to maintain the public roadways including adjacent shoulders 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 See La R 48 Forbes v Cockerham 08 0762 p 31 S 21A La 1 5 So3d 839 858 This duty extends to the protection of those 09 21 people who may be foreseeably placed in danger by an unreasonably dangerous condition Sevario v State ex rel Dept of Transp Deu 98 1302 p La 14 App 1st Cir 11 752 So 221 231 writ denied 99 3457 4 759 99 10 2d 00 7 2d So 760 writs not considered 99 3638 00 0044 La 4 759 So 81 00 7 2d 82 This duty further encompasses the foreseeable risk that for any number of reasons a motorist might find himself traveling on or partially on the shoulder Adam v State ex rel Dept of Transp and Deu 08 1134 pp 67 La App 1 st Cir 2 5 So 941 946 writ denied 09 0558 La 5 8 So 584 09 13 3d 09 15 3d Admittedly this duty does not render DOTD the guarantor for the safety of all of the motoring public or the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances Forbes 08 0762 at pp 31 32 5 So at 858 3d Whether a duty is owed to a particular plaintiff is a question of law Brewer v J Hunt Transport Inc 09 B 1408 p 7 La 3 10 16 3d So Whether the DOM breached its duty that is whether the shoulder was in an unreasonably dangerous condition is a question of fact and will depend on the facts and circumstances of each case Fontenot 09 0669 at pp 15 16 23 So at 271 3d On appeal DOTD argues that the duty it owes to the motoring public to maintain the state highways in a reasonably safe condition does not encompass the 15 risk that a backhoe which is unstable and top heavy would turn over while traveling 10 to 15 miles per hour across a 2 to 4inch depression on the shoulder of the highway We disagree We find no authority for this position and conclude that the general duty owed by DOTD extends to all motor vehicles that travel the highways of this state Further in this case Harris testimony confirmed that the s area where the accident occurred was an industrial area in which construction equipment was commonly driven for short distances on the highways Harris testified that his employer Industrial Plant and Maintenance transported such equipment for short distances by driving them on the shoulder of the highway McPhate also testified that he has seen backhoes and heavy construction equipment travel on state highways While construction equipment is not designed primarily for roadway use our state law acknowledges that similar equipment iroad rollers and road machinery is temporarily moved upon the e highways of this state See La R 47 Thus we conclude the risk of injury S 502 to motorists including those driving construction equipment such as a backhoe caused by defective conditions in the roadways or shoulders was foreseeable Further in determining whether liability exists under a dutyrisk analysis a plaintiff must prove that the conduct in question was a cause infact of the resulting harm Brewer 09 1408 at p 7 3d So at While DOTD disputes the shoulder was a cause infact of the accident we find the jury finding to the s contrary is well supported by the evidence particularly the testimony of McPhate regarding the likely impact of the depression on the steering of the backhoe 7 Louisiana Revised Statutes 32 provides in pertinent part Motor vehicle means every 40 1 vehicle which is self propelled 16 DOTD focuses on only portions of the expert testimony to advance its argument that plaintiffs have not met their burden of proof on this issue However the trial testimony must be considered in its entirety Although DOTD presented evidence to support contrary conclusions regarding causation the jury obviously found the testimony of plaintiffs experts to be more credible than that of DOTD expert s and made reasonable inferences based on the expert testimony We cannot find the jury manifestly erroneous in its determination regarding causation Addressing the remaining elements of plaintiffs cause of action DOTD does not dispute that it had custody of the shoulder in question Likewise DOTD does not challenge the jury findings regarding notice of the condition of the s shoulder Although DOTD urges that the minor shoulder discontinuity could not have been any substantial factor in causing the accident it asserts no other argument against the classification of the shoulder deterioration as a defect Moreover we find no manifest error in the jury finding that the deterioration in s the shoulder was a defect due to the uncontradicted testimony regarding its size and depth and in light of the testimony that such a depression could impact the steering of a backhoe or other construction equipment D Comparative Fault Assessment As discussed earlier the erroneous jury instruction probably contributed to the jury finding that Mr Brooks was not negligent and thus the jury s pretermitted the interrogatory contained in the jury verdict form pertaining to the allocation of fault between Mr Brooks and DOTD Because we have concluded that Mr Brooks was negligent and because the jury did not conduct a comparative fault assessment this court must conduct a de novo assessment as to both parties 17 In determining percentages of fault a court must consider the nature of the