Victoria Roach v. State of Louisiana, Dotd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-211

VICTORIA ROACH
VERSUS

THE STATE OF LOUISIANA THROUGH THE
DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

consolidated with
20-212

MICHAEL LEE MCVEY AND
NORMA CHERYL MCVEY

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2014-4275 C/W NO. 2014-4289
HONORABLE ROBERT L. WYATT, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Sharon Darville Wilson, and Charles G.
Fitzgerald, Judges.

AFFIRMED AS AMENDED.

Jeff Landry
Attorney General
Julius W. Grubbs, Jr.
Special Assistant Attorney General
P. O. Box 11040
New Iberia, LA 70562-1040
(337) 365-5486
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana
Department of Transportation and Development

W. Thomas Barrett, III

3401 Ryan Street, Suite 307

Lake Charles, LA 70605

(337) 474-7311

COUNSEL FOR PLAINTIFF/APPELLEE:
Victoria Roach

W. Thomas McCall, Jr.

Jones Walker LLP

445 North Boulevard, Suite 800

Baton Rouge, LA 70802

(225) 248-2154

COUNSEL FOR PLAINTIFF/APPELLEE:
Victoria Roach

Barry A. Roach

Christopher S. LaCombe

Michael H. Schwartzberg

Larry A. Roach, Inc.

2917 Ryan Street

Lake Charles, LA 70601

(337) 433-8504

COUNSEL FOR PLAINTIFFS/APPELLEES:
Michael Lee McVey
Norma Cheryl McVey

Katherine Paine Martin
Gretchen Heider Mayard
Martin Mayard, L.L.C.
P. O. Box 81338
Lafayette, LA 70598-1338
(337) 291-2440
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company

KYZAR, Judge.

The defendant, the State of Louisiana, through the Department of
Transportation and Development, appeals from a jury verdict finding it twenty
percent at fault for causing a single-vehicle accident which resulted in the death of
one of the passengers. The jury found the Department of Transportation and
Development at fault based on the placement of the intersectional traffic signal
pole struck by the vehicle, which was being driven by an intoxicated driver. For
the following reasons, we affirm as amended.

DISCUSSION OF THE RECORD

This litigation arises from an accident which occurred at the intersection of
Louisiana Highway 385 with Louisiana Highway 3092. At approximately 4:16
a.m. on October 19, 2013, Ryan A. Adams was driving southbound on Hwy 385 in
a 2013 Honda Accord owned by Michael Lee McVey. Hannah Clare McVey, Mr.
McVey’s daughter, and Victoria Roach were passengers in the vehicle. After
passing through the intersection, Mr. Adams’ vehicle drifted from the left outer
lane into a rigid traffic signal pole, which was located approximately four feet from
the shoulder and fourteen feet from the travel lane.’ Both Mr. Adams and Ms.
Roach were injured as a result of the accident; Hannah suffered fatal injuries.
Subsequent to the accident, it was determined that Mr. Adams had a blood alcohol
concentration (BAC) of 0.13%.’

On October 17, 2014, Ms. Roach filed a petition for damages against the

State of Louisiana, Department of Transportation and Development (DOTD),

''Ms. Roach and the McVeys’ expert. Doug Robert, asserted that the signal pole was
located three feet and ten inches from the shoulder and thirteen feet and ten inches from the
travel lane. DOTD’s expert, Dr. Joseph Blaschke, asserted that the signal pole was located four
feet from the shoulder and fourteen feet from the travel lane.

* Pursuant to La.R.S. 14:98. an operator of a motor vehicle is legally intoxicated when
their BAC is 0.08% or more by weight based on grams of alcohol per one hundred cubic
centimeters of blood.

alleging that DOTD was strictly liable for the defective condition of the signal pole
and that it had notice of the signal pole’s defective condition but failed to correct it.
That same day, Michael Lee McVey and Norma Cheryl McVey, Hannah’s parents,
filed a wrongful death action against Mr. Adams and his parents’ liability insurer,
Allstate Insurance Company;° State Farm Mutual Automobile Insurance Company,
the uninsured motorist (UM) insurer of the 2013 Honda Accord and the liability
insurer of two other vehicles owned by the McVeys; and DOTD. Upon motion of
DOTD, the two actions were consolidated under Ms. Roach’s lawsuit.

After various procedural rulings, the consolidated lawsuits proceeded to a
jury trial solely againsts DOTD. Following a six-day trial, the jury returned a
verdict allocating eighty percent fault to Mr. Adams and twenty percent fault to
DOTD. On the issue of damages, the jury awarded Ms. Roach general and special
damages in the amount of $1,006,275.00. It further awarded the McVeys wrongful
death damages in the amount of $10,020,000.00.

On June 27, 2019, Ms. Roach and the McVeys (collectively referred to as
Plaintiffs) filed a joint motion to tax costs, seeking to have DOTD assessed with all
trial costs in the amount of $45,804.30 and $31,943.71, respectively. On July 23,
2019, DOTD filed its own motion to tax costs, seeking to have $26,023.15 in trial
costs taxed as costs. It further sought to have Allstate, State Farm, Mr. Adams, Ms.
Roach, and the McVeys assessed with a portion of the trial costs. Following a
September 9, 2019 hearing on the motions, the trial court assessed DOTD with all

trial and court costs.

* The McVeys initially named XYZ Insurance Company, the insurer of Mr. Adams’
mother, as a defendant. However, they later amended their petition to substitute Allstate as his
mother’s insurer. Allstate, who was the insurer of Mr. Adams’ father, had already been named
as a defendant in the suit.

On September 17, 2019, the trial court rendered a written judgment in
conformity with the jury verdict. However, based on the percentage of fault
allocated to DOTD, the trial court reduced Ms. Roach’s damage award from
$1,006,275.00 to $201,255.00 and the McVeys’ damage award from
$10,020,000.00 to $2,004,000.00. Furthermore, in accordance with the
$500,000.00 cap imposed for personal injury and wrongful death damage awards
against the state by La.R.S. 13:5106,° the McVeys’ damage award was further
reduced to $504,000.00. The judgment assessed DOTD with Ms. Roach’s and the
McVeys’ trial expenses, in the amount of $45,354.30 and $32,174.71, respectively,
and all court costs, in the amount of $9,260.00 and $2,960.90, respectively.

