The Cowboy Connection, Inc. v. State of La., Dotd

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-68 consolidated with 07-70

THE COWBOY CONNECTION, INC.

VERSUS

STATE OF LA., DOTD

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NOS. 62,499B AND 64,142B
HONORABLE JOHN C. FORD, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Elizabeth A. Pickett, Judges.

PETERS, J., CONCURS IN THE RESULT.

AFFIRMED IN PART; REVERSED IN
PART.

Michael Wayne Landry
Assistant Attorney General
556 Jefferson Street - 4th Floor
Lafayette, LA 70501
Telephone: (337) 262-1700
COUNSEL FOR:
Defendant/Appellant - State of LA., DOTD

E. Grey Burnes Talley
Burnes, Burnes, & Talley
P. O. Box 650
Alexandria, La 71309-0650
Telephone: (318) 442-5231
COUNSEL FOR:
Plaintiff/Appellee - The Cowboy Connection, Inc.

THIBODEAUX, Chief Judge.

Plaintiffs-appellees, the Cowboy Connection, Inc. and (its successor

corporation) the Western Connection, Inc. d/b/a the Cowboy Connection, sued the

defendant-appellant, the State of Louisiana, through the Department of Transportation

and Development (DOTD), for damages due to the alleged negligent maintenance of

underground culverts located in the highway right-of-way in front of the business.

Plaintiffs claim that the negligence led to two separate collapses of areas on and near

the business’s parking lot and that the DOTD’s lengthy repair periods impeded

customer access to the business, causing such large losses in sales income that the

business was forced to close permanently.

A jury found that the DOTD negligently maintained and repaired the

right-of-way and awarded the Cowboy Connection, Inc. $25,000.00 in damages;

however, only 10% fault was assessed to the DOTD and the remaining 90% was

assessed to the Cowboy Connection, Inc. The jury found that the Western

Connection, Inc. did not suffer any damages. A post-trial Motion for Judgment

Notwithstanding the Verdict (JNOV) filed by the plaintiffs was granted in part. The

trial court reassessed the damages, placing 100% of the fault on the DOTD for the

Cowboy Connection, Inc.’s damages. The motion for JNOV was denied in all other

respects.

The DOTD has appealed that partial grant of the JNOV and the plaintiffs

have answered the appeal. The plaintiffs, in their appeal, claim that the jury erred in

finding that the Western Connection, Inc. suffered no damages for which the DOTD

should be held liable and seek a reversal of the jury’s findings as to the Western

Connection, Inc. Plaintiffs also claim that the jury erred in its assessment of damages

to the Cowboy Connection, Inc. and seek an increase in the damages awarded.

We find that the jury manifestly erred in finding the DOTD liable to the

Cowboy Connection, Inc. for negligent maintenance and repair of the right-of-way.

Therefore, the trial court’s judgment pursuant to the jury verdict assessing fault to the

DOTD for those asserted damages is reversed. The issue of the propriety of the trial

court’s subsequent partial grant of the motion for JNOV and reassessment of fault,

in this regard, is, consequently, moot. The jury’s finding of $0 in damages to the

Western Connection, Inc., as well as the trial court’s subsequent denial of the motion

for JNOV as to that finding, are affirmed.

I.

ISSUES

1. Was the assessment of damages to the Cowboy
Connection, Inc. and the apportionment of fault to
the DOTD for those damages reasonable?

2. Did the Western Connection, Inc. suffer damages as
a result of the DOTD’s negligence in maintaining
and in repairing the underground culverts?

3. Did the trial court err in denying the plaintiffs’
motion for judgment notwithstanding the verdict as
to Western Connection, Inc.?

II.

FACTUAL BACKGROUND

This consolidated action arises out of two, separately-occurring cave-ins

of concrete pavement located next to and on the parking lot of the western apparel

store, the Cowboy Connection. The cave-ins were precipitated by underground soil

erosion near deteriorated and leaking culverts. The involved culverts were located

within the State’s right-of-way along a portion of Highway 171 in Leesville,

Louisiana, which runs directly in front of the parking lot of the plaintiffs’ store

frontage on Highway 171. The first cave-in occurred near the Cowboy Connection’s

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front entrance and caused damage to its large steel canopy, which covered the

majority of the storefront. Approximately one year later, the second cave-in occurred

at the edge of the business’s parking lot on the highway’s shoulder, which abutted the

southernmost corner entrance to the parking lot.

