Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harris v. State, Department of Transportation and Development

Court of Appeals of Louisiana, Fifth Circuit

June 15, 2017

JAMES HARRIS AND DORIS HARRIS
v.
STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND PROGRESSIVE SECURITY INSURANCE COMPANY

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 60, 962, DIVISION "B" HONORABLE MARY H. BECNEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, JAMES HARRIS AND DORIS HARRIS George B. Recile Barry W. Sartin, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Jeffrey M. Landry William S. Culver, Jr. Lacresha Wilkerson

          Panel composed of Marc E. Johnson, Robert A. Chaisson, Robert M. Murphy, Stephen J. Windhorst, and Hans J. Liljeberg

         JUDGMENT AMENDED AND RENDERED

         RMM

         RAC

         HJL

         DISSENTS IN PART, WITH REASONS

         MEJ

         DISSENTS IN PART, WITH REASONS

         SJW

          ROBERT M. MURPHY JUDGE

         Defendant/Appellant, the State of Louisiana, Department of Transportation and Development (hereinafter referred to as "DOTD"), appeals the judgment in favor of Plaintiff/Appellee, James Harris.[1] For the following reasons, we amend the judgment of the trial court as to allocation of fault and damages awarded and render judgment in favor of plaintiff.

         FACTS AND PROCEDURAL HISTORY

         This appeal stems from an automobile accident which occurred on December 28, 2009 at approximately 4:30 p.m., between a vehicle driven by James Harris and a vehicle driven by Marilyn Berniard. While driving northbound on U.S. Hwy 61 (also known as "Airline Highway") in her Ford Explorer, Ms. Berniard began to drive erratically by drifting from the left lane to the right lane, to the shoulder and back to the left lane and then straddling the two lanes. Eventually, Ms. Berniard's vehicle angled toward the median that divided the northbound and southbound lanes and crossed over into the opposite lanes of traffic. Mr. Harris, driving a GM Hummer and traveling in the left southbound lane of U.S. Hwy 61, moved into the right lane and then onto the shoulder in an attempt to avoid the Berniard vehicle. However, the Harris vehicle was struck by the Berniard vehicle despite Mr. Harris' evasive maneuvers. Mrs. Harris and two of the couple's grandchildren were passengers in the Harris vehicle. As a result of the accident, Mr. Harris sustained injuries to his left leg, foot, and hip, which resulted in amputation of his left leg eight inches below the knee.

         On December 28, 2010, the Plaintiff filed a Petition for Damages against DOTD and Ms. Berniard's insurance carrier, Progressive Security Insurance Company.[2] In the petition, Plaintiff alleged DOTD was negligent in "failing to provide for a median barrier to prevent vehicles traveling in the northbound lanes from crossing over into the southbound lanes of travel on U.S. Hwy 61."

         The matter proceeded to trial against DOTD on April 11-13, 2016. At the conclusion of Plaintiff's presentation of evidence, DOTD orally moved for a directed verdict, pursuant to La. C.C.P. art. 1810, on the basis that Plaintiff failed to prove negligence or fault on the part of DOTD. The trial court denied the motion and found that Plaintiff presented sufficient evidence for a jury to return a verdict based upon the preponderance of evidence. Subsequently, the trial continued. Following the presentation of DOTD's defense, the trial court granted Plaintiff's motion for directed verdict finding that Mr. Harris was not comparatively at fault for the accident. Plaintiff also moved for a directed verdict regarding Ms. Berniard's fault for the accident, averring that the State was 100% at fault, and Ms. Berniard's erratic driving was not the cause of the accident. This motion was denied.

         At the conclusion of the trial, the jury returned a verdict in favor of Plaintiff, attributing 90% of fault to DOTD and 10% to Ms. Berniard for the accident. The jury awarded Plaintiff $5, 000, 000 for past, present and future physical pain and suffering, mental anguish, and disability, $1, 000, 000 for past, present and future loss of enjoyment of life, $343, 788.71 for past medical expenses, $136, 209.15 for future medical expenses, $645, 003 for past lost wages, $315, 966 for future lost wages and loss of earning capacity, and $57, 658 for loss of fringe benefits for a total award of $7, 498, 624.86. In addition, the trial court awarded Plaintiff future medical expenses stating, "all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in La. R.S. 39:1533.2.