On October 17, 2019, DOTD moved for a new trial and for a judgment
notwithstanding the verdict and/or in the alternative, for remittitur. Following an
October 28, 2019 hearing, the trial court orally denied both motions. At the close
of the hearing, DOTD filed a motion to suspensively appeal the jury verdict, which
the trial court granted. A written judgment denying DOTD’s post-trial motions
was rendered by the trial court on October 29, 2019.

On appeal, DOTD asserts ten assignments of error:

1. The trial court improperly excluded evidence regarding the fault
of Victoria Roach.

2. The trial court improperly excluded evidence and testimony of
the blood alcohol levels of Victoria Roach and Hannah McVey.

3. The trial court improperly granted a directed verdict finding no
liability on the part of Hannah McVey.

4. The trial court improperly imposed a duty on DOTD to protect
against harm caused by highly intoxicated motorists such as
Ryan Adams.

*LaRS. 13:5106(B)(2) provides that the total liability of the state for personal injury and
wrongful death damages shall not exceed $500,000.00.

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5. The trial court improperly admitted into evidence certain
documents referencing guidelines not in place at the time the
Project was designed and/or built.

6. The jury improperly imposed a duty on DOTD to go above and
beyond its mandate to follow the applicable editions of the
MUTCD and AASHTO, and improperly found that an
unreasonable risk of harm existed.

7. The jury improperly found DOTD liable despite a lack of
evidence that DOTD knew or should have known of a defect
posing an unreasonable risk of harm.

8. The jury improperly allocated 20% liability to DOTD.

9. The trial court improperly excluded certain evidence pertaining
to Roach’s future earning capacity which contributed to the jury
improper award of Roach future earnings in the amount of
$420,000.00.

10. The trial court erred in its assessment of expert fees and other
court costs solely against DOTD.

OPINION
This court, in Sonnier v. State, Department of Transportation &
Development, 18-73, 18-74, 18-75, p. 3 (La.App. 3 Cir. 6/6/18), 249 So.3d 51, 54-
55 (alteration in original), set out the applicable standard of review for this matter:

A trial court has great discretion in evidentiary matters, and its
decisions regarding motions in limine are reviewed using the abuse of
discretion standard. See Scott v. Dauterive Hosp. Corp., 02-1364
(La.App. 3 Cir. 4/23/03), 851 So.2d 1152, writ denied, 03-2005 (La.
10/31/03), 857 So.2d 487; see also Heller v. Nobel Ins. Group, 00-261
(La. 2/2/00), 753 So.2d 841.

The long-standing standard for appellate review of jury
determinations of fact was set forth in Mart v. Hill, 505 So.2d 1120
(La.1987). There, the court established a two-part test for the reversal
of a factfinder’s determinations: (1) The appellate court must find
from the record that a reasonable factual basis does not exist for the
finding of the trial court, and (2) determine that the record establishes
that the trial court’s finding is clearly wrong (manifestly erroneous).
ld.

“[T]he issue to be resolved by a reviewing court is not whether
the trier of fact was right or wrong, but whether the factfinder’s
conclusion was a reasonable one.” Stobart v. State through DOTD,
617 So.2d 880, 882 (La.1993). Additionally, “the reviewing court

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must always keep in mind that ‘if the trial court or jury’s findings are

reasonable in light of the record reviewed in its entirety, the court of

appeal may not reverse, even if convinced that had it been sitting as

the trier of fact, it would have weighed the evidence differently.’ ” /d.

at 882-83 (quoting Hous/ey v. Cerise, 579 So.2d 973, 976 (La.1991) ).

DOTD alleges the trial court committed numerous legal errors through either
the exclusion or admission of evidence into the record. Because the finding of
such an error could result in a de novo review if the error interdicted the jury’s
fact-finding process, we address these assignments of error first. Wright v. Bennett,
04-1944 (La.App. 1 Cir. 9/28/05), 924 So.2d 178.
Assignments of Error Numbers One and Two

In its first two assignments of error, DOTD argues the trial court improperly
excluded evidence pertaining to Ms. Roach’s fault and evidence and testimony
pertaining to the BAC of both Ms. Roach and Hannah. Prior to trial, Ms. Roach
and the McVeys each filed a motion in limine to exclude this evidence from being
introduced during the trial, which the trial court granted. In particular, Ms. Roach
sought to exclude evidence of her fault and her BAC, and the McVeys sought to
exclude evidence of Hannah’s BAC. The trial court granted both motions.
Ms. Roach’s Fault/BAC

DOTD argues that the trial court erred in excluding evidence of Ms. Roach’s
comparative fault because it properly pled her fault as an affirmative defense in its
answers. We disagree.

In its answer to both Ms. Roach’s and the McVeys’ petition, DOTD alleged
that Mr. Adams was solely at fault in causing the accident. However, it further
alleged that in the event it was found liable, it expressly pled the contributory

negligence and comparative fault of both Mr. Adams and Hannah. DOTD also

alleged, “The accident which forms the basis of the plaintiffs’ action resulted from

LA

the fault of the [sic] Ryan A. Adams and Hannah Clare McVey and/or the fault of
third parties.”

DOTD further alleged that it “expressly avers, adopts, and pleads all
applicable affirmative defenses recognized under Louisiana Code of Civil
Procedure article 1005, as well as all applicable defenses recognized under the
jurisprudence as if copied herein verbatim and in extenso.” In its amended answer
to both petitions, DOTD amended this allegation to allege that it “avers, adopts and
pleads all applicable affirmative defenses recognized under Louisiana Code of
Civil Procedure article 1005, as well as the statutory defenses of L.S.A.-R.S.
9:2798.1, L.S.A.-R.S. 9:2800, and L.S.A.-R.S. 13:5106.”

After hearing argument on this issue, the trial court ruled, “I do not believe
that the State has appropriately pleaded sufficient to allow the inclusion of Ms.
Roach as possibly being part of the fault in this matter.” It further stated, “Now,
accordingly, in that vain [sic], then her intoxication level is irrelevant and has
nothing to do in this trial.” Judgment on these and other issues was rendered on
May 28, 2019.