The First Cave-In

The first collapse occurred on October 11, 1997. One of the two-feet by

two-feet wide brick columns supporting the store-front canopy sank about a foot into

an underground cavern that had developed underneath the parking lot slab. The other

column suffered a severe break in its brick and mortar and began collapsing as well.

The damage was first discovered by Patricia Lott Sweeney1, the co-owner and

manager of the Cowboy Connection, Inc., when she arrived that morning to open the

store for business. The store could not be opened that day, however, because of the

instability of the canopy structure. Rather, a perimeter of plastic, orange fencing was

set up around the entire canopy by general contractor Patrick Williams, who was also

one of the first to witness the damage from his nearby business. The DOTD’s parish

maintenance office located in Leesville was notified of the incident that morning

because of the location of the collapse, which appeared to be in the highway right-of-

way.

The parish’s maintenance superintendent, Oliver Perkins, viewed the

damage that day and opined that a deteriorated or leaking drainage culvert may have

caused soil erosion at the site. However, before the DOTD could perform any

excavation to further investigate and perform any repairs, the canopy had to be

removed. The property owner, Mrs. Bernita Lambert, hired Mr. Williams’s

1
At this time in 1997, Mrs. Lott was undergoing a divorce from the co-owner of the Cowboy
Connection, Charles Lott. She had remarried by the time the trial commenced and, by that time,
referred to herself as Patricia Sweeney. For purposes of this appeal, she will be referred to as Patricia
Lott.

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contracting company to demolish and remove the unstable canopy. This work was

completed in approximately three days. The Cowboy Connection remained closed

during this time period but reopened immediately thereafter, according to Mrs. Lott,

although a hole still existed in the parking lot at the location of the collapse. The area

encompassing the collapsed concrete remained blocked off with barricades, warning

barrels, and yellow construction warning tape. The enclosed area formed a perimeter

around a large portion of the storefront, which included the only public entrance to

the business. Mrs. Lott stated that customers had to walk under construction tape to

enter the business.

The DOTD began its underground repair work shortly after the canopy

demolition was completed. A total of fifty-one days elapsed from the time the DOTD

began its repairs until its safety barricades were removed from the parking lot. Mr.

Perkins explained that this time included occasional weather delays; the occasional

unavailability of his crew, which was still performing work throughout the parish on

a priority basis; time lapses in the performance of work due to the unavailability of

the sole construction crew that performed work for a seven-parish area; wait-time for

the arrival of equipment from elsewhere in the parish to be used to perform

excavation at the site; and periods in which determinations had to be made by

supervisors at the DOTD regarding its responsibility for certain repairs, particularly

the repair of the caved-in portion of the parking lot, for which there was a dispute as

to whether it was located in the highway right-of-way.

The DOTD’s repair work actually began on or about October 16, 1997,

shortly after the demolition of the canopy had been completed. The area maintenance

specialist, Woodrow Young, whose office was located in Alexandria, Louisiana,

traveled to Leesville to inspect the damage. This inspection of the damage was

performed by the maintenance specialist, Mr. Perkins, and other crew members on

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October 20, 2007. Equipment for further excavation at the site was then requested

from Alexandria, and it arrived on October 28, 1997. On October 29, 2007, the soil

and debris from the cave-in were dug out by the DOTD crew and multiple holes were

found in a nearby culvert.

The construction foreman, George Weatherford, Mr. Perkins, and other

crew members were first able to perform an underground inspection to further

determine the extent of the damage on November 3, 1997. They walked the entire

length of a large culvert that ran in an easterly and westerly direction and traversed

a portion of the Cowboy Connection, Inc.’s parking lot. It connected to a smaller

culvert, approximately two feet in diameter, which ran in a northerly and southerly

direction along the highway’s right-of-way located in front of the Cowboy

Connection, Inc. A large crack in the junction box/box culvert (the point at which the

two culverts connected) was found, and they saw that its top was decayed and had

fallen in. The junction box was located in the right-of-way near the area where

substantial soil erosion had occurred underneath one of the Cowboy Connection’s

columns. The construction crew built a new form around the cracked box culvert and

poured concrete to create a new box culvert. On November 4, 1997, the DOTD

construction crew removed its forms, back-filled the hole, poured the top with

concrete, and completed the concrete finishing work over the new box culvert.

