John Hebert, Et Ux. v. Rapides Parish Police Jury

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-471

JOHN AND KLEA HEBERT

VERSUS

RAPIDES PARISH POLICE JURY, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 184,823
HONORABLE GEORGE C. METOYER, JR., JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion,
Elizabeth A. Pickett, Billy Howard Ezell, and J. David Painter, Judges.

GREMILLION, J., CONCURS AND ASSIGNS REASONS.

PICKETT, J., CONCURS IN THE RESULT FOR THE REASONS ASSIGNED
BY JUDGE GREMILLION.

PAINTER, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

AMENDED AND, AS AMENDED,
AFFIRMED.
Ronald J. Fiorenza
John D. Ryland
P. O. Drawer 1791
Alexandria, LA 71309-1791
Telephone: (318) 445-3631
COUNSEL FOR:
Defendant/Appellant - State of Louisiana, Department of
Transportation and Development

Roy S. Halcomb, Jr.
P. O. Box 1311
Alexandria, LA 71301
Telephone: (318) 487-4589
COUNSEL FOR:
Plaintiffs/Appellees - John and Klea Hebert

Robert L. Bussey
Assistant District Attorney - Parish of Rapides
P. O. Box 307
Alexandria, LA 71309
Telephone: (318) 449-1937
COUNSEL FOR:
Defendant/Appellee - Rapides Parish Police Jury

THIBODEAUX, Chief Judge.

Plaintiffs, John and Klea Hebert (the Heberts), the parents of a teenager

killed in a one-car accident, brought a wrongful death and survival action against the

Rapides Parish Police Jury (RPPJ) and the State of Louisiana, through the Department

of Transportation and Development (DOTD). The RPPJ requested a bench trial;

therefore, the trial was bifurcated and the DOTD’s fault was tried to a jury. The jury

found that the DOTD and the RPPJ were both 50 percent at fault; however, the trial

judge assessed no fault to the DOTD, attributed 60 percent of the fault to the deceased

driver, and assessed the remaining 40 percent of fault to the RPPJ. The DOTD and

the plaintiffs have appealed. We have undertaken a de novo review of the record in

order to harmonize the verdicts. For the reasons set forth, the judgment of the trial

court is amended and, as amended, is affirmed.

I.

ISSUES

The DOTD’s Issues

1. Did the trial judge err in admitting into evidence the
DOTD inspection reports of the Haines Creek
Bridge?

2. Did the trial judge err in failing to include on the
verdict form the contractor/construction company
that built the Haines Creek Bridge?

3. Did the trial judge err in finding that the DOTD was
legally liable for the condition of the Haines Creek
Bridge?

4. Did the trial judge err in the methodology used to
incorporate its verdict and that of the jury into a
single judgment?

The Heberts’ Issue

5. Should the judgment be amended to reflect survival
damages in the amount of $34,435.62 rather than
$24,453.63?

II.

FACTUAL BACKGROUND

Katie Hebert, the seventeen-year-old daughter of the plaintiffs, was

killed in a one-car accident at approximately 9:00 p.m. on October 15, 1995. She was

alone and driving east on Philadelphia Road in Rapides Parish. It is believed that as

she entered a deep curve that approaches the Haines Creek Bridge, the right wheels

of the vehicle she was driving left the roadway. There was a six-inch to eight-inch

drop-off to the shoulder. Upon re-entering the roadway, she apparently lost control

of the vehicle and collided with the Haines Creek Bridge railing. The bridge railing

was constructed of three-inch pipes that were not bordered by guardrails. One of the

pipes pierced Katie’s door, killing her. Prior to the accident, there were no curve

warning signs or reduction in speed signs posted in advance of the curve.

Philadelphia Road and the Haines Creek Bridge are part of an “off-

system” roadway, owned and maintained by the RPPJ. The bridge was constructed

in 1980. Shortly after the construction of the bridge, the DOTD began to perform

bridge inspections every two years. In each of its inspection reports, it advised the

RPPJ that the bridge was in substandard condition. Prior to Katie’s accident, neither

the DOTD nor the RPPJ took any action to remediate those conditions.

The plaintiffs sued for damages the RPPJ, the DOTD, and the contractor

that built the bridge, Slocum Construction and/or Slocum Manufacturing (Slocum).

Slocum was dismissed from the suit pursuant to La.R.S. 9:2772, because the suit was

filed against it more than five years after the peremptive period allowed for doing so.

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The suit proceeded against the remaining defendants. The Heberts asserted that the

absence of guardrails from the bridge was the primary cause of Katie’s death and that

both defendants were responsible for this condition. The RPPJ and the DOTD both

alleged that Katie’s excessive speed upon entering the curve was the cause of her

injuries.