conduct of the parties and the extent of the causal relationship between the conduct and the damages claimed Watson v State Farm Fire and Casualty Ins Co 469 So 967 974 La 1985 In assessing the nature of the conduct of the 2d parties various factors the Watson factors may influence the degree of fault including 1 whether the conduct resulted from inadvertence or involved an awareness of the danger 2 how great a risk was created by the conduct 3 the significance of what was sought by the conduct 4 the capacities of the actor whether superior or inferior and 5 any extenuating circumstances which might require the actor to proceed in haste without proper thought Clement v Frey 95 1119 p 8 La 1 666 So 607 611 96 16 2d The evidence establishes that the asphalt on the 10footwide paved shoulder at the entrance of the driveway where the accident occurred was crumbling and that the deteriorated condition of the shoulder developed over many months or possibly even years DOTD either knew or should have known of the defective condition of the shoulder and the dangers it presented to the motoring public Although the shoulder depression was 2 to 4 inches deep across this 10 foot area and DOTD Maintenance Manual prescribed that sections of the s shoulders that are used repeatedly as a turnout are to be given special attention DOTD had taken no action to repair the defective shoulder which created a significant risk to all who travelled across that area Although Mr Brooks improper operation of the backhoe on the shoulder of the road must be weighed against him the record establishes that he operated the slowmoving backhoe on the shoulder of the highway so as to not impede other 10 motor vehicles travelling on the highway the record does not demonstrate any intent to disregard the law Further the record does not reveal that Mr Brooks was aware of the defect in the shoulder before he encountered it After carefully considering the Watson factors we conclude that DOTD was in a superior position to have knowledge of the shoulder defect and to remedy it Accordingly we assign 80 percent fault to DOTD and 20 percent fault to Mr PDT il E Seat Belt Evidence DOTD also assigns as error the trial court refusal to admit testimony s establishing that Mr Brooks failed to wear the seat belt with which the backhoe was equipped DOTD proffered the testimony of McPhate which established that Mr Brooks was not wearing the seat belt when the accident occurred and if he had been wearing the seatbelt he likely would not have sustained significant injury as a result of the accident DOTD urges that the jury should have been allowed to hear this evidence urging that the prohibition against the introduction of evidence regarding seat belt non use by the driver of a passenger car van or truck as referenced in La R 32 is not applicable to the instant case S 295 1 Louisiana Revised Statutes 32 provides in pertinent part 1 295 A 1 Each driver of a passenger car van or truck having a gross weight of ten thousand pounds or less commonly referred to as a pickup truck in this state shall have a safety belt properly fastened about his or her body at all times when the vehicle is in forward motion The provisions of this Section shall not apply to those cars vans or pickups manufactured prior to January 1 1981 E In any action to recover damages arising out of the ownership common maintenance or operation of a motor vehicle failure to wear a safety belt in violation of this Section shall not be 19 considered evidence of comparative negligence Failure to wear a safety belt in violation of this Section shall not be admitted to mitigate damages The backhoe is not encompassed within the wording of Paragraph A of the referenced statute it is not a passenger car van or truck having a gross weight of ten thousand pounds or less Trial testimony established that the backhoe weighed between 13 and 16 pounds Although the backhoe is a motor 000 000 vehicle as referenced in Paragraph E that paragraph further states that failure to wear a safety belt in violation of this Section shall not be considered evidence of comparative negligence Emphasis added Because a violation of the Section occurs only when a driver of a car van or truck having a gross weight of ten thousand pounds or less fails to properly fasten his safety belt there is no violation if a driver of another type of motor vehicle fails to fasten his safety belt Thus because Mr Brooks failure to wear the seat belt while operating the backhoe was not in violation of this Section we agree that the limitation referenced in Paragraph E of the statute does not apply in this case However for other reasons we conclude that the trial court did not err in excluding the evidence of seat belt nonuse despite the inapplicability of the statute Because there is no statutory or jurisprudential law in Louisiana imposing a duty on a backhoe driver to use a seat belt Mr Brooks was not negligent in failing to secure his seat belt while operating the backhoe See Smith v Regional Transit Authority 559 So 995 997 La App 4th Cir writ denied 566 So 986 2d 2d 20 La 1990 Thus the evidence was not relevant to the issue of Mr Brooks alleged negligence Further the law