Mary Faye O'quin v. Continental Casualty Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-355

MARY FAYE O’QUIN, ET AL.

VERSUS

CONTINENTAL CASUALTY INSURANCE CO., ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
PARISH OF AVOYELLES, NO. 2003-5496,
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED.

Frank E. Lamothe, III
Attorney at Law
315 Lee Lane, Suite 104
Covington, Louisiana 70433
Counsel for Plaintiffs/Appellees:
Mary Faye O’Quin
Logan O’Quin
Paige O’Quin

Darrel D. Ryland
Attorney at Law
Post Office Box 1469
Marksville, Louisiana 71351
(318) 253-5961
Counsel for Plaintiffs/Appellees:
Mary Faye O’Quin
Logan O’Quin
Paige O’Quin

John S. Hunter
Attorney at Law
400 Poydras Street, Suite 1540
New Orleans, Louisiana 70130
Counsel for Defendants/Appellees:
Continental Casualty Insurance Company
Sherie Johnson

J. Albert Ellis
Assistant Attorney General
Louisiana Department of Justice
Post Office Box 1710
Alexandria, Louisiana 71309
(318) 487-5944
Counsel for Defendants/Appellants:
Louisiana State Police
State of Louisiana, Department of Public Safety & Corrections

Maria A. Losavio
Losavio Law Firm
Post Office Box 12420
Alexandria, Louisiana 71315
(318) 767-9033
Counsel for Defendant/Appellee:
Oil Mop, LLC

SULLIVAN, Judge.

The State of Louisiana, through the Department of Public Safety and

Corrections, Louisiana State Police (the State), appeals a judgment rendered in

accordance with a jury verdict finding it 80% at fault in the death of Faron O’Quin

and awarding Plaintiffs damages. For the following reasons, we affirm.

INTRODUCTION

This matter arises from the death of a volunteer fireman at the site of a

hazardous material spill when he was struck nearly fifteen hours after the spill by a

pickup truck driven by Herman T. Kelly. Mr. O’Quin’s widow, Mary Faye O’Quin,

individually and on behalf of her minor children, Paige O’Quin and Logan O’Quin,

filed a wrongful death and survival action against the State, alleging that it was liable

for their damages because it failed to properly secure the scene of the initial accident.1

This matter proceeded to jury trial on September 25-29, 2006. The jury

returned a unanimous verdict in favor of Plaintiffs and against the State, finding the

State 80% at fault and Mr. Kelly 20% at fault for the death of Mr. O’Quin and

awarding Plaintiffs damages. On November 27, 2006, the trial court rendered

judgment in accordance with the jury verdict. After subtracting the amount of the

damages awarded attributable to the fault of Mr. Kelly, Plaintiffs were awarded

damages in the following amounts:

Mary O’Quin . . . . . . . . . . $834,051.76
Paige O’Quin . . . . . . . . . . $379,200.00
Logan O’Quin . . . . . . . . . . $379,200.00

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Several other entities were named as defendants but, for various reasons, only the State
remained a named defendant at the time of trial. Mr. Kelly and his insurer were not named as
defendants, having settled for policy limits before suit was filed. Nevertheless, the jury verdict form
contained interrogatories inquiring whether Mr. Kelly’s conduct was a cause of the accident that
resulted in the death of Mr. O’Quin and what percentage of fault should be attributed to Mr. Kelly.
La.Code Civ.P. art. 1812 and La.Civ.Code art. 2323.

It is from that verdict and judgment that the State now appeals. In its sole

assignment of error, the State asserts that:

The [jury] erred by assessing eighty percent fault to [the] State DPS&C
where the cause-in-fact of the accident was wholly the fault of unnamed
codefendant’s [sic] Herman Kelly’s act of failing to properly operate his
vehicle under extremely limited visibility and was thereby unable to
avoid striking emergency personnel in the his [sic] path, is supported by
the facts and the law.

FACTS

On March 14, 2003, at approximately 4:30 p.m., an eighteen-wheeler carrying

potentially hazardous chemicals overturned, spilling some of its contents onto the

entrance of Sammy’s Truck Stop (Sammy’s) on Highway 115 near its intersection

with I-49 just outside of Bunkie, Louisiana. Several members of the Bunkie Fire

Department arrived on the scene shortly thereafter. Fire Chief Joseph Frank

summoned the Hazardous Materials Unit (HazMat) of the State Police due to his

concern that the contents of the truck may have been leaking.

