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Royer v. State, Department of Transportation & Development

Court of Appeals of Louisiana, Third Circuit

January 11, 2017




          Victoria R. Murry, Assistant Attorney General Louisiana Department of Justice COUNSEL FOR DEFENDANT/APPELLANT:

          State of Louisiana, Department of Transportation & Development Scott J. Chafin, Jr. Julie Payne Johnson J. Cole Sartin Verity Gentry Bell Gregorio, Chafin & Johnson, L.L.C. COUNSEL FOR PLAINTIFF/APPELLEE: Thomas C. Royer.

          Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion, Judges.

          GREMILLION, Judge.

         The defendant-appellant, the State of Louisiana through the Department of Transportation and Development (DOTD), appeals a jury verdict in favor of the plaintiff-appellee, Thomas C. Royer, for injuries he sustained after hydroplaning on Louisiana Highway 1 in Natchitoches. For the following reasons, we affirm in part, reverse in part, and remand with instructions.


         In August 2006, Royer was seriously injured when he hydroplaned on Louisiana Highway 1 in Natchitoches Parish, while in the course and scope of his employment. In July 2007, he filed suit against DOTD, alleging that his damages were due to an unreasonably dangerous condition in the roadway. In July 2008, Stonehurst Commercial Insurance Company, the workers' compensation insurer of Royer's employer, Mobile Air of Louisiana, LLC, filed a petition of intervention, asserting its right to reimbursement. However, in February 2013, Stonehurst settled with Royer for $150, 000 and waived its lien for repayment of benefits. In September 2015, DOTD filed a motion in limine seeking credit for payments made by Stonehurst, which the trial court later denied. In October 2015, DOTD filed for supervisory writs to this court from the denial of its motion in limine, which we denied.

         A three-day jury trial was held from October 12-15, 2015. The jury returned a verdict finding DOTD 100% at fault in causing the accident and awarded damages as follows:

Past Medical Expenses

$292, 105.49

Future Medical Expenses

$681, 376.48

Future Loss of Support

$1, 500, 000.00

Past Lost Wages

$330, 310.00

Future Lost Earnings

$763, 131.00

Mental and Physical Pain and Suffering of Thomas Royer

$200, 000.00

Loss of Enjoyment of Life


         DOTD filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a motion for new trial in October 2015. Following a December 2015 hearing, the motion was denied.

         DOTD appeals the jury's verdict and the trial court's denial of its motion for JNOV or, alternatively, motion for new trial. DOTD assigns as error:

1. The trial court erred in denying the DOTD's Motion in Limine on the issue of the collateral source rule.
2. The trial court erred in signing a judgment on jury verdict, incorporating the jury verdict form which was internally inconsistent and resulted in double recovery of future lost wages to the plaintiff, or alternatively failed to properly classify loss of supportive services as future medical expenses.
3. The trial court erred in signing a judgment on jury verdict that failed to incorporate the mandatory language set forth in R.S. 13:5106 with regard to Future Medical Expenses to be paid through the Future Medical Fund.
4. The trial court erred in signing judgment on jury verdict that awarded legal and judicial interest on future medical care expenses that are to be paid from the Future Medical Care Fund.
5. The jury's verdict in this case on the issue of liability is manifestly wrong where the DOTD maintained the roadway at issue in accordance with DOTD standards for maintenance.


         Manifest Error-Liability

         We will first address DOTD's assignment of error claiming that the jury erred in finding it liable because a finding that it was not liable would render the remaining issues moot. It does not appear that DOTD seriously contests the matter of liability, as it is afforded only one page of its thirty-page brief. Nevertheless, we will review the jury's finding using the manifest error/clearly wrong standard.

         The supreme court recently summarized the manifest error standard of review:

This court has announced a two-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings. See id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. See id.

Lobell v. Rosenberg, 15-247, p. 10 (La.10/14/15), 186 So.3d 83, 90.

. . . [I]t is the duty of the Highway Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975). In the performance of this duty, the character of the road and the probable traffic must be kept in view, as the requirement of reasonable safety implies reasonable safety for any lawful or proper purpose. Kilpatrick v. State, 154 So.2d 439 (La.App.2d Cir. 1963). In order to hold the Department of Highways liable for an accident caused by an unsafe or hazardous condition it must be shown that the Highway Department had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and warn motorists of its presence and failed to do so. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975).

United States Fidelity and Guaranty Co. v. State of Louisiana, through the Department of Highways, 339 So.2d 780, 785 (La. 1976). We will review the testimony and evidence presented at trial.

         Trooper Jason Sanders, a sergeant with the Louisiana State Police, arrived at the scene of the crash. He said that there was water "flowing down the roadway" in the ruts. Trooper Sanders said that as he approached the crash scene:

[W]hen I got to the bottom of the hill, my car hydroplaned and it, once it came back in contact with the roadway, I began going up the hill and I could feel, I could feel the movement in my vehicle. I wouldn't say it, it wasn't quite a hydroplane but it was movement.

         Several pictures taken by Trooper Sanders at the scene of the accident were admitted into evidence. They show significant damage to the Mobile Air work truck that Royer was driving but particularly to the driver's side. The pictures also depict water standing in the ruts of the roadway, even though it was no longer raining. Royer was unresponsive at the scene, so Trooper Sanders was unable to question him. Besides the hydroplaning, Trooper Sanders opined that inattentiveness of the driver and vehicle conditions could have been contributing factors to the accident.

