SHERRY BOOTHE AND BARRY BOOTHE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, AMBER AND AMANDA BOOTHE
STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND PARISH OF EAST BATON ROUGE
Appealed from the 19th Judicial District Court In and for the
Parish of East Baton Rouge, State of Louisiana Trial Court
No. C585216 Honorable Janice Clark, Judge
MELANIE NEWKOME JONES ATTORNEYS FOR BATON ROUGE, LA
PLAINTIFFS -APPELLEES AND SHERRY BOOTHE AND BARRY BOOTHE,
DAVID L. BATEMAN INDIVIDUALLY AND ON BEHALF OF BATON ROUGE,
LA THEIR MINOR CHILDREN, AMBER AND AMANDA BOOTHE
LANDRY ATTORNEYS FOR ATTORNEY GENERAL DEFENDANT -APPELLANT
THOMAS A. LANE STATE OF LOUISIANA THROUGH THE ASSISTANT
ATTORNEY GENERAL DEPARTMENT OF TRANSPORTATION BATON ROUGE, LA
BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
State of Louisiana, through the Department of Transportation
and Development ("DOTD"), appeals the trial
court's grant of a judgment notwithstanding the verdict
(JNOV) in this matter. For the reasons that follow, we vacate
in part, amend, and as amended, affirm.
AND PROCEDURAL BACKGROUND
case arises out of a single-car accident that occurred on
December 12, 2008, in East Baton Rouge Parish. Sherry Boothe
was operating her 2004 Chrysler Pacifica eastbound on
Greenwell Springs Road, after bringing her daughter to
school. There had been a snow event in Baton Rouge, which,
according to Mrs. Boothe, caused the school's closure the
day before. As Mrs. Boothe crossed the Comite River Bridge to
return home, she lost control of her vehicle, went across the
median, flipped, and came to rest in the opposite lane of
oncoming traffic. According to Mrs. Boothe, after exiting her
vehicle, she immediately knew she had hit either ice or oil
because of how slippery the road was.
Boothe noted that traffic was heavy going into Baton Rouge
that morning, but stated that she had no problems traversing
the bridge on the way to bring her daughter to school.
According to Mrs. Boothe, following the accident, she was
able to immediately open her door and stand up. However,
because of the pain she was experiencing, Mrs. Boothe had to
sit back down quickly. She kept saying to others at the
scene, "Get that bridge closed." Mrs. Boothe
expressed her fear that another motorist would come along,
skid on the bridge, and roll right into her. Mrs. Boothe did
not know if there was sand on either side of the bridge,
adding, "I wouldn't think there was any [sand] on
the side that had the black ice but." Mrs. Boothe stated
that "there was no reason for [her] to be going
over" the posted speed limit of 50 miles per hour. When
asked if there was any reason why she should have taken extra
precautions that morning, Mrs. Boothe replied:
I mean, not really. I had just come over that bridge and
there was no sign of any problem. So, I don't recall when
I entered going over it again thinking there could be ice on
this bridge or, you know, I just ~ there was just nothing to
indicate there were any problems with that bridge.
result of the accident, Mrs. Boothe suffered a fractured
cervical disc at C-2 and an aggravation of a preexisting
congenital condition, neither of which required surgery. She
was treated conservatively, including wearing a hard cervical
collar for approximately three months.
Boothe and her husband Barry, individually and on behalf of
their minor children ("plaintiffs"), filed a
petition against DOTD seeking damages related to the
After extensive discovery, the case was tried to a jury on
January 25 and 26, 2017. On January 26, 2017, the jury
answered "No" to the following jury interrogatory:
"Was the State of Louisiana, Department of
Transportation and Development at fault for Sherry
Boothe's accident on December 12, 2008?" The jury
was polled, confirming a 9-3 verdict, and the verdict was
made the judgment of the trial court in a written judgment
signed by the trial court on February 22, 2017.
plaintiffs filed a motion for a JNOV and a motion for a new
trial. Following a hearing on June 12, 2017, the trial court
granted the motion for JNOV and rendered judgment in favor of
the plaintiffs in the amount of $919, 191.20, plus judicial
interest until paid, and all court costs. The trial court
also conditionally granted the motion for new trial in favor
of the plaintiffs. The trial court signed a judgment in
accordance with these findings on November 2, 2017.
from this judgment that DOTD has appealed, assigning the
following specifications of error:
I. The trial court erred in granting a JNOV, which
effectively deprives [DOTD] of a trial by jury.
II. The trial court awarded damages pursuant to the JNOV,
which are excessive or not recoverable based on the evidence
presented and available to the jury.
III. The form of judgment concerning future medical exposure
is improper. Future medical expense should be awarded in
accordance with La. R.S. 13:5106 and La. R.S.
order for DOTD to be held liable, the plaintiffs must prove
that (1) DOTD had custody of the thing which caused
plaintiffs' damages, (2) the thing was defective because
it had a condition which created an unreasonable risk of
harm, (3) DOTD had actual or constructive notice of the
defect and failed to take corrective measures within a
reasonable time, and (4) the defect was a cause-in-fact of
plaintiffs' injuries. Cormier v. Comeaux,
98-2378 (La. 7/7/99), 748 So.2d 1123, 1127. DOTD's
general duty is to maintain the public roadways in a
condition that is reasonably safe and does not present an
unreasonable risk of harm to the motoring public exercising
ordinary care and reasonable prudence. Whether DOTD breached
its duty to the public, by knowingly maintaining a defective
or unreasonably dangerous roadway, depends on all the facts
and circumstances on a case by case basis. Falcon v.
Louisiana Dept. of Transp., 2013-1404 (La.App. 1 Cir.