Jared Foreman and Mr. O’Quin, volunteer firemen with the Lone Pine Fire

Department, separately stopped at the scene on the way home from their respective

employments. Fire Chief Frank asked if they could stay and help his firemen, and

they agreed. Mr. Foreman testified that firemen usually arrive at the scene of an

accident before the police; therefore, firemen often worry about getting hit by

motorists. After the police arrive, however, they trust them to secure the scene.

Trooper Shelly Hopkins was the HazMat officer who initially responded to the

accident. As the HazMat officer in charge of the scene, his job was to designate the

area that was off-limits to persons not wearing the appropriate protective gear. He

testified that traffic control was not a part of his duties, but rather, that the road

troopers were in charge of that aspect of the accident site.

2

Trooper John Douglas of the Louisiana State Police, an officer with nearly

twenty-three years of experience as a road trooper at the time of the accident, arrived

on the scene at 8:30 p.m. on March 14, 2003. His job was to engage in traffic control.

He testified that the weather was clear when he arrived but that fog came in later in

the evening and remained throughout the next morning in variations of thickness. He

initially parked his vehicle near Officer Hopkins’ HazMat vehicle so that his lights

would be visible from the rear. Trooper Douglas testified that the fog was more

dense closer to the interstate and that he ran the risk of being hit if he parked closer

to the interstate. He acknowledged having stated in previous out-of-court testimony

that if his vehicle would have been parked closer to I-49, it would have been the first

thing that Mr. Kelly would have struck, and Plaintiffs’ attorney would be representing

his widow rather than Mrs. O’Quin.

Trooper Douglas stated that he was sitting in his patrol car in the center of the

roadway with his blue emergency lights flashing when Mr. O’Quin was hit. Although

he did not see the impact because he was facing the opposite direction, he stated that

he heard tires squealing and then heard the impact. The impact occurred to the right

and behind him. He stated that several fire trucks were “up there [near the chemical

spill]” at the time Mr. O’Quin was struck. Trooper Douglas testified that his

supervisor, Officer Martel, arrived at the scene after the O’Quin accident and ordered

him to move his vehicle closer to the interstate in order to extend the perimeters of

the accident scene. Because he was still concerned for his own safety, Trooper

Douglas parked on the neutral ground of the exit ramp where I-49 meets Highway

115 to avoid being hit by oncoming traffic.

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The trial testimony indicated that the pickup truck of an employee of Oil Mop,

L.L.C., an emergency response company, became the staging area for many of the

first responders, such as Mr. O’Quin, who were not actively engaged in offloading

the overturned truck, and, thus had to remain outside of the chemical hazard zone

established by the HazMat unit. Trooper Douglas testified that he was aware that

various first responders came and went around the Oil Mop truck throughout the

entire evening.

On March 14, 2003, at approximately 8:00 a.m., Virgil Blanchard, an employee

of Oil Mop, responded to the hazardous material spill. His job was to transfer the

load from the overturned truck to another empty eighteen-wheeler supplied by the

trucking company so that the overturned truck could be up-righted. Mr. Blanchard

testified that he parked his Oil Mop company truck off the right side of the road a

short distance past the first entrance to Sammy’s, ahead of the state trooper’s vehicle.2

He felt that he had parked in a secured zone. When he initially arrived, the state

trooper’s vehicle was blocking the first entrance to Sammy’s, but the trooper later

moved his vehicle to allow entry into Sammy’s parking lot. Mr. Blanchard stated that

after he finished transferring the chemical, he noticed that the trooper had moved his

vehicle again. By the time the O’Quin accident occurred, Mr. Blanchard’s Oil Mop

truck was the first vehicle that a motorist headed east on Highway 115 would

encounter upon approaching the initial accident site.

Mr. Blanchard testified that it was daybreak when he finished off-loading the

chemicals and returned to his truck to store his gear. There was a group of people

2
According to a diagram prepared by Plaintiffs’ expert, John Painter, after consulting the
police report and taking his own measurements at the scene, the Oil Mop truck was parked nearly
300 feet away from the actual spill location.