The RPPJ requested a bench trial. The case against the DOTD was tried

to a jury. The judge completed the same jury verdict form that was completed by the

jury. He found that the RPPJ was 40 percent at fault and that Katie was 60 percent

at fault. He did not assess any liability to the DOTD. The jury, on the other hand,

found the RPPJ and the DOTD to be equally at fault and assessed each of them with

50 percent liability for the accident. It assessed no fault to Katie. The jury’s verdict

form reflected an award for general damages to the Heberts in the amount of

$750,000.00 each, a joint award of survival damages for Katie’s pre-death pain and

suffering in the amount of $25,000.00, special damages to the plaintiffs in the amount

of $43,871.24, for a total damage award of $1,568,871.24. The trial judge’s verdict

form reflected an award of $500,000.00 to Mrs. Hebert in general damages,

$700,000.00 in general damages to Mr. Hebert, total survival damages in the amount

of $100,000.00, and special damages totaling, $80,066.00.

The trial judge rendered a single judgment. In accordance with the

separate verdicts rendered by the court and the jury, the DOTD was to pay the

Heberts $375,000.00 each in general damages and $24,435.63 jointly, with legal

interest on all amounts awarded from the date of judicial demand until paid. The

RPPJ was ordered to pay Mrs. Hebert, $200,000.00, to pay Mr. Hebert, $280,000.00,

and to pay them, jointly, special damages in the amount of $53,591.50, with legal

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interest on all amounts awarded from the date of judicial demand until paid. All court

costs were assessed equally to the DOTD and the RPPJ.

The DOTD suspensively appealed the judgment, and the Heberts

answered the appeal. The RPPJ has not appealed.

III.

LAW AND DISCUSSION

Admissibility of the Bridge Inspection Reports

The admissibility of the bridge inspection reports prepared by the DOTD

was initially the subject of a Motion to Strike filed by the DOTD in the trial court.

The DOTD argued that the reports were inadmissible pursuant to 23 U.S.C. § 409.1

The Heberts argued they were admissible because they were not being compiled for

purposes contemplated in the statute. The trial court denied the DOTD’s motion on

November 24, 2003, and accepted the reports into evidence. The DOTD filed writs

with this court and the supreme court, both of which were denied.2 As the trial date

approached, the DOTD filed a Motion for Protective Order, again seeking to exclude

from evidence the bridge inspection reports. The trial court denied the motion on

September 20, 2004, and again ruled that 23 U.S.C. § 409 did not apply to the bridge

1
23 U.S.C. § 409 states:

Notwithstanding any other provision of law, reports, surveys,
schedules, lists, or data compiled or collected for the purpose of
identifying, evaluating, or planning the safety enhancement of
potential accident sites, hazardous roadway conditions, or
railway-highway crossings, pursuant to sections 130, 144, and 148 of
this title or for the purpose of developing any highway safety
construction improvement project which may be implemented
utilizing Federal-aid highway funds shall not be subject to discovery
or admitted into evidence in a Federal or State court proceeding or
considered for other purposes in any action for damages arising from
any occurrence at a location mentioned or addressed in such reports,
surveys, schedules, lists, or data.

2
Court of Appeal Docket No. CW-03-1759; La. Supreme Court Docket No. 04-CC-0749.

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inspection reports, because the reports had been compiled and collected for purposes

unrelated to the statute. Writs were applied for with this court and the supreme court

and both were denied.3 The DOTD, now on appeal, asks this court to again review

the propriety of the admissibility of these reports into evidence during the trial.

This court’s denials of both supervisory writs, in which we expressly

stated our findings of no error in the trial court’s rulings, constitute the law of the

case. The law of the case doctrine applies to prior rulings of appellate courts and,

generally, provides that an appeal court will not reconsider its own rulings of law in

the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916 So.2d 347. The

application of this doctrine is discretionary and may be inapplicable in cases in which

the prior decision “was palpably erroneous or its application would result in manifest

injustice.” Id. at 352 (quoting Griggs v. Riverland Med. Ctr., 98-256, p.6 (La.App.

3 Cir. 10/14/98), 722 So.2d 15, 19, writ denied, 99-385 (La. 5/28/99), 735 So.2d

622). In this case, we find no palpable error in the previous ruling of this court. The

doctrine of law of the case is applicable; therefore, this assignment of error lacks

merit.

Reconciling the Verdicts

Standard of Review

The seminal issue that must be addressed in this appeal is the

determination of the appropriate standard of review to be applied to the findings and

apportionments of fault rendered as a result of this bifurcated trial. In Thornton v.

Moran, 343 So.2d 1065 (La.1977), the supreme court stated that in such cases, the

appellate court is to resolve the differences in the factual findings made by the jury

with those made by the trial court and render a single opinion based upon the record.