Louisiana Code of Civil Procedure Article 1003 provides:

The answer shall comply with Articles 853, 854, and 863 and,
whenever applicable, with Articles 855 through 861. It shall admit or

deny the allegations of the petition as required by Article 1004, state

in short and concise terms the material facts upon which the defenses

to the action asserted are based, and shall set forth all affirmative

defenses as required by Article 1005. It shall also contain a prayer for

the relief sought. Relief may be prayed for in the alternative.

Pursuant to La.Code Civ.P. art. 1005, “The answer shall set forth affirmatively” all
defenses, including comparative fault.

Affirmative defenses raise issues outside those presented in a

plaintiff's petition for damages, thus, it is necessary that it is pled in

order to afford the plaintiff an opportunity to adjust its case in light of

the new issue raised. Rider v. Fontenot, 463 So.2d 951 (La.App. 3 Cir.
1985). “In the absence of inclusion of an affirmative defense in the

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answer, evidence can be adduced thereon only in the absence of an
objection thereto.” Red Barn Chems., Inc. v. Lassalle, 350 So.2d
1315, 1317 (La.App. 3 Cir. 1977). “If the affirmative defense is
allowed despite the defense not being raised in answer, the result is a
surprise ‘trial by ambush’ that unfairly aids the defendant, who knew
about the defense even though plaintiff was kept in ignorance of the
defense.” Rider, 463 So.2d at 956. See also Patterson v. State, 95-
1668 (La.App. 3 Cir. 12/11/96), 685 So.2d 473, writs denied, 97-27
(La. 2/21/97), 688 So.2d 513, 97-108 (La. 2/21/97), 688 So.2d 513.

Milligan v. Heritage Manor Health & Rehab. Ctr., 19-887, pp. 8-9 (La.App. 3 Cir.
8/19/20), 304 So.3d 922, 927.

A trial court is granted vast discretion in deciding evidentiary issues; thus,
“its decisions regarding motions in limine are reviewed using the abuse of
discretion standard.” Sonnier, 249 So.3d at 54.

After reviewing DOTD’s original and amended answers in both lawsuits, we
find no abuse of discretion in the trial court’s exclusion of evidence pertaining to
Ms. Roach’s fault and her BAC. Although DOTD specifically asserted the
negligence of Mr. Adams and Hannah, it made no such assertion with regard to Ms.
Roach, nor do we find that its allegation of third-party fault was sufficient to assert
her comparative fault.

Although the Louistana Code of Civil Procedure does not define who
qualifies as a “third person,” La.Civ.Code art. 3506(32) states that “[w]ith respect
to a contract or judgment,” third persons are those who are not parties. Black’s
Law Dictionary defines “third party” as “[s]omeone who is not a party to a lawsuit,
agreement, or other transaction but who is [usually] somehow implicated in it;
someone other than the principal parties.” BLACK’S LAW DICTIONARY (11th ed.
2019).

The Louisiana Code of Civil Procedure provides that “[p]Jersons other than
those made parties to the original action may be made parties” to both

reconventional demands and cross claims. La.Code Civ.P. arts. 1064, 1073. A

third person also has the right to intervene in a pending action to assert their
interest in that matter. La.Code Civ.P. art. 1091. Finally, a defendant and a
defendant in reconvention have the right to file a third-party demand against “any
person, including a codefendant, who is his warrantor, or who is or may be liable
to him for all or part of the principal demand.” La.Code Civ.P. arts. 1111, 1112.

Accordingly, Ms. Roach does not qualify as a third person in her suit against
DOTD. Nor does she qualify as a third person in the McVeys’ suit because DOTD
identified her in its answer as one of the passengers involved in the accident. Thus,
DOTD obviously did not consider Ms. Roach a third person nor did it “state in
short and concise terms the material facts upon which” a defense of her
comparative fault was based. La.Code Civ.P. art. 1003. Accordingly, based on
DOTD’s failure to affirmatively assert Ms. Roach’s comparative fault in its answer,
we find that the trial court did not abuse its discretion by excluding this evidence.
Because of this finding, we further find no abuse of discretion in the exclusion of
her BAC.

Hannah's BAC

DOTD argues that the trial court erred in excluding evidence of Hannah’s
BAC and testimony on this subject by its expert forensic toxicologist, Dr. Gary H.
Wimbish, because the evidence was relevant in determining her comparative fault.
We disagree.

The McVeys filed a motion in limine seeking to exclude evidence of
Hannah’s BAC, arguing that it was irrelevant, highly prejudicial, and would not aid
DOTD?’s defense of comparative fault. Further, Plaintiffs jointly moved to exclude
a supplemental report and opinion by Dr. Wimbish on the issue of Hannah’s BAC
because despite testifying in his deposition that he would not be rendering an

opinion as to Hannah’s intoxication, he submitted a supplemental report eight days

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later addressing that issue. DOTD opposed these motions, arguing that the
evidence was relevant because Hannah’s comparative fault was at issue.

In excluding evidence of Hannah’s BAC, the following discussion occurred
between the trial court and DOTD’s counsel:

The Court:

It appears from what I’ve read so far that there’s not going to be any

suggestion that Hannah McVey was not intoxicated. And, again, I use

the term very loosely. You know, “intoxicated” means a lot of things,
and we all know that.

DOTD:
There are different levels, yes, sir.
The Court:

-- no one is going to deny that from at least 8:00 o’clock the
evening before, Hannah was probably consuming some alcoholic
beverages. She had provided them for friends to celebrate Ms.
Roach’s birthday.

DOTD:
Yes, sir.
The Court:

At some point in the evening, they went to OB’s Deli,
presumably continued drinking, and then the next point of interest is
when Hannah attempts to drive off from OB’s. The testimony of Ms.
Roach is that it was apparent to her that she couldn’t drive, because
she almost went into the ditch or the gully that’s across that side street
there. And Ms. Roach indicated, “Look, you can’t drive. Let Ryan
drive, or Mr. Adams drive.” Okay?

DOTD:

That’s what I understand to be the facts, too.