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standing near the tailgate of his truck, including Mr. O’Quin, Mr. Cory Butaud3, and

two wrecker company employees. He remembered that Mr. O’Quin had his reflective

gear on at the time. The fog was very heavy and visibility was minimal. He testified

that he heard the sounds of an engine racing and tires squealing, coming from the

direction of the interstate. He then saw the lights of a vehicle about 150 to 200 feet

away. Mr. Blanchard testified that they all put their hands in the air and began

waiving, trying to get the attention of the driver. The driver started skidding toward

them with his brakes locked. Mr. Blanchard was afraid of getting pinned behind his

truck. He, another first responder, and Mr. O’Quin moved to the right side of the Oil

Mop truck. Mr. O’Quin continued moving farther to the right and onto the driveway

going into Sammy’s. Mr. O’Quin was then hit by the truck and dragged for a couple

of hundred yards.

Matthew Leary, a fireman with the Bunkie Fire Department, testified that

Mr. O’Quin was already on the scene when he arrived in his fire truck, and they

worked together throughout the evening. He left the fire truck’s emergency lights on

all night per standard procedure. Mr. Leary testified that between one and two in the

morning, because of the extremely foggy conditions, he and Mr. O’Quin were nearly

hit by a chartered bus headed to a casino. The bus stopped just two or three feet from

the first responders’ vehicles.

Mr. Leary stated that he saw Mr. O’Quin standing next to Mr. Blanchard’s Oil

Mop truck drinking coffee as he walked away to make a phone call. He then heard

a truck with loud exhaust pipes but could not see the truck because of the fog.

3
Mr. Butaud was an employee of B&V, an emergency response company that Oil Mop
subcontracted with to render assistance in transferring the load after the chemical spill on March 14,
2003.

5

Mr. Leary first thought that it was on I-49 then realized that it was coming toward

Sammy’s. He heard someone yell that Mr. O’Quin had gotten hit, and he turned to

see him going down in the ditch.

Robert Cornelius testified that he and his family stopped at Sammy’s for a

bathroom break on the morning of Mr. O’Quin’s accident. Although Mr. Cornelius

was very familiar with the location of Sammy’s and he was on the lookout for it, he

nearly drove past Sammy’s because of the fog. He testified that he almost hit

Mr. O’Quin as he turned into Sammy’s because there was no warning of the blocked

roadway. After parking, he went to check out the scene because he would be using

the same road the next morning. He spoke with Mr. O’Quin and learned about the

overturned truck. He noticed that the state trooper’s car was parked “up inside” some

other vehicles. He felt uneasy standing there talking because, although he could hear

the sound of vehicles traveling on the roadway, he could not see anything. He told

Mr. O’Quin to be careful and had walked only about twenty steps away when he

heard brakes squealing and a thud. He turned around to see Mr. O’Quin face down

in the ditch. HazMat officers immediately began CPR on Mr. O’Quin without

success.

Charles Clark, a trucker who stopped at Sammy’s almost daily to eat and refuel,

was headed to Sammy’s around 7:00 on the morning of March 15, 2003, traveling

between fifteen and twenty miles per hour. He, too, testified that it was very foggy,

that he could not see that the road was blocked until he got right up to Sammy’s

driveway, and that there were no prior warnings of the blocked roadway. After

parking his truck, he found out that Mr. O’Quin had been hit. He remembered

remarking to two men at the scene, within earshot of several officers, that “they [the

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police] should have been at the exit[s] from the Alexandria side and Opelousas side

warning people, you know, because it was so foggy.”

Herman Kelly, the motorist who struck Mr. O’Quin, was thirty-six years old

at the time of trial. He testified that he had been in the trucking business for eleven

years. He lived on Highway 115 on the other side of the interstate from Sammy’s.

He was headed to work in his Ford F-150 pick-up truck at 6:45 on the morning of

March 15, 2003. The weather was muggy and foggy. He was comfortable driving

in the fog and was traveling about fifty miles per hour or less, a speed that he felt was

safe. After crossing under the interstate, he saw a crowd of people directly ahead of

him, and he panicked. He had both hands on the wheel and stood up on the brakes

so hard that his body was straight. He immediately swerved to the right toward the

ditch to miss the crowd. He saw a man running with his hands in the air making a

flagging motion and, much to his regret, he struck him. After the impact, he

scrambled to look behind him, and his feet hit the gas. His truck spun to the left, then

to the right, and finally came to rest on a culvert.