This repair, however, did not address the hole that remained on the lot

of the Cowboy Connection, Inc. Mrs. Lott complained to Mr. Perkins on November

5, 1997, of the DOTD’s failure to pour concrete at the location of the cave-in on the

parking lot. The dispute was eventually resolved and the DOTD determined that it

would repair the hole on the parking lot due to its proximity to the highway right-of-

way. The DOTD’s construction crew began filling in the hole with dirt on November

7, 1997. Mr. Young was onsite measuring the area to be repaired on November 19,

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1997, and on November 24, 1997, the construction crew was back onsite, performing

further excavation and laying steel for the re-pouring of the concrete in the parking

lot. The concrete was poured on November 24, 1997, and all barricades were

removed from the site on December 1, 1997.

The Second Cave-In

In June 1998, the Cowboy Connection, Inc. had been dissolved and its

assets transferred to a new corporation, the Western Connection, Inc., which

continued to do business as the Cowboy Connection at the same location. Mrs. Lott

had become the sole owner of the business after her divorce, and the new corporate

entity had been formed to reflect this change in ownership. The second cave-in

occurred after this time on or about September 16, 1998. This collapse of pavement

occurred in the State right-of-way on Highway 171 next to the southern corner of the

business’s parking lot. DOTD barricades and warning lights were placed around the

collapsed area at the corner of the lot. The parking lot’s entrance was not blocked as

a result of the collapse or placement of the barricades.

On September 21st and 22nd, 1998, the DOTD performed necessary repair

work at the site, which included replacement of a section of the two-feet wide culvert

that connected to the larger culvert that traversed a portion of the Western

Connection, Inc.’s lot and had been inspected as a result of the first collapse the prior

year. A crack was found in this smaller culvert as a result of excavation performed

after the second collapse. Soil was compacted over the culvert, and the repair work

was deemed completed by the DOTD on September 22nd. However, because the

concrete was not re-poured at that time, the barricades, warning barrels, and lights

were not removed until March 15, 1999, when the concrete finishing work was finally

completed.

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Damages Alleged

On October 9, 1998, the Cowboy Connection, Inc. sued the DOTD for

damages arising out of the first cave-in. A second lawsuit was filed by the entity, the

Western Connection, Inc. on September 16, 1999, for damages arising out of the

second cave-in. The two actions were later consolidated. The claims asserted in both

suits are that the DOTD negligently maintained its underground drainage system and

failed to take proper measures to ensure the integrity of its roadways and shoulders,

resulting in the collapses and subsequent damage to the plaintiffs’ businesses. During

the trial, it was asserted by the plaintiffs that both incidents caused major disruptions

in the businesses during their peak October rodeo shopping seasons in 1997 and 1998

and during the November and December Christmas shopping seasons of those years

as well. The plaintiffs claimed that potential customers were deterred from shopping

there despite proactive advertising and promotional activities on local radio,

television and storefront displays because the appearance of the barricades and

ongoing construction caused people to perceive that the entire lot was unstable. In

December 1999, the Western Connection, Inc. closed and entered into bankruptcy

proceedings.

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III.

LAW AND DISCUSSION

The DOTD’s Liability

A plaintiff asserting either a claim of negligence, based on La.Civ.Code

art. 23152, or strict liability, pursuant to La.Civ.Code art. 23173 or La.R.S. 9:28004,

2
Civil Code Article 2315(A) states that “[e]very act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.”
3
Civil Code Article 2317 states, in relevant part: “We are responsible, not only for the
damage occasioned by our own act, but for that which is caused by the act of persons for whom we
are answerable, or of the things which we have in our custody.”
4
§2800. Limitation of liability for public bodies

A. A public entity is responsible under Civil Code Article 2317 for damages
caused by the condition of buildings within its care and custody.

B. Where other constructions are placed upon state property by someone
other than the state, and the right to keep the improvements on the property has
expired, the state shall not be responsible for any damages caused thereby unless the
state affirmatively takes control of and utilizes the improvement for the state’s
benefit and use.

C. Except as provided for in Subsections A and B of this Section, no person
shall have a cause of action based solely upon liability imposed under Civil Code
Article 2317 against a public entity for damages caused by the condition of things
within its care and custody unless the public entity had actual or constructive notice
of the particular vice or defect which caused the damage prior to the occurrence, and
the public entity has had a reasonable opportunity to remedy the defect and has failed
to do so.

