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Johnson v. State of Louisiana Through Department of Transportation and Development

Court of Appeals of Louisiana, First Circuit

April 3, 2019


          On Appeal from the Twenty-Third Judicial District Court In and for the Parish of Ascension State of Louisiana Trial Court No. 111, 837 c/w 111, 948 The Honorable Jason M. Verdigets, Judge Presiding

          Jeff Landry Attorney General Andrew Blanchfield Assistant Attorney General Baton Rouge, Louisiana Attorneys for Defendant/Appellant, The State of Louisiana through the Department of Transportation and Development

          Pamela L. Ashman Bellevue, Washington Attorney for Plaintiff/Appellee, Mitchell Johnson, Jr.

          Eulis Simien, Jr. Baton Rouge, Louisiana Attorney for Plaintiffs/Appellees, David and Shayla Lanus

          Andrew W. Eversberg Baton Rouge, Louisiana Attorney for Defendants/Appellees, Shawnette Taylor and Geico Casualty Company


          PENZATO, J.

         This is an appeal by Appellant, the State of Louisiana through the Department of Transportation and Development (DOTD), seeking to reverse a jury verdict in favor of Appellees, Mitchell Johnson, Jr., and David and Shayla Lanus. Mr. Johnson answered the appeal seeking to increase the general damages awarded to him and reduce the allocation of fault assigned to Shawnette Taylor. The Lanuses answered the appeal seeking to reduce the allocation of fault assigned to Ms. Taylor. For the reasons set forth below, we affirm the trial court judgment, and deny the answers to the appeal.


         On June 24, 2014, Mitchell Johnson, Jr., David Lanus, Sarai Lanus, age nine, and Daylon Lanus, age six, were fishing on the side of Louisiana Highway 928, also known as Bluff Road, in Prairieville, Louisiana. At the same time, Ms. Taylor was driving her vehicle on Highway 928 and left the roadway striking the individuals who were fishing on the side of the road, resulting in the deaths of Sarai and Daylon Lanus and injuries to Mr. Johnson and Mr. Lanus. Mr. Johnson filed suit against DOTD, Ms. Taylor, and Geico Casualty Company, her automobile liability insurer. His suit was consolidated with another suit filed against the same defendants by David and Shayla Lanus, the parents of Daylon and Sarai, who filed a wrongful death claim for their injuries from the deaths of their children, as well as a survival action for their children, and for David's own injuries.

         The plaintiffs alleged that the area of the accident was in the care and custody of DOTD and that DOTD was negligent in the construction and maintenance of Highway 928. The plaintiffs also alleged that Ms. Taylor was negligent in leaving the paved roadway.

         After a trial, the jury found that the roadway or right-of-way was defective, that it created an unreasonable risk of harm, and that DOTD had knowledge of this condition. The jury awarded damages to all plaintiffs and assessed DOTD with sixty percent fault and Ms. Taylor with forty percent fault. On January 11, 2017, the trial court signed a judgment in accordance with the jury verdict. On February 6, 2017, the trial court signed a document entitled "Supplemental Judgment With Written Reasons."[1] It is from both these documents that DOTD appeals. This court only has jurisdiction over the January 11, 2017 judgment.


         DOTD claims that the following errors were committed at the trial court:

(1) The jury improperly imposed a duty to protect and safeguard individuals who were neither motorists nor pedestrians, were more than 13 feet beyond the roadway, and whose presence and activity bore no connection to the roadway or its function;
(2) The jury imposed liability for a harm well beyond any reasonable scope of the duty owed by the DOTD;
(3) The jury incorrectly imposed a duty to comply with modern standards in connection with a rural roadway where there had been no major reconstruction under the law, there were no prior accidents, and nothing distinguished this location as in need of repair from the multiplicity of other areas in greater need of [DOTD's] limited road funds;
(4) The jury improperly identified an unreasonably dangerous condition under facts which cannot support this finding through a faithful application of the "risk-utility" test set by the Louisiana Supreme Court;
(5) The jury failed to consider or give due regard to the fiscal and financial inability of [DOTD] to maintain its roadways in anything more than a reasonably safe condition; in so doing, the jury's verdict improperly holds [DOTD] strictly liable in violation of the principles set forth in Myers v. State Farm Mut. Auto Ins. Co., 493 So.2d 1170 (La. 1986), and similar cases;
(6) The jury, applying an improper and inflated duty, identified a breach when none existed under the facts and governing law;
(7) The jury erred in identifying causation in a case where the tortfeasor, either as a result of a seizure or in a gross over-reaction to a phantom vehicle, exited the roadway quickly, made no attempt to return to the roadway, and struck persons off of the road one second after leaving the pavement;
(8) The jury, in violation of [La.] R.S. 9:2800, identified liability despite the absence of evidence of any sort to establish, or even suggest, that [DOTD] knew or should have known of an unreasonably dangerous condition in a location with no prior accident history, in a straight portion of the roadway, and where it neither knew nor should have known that one area off of the road was allegedly a fishing spot;
(9) The jury's verdict was in error because no road defect caused the tortfeasor/driver to leave the roadway;
(10)The trial court grossly misapplied the "401-403" balancing test when it barred critical evidence that the tortfeasor had a twenty-year seizure condition which was the most likely cause of the accident; and,
(11)The jury erroneously assessed only forty percent fault to Ms. Shawnette Taylor when her reckless conduct was the primary, if not sole cause of the accident.