3
Court of Appeal Docket No. CW-04-1273; La. Supreme Court Docket No. 04-CC-2354.

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Id. The supreme court has since acknowledged that this pronouncement has resulted

in multiple approaches being instituted by the appellate courts to reconcile such

conflicting verdicts, but it has yet to finally resolve the issue. See Davis v. Witt, 02-

3102, 02-3110 (La. 7/2/03), 851 So.2d 1119.

The first circuit advocates applying the manifest error standard of review

initially to each of the fact finders’ findings and apportionments of fault and, if both

of the fact finders’ results survive this review for error, then it undertakes a review

of the record to determine the most reasonable of the findings in order to reconcile

the verdicts. Hussey v. Russell, 04-2377, 04-2378 (La.App. 1 Cir. 3/29/06), ___

So.2d ___ (citing Cornish v. State, Dep’t of Transp. & Development, 93-0194

(La.App. 1 Cir. 12/1/94), 647 So.2d 1170, writs denied, 95-0547, 95-0574 (La.

12/1/94), 654 So.2d 324); see also, Thornton v. Moran, 348 So.2d 79 (La.App. 1

Cir.), writs denied, 350 So.2d 897, 350 So.2d 898, 350 So.2d 899 (La.1977). The

first circuit has explained its approach as follows:

[W]e must . . . determine whether the findings of fault and
apportionment of fault by the trial judge and the jury are
reasonable and not manifestly erroneous. In the event that
this court finds that the findings of both as to any particular
determination are manifestly erroneous, this court is free to
evaluate the facts de novo, and after a review of the
complete record, make our own findings as to that
particular determination. If in initially applying the
manifest error test to the findings of the factfinders, this
court concludes that a finding by one of the factfinders was
manifestly erroneous, but the finding of the other is not,
then we are free to disregard the finding of the factfinder
that was manifestly erroneous. In other words, we would
eliminate the clearly wrong finding and be left with only
one reasonable finding.

Hussey, 04-2377, 04-2378 at p. 8 (quoting Cornish, 647 So.2d at 1178-79). As

explained in Thornton, when both verdicts survive this review for error the “review-

functional rule,” also referred to as the “reasonable conclusion of fact” rule, is used

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to reconcile any differences in factual findings. This is done by determining which

witnesses were more credible in order to decide which fact finder gave the more

reasonable measurement to the evidence in reaching its verdict and in order to

determine which fact finder gave a more reasonable evaluation to the facts and drew

a more reasonable inference from those facts. Thornton, 348 So.2d 79.

The second circuit currently employs this methodology as well. See

Hays v. State, 37,229 (La.App. 2 Cir. 9/24/03), 856 So.2d 64, writs denied, 03-3187

(La. 2/6/04), 865 So.2d 726, 03-3218 (La. 2/6/04), 865 So.2d 729; Eppinette v. City

of Monroe, 29,366 (La.App. 2 Cir. 6/20/97), 698 So.2d 658. However, in an earlier

decision, Mayo v. Audubon Indemnity Insurance Co., 26,767, 27,862 (La.App. 2 Cir.

1/24/96), 666 So.2d 1290, writ denied, 96-457 (La. 4/1/96), 671 So.2d 325, the

second circuit held that de novo review was the appropriate standard of appellate

review in a bifurcated case in which the judge and jury render inconsistent verdicts.

The court relied on, then, Chief Judge Pike Hall’s concurring opinion in Smiley v.

Sikes, 543 So.2d 1084 (La.App. 2 Cir. 1989), which surveyed the current state of the

courts on this issue, as well as a line of fourth circuit cases that have long advocated

the application of the de novo standard of review in such situations. Mayo, 666 So.2d

1290. This decision was expressly abrogated by the second circuit, however, in

Eppinette, 698 So.2d 658. The court returned to the conclusion that the appellate

court should give some deference to the factual findings of the judge and jury and, if

possible, should attempt to harmonize their inconsistent verdicts. Id.

The fourth circuit, as mentioned earlier herein, has held that no deference

is to be given to the judge or jury’s inconsistent determinations regarding liability or

damages in bifurcated cases, and that the appellate courts should undertake a de novo

review of the record to make its own independent findings based on the record. See

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Madison v. Ernest N. Morial Convention Ctr.-New Orleans, 00-1929, 01-1127

(La.App. 4 Cir. 12/4/02), 834 So.2d 578, writs denied, 03-28, 03-30 (La. 6/20/03),

847 So.2d 1241; McCullough v. Reg’l Transit Auth., 593 So.2d 731 (La.App. 4 Cir.),

writ denied, 595 So.2d 655 (La.1992).

The fifth circuit has reconciled conflicting verdicts by examining the

record and deciding which decision, the judge or the jury’s, is the more reasonable.

American Cas. Co. v. Ill. Cent. Gulf R.R. Co., 601 So.2d 712 (La.App. 5 Cir.), writ

denied, 604 So.2d 1005 (La.1992)(stating a reliance on this court’s methodology set

forth in Succession of Theriot v. S. Pac. Transp. Co., 560 So.2d 861 (La.App. 3 Cir.),

writs denied, 565 So.2d 451, 565 So.2d 453, 565 So.2d 454 (La.1990); Felice v.