D. Constructive notice shall mean the existence of facts which infer actual
knowledge.

E. A public entity that responds to or makes an examination or inspection of
any public site or area in response to reports or complaints of a defective condition
on property of which the entity has no ownership or control and that takes steps to
forewarn or alert the public of such defective condition, such as erecting barricades
or warning devices in or adjacent to an area, does not thereby gain custody, control,
or garde of the area or assume a duty to prevent personal injury, wrongful death,
property damage, or other loss as to render the public entity liable unless it is shown
that the entity failed to notify the public entity which does have care and custody of
the property of the defect within a reasonable length of time.

F. A violation of the rules and regulations promulgated by a public entity is
not negligence per se.

G. (1) “Public entity” means and includes the state and any of its branches,
departments, offices, agencies, boards, commissions, instrumentalities, officers,
officials, employees, and political subdivisions and the departments, offices,
agencies, boards, commissions, instrumentalities, officers, officials, and employees
of such political subdivisions. Public entity also includes housing authorities, as

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against a public entity, such as the DOTD, for damages allegedly caused by a thing

in its care and custody, bears the burden of showing the following:

(1) DOTD had custody of the thing that caused the
plaintiff’s injuries or damages;

(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 in the thing was a cause-in-fact of the
plaintiff’s injuries.

Netecke v. State ex rel. DOTD, 98-1182, 98-1197, p. 7 (La. 10/19/99), 747 So.2d 489,

494. In Netecke, the supreme court explained the DOTD’s duty regarding public

roadways and areas within its right-of-way:

DOTD’s 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. DOTD
must maintain the shoulders and the area off the shoulders,
within its right-of-way, in such a condition that they do not
present an unreasonable risk of harm to motorists using
the adjacent roadway and to others, such as pedestrians,
who are using the area in a reasonably prudent manner.
DOTD’s duty to maintain safe shoulders encompasses the
foreseeable risk that for any number of reasons a motorist
might find himself on, or partially on, the shoulder. This
duty extends not only to prudent and attentive drivers, but
also to motorists who are slightly exceeding the speed limit
or momentarily inattentive.

This duty, however, does not render DOTD the
guarantor for the safety of all the motoring public.
Further, DOTD is not the insurer for all injuries or

defined in R.S. 40:384(15), and their commissioners and other officers and
employees and sewerage and water boards and their employees, servants, agents, or
subcontractors.

(2) “Public site or area” means any publicly owned or common thing, or any
privately owned property over which the public’s access is not prohibited, limited,
or restricted in some manner including those areas of unrestricted access such as
streets, sidewalks, parks, or public squares.

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damages resulting from any risk posed by obstructions on
or defects in the roadway or its appurtenances. Moreover,
not 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. Whether DOTD
breached its duty to the public, by knowingly maintaining
a defective or unreasonably dangerous roadway, depends
on all the facts and circumstances determined on a case by
case basis.

Netecke, 747 So.2d at 494-5 (citations omitted) (emphasis added). We recognize this

dispute does not involve a highway injury. The same principles, however, apply.

Applying these principles, we find that the plaintiffs failed to establish that the

DOTD could be held liable in negligence for the asserted damages as a result of the

first collapse that occurred in October 1997. Specifically, the plaintiffs failed to

establish that the underground culverts created an unreasonable risk of harm, nor did

they establish that the DOTD had actual or constructive knowledge of the alleged

unreasonable risks posed, yet failed to remedy the conditions before the complained-

of event occurred.

Unreasonable Risk of Harm

The determination of an unreasonable risk of harm must be made by the

fact-finder by weighing the social utility of the structure or thing at issue versus the

likelihood and severity of harm. Gauthier v. City of New Iberia, 06-341 (La.App. 3

Cir. 9/27/06), 940 So.2d 915 (citing Oster v. Dep’t of Transp. & Dev., State of La.,

582 So.2d 1285 (La.1991) and Clark v. Hartford Acc. & Indem. Co., 562 So.2d 50

(La.App. 3 Cir. 1990)). This determination must be based on the particular facts and

circumstances of each case. Id.

At issue in this case are one or more concrete, underground culverts

located in the State’s right-of-way on Highway 171 in front of the Cowboy

11

Connection apparel store. The social utility of such underground drainage systems

is evident via the legislation that has been created, authorizing the State’s

construction of these systems, as deemed necessary, to properly drain state highways.

See La.R.S. 48:223.5 In addition, the State has been granted authority by the

legislature to place these constructions in state highway right-of-ways. Id.

On the other hand, the evidence and testimony presented at trial did not

establish that the culverts implicated, nor the box culvert, created an unreasonable

risk of injury to persons exercising ordinary care and prudence. See Entrevia v.