The Court:

So no one is going to contend that Hannah — poor Hannah, she
was tired. She just fell asleep. So no one is suggesting she was not
intoxicated. Again, using the term very loosely. Why does the jury
need to hear an intoxication level, to make it more convincing? Is
someone suggesting that she was not intoxicated?

DOTD:

Well, you know, we haven’t been before the jury yet. I haven’t
heard —

The Court:
Sure.
DOTD:

-- the plaintiffs put on their case but at this point in time, they —
they don’t seem to be doing that, “they” being the plaintiffs.

Following this colloquy, the trial court excluded evidence of Hannah’s BAC,
stating as follows:

You know, regarding Hannah . . . I don’t think the jury needs to

hear anything regarding the numbers. It seems at least at this point

unless something changes at the trial, Mr. Grubbs . . . 1f they start

doing a 180 on you regarding intoxication levels, then certainly, I'll

give you the opportunity to reurge this, but I] don’t think the jury needs

to hear anything about numbers as far as Hannah is concerned.

According to La.Code Evid. art. 401, relevant evidence is any “evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” “All relevant evidence is admissible .... Evidence which
is not relevant is not admissible.” La.Code Evid. art. 402. However, relevant
“evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or waste of time.” La.Code Evid. art. 403.

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The trial court, in this instance, evidently found the probative value of
Hannah’s BAC was substantially outweighed by the danger of unfair prejudice.
Accordingly, we find no abuse of discretion in its decision to exclude the evidence.
Assignment of Error Number Five

In its fifth assignment of error, DOTD argues that the trial court improperly
admitted into evidence certain documents referencing guidelines not in place at the
time the plans for State Project No. XXX-XX-XXXX (the project), which included the
intersection of Hwys 385 and 3092, were approved. Particularly, DOTD argues
that the trial court erred in allowing into evidence an April 9, 2013 memorandum
(Allain Memo) from Peter Allain, DOTD’s Traffic Engineering Division
Administrator, to Richard Savoie, DOTD Chief Engineer. DOTD further
complains that it was error for the trial court to permit the introduction of excerpts
from the 2009 edition of the Manual on Uniform Traffic Contro! Devices
(MUTCD); excerpts from the 2015 edition of DOTD’s Traffic Signal Design
Manual (TSDM); excerpts from the 2011 edition of the AASHTO Roadside
Design Guide (RDG); DOTD’s Policy for Roadside Vegetation Management;
DOTD’s Engineering Directives and Standards No. 1.1.1.21; and DOTD’s
investigative report on the October 19, 2013 accident.

DOTD primarily argues that the introduction of the Allain Memo was
erroneous due to the possible confusion it created as to the proper standard
applicable to DOTD and its engineers in designing and constructing the project.
Thus, it asserts that introduction of the Allain Memo was unduly prejudicial, and it
represented a subsequent remedial measure.

Plaintiffs counter, arguing that the Allain Memo was in effect six months
prior to the October 19, 2013 accident, and one of the main issues in this case

revolved around the standards applicable to DOTD in designing the project and

1]

whether it followed those standards in its placement of the signal pole in question.
Plaintiffs assert that the memo was highly relevant because it showed that DOTD
acknowledged, prior to the accident, that rigid signal poles should be located
further away from the shoulder. Further, as it was written by Mr. Allain, an
employee and witness for DOTD, it was highly relevant to his testimony regarding
both DOTD’s and the national standards that were the central issue in this matter,
and whether they were followed. Plaintiffs further argue that DOTD’s expert, Dr.
Joe Blaschke, relied on the memorandum in his opinion and deposition testimony;
thus, it was relevant and admissible for that reason as well.

“The district court is awarded vast discretion in its decisions on evidentiary
rulings, and its decision to admit or exclude evidence will not be reversed on
appeal absent a clear showing of abuse of that discretion.” Young v. Joy, 09-756,
p. 2 (La.App. 3 Cir. 2/3/10), 30 So.3d 1116, 1119. “Evidence is relevant if it has
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.” Despaux v. RSC Equip. Rental Inc., 17-765, pp. 2-3
(La.App. 4 Cir. 4/25/18), 246 So.3d 806, 809, writ denied, 18-1009 (La. 10/8/18),
253 So.3d 794 (citing La-Code Evid. art. 401).

Louisiana Code of Evidence Article 407 provides, “In a civil case, when,
after an event, measures are taken which, if taken previously, would have made the
event less likely to occur, evidence of the subsequent measures is not admissible to
prove negligence or culpable conduct in connection with the event.” However, it
goes on to state, “This Article does not require the exclusion of evidence of
subsequent measures when offered for another purpose, such as proving
ownership, authority, knowledge, control, or feasibility of precautionary measures,

or for attacking credibility.” /d.

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“In general, remedial measures taken after an incident of
negligent conduct are not admissible in evidence because such
evidence would discourage people from taking steps to prevent future
harm.” Toups v. Sears, Roebuck & Co., Inc., 507 So.2d 809, 816
(La.1987).

The prohibition against evidence of subsequent
remedial measures is designed to bring within the scope

of the rule any change, repair or precaution subsequent to

an accident. The prohibition covers only measures taken

after an event, such as post-accident repairs, installation

of safety devices, changes in design, the removal of

dangerous conditions, changes in procedure, the

dismissal of an employee charged with causing an
accident, changes in regulations, and changes in labels or
instructions.

N. Assurance Co. v. Louisiana Power & Light Co., 580 So.2d 351,
357 (La.1991) (citations omitted).

Hanover Ins. Co. v. Riceland Aviation, Inc., 18-892, pp. 7-8 (La.App. 3 Cir.
4/10/19), 269 So.3d 911, 917-18.

In the Ailain Memo, Mr. Allain indicated that the desirable distance for the
placement of a rigid signal pole, whether span wire or mast arm,’ was six feet
from the shoulder on roadways with a greater than four-foot shoulder. He also
stated, “This policy should be incorporated into all applicable design manuals,
standard plans, special details, and projects.”

While this can be construed as a subsequent standard or recommendation for
DOTD’s post-design and post-construction of the intersection and placement of the
signal pole, it was not a remediation subsequent to the accident. It is further highly
relevant to the case and the interpretation of the recommendation that Plaintiffs
suggest existed at the time of the accident. While Mr. Allain denied that the memo

somehow mandated that the signal pole be placed six feet from the shoulder, he

In a span-wire installation, signal heads are suspended from cables spanning the
intersection.