         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, and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Accordingly, appellate review of the factual circumstances and evidence of the case will not be the basis for reversal of the trial court's judgment, in the absence of manifest error, even if the court of appeal is convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, 549 So.2d at 844. If the factual findings are found to be reasonable and supported by the record, the trial court's determinations must be given much discretion, especially in regard to the credibility of witness testimony, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So.2d at 844. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep 't of Tramp. & Dev., 617 So.2d 880, 883 (La. 1993). Furthermore, in applying the manifest error standard where the jury makes a finding of liability on the part of DOTD, the reviewing court must presume that the jury concluded that the plaintiff carried the four-pronged burden of proof. Netecke v. State, Dep't of Transp. & Dev., 98-1182 (La. 10/19/99), 747 So.2d 489, 495.

         The reviewing court must review the record in its entirety to determine whether the factfinder's finding was clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882-83. The Louisiana Supreme Court applies a two-part test to determine if a factfinder's determinations warrant reversal: (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). Graves v. Page, 96-2201 (La. 11/7/97), 703 So.2d 566, 573.


         The Roadway and Right of Way

         Highway 928 has existed since the 1930's and began as a gravel roadway. In 1965, Highway 928 was modified from a gravel, shell, nine-foot roadway to a twenty-foot wide hard surface roadway. In 1985, 2006, and 2010, overlay work was done on Highway 928, some of which widened the driving portion of the roadway, but narrowed the shoulder.

         At the time of the accident, beyond the white fog line, there was a six-inch asphalt shoulder followed by twelve inches of flat grass. Adjacent to the eighteen-inch shoulder was a steep slope that descended into a body of water. DOTD refers to the area as a "ditch" throughout its brief. However, the testimony at trial was that the area of water was over seventy feet wide, at least six feet deep, and used for fishing. Photographs introduced into evidence reflected that water was present on both sides of the roadway with large pipes underneath allowing water to flow back and forth. The area was also referred to as a very large swamp area, a bayou, and/or a canal during the trial. On the date of the accident, the plaintiffs were fishing near a cement culvert headwall which was 13.8 feet from the paved portion of the roadway and at the bottom of the slope.

         Ms. Taylor's Testimony

         Ms. Taylor testified that she drove Highway 928 regularly, and on the date of the accident was driving a Nissan Armada. She did not see the plaintiffs before the accident, and was traveling about 40 to 45 miles per hour, below the posted speed limit of 55 miles per hour. She left the roadway at a straight portion between two curves. She testified that a vehicle swerved toward her lane and she turned the steering wheel just to move over and get back in the lane.[2] When she tried to get back on the roadway, her steering wheel started shaking and she stated nothing was moving. She testified that her car was being pulled and that she did everything she could do to get it back onto the roadway.

         Trooper Hall's Testimony

         Trooper Joseph Hall, who investigated the accident, testified that the speed limit in the area was 55 miles per hour, and he also described the area of the accident as a straight piece of roadway between two curves. According to Trooper Hall, at the accident scene, Ms. Taylor was very distraught, crying, and appeared overwhelmed. He testified that although Ms. Taylor gave a statement at the scene, she came into the police station a few days later and gave another statement that differed somewhat from the first one. During the statement given at the police station, Ms. Taylor stated that a vehicle heading in the opposite direction got close to the center line, causing her to move to the outside of her lane to avoid being sideswiped when her vehicle ran off the roadway. Ms. Taylor reported to Trooper Hall that when she began going down the embankment, her steering wheel began to shake, she closed her eyes, and continued down.the hill. He further testified that the day was clear, the road was in good condition and free of debris, there were no tire marks on the roadway, and there was no drop-off from the roadway to the grass shoulder.

         Mr. Elisar's Testimony

         Aaron Elisar, the DOTD project engineer, testified that a maintenance superintendent who works under him performs bi-weekly inspections of the roadway to look for dangerous conditions such as dips, potholes, irregular striping, drop-offs, and damage to existing guardrails. The maintenance superintendent should also look for the same dangerous conditions in the areas of the right-of-way. Mr. Elisar travelled Highway 928 regularly, but neither he nor the maintenance superintendent performed inspections to determine if a site would meet AASHTO[3] standards warranting guardrail placement. Mr. Elisar maintained that guardrails are usually installed on the edge of a bridge to protect vehicles from the blunt end of the bridge. The culvert at the site of this accident, however, had no blunt end.

         While he lived near the area, Mr. Elisar testified that he had never seen anyone fishing in the area of the accident. He indicated that DOTD does not own "No Fishing" signs. He stated that the site of the accident was a rural area with no pedestrian facilities, such as buildings or sidewalks. DOTD considered pedestrians predominantly in urban settings and where there were already in existence pedestrian facilities or areas where pedestrians may congregate, such as near a school. Therefore, DOTD did not anticipate pedestrians to be present in the area of the accident. However, Mr. Elisar acknowledged he was aware of a right to fish in this area.

         Other Lay Testimony

         There was also evidence presented to the jury that individuals fished at this location for a number of years. Mitchell Johnson, Sr., Mr. Johnson's father, testified that he had been fishing in this location as long as he could remember and brought Mr. Johnson there as a child, along with Mr. Lanus, his cousin. Mitchell Johnson, Sr., also testified that on one occasion the "police" were called by a nearby resident regarding parking on the other side of the road. The officer, while advising that he could not restrict fishing, instructed him to fish on the opposite side of the road, which was the side where this accident ultimately occurred.

         Jason Darville, Mr. Lanus's brother, testified that the two of them and their parents fished "plenty of times" in the location of this accident when they were younger. He also testified that he often saw people fishing there, and sometimes had to choose a different spot because other people were already at that location.

         David Darville, Mr. Lanus's father, also testified that he took Mr. Lanus fishing in this area when he was a child and that other people fished in this area "all of the time." David Darville further stated that he previously received a ticket from a game warden in this area for fishing without a license. He maintained ...

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