Hood, 427 So.2d 1146 (La.1983). To determine whether the culverts caused an

unreasonable risk of harm, the magnitude and probability of injury is to be weighed

against the burden of preventing injury. Entrevia, 427 So.2d 1146. In this case, the

testimony and evidence revealed that the culverts at issue pre-dated 1972 in age, but

there was no evidence presented of any prior failures or collapses in or around the

areas of these culverts prior to the incidents in question. Rather, it was established

that an undetected leak due to deterioration in the box culvert connecting the culverts

near the area of the collapse may have caused slow occurring soil erosion. Moreover,

it was established that this deterioration and erosion was undetectable absent

evidence of sagging or cracking on the surface. No evidence of the existence of any

sagging or cracking at that location prior to the collapse was presented during the

trial.

5
La.R.S. 48:223(A) states:

A. The department may construct canals, ditches, or drains sufficient in its judgment to
properly drain any highway embraced in the system of state highways constructed or to be
constructed through any lands of private persons. The rights of way for these canals may be acquired
in the same manner and on the same basis of compensation as provided for acquiring rights of way
for highways.

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Rather, the DOTD established that the actual damage to the parking lot

and the plaintiffs’ canopy occurred, not solely because of the soil erosion caused by

leaks, but also due to imprudent and unsound construction of the canopy that

encroached upon the highway right-of-way at that location. Specifically, the heavy,

steel canopy structure encroaching upon the state’s right-of-way was not properly

built on support piers. Expert testimony by civil engineer John Brusen, asserted that

the structure was not constructed in a standard manner because the weight of the

canopy was improperly resting on the parking lot slab. Consequently, this lack of

support led to the subsequent collapse of the northern column when significant soil

erosion underneath the slab occurred. He asserted that the collapse of the storefront

canopy may have been prevented if proper construction methods had been employed.

There was no evidence presented by the plaintiffs to contradict this.

We find, accordingly, that the testimony and evidence does not support

a finding that the drainage culverts that were implicated were defective or created

unreasonably dangerous conditions. Additionally, the evidence and testimony

showed that the area on and/or near the culverts was not being used by the property

owner in a reasonably prudent manner. As such, the facts do not establish that the

DOTD was in control of a defective thing that posed an unreasonable risk of harm to

a plaintiff who was using the premises in a reasonable manner.

Actual or Constructive Notice

We also find that the plaintiffs failed to establish that the DOTD had

actual or constructive knowledge of the alleged defects before the October 1997

collapse or that the DOTD failed to take corrective measures within a reasonable

time, given such notice. “Actual notice is knowledge of dangerous defects or

conditions by a corporate office or employee of the public entity having a duty either

13

to keep the property involved in good repair or to report defects and dangerous

conditions to the proper authorities.” Boddie v. State, 27,313, p. 6 (La.App. 2 Cir.

9/27/95), 661 So.2d 617, 622. Constructive notice, according to La.R.S. 9:2800(D),

means “the existence of facts which infer actual knowledge.”

Evidence and testimony was presented by the DOTD that the October

1997 collapse was the consequence of soil erosion that occurred over an extended

period of time underneath the parking lot’s pavement and was contributed to by the

faulty construction of the columns supporting the store-front canopy. Uncontradicted

testimony was presented that regular visual, above-ground inspections of the area

were performed by the parish maintenance superintendent as required by the DOTD.

It was also established that his inspections could not have led to the detection of the

underground problems that were occurring due to the lack of any above-ground

evidence of the underground conditions.

The record further reflects that Mrs. Lott; her daughter, Elizabeth Wilson

(a long-time store employee); Mrs. Lambert (the property owner); and contractor,

Patrick Williams, all testified that the first collapse was unexpected and sudden.

There was no testimony provided from any source of the presence of a pre-existing

condition that would have indicated the instability of the concrete near or at the site

of the cave-in. Accordingly, the element of notice on the part of the DOTD was not

established by the plaintiffs.

The DOTD cannot be held liable for damages absent the establishment

of the four elements necessary to the establishment of a claim against a public entity,

as was explained in Netecke, 747 So.2d 489. Therefore, the jury’s verdict, assessing

fault to the DOTD for the Cowboy Connection’s damages, is manifestly erroneous

and is reversed.