Valleylab, Inc., 520 So.2d 920 (La.App. 3 Cir. 1987), writ denied, 522 So.2d 562

(La.1988)). It has expressly rejected the application of the manifest error rule in these

cases. Id.

This court has not been uniform in its application of standards of review

in these cases. We have stated an acceptance of the first circuit’s approach set forth

in Thornton, 348 So.2d 79, which states that where inconsistent findings are reached,

an appellate court should resolve those differences and reach a single harmonized

decision based on the record as a whole and then adopt the more reasonable decision.

See Hatcher v. State, Dep’t of Transp. & Dev., 478 So.2d 774 (La.App. 3 Cir.), writ

denied, 479 So.2d 923 (La.1985). More recently, in Hasha v. Calcasieu Parish

Police Jury, 94-705 (La.App. 3 Cir. 2/15/95), 651 So.2d 865, writs denied, 95-667

(La. 4/28/95), 653 So.2d 592, 95-676 (La. 4/28/95), 653 So.2d 593 (Thibodeaux, J.,

concurring); however, we rejected this approach and relied on certain earlier

decisions by our court which found that there is no conflict to be reconciled in a

bifurcated trial in which the jury has apportioned fault to a governmental entity, when

8

the determination of that fault has been granted to the judge only. Id. (citing Bishop

v. Shelter Ins. Co., 461 So.2d 1170 (La.App. 3 Cir. 1984), writ denied, 465 So.2d 737

(La.1985); Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3 Cir. 1978), writ

denied, 366 So.2d 564 (La.1979)). It was reasoned that because the governmental

entity’s fault was to be tried by judge only, no deference need be given to the jury’s

findings or fault apportionment regarding the governmental entity. Hasha, 651 So.2d

865. In such cases, we did not attempt to reconcile the separate liability

determinations made by the jury and judge as to the governmental entity but, rather,

applied the manifest error standard of review to those adjudications on appeal. Id.

However, we found that to the extent the assessment of damages by the separate fact

finders is inconsistent, a conflict is created and those conflicting damage awards must

be harmonized. Id. As to that determination, we stated that the appellate court is to

examine the record to find which damage award is the more reasonable. Id.

Other than the fourth circuit, the standards of review employed by the

remaining circuits, including this circuit, are too cumbersome and unwieldy to survive

objective application. In fact, in some instances the standard used eschews the fact

finder’s role in that an appellate court is sometimes compelled to choose between two

views which are both considered reasonable. We find that the most practical and

legally sound procedure susceptible of uniform application is the de novo standard

of review. As was observed in Mayo, 666 So.2d 1290, and as argued in the

concurring opinion to this circuit’s decision in Hasha, 651 So.2d 865, the appellate

courts’ prior holdings on the proper analytical tool to employ in reconciling these

verdicts are, otherwise, inconsistent and confusing.

Further, we find that a reversible error of law is committed when

judgments are rendered that do not fully determine the rights of the parties involved,

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which is the case in bifurcated trials that restrict the separate fact finders’

determinations of liability to certain parties. When appellate courts find that a

reversible error of law was committed in the trial court, we are required to

redetermine the facts de novo from the entire record and render a judgment on the

merits. Rosell v. ESCO, 549 So.2d 840, fn. 2 (La.1989).

Accordingly, for this reason, and those set forth above, we will apply the

de novo standard of review in this case. The remaining assignments of error of the

DOTD and the Heberts’ are rendered moot by this determination.

Liability and Apportionment of Fault

The DOTD and the RPPJ are both public entities whose liability for the

condition of the Haines Creek Bridge must be determined by establishing the

following elements:

In order to prove liability of a public entity based on
a defective condition of a bridge or roadway the plaintiff
must prove custody or ownership of the defective thing by
the public entity; the defect created an unreasonable risk of
harm; actual or constructive knowledge of the defect or
risk of harm and failure by the public entity to take
corrective action within a reasonable time; and causation.

Aetna Cas. & Surety Co. v. State, through Dep’t of Transp. & Dev., 97-0716, 97-

0717, p. 5 (La.App. 1 Cir. 4/8/98), 712 So.2d 216, 219, writ denied, 98-1241 (La.

7/8/98), 724 So.2d 209. Regarding “off-system” roadways, we have recognized the

following:

The state has a duty to maintain a road or bridge or make
a road or bridge safe where that road or bridge is included
in the state highway system. La.R.S. 48:21; La.R.S.
48:191; and La.R.S. 48:193. Where the road or bridge is
not on the state highway system and falls within a parish
but outside the corporate limits of any municipality, a duty
to maintain the road or bridge falls on the parish.