In a mast-arm installation, signal heads are suspended from cantilevered mast arms,
which project over the intersection from the rigid signal pole.

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clearly suggested that the proper distance was six feet from the shoulder, as

follows:

Q. ... But you don’t disagree with your statement memo that you
sent back in 2013 that a desirable distance would be six feet
from the shoulder? And this is a clearance estimate that you
gave, particularly with regard to rigid traffic signal poles.

A. That’s a desirable, but if you put it less than that, it wouldn’t be
a problem. It could be — an engineer could look at that and
say, “I have decided I’m going one foot behind the edge of the
shoulder.”

Q. Uh-huh (yes).

A. Or two foot or six foot. He’s got to make that call in the field,

and that’s what that memo says is that the goal is the desirable
distance. But it’s up to the engineer in the field to make that
decision.

During the trial, Plaintiffs contended, through their expert and their cross-
examination of DOTD’s expert, that the 2003 Edition of MUTCD was the primary
reference for standards and guidance applicable to DOTD for this project insofar as
placement of the signal pole was concerned. Section 4D.19(B) of MUTCD
provided the following guidance with regard to the lateral placement of signal
poles: “Signal supports should be placed as far as practicable from the edge of the
traveled way, without adversely affecting the visibility of the signal indicators.”
Plaintiffs further contended that the MUTCD chapter dealing with the lateral offset
for sign supports, such as cantilevered, overhead sign supports similar to the
cantilevered, mast-arm signal pole at issue, was applicable at least by analogy.

Section 2A.19 of MUTCD provided the following lateral offset standard for
sign supports:

For overhead sign supports, the minimum lateral offset

from the edge of the shoulder (or if no shouider exists, from the

edge of the pavement) to the near edge of the overhead sign

supports (cantilever or sign bridges) shall be 1.8 m (6 ft).

Overhead sign supports shall have a barrier or crash cushion to
shield them if they are within the clear zone

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While Section 2A.19 is located in the chapter pertaining to signs, Plaintiffs
contended that it supplied guidance and should have been considered. The fact
that the Allain Memo, six months prior to the accident, recognized that the
desirable clearance for a signal pole on the type of roadway at issue was six feet, is
highly relevant to Plaintiffs’ position and their expert’s opinion.

The Allain Memo is further relevant because Plaintiffs bore the burden of
proving that DOTD knew or should have known of the defect in the thing causing
damage. Mr. Allain’s acknowledgement, six months prior to the accident, that the
signal pole in question should optimally be placed six feet from the shoulder was
proof of such knowledge. Proof of knowledge is an exception to the normal rule
that subsequent remedial measures cannot be admitted. La.Code Evid. art. 407.

DOTD acknowledges in brief that although the Allain Memo may have been
relevant, it should have been excluded as being too prejudicial rather than
probative. However, any prejudice was caused by DOTD’s own employee’s
subsequent admission. In Juneau v. Strawmyer, 94-903, p. 10 (La.App. 4 Cir.
12/15/94), 647 So.2d 1294, 1301 (alteration in original), the fourth circuit
recognized that “[n]o one should be allowed to testify untruthfully in a court of law
and then secure protection from exposure by claiming that evidence disclosing his
lie is more prejudicial than probative.” Therein the court determined that the trial
court was correct in denying plaintiff's motion in limine as to the admissibility of a
physician’s prior testimony.

Similarly, no employee of a party should be allowed to deny a statement
made pre-accident that is incongruent with later statements by the same employee
by claiming the statement is too prejudicial. While the Allain Memo is in no way
asserted to be a lie, it is at least, by inference, contrary to Mr. Allain’s position and

opinions as to the proper placement of the signal pole. Thus, it was not error for

15

the trial court to admit the Allain Memo into evidence. Simply put, its probative
value outweighed any prejudicial effect it may have had, particularly given that
Mr. Allain was able to testify and explain the meaning of the memo, which the jury
was free to weigh and accept or reject as true. Nor do we find that the admission
of this highly probative evidence resulted in confusion of the issues, the jury being
misled, undue delay, or a waste of time. Thus, we find no abuse of discretion in
the trial court’s admission of the Allain Memo into evidence.

DOTD further argues that the Allain Memo, as well as the other materials,
was specifically inadmissible pursuant to La.R.S. 48:35. This statute imposes a
duty upon DOTD “to maintain, repair, construct, or reconstruct any public road,
highway, bridge, or street, or any portion thereof, in a manner that is not
unreasonably dangerous for a reasonably prudent driver.” La.R.S. 48:35(E)(1)(a).
It also provides that when a public road is constructed according to the “regulations
or guidelines in effect on the date of approval by the chief engineer,” it ts
presumed that the road was constructed “in a reasonably safe condition.” La.R.S.
48:35(E)(1)(b). Louisiana Revised Statutes 48:35(E)(1)(c) provides that when a
public road does not conform to the “regulations or guidelines established or
adopted subsequent to the date of such approval of the original or amended design
plan for the construction” of the public road, “such nonconformity shall not render
any such public road . . . unreasonably dangerous or defective.” It further
provides:

When determining whether or not an unreasonably dangerous
condition exists . . . if a regulation or guideline is not directly
applicable to the maintenance, repair, construction, or reconstruction,
then evidence of failure to adhere to such regulation or guideline shall

not be admissible in a court proceeding for any purpose.

La.R.S. 48:35(E)(2).

16

While we agree that the statutory language can apply hereto, its application
specifically depends on whether the intersection was actually constructed by
DOTD in accordance with the applicable guidelines. Here, the experts and
witnesses for the parties disagree on this issue. Further, whether a particular
standard, regulation, or guideline is directly applicable to the construction of the
intersection and its features is also subject to debate and disagreement amongst the
witnesses and experts. Thus, the proviso that such a standard “shall not be
admissible in a court proceeding for any purpose[]” does not directly apply, and
the trial court did not err in refusing to exclude the evidence on this basis.
Assignment of Error Number Nine

In its ninth assignment of error, DOTD argues the trial court’s exclusion of a
December 31, 2018 report by Dr. Charles Bettinger, Ms. Roach’s forensic
economist, interdicted the jury’s fact-finding process by preventing it from making
an informed decision on the issue of her loss of future earning capacity. In the
report, Dr. Bettinger projected Ms. Roach’s future loss of earning capacity at
$308,556.00.’ DOTD claims that because this report was excluded, the only
information the jury heard was Dr. Bettinger’s deposition testimony that Ms.
Roach’s future loss of earning capacity would range between $744,000.00 and
$1,150,000.00, depending on whether she was employed as a dental assistant or a

dental hygienist.”

