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
WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF E. BATON ROUGE
matter, we are called upon to decide whether the district
court erred in granting judgment notwithstanding the verdict
in favor of the plaintiff and in awarding damages. For the
reasons that follow, we affirm the granting of the judgment
notwithstanding the verdict, but amend the judgment with
respect to damages.
AND PROCEDURAL HISTORY
December 11, 2008, the Baton Rouge area experienced a
snowstorm. The storm was of sufficient magnitude to result in
the issuance of a winter weather advisory and closure of area
schools. The schools reopened the next day as the weather
approximately 8:00 a.m. on the morning of December 12, 2018,
Sherry Boothe was operating her vehicle eastbound on
Greenwell Springs Road, after bringing her daughter to
school. As Ms. Boothe crossed the Comite River Bridge to
return home, she lost control of her vehicle. Her vehicle
crossed the median, flipped, and came to rest in the opposite
lane of oncoming traffic. According to Ms. Boothe, after
exiting her vehicle, she believed she had hit either ice or
oil because the road was slippery.
Chad Ruiz investigated the accident. He found ice in the fog
line, the centerline, and the opposite fog line of the road.
As a result, Lt. Ruiz closed both sides of the roadway and
remained on the scene until the road was sanded.
Ms. Boothe and her husband, individually and on behalf of
their two minor daughters, filed the instant suit against the
State of Louisiana, through the Department of Transportation
and Development ("DOTD"), seeking personal injury
damages arising from the accident. After extensive discovery,
the matter proceeded to a two-day jury trial.
trial, Ms. Boothe testified she traveled the Comite River
Bridge earlier that morning in heavy traffic to bring her
daughter to school, and did not notice any ice the first time
she crossed. Ms. Boothe admitted DOTD posted warning signs
that the bridge will ice, but explained the sign is posted
year-round, and the bridge contained no active warning.
According to Ms. Boothe, it had snowed the day before, but
the snow began to melt by midday. Ms. Boothe described the
day of the accident as "cloudless and it [the snow] was
almost all gone." She testified the car slid and she
knew "it had to be ice or oil because it was so
Ruiz testified he inspected the road immediately upon arrival
at the accident scene and discovered "there was ice in
the fog line, the centerline, and the opposite fog
line." At that time, he closed both sides of the bridge
and requested DOTD sand the road. Lt. Ruiz did not recall
whether the side where Ms. Boothe's vehicle ended up was
sanded, but stated "I think that's something I
probably would have documented." Lt. Ruiz also testified
he did not issue Ms. Boothe a citation.
Monroe, a highway foreman employed by DOTD, testified he did
not recall the day of the accident, but admitted DOTD issued
at least two work orders that day to sand the Comite River
Bridge. The work orders did not indicate the time the crews
were sent out, and Mr. Monroe did not recollect the time he
went out. Mr. Monroe maintained throughout his testimony that
when he sands bridges, he sands both sides of the bridge.
However, plaintiffs' counsel went on to question Mr.
Monroe about his deposition testimony, in which Mr. Monroe
had stated one yard of sand was used on the bridge and that
would be enough sand to cover at least one side. Mr. Monroe
admitted that he stated in deposition that his crew only
sanded one side of the bridge that day. However, he
reiterated that he did not have any independent recollection
of the incident in question, and pointed out that he sanded
bridges other than the Comite River Bridge on the day of the
accident. He further testified he could not think of any
reason why they would have only sanded one side of the bridge
and not the other.
Batiest, a highway foreman employed by DOTD, testified he
received a work order to remove trees near an area near the
Comite River Bridge the day before the accident and was
required to traverse the bridge. Mr. Batiest testified he did
not remember whether ice was on the bridge, but maintained he
would have reported it to the superintendent to request
permission to sand the bridge. The next day, the day of the
accident, Mr. Batiest received a second work order requesting
him to sand the Comite River Bridge. At trial, Mr. Batiest
could not recall whether the accident had occurred or whether
the police had arrived when he sanded the bridge.
Nonetheless, Mr. Batiest acknowledged his deposition
testimony indicated he had not seen a flipped vehicle, but
that a police officer was on the scene blocking traffic. Mr.
Batiest also acknowledged that he is supposed to sand both
lanes of travel when sanding a bridge.
Shields, a parish highway superintendent employed by DOTD,
was the supervisor in charge of Mr. Batiest and Mr. Monroe on
the day of the accident. Mr. Shields explained that when a
storm is coming, DOTD places more inspectors out on the roads
during the event to search for bad spots. DOTD monitors the
weather through weather information received from the
engineer techs, the district administrator, or from
DOTD's downtown headquarters. DOTD also has a priority
list of bridges in East Baton Rouge Parish that are most
worrisome during a snow event, and the Comite River Bridge
ranks in the top third of priority. Mr. Shields testified
that at the time of the accident, state troopers would
recommend highway closures, and that he did not have the
authority to close a highway. He explained that if he had
received a call from Mr. Batiest about ice on the Comite
River Bridge, he would have gone to the bridge, made a
judgment call, and called the engineering tech. According to
Mr. Shields, at the time of the accident, DOTD only had one
sand truck in his unit. He explained that each sanding job is
a "judgment call," depending on what's on the
road and the severity of the ice situation. Mr. Shields
testified the foremen would not necessarily sand both sides
of the bridge, explaining "[i]f they got called out
during the day and only one side was froze up and the other
side didn't have any accumulation of ice or snow on the
road, it wouldn't be necessary to sand the other
conclusion of trial, the jury was given the following
interrogatory: "[w]as the State of Louisiana, Department
of Transportation and Development at fault for Sherry
Boothe's accident on December 12, 2008?" The jury
responded "no." The jury was polled, confirming a
9-3 verdict. The district court subsequently signed a
judgment in conformity with the jury's verdict.
the judgment was signed, plaintiffs filed a motion for
judgment notwithstanding the verdict ("JNOV") and
an alternative motion for new trial. Following a hearing, the
district court granted the motion for JNOV and rendered
judgment in favor of plaintiffs in the total amount of $919,
191.20. The district court also conditionally
granted a new trial in favor of plaintiffs.
appealed. On appeal, the court of appeal vacated in part,
amended the judgment in part and affirmed it as amended.
Boothe v. State, Dep't of Transportation &
Dev., 2018-0120 (La.App. 1 Cir. 9/21/18), So.3d . In
affirming the granting of the motion for JNOV, the court of
appeal reasoned the evidence overwhelmingly supported the
district court's finding that the icy condition of the
Comite River Bridge created an unreasonable risk of harm and
was a substantial factor in bringing about the accident.
Turning to damages, the court of appeal characterized the
district court's general damage award as being
"relatively high," but concluded the award did not
rise to the level of an abuse of discretion. However, the
court amended the district court's $600, 000 general
damage award to Ms. Boothe to reflect the statutorily imposed
$500, 000 cap set forth in La. R.S. 13:5106(B)(1) and
affirmed this award.
DOTD's application, we granted certiorari to consider the
correctness of this judgment. Boothe v. State of
Louisiana, Dept. of Transp. & ...