10

Sopcjak v. City-Parish Gov’t of Lafayette, 98-240, 98-241, p. 3 (La.App. 3 Cir.

10/28/98), 721 So.2d 537, 539.

In this case, the parties do not contest that the bridge was not a part of

the state highway system. However, the Heberts argued that the DOTD assumed

liability for the bridge when it commenced regular inspections of the bridge. It was

further argued that under La.R.S. 48:354, the DOTD had a legal duty to withhold

funds if improvements to public roads failed to conform with the minimum public

road and highway safety standards that it was required to establish. Because the

DOTD never withheld any funds from the RPPJ, although its inspection reports

revealed its knowledge of the absence of guardrails, the Heberts argued that the

4
When Haines Creek Bridge was built in 1980, La.R.S. 48:35, as amended by 1977 La.
Acts No. 291, § 35, read as follows:

The office of highways of the Department of Transportation
and Development shall adopt minimum safety standards with respect
to highway design, construction and maintenance. These standards
shall correlate with and, so far as possible, conform to the system then
current as approved by the American Association of State Highway
and Transportation Officials. Hereafter, the state highway system and
all public roads, highways and streets under the jurisdiction of any
political subdivision of this state shall conform to such safety
standards. The chief engineer of the office of highways may
designate those highways as listed in R.S. 48:191 on the effective
date of this Act for reconstruction or repair at standards which are less
than those approved by the American Association of State Highway
and Transportation Officials, provided however, that no
reconstruction or repair shall be done on any highway under this Part
which results in a pavement width of less than eighteen feet, and
further provided that all reconstruction or repair done under this Part
shall be accomplished within the existing right of way.

If any such improvements constructed by a political
subdivision of this State fail to conform to such standards, payment
of any funds allocated to said political subdivision for such
construction purposes shall be withheld by the Department of
Transportation and Development until such time as the standards
established by the department are complied with. These standards
shall not apply to maintenance, improvement or blacktopping of
existing dead-end alleys, local lanes and other local roads that do not
connect traveled throughways.

(Emphasis added). In 1984, this statute was amended to state that “payment of any funds allocated
to the political subdivision for the construction purposes shall be withheld . . . .” 1984 La. Acts No.
625, § 1. Despite subsequent amendments to this statute, this language remains unchanged.

11

DOTD breached its duty and was comparatively negligent in the resulting accident

and injuries.

The DOTD argues, contrarily, that its only involvement with the bridge

was via its bridge inspections, which were carried out solely to comply with 23

U.S.C. § 144, the federal highway bridge replacement and rehabilitation program that

requires states to perform inventories of bridges for purposes related to that program.

The DOTD additionally contends that the Heberts misapplied La.R.S. 48:35 to the

facts of this case and also have misinterpreted La.R.S. 48:35. It argues that the

mandate to withhold funds allocated for construction purposes does not apply here

because, first, there is no proof that the DOTD participated in funding this project or

possessed the funds that could be withheld under the statute. Secondly, it argues that

even if the mandate were applicable, under the circumstances of this case, the

language cannot be read as a legislative imposition of a legal duty on it to ensure that

an “off-system” bridge, such as this, is built or repaired to comply with adopted

standards. Aside from the Heberts’ sole reliance on these bridge inspections, which

the DOTD claims do not serve as a sufficient basis to find that it assumed or

possessed a duty to maintain the bridge, the DOTD contends that any findings of

liability against it should be reversed since there is no evidence to support a finding

that it acted in any manner to assume a duty to maintain this off-system bridge.

Without addressing whether La.R.S. 48:35 imposes a legal duty on the

DOTD in this case, we find that the DOTD assumed a duty to maintain this bridge

because it carried out biennial inspections of this non-conforming bridge over a

fifteen-year period, participated in the construction of the bridge in 1980, and had

constructive and, eventually, actual knowledge that it was built in a non-conforming

manner. See Archon v. Union Pac. R.R., et al., 94-2728, 97-2743 (La. 7/2/96), 675

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So.2d 1055 (finding that the DOTD assumed a duty of upgrading a railroad crossing

with active signals when it ordered a site survey and breached that duty when it failed

to upgrade the crossing after the survey).

We first note that a former, twenty-two year employee of the DOTD and

certified bridge inspector, Jerry Burnamen, testified that if the parish bridge was

constructed using either state funds or DOTD funds, a state inspector would have

been present during the construction phase of the project. The purpose would be to

insure that the bridge would be built under acceptable standards.

The record also contains testimony from Cecil Raggio, who was

employed by the RPPJ as its Public Works Director and Parish Engineer from 1977

to 2002, indicating that state funds were used to build the bridge, although he was not

certain whether the construction funds were paid directly through the DOTD. He,

however, identified at trial a letter that he sent to the DOTD regarding the

construction of the bridge. The letter, he averred, contained a DOTD project number

that he was required to use when corresponding with the state for reimbursements in

connection with the bridge construction project.