         Joe Haynes, meteorologist in Shreveport for KTBS and a forensic meteorologist, testified that he analyzed various data sources to determine the weather conditions at the approximate time (1:30 p.m.) the accident occurred. He testified that more likely than not it was raining at the time the accident occurred.

         Jerry Burnaman, a former Engineer Tech 7 DOTD employee at the time of the crash, testified that in order to maintain Louisiana highways in a reasonably safe condition, water should flow off of the roadway rather than accumulate in ruts. Burnaman agreed that if the ruts were full of water, and water was flowing downhill in the ruts, the roadway had not been properly maintained.

         Jonathan Lachney, the Assistant District Administrative Engineer for DOTD in Alexandria, Louisiana, testified that a Parish Maintenance Supervisor travels the roads bi-weekly.

         Scarlett Pomerantz testified that she has lived on Highway 1, less than a quarter of a mile away from where the accident occurred, for fifteen years. Pomerantz testified that she called DOTD twice to report the ruts in the road and the need for a sign, but that as of the date of trial, the ruts were still there. She said that she has seen several single-car wrecks in the same area when the roads are wet, including an 18-wheeler that flipped over.

         Thurgood Flanagan, a DOTD employee from 1972-2007, was the Natchitoches Parish Maintenance Supervisor at the time of the accident. He planned and supervised maintenance of the roads in Natchitoches Parish. Flanagan reviewed his inspections records indicating that he had driven over the roadway where the accident occurred at least twenty-six times a year. However, he said that he had actually driven over that roadway at least fifty-two times per year and that he knew what condition the roadway was in. Flanagan said that DOTD knew the road held water and that employees would routinely go out and drain water off of the road by making a trench with a shovel in the area where the shoulder meets the grass.

         Flanagan testified that between 1997 and 2005, DOTD crews went out to the location of the accident nineteen times to drain water from the roadway, which took many hours each time. When questioned why DOTD did not just fix the ruts, Flanagan stated "my belief was where that wreck happened it wasn't, it wasn't bad." Flanagan testified that he knows nothing about cross-slopes, road grades, or rut-depth. He said that he did not notice a problem with this area of the roadway, and, if he had, he would have had a crew go out and fix it.

         Rhett Desselle, the Assistant District Administrator of DOTD over seven parishes, including Natchitoches, is responsible for bridge inspection and maintenance, traffic engineering and operations, and equipment fleet and repair shops. Desselle said that the roadway in question came into existence in 1925 when there was no design standard for cross-slope. Desselle discussed a project in 1991 involving overlay and widening of an existing rural road. He said that in 1991, a pavement cross-slope of 2.5% would have been desirable. However, Desselle testified that pursuant to La.R.S. 48:35(B), Chief Engineers are allowed to make exceptions to design standards. He said the guidelines are examples to work toward, but that throughout Louisiana there are road situations in which DOTD is constrained from meeting all of the guidelines.

         Desselle testified that he does not know what the cross-slope of the roadway in question is because he had never measured it or found out that information, nor did he know what the cross-slope was on the date of the accident. Desselle, who identified himself as the corporate representative of the State who was there to testify about policy, procedure, and general history for the overall department, stated he took responsibility for not knowing the cross-slope of the area in question.

         Regarding the six hundred feet of rutting in the roadway, Desselle testified that there was not a specific threshold for rutting repair. He said that DOTD would make the repairs based on recommendations from supervision and maintenance crews, accident reports, and recommendations from the Louisiana State Police following reports of dangerous areas on the roadway. When asked why DOTD did not fix the ruts in the roadway, Desselle testified:

There, there was, no indication from anything that we were aware of that the road was not safe. There was [sic] no accidents that we were aware of. Uh, we have complaint records. There was [sic] no complaints that I was aware of that uh, there was issues with the roadway. So the visual inspections that Mr. Flanagan was doing every two weeks, and the inspections that they were doing during the rainfalls and after the rainfall events, everything was functioning, was functioning and was safe, to a reasonably prudent driver.

         Desselle testified that Highway 1 where the accident occurred was originally intended to become a four-lane highway; therefore, there was only a one-way slope on the road. However, the road was never four-laned. In the meantime, various overlay or resurfacing projects were completed by DOTD. Regarding the 1991 project, Desselle stated:

We put an inch and a half of wearing course which is the top layer and two inches of binder and then we, we surfaced the existing shoulder and then we did some coal plaining like the plans say. Uh, the note in the plans say develop a .025 cross slope where possible. Again we had design standards at the time these plans were put together. They were effective March 1990. They were called new overlay standards and, and uh, they did say that and I read that earlier, that it did require a .025 in the design standards. But because we had already paved, we had a roadway like this and we had shoulders on each side. We can't come back and make this thing a roof top. There's, there's just, you have to basically tear the roadway up and start over. Well that's not the type of work we were coming in to do. . . . And that's the reason why uhm, we had a design exception that we didn't have to meet the design standards. Because the scope of the work wasn't to build a new roadway. It was just to resurface.

         Thus, Desselle affirmed that although the design standards called for 2.5% cross-slope, "it wasn't possible at this location." However, on cross-examination he stated that none of the plans noted that it was not possible to meet the design standards.

         Dr. John Glennon, an engineer since 1964, testified that his education includes traffic engineering, and highway design, maintenance, and safety. In 1964, Dr. Glennon began working for the California Division of Highways conducting highway research work, and he continued in this line of work around the country. Dr. Glennon stated that his work encompassed evaluation of highway cross-slope, rut-depth, and surface texture. His work further involved determining if road ...

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