14

For the sake of clarity, we expressly state that the jury did not manifestly

err by finding that the DOTD was negligent in its repair and maintenance of the

portion of the right-of-way that was the subject of the Western Connection, Inc.’s

claims. Contradictory testimony was presented regarding the existence of a “sink

hole” and/or cracks in the pavement near the location of the second collapse, before

its occurrence. In addition, testimony was presented that raised the issues of whether

the excavation and repair work that was conducted after the first collapse put the

DOTD’s employees on notice of a problem or potential problem at the second

collapse site and whether they should have taken action to undertake further

excavation and repair work at that time. Consequently, we shall address the

plaintiffs’ appeal of the jury’s award of $0 in damages to the Western Connection,

Inc. and the trial court’s denial of the motion for JNOV as to that portion of the

verdict.

Judgment Notwithstanding the Verdict

Regarding the jury’s verdict rendered as to the Western Connection, Inc.

and the trial court’s subsequent denial of the plaintiffs’ motion for JNOV in that

regard, we are required to employ a two-part inquiry upon review of the trial court’s

ruling. Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84. First,

the reviewing court has to determine whether the trial court erred in denying the

motion by applying the same criteria to the jury verdict as that which the trial court

applied when it considered the motion. Id. Those criteria are as follows:

A JNOV is warranted when the facts and inferences
point so strongly and overwhelmingly in favor of one party
that the court believes that reasonable jurors 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 men could not reach different
conclusions, not merely when there is a preponderance of
evidence for the mover. If there is evidence opposed to the

15

motion which is of such quality and weight that reasonable
and fair-minded men in the exercise of impartial judgment
might reach different conclusions, the motion should be
denied. In making this determination, the 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. Smith v. Davill Petroleum
Company, Inc. d/b/a/ Piggly Wiggly, 97-1596 (La.App. 1
Cir. 12/9/98), 744 So.2d 23. See also, Powell v. RTA,
96-0715 (La. 6/18/97), 695 So.2d 1326; Anderson v. New
Orleans Public Service, 583 So.2d 829 (La.1991); State of
Louisiana, DOTD v. Scramuzza, 95-786 (La.App. 5 Cir.
4/3/96), 673 So.2d 1249; Seagers v. Pailet, 95-52 (La.App.
5 Cir. 5/10/95), 656 So.2d 700; Engolia v. Allain, 625
So.2d 723, 728 (La.App. 1 Cir.1993); Adams v. Security
Ins. Co. Of Hartford, 543 So.2d 480, 486 (La.1989).

Davis, 774 So.2d at 89. If the appellate court determines that the trial court properly

applied the aforementioned standard to the jury’s verdict, the appellate court must

then review the JNOV using the manifest error standard of review. Id. (citing

Anderson, 583 So.2d 829).

In this case, the trial court denied the motion for JNOV, explaining its

reasoning as follows:

Reasonable minds could perhaps differ on damage
sustained by Western Connection. That cave-in occurred
approximately on the southern one-half of the parking lot
and did not significantly restrict access to the business.

We find no error in the trial court’s application of the criteria for consideration of the

motion for JNOV. We, too, find that the evidence presented does not point so

overwhelmingly in favor of the plaintiffs that reasonable persons could not have

reached the jury’s decision. In reviewing the evidence and testimony presented on

the issue of whether the Western Connection, Inc. suffered damages as a result of the

second collapse that occurred in September 1998, the record revealed these relevant

facts: the collapse did not occur on the premises of the Western Connection, Inc.; the

business never closed during the period after the collapse as a result of ongoing work

or barricades; the parking lot entrance was not obstructed by construction or

16

barricades; and all major excavation was completed and equipment removed within

a two-day repair period. Although it was argued that the nearby location of the

construction and the six-month period in which the barricades were located next to

the parking lot entrance served as catalysts for the business’s declining sales, we find

that the jury’s award of $0 in damages is, nevertheless, reasonably supported by the

record and, as such, is not manifestly erroneous.

Accordingly, the jury’s assessment of $0 in damages to the Western

Connection, Inc. and the trial court’s denial of the plaintiffs’ motion for JNOV, in that

regard, are affirmed.

IV.

CONCLUSION

The jury verdict finding that the State, through the Department of

Transportation and Development, was negligent in maintaining and repairing the

right-of-way such that damages were suffered by the Cowboy Connection, Inc., is

manifestly erroneous and is reversed. The trial court’s denial of the motion for

judgment notwithstanding the verdict of $0 in damages to the Western Connection,

Inc. is affirmed. All costs of this appeal are assessed to the plaintiffs, Cowboy

Connection, Inc. and Western Connection, Inc.

AFFIRMED IN PART; REVERSED IN PART.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules—Courts of Appeal.

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