Rhett Deselle, the District Maintenance Engineer for the DOTD from

1984 to 2000, testified that state funds could have been used to construct the bridge

and, if so, the project would have been assigned a project number. He testified that

the project number identified by Mr. Raggio was similar to the older project numbers

that were once used by the DOTD.

Having determined that the DOTD, as well as the RPPJ, were both

legally responsible for the maintenance of the bridge, we now turn to the

determination of whether the absence of guardrails created an unreasonably

dangerous condition. Regarding the duty of a governmental entity such as a parish

13

police jury to maintain its highways, roads, and streets, the Louisiana Supreme Court

in Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430, 432-33 (La.1975),

stated:

A parish police jury, however, is not an insurer of travelers
upon its highways, roads and streets. The duty owed is to
exercise reasonable care to keep these public ways in such
condition that travelers who are prudent and ordinarily
careful will not be exposed to injury, day or night.
Louisiana’s jurisprudence on the subject is built upon the
theory that fault is a prerequisite to responsibility in these
cases[, e].g.[,] Goodwyn v. City of Shreveport, 134 La. 820,
64 So. 762 (1914) and Suthon v. City of Houma, 146 So.
515 (La.App.1933).

Although a parish is not an insurer of the safety of
travelers on its highways, roads and streets and it must
keep these ways reasonably safe, they need not be
maintained in perfect condition to render the parish free
from liability in damages. Defects which are not in the
nature of traps, or from which danger cannot reasonably be
anticipated, provide no actionable negligence. Liability
will only be imposed when the defect is dangerous or
calculated to cause injury. Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239 (1951); White v. City of
Alexandria, 216 La. 308, 43 So.2d 618 (1949).

There is no fixed rule for determining what is a
dangerous defect in a public way; the facts and surrounding
circumstances of each particular case control. The test
usually applied, however, requires an answer to the
question: Was the public way maintained in a reasonably
safe condition for persons exercising ordinary care and
prudence? Arata v. Orleans Capitol Stores, supra; cf.
Nessen v. City of New Orleans, 134 La. 455, 64 So. 286
(1914); Allen v. Town of Minden, 127 La. 403, 53 So. 666
(1910).

Breshers v. State of La., Dep’t of Transp. & Development, 536 So.2d 733, 737

(La.App. 3 Cir. 1988), writs denied, 541 So.2d 854, 541 So.2d 856 (La.1989)

(quoting Pickens, 323 So.2d at 432-33).

The evidence and testimony presented at trial showed that the lack of

guardrails on the Haines Creek Bridge created a hazardous and dangerous condition.

14

Expert witnesses testified that guardrails should have been placed at the ends of the

bridge railings, which consisted of heavy-duty, three-inch, drill-stem pipe with

unprotected ends, and which are not approved by the highway industry because of the

danger they pose. These witnesses also testified that the purpose of guardrails on

bridges is to prevent the type of collision and injuries that resulted in this case;

however, at the time of construction and over the fifteen years leading up to Katie

Hebert’s accident, guardrails were never put in place.

The DOTD’s and the RPPJ’s knowledge of the fact that the bridge did

not have guardrails is undisputed. Nevertheless, they both argue that the evidence

shows that the speed of Katie’s vehicle and her failure to maintain control of the

vehicle caused the accident and injuries. We however find, as did the supreme court

in Campbell v. La. Department of Transportation & Development, 94-1052 (La.

1/17/95), 648 So.2d 898, that the failure of the accident victim to maintain control of

his or her vehicle does not relieve the responsible party of its duty to keep the

roadway safe. Moreover, in this case, although the testimony of Katie’s father was

that she was an inexperienced driver, the Heberts’ accident reconstructionist and

consulting traffic engineer, Duaine T. Evans, testified that the lack of guardrails and

hazard markers at the ends of bridge, as well as the lack of a visible center line on the

road, were the major factors that contributed to the accident. He stated that guardrails

in advance of a bridge are designed to absorb the energy of a vehicle crash and often

prevent the type of death that occurred in this case. He also opined that other

deficiencies, such as lack of curve warning signs or speed limit advisory signs and the

large drop-off between the shoulder and the road, all contributed to the accident.

Regarding Katie’s rate of speed, he stated that it was likely that she did not enter the

curve exceeding fifty miles per hour, because she would have run off of the road

entirely before reaching the bridge.

15

The DOTD’s expert, Dr. Joseph Blaschke, testified in the fields of traffic

engineering, highway design, and accident reconstruction. He testified that Katie did

not apparently lose control of the vehicle until her tires left the roadway, but felt that

she was likely traveling faster than fifty miles per hour upon entering the curve. He

also testified that the large drop-off to the shoulder of the road, the absence of

guardrails, and the condition of the road all contributed to the accident.