’ Although DOTD states that Dr. Bettinger’s December 31, 2018 report determined that
Ms. Roach’s loss of future earning capacity was $377,454.00, the report actually determined that
this amount was $308,556.00. The report determined that her total loss of earning capacity, past
($68,898.00) and future ($308,556.00) equaled $377.454.00.

* At the time of trial, Ms. Roach was working as a waiter. Prior to the accident, she had
completed a dental-assistant course and was to begin working in that field the Monday following
the accident. She further planned to attend and attain dental-hygienist degree from Lamar
University before working as a dental hygienist.

17

During his trial deposition, Dr. Bettinger testified that Ms. Roach’s lost
wages amounted to $153,062.00 because she was scheduled to begin working as a
dental assistant the Monday after the accident. Because she was working as a
waitress at the time of trial, he determined that she suffered a future loss of earning
capacity of either $744,510.00, based on her future dental-assistant earnings, or
$1,151,774.00, based on her future dental-hygienist earnings. Dr. Bettinger
testified that he based these amounts on annual-earning figures provided by Jeff
Peterson, Ms. Roach’s vocational evaluation expert.

During cross examination, DOTD questioned Dr. Bettinger about his
previous December 31, 2018 report, in which he concluded that Ms. Roach’s pre-
accident earning capacity was $27,475.00; her post-accident earning capacity was
$18,500.00; her past lost earnings was $68,898.00; her loss of future earning
capacity was $308,556.00; and her total past and future loss of earning capacity
was $377,454.00.

Counsel for Ms. Roach objected to these questions, arguing that the
December 31, 2018 report was offered as part of settlement negotiations. Dr.
Bettinger explained that this was a preliminary report compiled at the request of
Ms. Roach’s counsel, who was “trying to get . . . a ballpark figure to determine
what... he would put in his — I guess you call it ‘demands.’” He stated that at the
time he issued the report, he did not have Mr. Peterson’s report; thus, he was asked
to make certain assumptions regarding Ms. Roach’s future loss of earning capacity
based on information provided by her counsel. Dr. Bettinger further testified that

although he relied on these assumptions for his preliminary report, he would not

” Mr. Peterson determined the annual salary for waitress ($20.800.00), dental assistant
($33,200.00) and dental hygienist ($55,000.00).

18

have used that information as the basis for his trial testimony. He stated that his
May 4, 2019 report was based on the information provided by Mr. Peterson.

Following a hearing on the issue, the trial court noted DOTD’s objection to
the exclusion of the evidence, but ordered, “As to the matter of the portions of the
deposition that Mr. Barrett has objected to in Dr. Bettinger’s deposition, all
portions that relate to the report from 2018 are to be redacted and removed.”
DOTD proffered an unredacted copy of Dr. Bettinger’s deposition into evidence.

In Vaughn v. Progressive Security Insurance Co., 03-1105, pp. 3-4 (La.App.
3 Cir. 3/2/05), 896 So.2d 1207, 1213-14, this court stated, with regard to appeal of
evidentiary rulings:

The standard of review for evidentiary rulings of a trial court is abuse
of discretion. Johnson v. First Nat’l Bank of Shreveport, 90-870
(La.App. 3 Cir. 6/20/01), 792 So.2d 33, writs denied, 01-2770, 01-
2783 (La.1/4/02), 805 So.2d 212, 213. Ifa trial court has committed
error in its evidentiary rulings such that the jury verdict is tainted by
the errors, the appellate court should conduct a de novo review. Evans
v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731; McLean vy.
Hunter, 495 So.2d 1298 (La.1986).

In Evans, the supreme court stated: “Legal errors are
prejudicial when they materially affect the outcome and deprive a
party of substantial rights.” Evans, 708 So.2d at 735. Under Evans, a
de novo review should not be undertaken for every evidentiary
exclusion error but should be limited to “consequential errors,” which
are errors that “prejudiced or tainted the verdict rendered.” Wingfield
v. State ex. rel. Dep’t of Transp. and Dev., 01-2668, 01-2669, p. 15
(La.App. 1 Cir. 11/8/02), 835 So.2d 785, 799, writs denied, 03-313,
03-339, 03-349 (La.5/30/03), 845 So.2d 1059, 1060, cert. denied, 540
U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003).

If we determine that a de novo review is not required here, we
must review the jury’s findings under the manifest error/clearly wrong
standard of review which provides 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). To reverse a jury’s finding, we must find from the record
that a reasonable factual basis does not exist for the finding and,
further, that the finding is clearly wrong. Id.

19

Louisiana Code of Evidence Article 408(A) provides, with regard to civil
cases:

In a civil case, evidence of (1) furnishing or offering or
promising to furnish, or (2) accepting or offering or promising to
accept, anything of value in compromising or attempting to
compromise a claim which was disputed as to either validity or
amount, is not admissible to prove liability for or invalidity of the
claim or its amount. Evidence of conduct or statements made in
compromise negotiations is likewise not admissible. This Article does
not require the exclusion of any evidence otherwise admissible merely
because it is presented in the course of compromise negotiations. This
Article also does not require exclusion when the evidence is offered
for another purpose, such as proving bias or prejudice of a witness,
negativing a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.

The 1988 comments to Article 408 state, “This Article generally follows

Federal Rule of Evidence 408[,]” which provides:

(a) Prohibited Uses. Evidence of the following is not admissible--on
behalf of any party--either to prove or disprove the validity or amount
of a disputed claim or to impeach by a prior inconsistent statement or
a contradiction:

(1) furnishing, promising, or offering--or accepting,
promising to accept, or offering to accept--a valuable
consideration in compromising or attempting to
compromise the claim; and

(2) conduct or a statement made during compromise
negotiations about the claim--except when offered in a
criminal case and when the negotiations related to a
claim by a public office in the exercise of its regulatory,
investigative, or enforcement authority.