Mr. Kelly testified that he could not see the lights from Sammy’s as he

approached the area that morning. He indicated that the fog was much worse at the

time of the accident than what is depicted in the photographs taken after the accident

and shown at trial. He testified that he had not passed Sammy’s when he left work

the day before on March 14, 2003, because traffic was being routed through

Cheneyville. Upon inquiry as to why the traffic was being rerouted, Mr. Kelly was

told that there had been a wreck.

The parties stipulated that if Bruce Graham, an employee of the DOTD, were

called to testify, he would have stated that the DOTD had in its Marksville, Louisiana

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office barricades, cones , channelizing barrels, and other devices that could have been

placed on the road if requested. The DOTD did not receive such a request.

John Painter was offered by Plaintiffs and accepted by the trial court as an

expert in accident reconstruction and police vehicle operations. He was unable to

compute Mr. Kelly’s speed with great precision because Mr. Kelly had tried to stop,

briefly accelerated, and then tried to stop again. Taking into account the skid marks

left by Mr. Kelly’s tires and the dampness of the road due to the fog, he estimated that

Mr. Kelly’s speed was between fifty and fifty-five miles per hour. His measurements

indicated that Mr. Kelly saw the people standing on the road ahead of him from 220

to 300 feet away, a distance farther than that testified by Mr. Kelly. He opined that

the direction of the sun on the foggy morning of Mr. O’Quin’s accident would have

made it more difficult for Mr. Kelly to see the emergency lights ahead of him.

Upon cross-examination, Mr. Painter discounted the deposition testimony of

George Schneider, a tow truck driver at the scene of the accident. Mr. Schneider was

facing the interstate and could see Mr. Kelly’s headlights at a distance of 1000 feet

away as he drove under the interstate. Mr. Painter stated that Mr. Kelly’s visibility

could not be compared to that of Mr. Schneider’s because Mr. Kelly was facing the

sun and an array of vehicles ahead of him, not just looking ahead into the darkness.

Mr. Painter was of the opinion that Trooper Douglas’s actions may have been

reasonable for a lone responder during a low-traffic daytime accident; however, once

he knew that the road would have to be closed for an extended period of time, he

should have called for additional assistance. Trooper Douglas also should have

moved his car at nightfall and done more to direct the traffic. Reflective cones or

flares should have been used temporarily until the DOTD could arrive to help shut

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down the roadway because after the fog appeared, visibility worsened, and motorists

needed even more advance warning. Mr. Painter stated that another purpose of an

advance warning area is to create a buffer zone to protect first responders at the scene

from motorists unable to stop in time. He added that warning systems should be set

up with reasonable expectations that some drivers will be speeding, fatigued, or

drunk.

Mr. Painter concluded that the location of Trooper Douglas’s vehicle at the

time of the accident, embedded within non-police vehicles and facing away from

traffic, was inappropriate for traffic control under the circumstances because it

provided no warning and no buffer zone, both of which could have easily been

provided, thus preventing Mr. O’Quin’s death.

As a witness for the State, Kelly Adamson was accepted by the trial court as

an expert in accident reconstruction and civil engineering. Mr. Adamson estimated

that Mr. Kelly was going between sixty and seventy miles per hour before he began

braking. After reviewing the deposition testimony of other people at the scene,

Mr. Adamson was of the opinion that visibility was farther than what Mr. Kelly

described.

Mr. Adamson concluded that the cause of the accident that killed Mr. O’Quin

was Mr. Kelly’s traveling too fast for the conditions. He opined that, in light of the

fact that Mr. Kelly was a commercial vehicle operator, he should have known better

because he had training with regard to how long it takes vehicles to stop.

On cross-examination, Mr. Adamson testified that he was contacted by the

State regarding this case in December 2005, over two and one-half years after the

accident. He received the depositions that he reviewed in forming his opinions just

9

three weeks before trial, and he did his latest inspection and survey of the accident

site on the Sunday before trial.

LAW

Standard of Review

It is well settled that a court of appeal may not set aside a jury’s finding of fact

in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549

So.2d 840, 844 (La.1989). If the jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse even though it is

convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently. Id.