Considering all of the evidence, we find that the negligence of Katie in

driving the vehicle, and the RPPJ and DOTD’s negligence in failing to reasonably

maintain the bridge, particularly the failure to place guardrails on the bridge,

combined to cause the accident and resulting death of Katie. In allocating the

percentages of fault, we have considered “both the nature of the conduct of each party

at fault and the extent of the causal relation between the conduct and the damages

claimed.” Id. at 902 (quoting Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d

967, 974 (La.1985)). Based on the facts presented, we find that Katie’s negligence

likely set the course for the accident to happen, but the extent of the resulting harm

to her was a direct result of her vehicle’s impact with the exposed and unguarded

pipes of the bridge railing. Accordingly, we find that the RPPJ’s and DOTD’s fault

was more substantial than Katie’s and, therefore, allocate 10 percent of the fault to

Katie Hebert, 50 percent to the DOTD, and 40 percent to the RPPJ.

General damages are fashioned to compensate for the mental or physical

pain or suffering, inconvenience, loss of intellectual gratification, physical enjoyment,

or other losses of life which cannot be definitively measured in monetary terms. Cox

v. Moore, 01-878 (La.App. 3 Cir. 12/12/01), 805 So.2d 277, writ denied, 02-724 (La.

5/31/02), 817 So.2d 94. Katie Hebert was the second oldest of six children. At the

time of her death, she was the oldest child living at home. Katie helped significantly

with household chores and was a close companion to her siblings. John and Klea

16

Hebert testified that their family was close-knit; the family ate dinner together every

night, attended church together as a family at least three times per week, and visited

with the children’s grandparents, aunts, uncles, and cousins, as a family, generally,

each Sunday. Holidays and birthdays were family affairs that were celebrated

together. They both testified that the sudden loss of Katie left a “hole” in the family

such that their usual activities were difficult for them all because her absence was so

strongly felt.

Mr. and Mrs. Hebert both suffered from depression that was treated for

years with anti-depressant and anti-anxiety medications after Katie’s death. Mrs.

Hebert developed physical ailments that were non-existent prior to Katie’s death and

for which she was continuing to receive treatment as of the trial of this matter. Mr.

and Mrs. Hebert’ s marriage suffered after Katie’s death as well, causing them to

separate for awhile, although they sought extensive counseling for their problems.

They both testified that the grief and stress associated with the loss of Katie, along

with the concern for the welfare of their other children, caused them to withdraw from

each other. They suffered a loss of intimacy, suffered a lack of communication, and

developed anger issues. All of these were issues that were not present before their

daughter’s death. They both suffered difficulties on their jobs after the loss of Katie.

Mrs. Hebert testified that she ultimately sought a new teaching position at a different

school because of the tensions that developed with the administration over her

excessive absences caused by her illnesses, depression and stress problems.

There is no question that the loss suffered by the Heberts as a result of

their daughter’s death is immeasurable, and we recognize the significance of their

loss. We award Mr. and Mrs. Hebert general damages in the amount of $750,000.00

each, for the wrongful death of Katie.

17

Survival damages may be awarded for the pre-death mental and physical

pain and suffering of the deceased. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891

(La.1976). The determination of survival damages includes consideration of the

severity and duration of any pain or any pre-impact fear experienced by the deceased,

and other damages sustained by the deceased up to the moment of death. See Mathieu

v. State, Dep’t of Transp. & Dev., 598 So.2d 676 (La.App. 3 Cir.), writ denied, 600

So.2d 665 (La.1992); Guillot v. Valley Forge Ins. Co., 99-1044 (La.App. 3 Cir.

12/8/99), 753 So.2d 891. Survival damages are properly awarded if a scintilla of

evidence of any pre-death pain or suffering by the victim can be shown. Mathieu,

598 So.2d 676; see also, Sims v. Liberty Mut. Ins. Co., 04-584 (La.App. 3 Cir.

3/2/05), 897 So.2d 834, writ denied, 05-863 (La. 5/13/05), 902 So.2d 1030.

In this case, the record reflects that Katie was pinned in her vehicle after

the impact, suffered significant injuries, including a broken neck and head injuries.

She did not expire, however, until some hours later at the hospital to which she had

been air-lifted. We accordingly, award survival damages in the amount of

$100,000.00, jointly, to John Hebert and Klea Hebert for the pre-death pain and

suffering of Katie.

Finally, we award the following special damages to Mr. and Mrs. Hebert,

jointly: past medical and hospital expenses for the treatment of Katie, $13,448.50;

funeral and burial expenses, $5,077.00; past and future medical expenses of Mr. and

Mrs. Hebert, $25,000.00; total loss of the Heberts’ automobile, $9,850.00; and cost

of a rental vehicle, $216.00.

IV.