(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice, negating a
contention of undue delay, or proving an effort to obstruct a criminal
investigation or prosecution.

The purpose behind Federal Rule of Evidence 408 was exhaustively
discussed in £.E.0.C. v. UMB Bank Financial Corp., 558 F.3d 784, 791 (8th Cir.
2009) (alteration in original), as follows:

The spirit of the Rule, as recognized by several circuits and as

set forth in the commentary to the Rule, supports the exclusion of
certain work product, internal memos, and other materials created

20

specifically for the purpose of conciliation, even if not communicated
to the other party. See Advisory Committee Notes on Fed.R.Evid.
408 (stating the purposes of the rule are to foster open discussions and
out-of-court settlements and to guard against the admission of
evidence that may not fairly represent the actual value or merits of a
claim, including not just offers, but “expansion of the rule . . . to
include evidence of conduct or statements made in compromise
negotiations, as well as the offer or completed compromise itself”); id.
(stating that the Rule applies to evidence for both parties as “[t]he
protections of Rule 408 cannot be waived unilaterally because the rule,
by definition, protects both parties from having the fact of negotiation
disclosed to the jury”); Affiliated Mfrs., Inc. v. Alum. Co. of Am., 56
F.3d 521, 528-30 (3d Cir.1995) (holding that Rule 408 applies to
internal memoranda regarding compromise negotiations even though
not communicated to the opposing party); Blu-J, Inc. v. Kemper C.P.A.
Group, 916 F.2d 637, 641-42 (11th Cir.1990) (holding that an
accountant’s report prepared for the purpose of compromise
negotiations was properly excluded); Ramada Dev. Co. v. Rauch, 644
F.2d 1097, 1106-07 (Sth Cir.1981) (holding an internal report made
“in the course of an effort to compromise” was properly excluded
under Rule 408). We find the commentary and these cases persuasive,
and we agree that it is appropriate to view Rule 408 as being
sufficiently broad to encompass certain material in addition to actual
offers of settlement.

In Lyondell Chemical Co. v. Occidental Chemical Corp., 608 F.3d 284, 295
(5th Cir. 2010) (footnote omitted), the fifth circuit stated:

By its terms, Rule 408 protects only “conduct or statements

made in compromise negotiations” regarding ‘“‘a claim that was

disputed as to validity or amount.” This protection extends to legal

conclusions, factual statements, internal memoranda, and the work of
non-lawyers and lawyers alike so long as the communications were

“intended to be part of . . . negotiations toward compromise.”

At issue in Ramada Development Co. v. Rauch, 644 F.2d 1097 (Sth Cir.
1981), was a report by an architect, which Ramada utilized in its unsuccessful
settlement negotiations with the defendant. The report studied the defects
identified by the defendant in the project Ramada had contracted to design,
construct, and furnish. The court stated that the purpose of “[t]he report was to
identify arguable defects that could then be discussed in monetary terms in the
negotiations.” /d. at 1107. In affirming the exclusion of the report, the court stated,
“The Goldsmith report, as described by Mr. Gilbert, thus represents a collection of

2]

statements made in the course of an effort to compromise, and the district court
properly held it inadmissible under the main provision of rule 408.” /d.

Based on Dr. Bettinger’s testimony, we find that he prepared the December
31, 2018 report so that counsel for Ms. Roach could use the compiled damage
amounts as the basis for her economic losses in settlement negotiations with
DOTD. As in Ramada, we find that the report is a collection of statements made
by Dr. Bettinger in the course of Ms. Roach’s effort to compromise her claim with
DOTD. Accordingly, we find that the trial court did not abuse its discretion in
excluding the evidence.
Assignment of Error Number Three

In its third assignment of error, DOTD argues the trial court improperly
granted a directed verdict in favor of Plaintiffs on the issue of Hannah’s fault.

In McNabb v. Louisiana Medical Mutual Insurance Coa., 03-565, 03-596, p.
12 (La.App. 3 Cir. 11/5/03) 858 So.2d 808, 816-17, writs denied, 03-3344, 03-
3339 (La. 2/13/04), 867 So.2d 701, 702, this court laid out the law pertaining to
directed verdicts:

Louisiana Code of Civil Procedure Article 1810 provides that a
party may move for a directed verdict at the close of evidence. A
directed verdict is appropriately granted in the event that “facts and
inferences are so overwhelmingly in favor of the moving party that
the court finds that reasonable men could not arrive at a contrary
verdict.” Guste v. Nicholls Coll. Found., 564 So.2d 682, 688-89
(La.1990). On review, an appellate court also considers whether the
evidence submitted indicates that reasonable triers of fact would be
unable to reach a different verdict. Pratt v. Himel Marine, Inc., 01-
1832 (La.App. 1 Cir. 6/21/02), 823 So.2d 394, writ denied, 02-2128
(La.11/1/02), 828 So.2d 571, writ denied, 02-2025 (La.11/1/02), 828
So.2d 572. Cobb v. Kleinpeter, 95-271 (La.App. 3 Cir. 10/4/95), 663
So.2d 236, writ denied, 95-2683 (La.1/12/96), 666 So.2d 323. The
court of appeal considers the evidence under the substantive law
applicable to the nonmoving party’s claim. Frazier v. Zapata Protein
USA, Inc., 02-0605 (La.App. 3 Cir. 12/11/02), 832 So.2d 1141, writ
denied, 03-0145 (La.3/21/03), 840 So.2d 537, writ denied, 03-0126
(La.3/21/03), 840 So.2d 539.

he
Ma

“The negligence of a driver is not imputed to her guest passenger, who
ordinarily has virtually no control over the actions of the driver.” Doucet v. Hornet
Serv. Co., 19-212, p. 11 (La.App. 3 Cir. 11/20/19), 314 So.3d 23, 32, writ denied,
19-2022 (La. 2/26/20), _ So.3d _. However, as pointed out in Robinette v. Old
Republic Insurance Co., 17-79, pp. 5-6 (La.App. 3 Cir. 10/4/17), 229 So.3d 61, 65-
66, writ denied, 17-1871 (La. 1/9/18), 231 So.3d 648, Louisiana law has imposed
passenger fault in “special and out-of-the-ordinary situations[,]” such as “where
there is a joint venture, an independent negligent act by the passenger, or a
showing that the rider had actual or constructive knowledge of a driver’s
incompetence or impaired ability to operate the vehicle.”