Liability

The legislature has vested law enforcement officers with exclusive authority to

regulate traffic, and the public has a corresponding obligation to follow traffic

regulations. Blair v. Tynes, 621 So.2d 591 (La.1993). “[O]fficers are duty bound to

exercise this power reasonably to protect life and limb and to refrain from causing

harm or injury.” Id. at 596. Thus, when a law enforcement officer becomes aware of

a dangerous traffic situation, the officer has an affirmative duty to see that neither

motorists nor pedestrians are subjected to unreasonable risks of harm. Id.; Monceaux

v. Jennings Rice Drier, Inc., 590 So.2d 672 (La.App. 3 Cir. 1991). Moreover, this

duty extends not only to prudent, attentive drivers, but also to those who are

momentarily inattentive or careless, or even intoxicated. Monceaux, 590 So.2d 672.

“[M]otorists are charged with a duty of reasonable care to maintain a careful

lookout, observe any obstructions present, and exercise care to avoid them. . . .

[Nevertheless,] they have a right to assume that the roadway is reasonably safe for use

10

until they know, or should know, of an existing hazard.” Dupree v. City of New

Orleans, 99-3651, pp. 19-20 (La. 8/31/00), 765 So.2d 1002, 1015 (citation omitted).

In determining whether liability exists under the facts of a negligence case, the

situation is analyzed using a duty-risk formula, in which the following must be

considered: (1) whether the conduct of which the plaintiff complains was a cause-in-

fact of the harm; (2) whether there was a duty on the part of the defendant which was

imposed to protect against the risk involved; (3) whether there was a breach of that

duty; and (4) damages. Blair, 621 So.2d 591.

Apportionment of Fault

The Louisiana Supreme Court has held that “[i]n determining the percentages

of fault, the trier of fact shall consider 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.” Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

The Watson court stated:

In assessing the nature of the conduct of the parties, various factors
may influence the degree of fault assigned, including: (1) whether the
conduct resulted from inadvertence or involved an awareness of the
danger, (2) how great a risk was created by the conduct, (3) the
significance of what was sought by the conduct, (4) the capacities of the
actor, whether superior or inferior, and (5) any extenuating circumstances
which might require the actor to proceed in haste, without proper
thought. And, of course, as evidenced by concepts such as last clear
chance, the relationship between the fault/negligent conduct and the harm
to the plaintiff are considerations in determining the relative fault of the
parties.

Id.; see also, Johnson v. State ex rel. DOTD, 06-898 (La.App. 3 Cir. 12/13/06),

946 So.2d 682, writ denied, 07-510 (La. 4/27/07), 955 So.2d 693.

The trier of fact’s allocation of comparative negligence is a factual

determination that is owed deference by the court of appeal. Roberts v. Robicheaux,

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04-1405 (La.App. 3 Cir. 3/2/05), 896 So.2d 1232, writ denied, 05-792 (La. 5/13/05),

902 So.2d 1021. Therefore, a fault allocation should not be disturbed unless it is

manifestly erroneous or clearly wrong. Id.; Molina v. City of New Orleans, 01-1411

(La.App. 4 Cir. 10/2/02), 830 So.2d 994, writ denied, 03-156 (La. 3/28/03), 840 So.2d

573.

ANALYSIS

The State does not seriously contest the jury’s implicit finding that Trooper

Douglas owed a duty to Mr. O’Quin, an emergency responder, to protect him from an

approaching motorist who might not realize that the road was blocked until it was too

late to stop. In fact, the State framed the issue of law for this court to review as

“[w]hether a motorist driving at a speed farther [sic] than his ability to see the road

before him obscured by thick fog, and as a result of the speed striking and killing [an]

emergency responder in the roadway is within the ambit of protection owed by the

State Police.” Rather, the State argues that the jury erred in assessing any fault to it,

much less 80%, where the evidence supported a finding that Mr. Kelly was solely at

fault for Mr. O’Quin’s death.

Plaintiffs contend that they met their burden of proving that Trooper Douglas’s

conduct was a cause-in-fact of the harm suffered by the decedent; that the State owed

a duty to protect emergency responders, such as Mr. O’Quin, from the risk that a

speeding motorist, such as Mr. Kelly, would not have time to stop upon approaching

the original accident scene; that Trooper Douglas breached that duty; and finally, that

they suffered damages. In addition, Plaintiffs submit that the jury’s allocation of fault

acknowledged that Mr. Kelly bore some responsibility for the death of Mr. O’Quin,

but it also properly recognized that the State should bear the lion’s share of the fault

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for breaching its duty to protect the scene. Plaintiffs submit that the fault allocation

was fully supported by the evidence and, thus, is not clearly wrong.