         In a judgment rendered on April 22, 2016, applying the jury's findings regarding third-party fault to the monetary award, the trial court determined DOTD's proportionate responsibility. Pursuant to La. R.S. 13:5106(B)(1), the trial court capped DOTD's liability to Mr. Harris for general damages and reduced the jury award to $500, 000 plus interest. The trial court then awarded Mr. Harris $309, 408.84 in past medical expenses, $580, 502.70 in past lost wages; $294, 369.40 for future lost wages and loss of earning capacity, $51, 892.20 for loss of fringe benefits, $1, 726, 174.14 in interest on the judgment at a rate of six percent per annum from December 28, 2010, reimbursement of $2, 950 for the full amount of Mr. Harris's jury deposit, and judicial interest, pursuant to La. R.S. 13:5112(C), and court costs. The trial court found that Mr. Harris was entitled to all future medical payments related to the injuries he sustained in the December 28, 2009 accident and ordered that all medical care and related benefits incurred subsequent to the judgment be paid from the Future Medical Care Fund, as provided in La. R.S. 39:1533.2. The instant appeal followed.

         On appeal, DOTD argues that the trial court abused its discretion in finding any liability on the part of DOTD, [3] assessing 90% liability to DOTD and only 10% liability to Ms. Berniard, and in awarding $5, 000, 000 in general damages for past, present and future mental and physical pain and suffering and $1, 000, 000 for loss of enjoyment of life.

         LAW AND ANALYSIS

         Finding and Allocation of Fault

         DOTD alleges the jury erred in finding any fault on its part for the accident between Plaintiff and Ms. Berniard. It insists Plaintiff failed to carry his burden of proving any liability or negligence on the part of DOTD. DOTD argues that Plaintiff failed to prove that the median was unreasonably dangerous, that the median did not meet standards at the time of the original construction or at the time of any subsequent modifications, and that there was no major reconstruction of the roadway in question that would have required it to bring the roadway and the appurtenances to modern standards. DOTD further contends that Plaintiff failed to prove that it had actual or constructive notice of any defect in the median and failed to remedy it in a reasonable period of time because there was no evidence presented of any prior complaints concerning the median or any evidence of prior accident history at that particular location. DOTD also argues Plaintiff failed to prove by a preponderance of the evidence that a jersey barrier was required at the location of the accident. Alternatively, DOTD argues that the trial court abused its discretion in assessing 90% fault and only 10% fault to Ms. Berniard.

         Plaintiff maintains that the judgment of the trial court and the jury's findings are reasonably supported in all respects by the record as a whole. They contend the jury was presented with evidence that the location of the accident contained a defect that presented an unreasonable risk of harm in that the barrier curb was a defect that presented motorists with an unreasonably dangerous condition. As such, Plaintiff avers the jury's factual determinations are reasonably supported by the evidence and should not be determined to be manifestly erroneous.

         The appropriate standard for appellate review in this case is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, 14-2592 (La. 12/08/15), 193 So.3d 1110, 1115. It is well settled that a court of appeal may not set aside a trial court's finding of fact in the absence of "manifest error" or unless it is "clearly wrong." Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). The Supreme Court has proclaimed 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). Lomont v. Myer-Bennett, 14-2483 (La. 06/30/15), 172 So.3d 620, 633. Although deference to the factfinder should be accorded, the Louisiana Supreme Court has instructed that an appellate court has a constitutional responsibility to review the entire record and to determine whether, as a whole, it supports the judgment rendered by the trial court. Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099 (La. 07/05/94), 639 So.2d 216, 221. Nevertheless, even though we are required to give deference to the trial court's findings, we are not obliged to "rubberstamp" all factual determinations made by the trial court. Lemont, 172 So.3d at 633.

         In a case against DOTD the plaintiff has the burden of proving: (1) DOTD had custody of the thing that caused the plaintiff's injuries; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause-in-fact of the plaintiff's injuries. Goza v. Parish of West Baton Rouge, 08-0086 (La.App. 1 Cir. 05/05/09), 21 So.3d 320, 329, writ denied, 09-2146 (La. 12/11/09), 23 So.3d 919, cert. denied, 560 U.S. 904, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010).

         DOTD has a duty to continually maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. Campbell v. La. Dep't of Transp. & Dev., 94-1052 (La. 01/17/95), 648 So.2d 898, 901. This duty, however, does not render DOTD the guarantor of 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 v. Cockerham, 08-0762 (La. 01/21/09), 5 So.3d 839, 858.

         Whether an unreasonably dangerous defect caused the plaintiff's damages is a finding of fact and an appellate court may not overturn a jury's finding of fact in the absence of manifest error or unless clearly wrong. Goza, 21 So.3d at 334. Generally, when more than one cause combines to bring about a plaintiff's harm, the substantial factor test is used to determine whether a particular defendant's conduct is a cause-in-fact in bringing about the plaintiff's harm. Graves v. Page, 96-2201 (La. 11/07/97), 703 So.2d 566, 570; Goza, 21 So.3d at 334. The substantial factor test works well where there are multiple causes-in-fact, but ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.