relative to the duty of an injured party to mitigate damages presumes that further injury has occurred after the initial injury has been inflicted See Bordelon v Affordable Movers L 09 429 p 2 La C App 3d Cir 11 So 1139 1141 Kent v Cobb 35 p 23 La App 22 09 4 3d 663 2d Cir 3 811 So 1206 1220 writ denied sub nom Doug v Cobb 02 02 8 2d 1011 La 6 818 So 772 Thus there is no duty to mitigate damages 02 7 2d prior to sustaining an injury Because Mr Brooks died at the scene of the accident there is no basis to claim that he could have taken action to reduce his injuries after the initial injury was sustained Admitting such evidence to the jury could result in undue prejudice and the trial court properly excluded it I1I CONCLUSION For these reasons we render judgment assessing 80 percent fault to DOTD and 20 percent fault to Mr Brooks Accordingly we amend the trial court s judgment in favor of plaintiffs based on the percentage of fault assessed to Mr Brooks Thus the judgment rendered in favor of Lola Brooks is reduced to 88 130 649 with that amount comprised of 360 in general damages and 00 000 88 130 289 in special damages The judgments rendered in favor of Bridgette Gosnay and Jesse Brooks Jr are each reduced to 120 Appeal costs in the 00 000 8 Under the applicable law prior to the enactment of La R 32 by 1985 La Acts No S 295 1 377 1 effective July 1 1986 our courts generally held that a motorist failure to wear a seat s belt does not constitute contributory negligence reasoning that seat belt nonuse was not a cause of the accident See Hammer v City ofLafayette 502 So 301 304 La App 3d Cir 1987 2d Lawrence v Westchester Fire Ins Co 213 So 784 786 La App 2d Cir writ denied 252 2d La 969 215 So 131 1968 2d 21 amount of 1 are assessed against DOTD The remaining appeal costs in 93 426 the amount of356 are assessed against plaintiffs appellees 73 JUDGMENT RENDERED TRIAL COURT JUDGMENT AMENDED AND AS AMENDED AFFIRMED 22 LOLA BROOKS BRIDGETTE STATE OF LOUISIANA GOSNAY AND JESSE BROOKS JR VERSUS COURT OF APPEAL STATE OF LOUISIANA THROUGH THE FIRST CIRCUIT DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT W NUMBER 2009 CA 1267 PLE J concurring I respectfully concur for the sound reasons expressed and noted by Judge Gaidry Accordingly because I agree with the ultimate result reached in this matter I respectfully concur STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2009 CA 1267 LOLA BROOKS BRIDGETTE GOSNAY AND JESSE BROOKS JR VERSUS STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT GAIDRY J concurring I concur in the result reached only as I disagree with certain conclusions and reasoning in the plurality opinion After review of the jury instructions as a whole I disagree with the s plurality conclusion that the one sentence excerpt from La S R 2 A 299 32 could have so misled the jury as to interdict its findings and to constitute prejudicial error warranting de novo review of that issue I also disagree with the plurality conclusion that the omission of language from s La R 32 and 32 S 71 1likewise misled the jury regarding the propriety 79 of operating the backhoe on the shoulder of the highway I further disagree with the plurality conclusion that Mr Brooks was negligent simply by s virtue of operating the backhoe on the shoulder Rather I conclude that the trial court erred in excluding the evidence relating to his failure to use the available seatbelt and that the jury committed manifest error in failing to 1 find that the manner of Mr Brooks operation of the backhoe during the s turn was negligent and contributed to the occurrence of the accident In a tort action the determination of whether conduct is negligent is not always dependent upon a specific statutory standard of care nor does such a statutory standard necessarily define and delimit the parameters of the general duty to act as a reasonable and prudent person The plurality concludes that because the backhoe was not the type of passenger vehicle defined in La R 32 S 295 1Mr Brooks could not have been under any legal duty to use an available seatbelt A person is under a general legal duty to exercise reasonable care and prudence for his own safety and the duty to use available safety equipment including a seatbelt in the operation of heavy equipment depends upon the particular factual circumstances and not upon the existence of specific statutory or jurisprudential law imposing a duty on a backhoe driver to use a seat belt as postulated by the plurality The preponderance of the evidence suggests that the use of the seatbelt might have protected Mr Brooks from being pinned under the cab of the backhoe after it overturned and thus prevented or minimized the initial injury rather than to merely serve as an instrument to mitigate injuries already inflicted Despite my differences with the plurality opinion on the foregoing issues I agree that DOTD was properly found negligent that the findings of fact were manifestly erroneous as to Mr Brooks contributory negligence s and that the preponderance of the evidence including the evidence improperly excluded warrants the apportionment of 20 of the fault for the accident to him 2
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