Liability

We conclude that the evidence overwhelmingly supports the jury’s conclusion

that the conduct of the State was a cause-in-fact of the accident that killed Mr. O’Quin.

State Troopers have an affirmative duty, upon becoming aware of a dangerous

traffic situation, to ensure that neither motorists nor pedestrians are subjected to

unreasonable risks of harm. Monceaux, 590 So.2d 672. The initial chemical spill

occurred in the daylight hours of March 14, 2003, nearly fifteen hours before

Mr. O’Quin was killed. Trooper Douglas had almost twenty-three years experience

as a road trooper at the time of this accident. Once it became apparent that the

chemical spill could not be quickly removed, he was duty-bound to take additional

measures to warn motorists using the roadway of the dangerous situation that they

would be encountering. This is true because nightfall affects the visibility of roadway

obstructions. Once fog entered the picture, the duty to provide additional warnings

to motorists was enhanced and became even more important.

There were two other close calls at the scene in the early morning hours of

March 15, 2003. Trooper Douglas testified that he feared for his own safety. It was

stipulated that the DOTD had a twenty-four hour hotline that could be called to make

requests for warning devices, such as barricades and barrels with flashing lights, that

could have been placed on the road. Instead of ensuring that the site of the initial

accident was secure and visible during the duration of the time necessary to clean up

the chemical spill, so as to protect both motorists and emergency responders, Trooper

Douglas embedded his vehicle among the other responder’s vehicles. His conduct

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amounted to a breach of the duty owed to Mr. O’Quin and damages occurred as a

result.

Apportionment of Fault

The issue at the heart of this appeal is whether the jury’s apportionment of fault

between the State and Mr. Kelly was manifestly erroneous or clearly wrong.

The thrust of the State’s argument in favor of this court increasing the jury’s

allocation of 20% fault to Mr. Kelly is that he should have slowed down due to the fog

and limited visibility on the morning of the accident and that his failure to do so was

the sole cause-in-fact of the accident. No case law is cited in support of the State’s

argument.

Plaintiffs counter that application of the Watson factors reveals that the jury’s

fault allocation took into account the nature of the conduct of Trooper Douglas and

Mr. Kelly and was consistent with Louisiana law governing fault allocation. In

arguing that the jury’s allocation of fault is fully supported by the law and evidence,

and is, thus, not manifestly erroneous or clearly wrong, Plaintiffs rely on Campbell v.

La. Dep’t of Transp. & Dev., 94-1052 (La. 1/17/95), 648 So.2d 898.

In Campbell, a single-car accident occurred when the driver fell asleep at the

wheel and his automobile struck a bridge abutment, resulting in the death of a

passenger and injuries to the driver and another passenger. Following a bench trial,

the trial court found the driver 25% at fault and the DOTD 75% at fault for causing the

accident and resulting injuries. On appeal, this court amended the judgment to reduce

the liability of the DOTD from 75% to 10%. The Louisiana Supreme Court reversed

and reinstated the trial court judgment. In doing so, the court analyzed the fault of the

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parties in causing the harm to the plaintiffs, finding it clear that the greater degree of

fault lied with the DOTD under the circumstances of that case. The court stated:

[E]xcept to the extent that the driver’s negligence set the accident in
motion, the driver had no control over the resulting harm caused by the
impact of the vehicle with the concrete bridge abutment. The evidence
presented by experts on both sides was that the purpose of a guardrail is
to prevent or at least reduce the injuries and subsequent damage by
redirecting a vehicle back onto the highway and to prevent impact with
the concrete bridge abutment. . . .To put it another way, [the driver’s]
negligence set the course for an accident to happen, but the harm or
injuries to the guest passengers in [the driver’s] vehicle were a direct
result of the impact with the concrete bridge abutment. We agree with
the trial judge’s finding that the DOTD’s fault is more substantial than
the fault of [the driver] in causing the harm sustained.

Id. at 902-903.

Plaintiffs submit that while Mr. Kelly’s conduct set the accident in motion, had

the State properly secured the scene and warned approaching motorists of the

dangerous condition ahead and created a buffer zone, the first responders would have

been in a protected zone. Plaintiffs suggest that while Mr. Kelly’s conduct would have

perhaps resulted in property damage, it would not have caused the death of

Mr. O’Quin.