12/19/14), 168 So.3d 476, 483, writ denied,
2015-0133 (La. 4/10/15), 163 So.3d 813.
every imperfection or irregularity will give rise to
liability, but only a condition that could reasonably be
expected to cause injury to a prudent person using ordinary
care under the circumstances. The existence of an
unreasonable risk of harm may not be inferred solely from the
fact that an accident occurred. Netecke v. State ex rel.
DOTD, 98-1182 (La. 10/19/99), 747 So.2d
489, 495. JUDGMENT NOTWITHSTANDING THE VERDICT
is a procedural device authorized by La. Code Civ. P. art.
1811, by which the trial court may modify the jury's
findings to correct an erroneous jury verdict. Wood v.
Humphries, 2011-2161 (La.App. 1 Or. 10/9/12), 103 So.3d
1105, 1109, writ denied, 2012-2712 (La. 2/22/13),
108 So.3d 769. Article 1811 states, in pertinent part:
A. (1) Not later than seven days, exclusive of legal
holidays, after the clerk has mailed or the sheriff has
served the notice of judgment under Article 1913, a party may
move for a judgment notwithstanding the verdict. ...
(2) A motion for a new trial may be joined with this motion,
or a new trial may be prayed for in the alternative.
B. If a verdict was returned the court may allow the judgment
to stand or may reopen the judgment and either order a new
trial or render a judgment notwithstanding the verdict. ...
C. (1) If the motion for a judgment notwithstanding the
verdict is granted, the court shall also rule on the motion
for a new trial, if any, by determining whether it should be
granted if the judgment is thereafter vacated or reversed and
shall specify the grounds for granting or denying the motion
for a new trial. If the motion for a new trial is thus
conditionally granted, the order thereon does not affect the
finality of the judgment.
(2) If the motion for a new trial has been conditionally
granted and the judgment is reversed on appeal, the new trial
shall proceed unless the appellate court orders otherwise.
(3) If the motion for a new trial has been conditionally
denied and the judgment is reversed on appeal, subsequent
proceedings shall be in accordance with the order of the
1811 does not set out the criteria to be used when deciding a
motion for JNOV. Wood, 103 So.3d at 1110. However,
the Louisiana Supreme Court has established the standard to
be used in determining whether a JNOV is legally called for,
JNOV is warranted when the facts and inferences point so
strongly and overwhelmingly in favor of one party that the
trial court believes that reasonable persons could not arrive
at a contrary verdict. The motion should be granted only when
the evidence points so strongly in favor of the moving party
that reasonable persons could not reach different
conclusions, not merely when there is a preponderance of
evidence for the mover. The motion should be denied if there
is evidence opposed to the motion which is of such quality
and weight that reasonable and fair-minded persons in the
exercise of impartial judgment might reach different
conclusions. In making this determination, the trial court
should not evaluate the credibility of the witnesses, and all
reasonable inferences or factual questions should be resolved
in favor of the non-moving party. This rigorous standard is
based upon the principle that "[w]hen there is a jury,
the jury is the trier of fact."
Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La.
10/30/00), 772 So.2d 94, 99 (citations omitted).
case such as this, the trial court must first determine
whether the facts and inferences point so strongly and
overwhelmingly in favor of the plaintiffs that reasonable
jurors could not arrive at a contrary verdict. Stated simply,
if reasonable persons could have arrived at the same verdict,
given the evidence presented to the jury, then a JNOV is
improper. Cavalier v. State, ex rel. Dept. of Transp.
and Development, 2008-0561
(La.App. 1 Or. 9/12/08), 994 So.2d 635, 644.
appellate court reviewing a trial court's grant of a JNOV
employs the same criteria used by the trial court in deciding
whether to grant the motion. See Smith v. State, Dept. of
Transp. and Development, 2004-1317 (La. 3/11/05), 899
So.2d 516, 525. In other words, the appellate court must
determine whether the facts and inferences adduced at trial
point so overwhelmingly in favor of the moving party that
reasonable persons could not arrive at a contrary finding of
fact. If the answer is in the affirmative, then the appellate
court must affirm the grant of the JNOV. However, if the
appellate court determines that reasonable minds could differ
on that finding, then the trial court erred in granting the
JNOV, and the jury verdict should be reinstated. Neither the
trial court nor this court may substitute its evaluation of
the evidence for that of the jury, unless the jury's
conclusions totally offend reasonable inferences from the
evidence. Gutierrez v. Louisiana Dept. of Transp. and
Development, 2011-1774 (La.App. 1 Cir. 3/23/12), 92
So.3d 380, 386, writ denied, 2012-1237 (La.
9/21/12), 98 So.3d 343.
now to a review of the evidence to determine whether it
"overwhelmingly" supports the plaintiffs'
contention that the evidence presented at trial clearly
established liability on behalf of DOTD and the resulting
damages to the plaintiffs.
crux of the plaintiffs' case at trial was that DOTD was
negligent in failing to treat the roadway's icy
conditions or to close the roadway until it was safe to
travel. The plaintiffs maintained that there was ice on the
Comite River Bridge that was not treated until after the
accident in question. In support of their motion for JNOV,
plaintiffs noted that during deliberations, the jury
requested several items for review, including the police
report, the meteorologist's report, the deposition of
Conard Monroe, and the DOTD work orders. Plaintiffs argued,
however, that because the work orders were the only items in
evidence and available for review, "the fact that [the
jury was] not allowed to see the items they requested,
influenced them to determine their ultimate decision that the
plaintiffs had not proven their case."
response to DOTD's appeal herein, the plaintiffs maintain
that all four requirements necessary to prove a case against
DOTD were satisfied, i.e., DOTD's custody of the
roadway, the icy condition that presented an unreasonable
risk of harm, DOTD's requisite knowledge of the defect in
question, and causation. Thus, the plaintiffs contend, JNOV
was appropriate in this case as the trial court properly
found that the ...