CONCLUSION

For the foregoing reasons, we reverse and set aside the judgment of the

trial court and render judgment, assessing 10 percent fault to Katie Hebert, 40 percent

18

fault to the Rapides Parish Police Jury, and 50 percent fault to the Louisiana

Department of Transportation and Development. John Hebert is awarded

$750,000.00, in general damages; Klea Hebert is awarded $750,000.00, in general

damages; special damages are awarded jointly to John and Klea Hebert in the amount

of $53,591.50. John and Klea Hebert are awarded survival damages in the amount

of $100,000.00. Costs of this appeal are assessed to the Department of Transportation

and Development in the amount of $741.50.

AMENDED AND, AS AMENDED, AFFIRMED.

19

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

NO. 05-471

JOHN AND KLEA HEBERT

VERSUS

RAPIDES PARISH POLICE JURY, ET AL.

GREMILLION, J., concurs.

I write to concur with this opinion. I agree with the results in their

entirety; however, I do not agree that when there are conflicting opinions between the

judge and jury’s finding in a bifurcated trial that we should conduct a de novo review

because it disregards the great deference an appellate court should give to the trier of

fact’s finding.

In my opinion, we should use the procedure set forth in McDaniel v.

Carencro Lions Club, et al., #05-1013, (La.App. 3 Cir. __/__/__), __So.2d__.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-471

JOHN AND KLEA HEBERT

VERSUS

RAPIDES PARISH POLICE JURY

PAINTER, J., dissenting.

This case on appeal was heard by a five judge panel after two members of the

original three judge panel voted to reverse the trial jury and relieve the DOTD of

responsibility for the Haines Creek Bridge. I respectfully disagree with the five judge

panel majority’s determination that the DOTD was legally responsible for the

maintenance of the Haines Creek Bridge. My review of the testimony convinces me

that the Plaintiffs failed to carry their burden of proving that the DOTD assumed a

duty with regard to the bridge and breached that duty. Further, to impose liability on

the DOTD under the circumstances of this case, based only federally mandated

inspection, creates a precedent which would potentially make the DOTD liable for the

maintenance of every off-system bridge and highway in the state and impose a

crushing financial burden on the State.

The majority attempts to show that the DOTD provided funding for the bridge.

However, a close review of the testimony of the witnesses shows that it does not

support such a conclusion. While Jerry Bernamen did testify that if an off-system

bridge was built using State funds, a DOTD inspector would be present, he further

testified that he did not know if a DOTD inspector was present when the Haines

Creek Bridge was built in 1980, explaining that “this was before we started our bridge

program.” Cecil Raggio testified that the DOTD did not participate in building the

1

bridge. Further, while Raggio did testify that the bridge was built with State funds,

he further stated that he did not mean that the money came from the DOTD, but rather

that he believed that the bridge was built with special funding from the Governor’s

Office and acknowledged that the Governor’s Office has funds for special projects

which are not under the control of the DOTD. While the majority’s citation of

Raggio as testifying that the money may not have come directly from the Governor’s

Office, suggests that the DOTD somehow indirectly controlled that funding, I find

nothing in the record which supports this. Additionally, Raggio stated that the project

number was a state project number but admitted that he did not know if it was a

DOTD project number and that it could have been from the Governor’s Office.

While Rhett Deselle did testify that State funds could have been used to

construct the bridge, he also stated he could find nothing in the records of the DOTD

which to show that it had funded the bridge. He testified that if the project had been

a DOTD project it would have been given a DOTD project number but that the

number found on the Police Jury’s correspondence concerning this bridge was not a

DOTD number. With regard to its resemblance to older DOTD numbers he stated

only that its configuration–three digits separated by a dash from two digits separated

by a dash from three final digits–was the same configuration previously used by the

DOTD. He affirmed that the project number of the bridge did not exist in DOTD

records. He explained that the Parishes inform the DOTD of changes to bridges to

allow the DOTD to maintain an inventory of State bridges. He further explained that

the funds could have come from a special fund of the Governor’s Office which is

used to replace and repair off-system bridges and that the DOTD has no control of

those funds.

2

The only activity of the DOTD with regard to the Haines Creek Bridge which

is confirmed by the record is its bi-yearly federally mandated inspection and report.

This alone is insufficient to allow this court to impose a duty on the DOTD to

maintain the bridge.

Additionally, the Plaintiff’s assertion that the DOTD violated its duty, under

La.R.S. 48:35, to withhold funds for improvements to public roads which do not

conform to minimum safety standards adopted by the DOTD, is without merit. I can

find no jurisprudence which imposes liability for personal injury on the DOTD for

failure to withhold funds under this statute. Additionally, the language of La.R.S.

48:35 provides for withholding funds allocated for construction purposes during the

particular non-conforming construction project.

Accordingly, the record does not support the imposition of liability on the

DOTD for the accident made the basis of this suit. Therefore, I respectfully dissent

from the majority opinion herein.

3