Application of the Watson Factors

The first Watson factor asks whether the conduct resulted from inadvertence or

involved an awareness of the danger. Trooper Douglas had been at the chemical spill

site for over ten hours before Mr. O’Quin was killed. He had nearly twenty-three

years experience as a road trooper when this accident occurred. He knew that the road

was going to be blocked for a long time. He had encountered many dangerous traffic

situations in the past. He was aware that the DOTD could provide him with barricades

and barrels with flashing lights to give warning to approaching motorists of the

dangerous traffic situation that they were about to encounter. He saw the fog roll in

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overnight and remain throughout the morning. He knew that there were several close

calls that morning where emergency responders had nearly been hit. He had even

moved his vehicle because he feared for his own safety. We conclude that Trooper

Douglas was, or clearly should have been, acutely aware of the danger. In contrast,

Mr. Kelly was admittedly going faster than he should have been under the

circumstances, but he was unaware of the danger ahead of him, i.e., the road’s closure

and the close proximity of emergency personnel, because he had not be properly

warned of its existence.

The second Watson factor questions how great a risk was created by the

conduct. Trooper Douglas knew that the risk of a second accident was high, especially

once the fog rolled in, because the chemical spill site took up the entire roadway. He

knew that the first responders were using the area around Mr. Blanchard’s Oil Mop

truck as a staging site, and that those responders expected to be in a zone of protection

while they worked to clear the chemical spill. Being an experienced road trooper,

Trooper Douglas also knew that some motorists would be traveling faster than what

they should have been given the weather conditions. Mr. Kelly’s speed was such that

he might be unable to stop his vehicle in time should he be confronted with an

emergency.

The third Watson factor inquires into the significance of what was sought by the

conduct. Trooper Douglas was in charge of traffic control at the scene. He was duty-

bound to protect and secure the initial accident scene and to make sure that motorists

and pedestrians were not subjected to unreasonable risks of harm. That duty required

him to anticipate inattentive drivers and drivers who were exceeding the speed limit.

Despite fearing for even his own personal safety, Trooper Douglas failed to adequately

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mark the initial accident scene so that motorists would be forewarned of the dangerous

traffic condition ahead of them. Mr. Kelly was trying to get to work the morning of

the accident. He had a duty to maintain a proper lookout for hazardous conditions and

to maintain control of his vehicle.

The fourth Watson factor examines the capacity of the actors, whether superior

or inferior. Trooper Douglas was a long-time state trooper who was trained in proper

traffic control and advance warning procedures. Mr. Kelly was a trucker on his way

to work in his personal vehicle, traveling a route that he knew well.

The final Watson factor inquires into whether there were any extenuating

circumstances which might require the actor to proceed in haste, without proper

thought. Trooper Douglas had many hours to assess and re-assess the situation. In

addition, he had many years of training and experience in handling dangerous traffic

situations upon which he could rely in developing a traffic control plan customized to

the particulars of the situation before him. In contrast, Mr. Kelly suddenly saw

something ahead of him in the fog and had only seconds to process what he was seeing

and how he was going to react.

Application of the facts of this case to the Watson factors overwhelmingly

reveals that the State should bear a significant portion of the fault in this case.

In addition, we agree with Plaintiffs’ contention that while Mr. Kelly’s conduct

set the accident in motion, Mr. O’Quin would likely have escaped injury had the State

fulfilled its duty of properly securing the original chemical spill site and adequately

warning on-coming motorists of the dangerous traffic situation ahead. This weighs

in favor of assessing more fault to the State.

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Plaintiffs presented more than ample evidence, including the testimony of an

expert witness, to support their claim that the State should bear the majority of the

fault for the accident that killed Mr. O’Quin. We conclude that the jury’s allocation

of fault in this matter was neither manifestly erroneous nor clearly wrong.

CONCLUSION

We have carefully reviewed the record and have found no error in the jury’s

finding that the conduct of both the State and Mr. Kelly was a cause of the accident

which resulted in the death of Mr. O’Quin. Likewise, our review of the record reveals

no error in the jury’s allocation of fault between the State and Mr. Kelly. The

judgment of the trial court is affirmed. The State of Louisiana, through the

Department of Public Safety and Corrections, Louisiana State Police, is cast with all

costs of this appeal.

AFFIRMED.

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