The supreme court, in Molbert v. Toepfer, 550 So.2d 183, 186 (La.1989),
expounded on the law pertaining to guest passenger comparative fault:

Recently in Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988),
this court determined that assumption of risk is no longer a viable
legal concept in Louisiana tort law. We concluded that a plaintiff's
conduct should be assessed on the basis of civilian concepts of
comparative fault and duty-risk. /d. at 1132. Therefore, we assess the
plaintiffs conduct within the general scheme of comparative
negligence, assigning liability to the plaintiff in proportion to his fault.
Id. at 1133-34. See also Bufkin v. Mid-American Indemnity Co., 528
So.2d 589 (La.App. 2d Cir.1988); Townley v. Manuel, 509 So.2d 515
(La.App. 3d Cir.1987); and Gravois v. Succession of Trauth, 498
So.2d 140 (La.1986), writ denied, 500 So.2d 422 (La.1987) (applying
comparative negligence rather than assumption of risk when a guest
passenger is injured while riding with an intoxicated driver).

In Prestenbach v. Sentry Insurance Company, 340 So.2d 1331,
1334 (La.1976), we summarized the law pertaining to a guest
passenger injured while riding with an intoxicated driver:

The law is well settled that a guest passenger
riding with a driver who has been drinking excessively
assumes the risk of injuries received in an accident
caused in whole or in part by the driver’s negligence, if
the alcohol-induced impairment of the driver’s ability is a
substantial contributory cause of the driver’s negligence
and if the guest passenger knows or should have known
of the driver’s condition and nevertheless voluntarily
rides with him. Marcotte v. Travelers Ins. Co., 258 La.

23

989, 249 So.2d 105 (1971); Jones v. Continental
Casualty Co., 246 La. 921, 169 So.2d 50 (1964).

Now, since the Legislature’s revision of the contributory
negligence statute and our decision in Murray v. Ramada Inns, “the

fact that the plaintiff may have been aware of the risk created by the

defendant’s conduct should not operate as a total bar to recovery.”

Murray, 521 So.2d at 1134. Instead, the plaintiff's appreciation of the

danger is among the factors to be considered in assessing percentages

of fault. fa.

The party asserting the affirmative defense of comparative fault bears the
burden of proving the defense by a preponderance of the evidence. Guidry v.
Beauregard Elec. Coop., Inc., 14-1108 (La.App. 3 Cir. 4/8/15), 164 So0.3d 266,
writs denied, 15-900, 15-903 (La. 9/11/15), 176 So.3d 1038.

The parties stipulated that Mr. Adams’ post-accident BAC was 0.13%. Dr.
Wimbish testified that based on Mr. Adams’ BAC, he was intoxicated at the time
of the accident and that he would have experienced delayed perception and
reaction times, sleepiness, drowsiness, slurred speech, and blurred vision or an
inability to focus properly.

The only two witnesses who testified regarding the events that occurred
prior to the accident were Ms. Roach and Mr. Adams. Ms. Roach testified that she
and Hannah met up with Mr. Adams in the parking lot as they were leaving OB’s
Bar and Grill at approximately 4:00 a.m. and that he ended up leaving with them in
Hannah’s vehicle. Ms. Roach stated that although Hannah was initially driving,
she had Mr. Adams change places with her after she nearly drove into a ditch and
then almost backed into a gully while trying to leave the parking lot. Ms. Roach
testified that she “didn’t feel comfortable leaving the parking lot with her driving.
And I made the wrong choice thinking, you know, that they should switch because

it — it— to me Ryan did look like he was in a better state to drive then she did. So I

told them to switch.” She stated that once Mr. Adams and Hannah switched places,

24

she noticed no problems with Mr. Adams’ ability to drive. She stated that she then
fell asleep in the back seat and only woke up when she was in the ambulance
following the accident. She said that she did not remember seeing Mr. Adams in
the bar nor did she know if he had been drinking prior to their meeting. She
further stated that she never saw him with a drink in his hand before they left the
parking lot.

Mr. Adams admitted that he was driving Hannah’s vehicle when the
accident occurred and that he was intoxicated at the time. He stated that he began
drinking prior to arriving at OB’s at approximately 11:30 p.m., and he continued
drinking after his arrival. However, he could not recall why he left with Ms.
Roach and Hannah or how he came to be driving Hannah’s vehicle.

Subsequent to Plaintiffs’ argument on the directed verdict, counsel for
DOTD stated:

Your honor, we didn’t know what the trial would bring. We
didn’t know what the evidence would have shown until its [sic] come

out.

The only person who remembered anything was Victoria Roach,

and she didn’t have anything to say about Hannah McVey or her

ability — what Hannah may have known or not known about Mr.

Adams.

Mr. Adams remembered nothing. I’m a practical person, |
understand that Ms. McVey cannot put [sic] on the jury verdict form.

Following this statement, the trial court granted the motions for directed verdict on
the issue of Hannah’s fault in favor of Plaintiffs.

After reviewing the evidence in light of the applicable substantive law, we
conclude that reasonable persons would be unable to reach a verdict finding that
Hannah was comparatively at fault for riding with Mr. Adams after they left the
bar. Ms. Roach and Hannah met up with Mr. Adams shortly before leaving OB’s

parking lot, and the accident occurred approximately sixteen minutes later.

25

Although there is no evidence indicating whether Hannah knew Mr. Adams was
intoxicated, the record establishes that Ms. Roach made the decision that he would
drive based on her determination that Hannah was incapacitated. Moreover, Ms.
Roach denied knowing that Mr. Adams was intoxicated. She never saw him in the
bar or saw him drinking before they left the parking lot. Accordingly, the
judgment of the trial court granting directed verdicts in favor of Plaintiffs is
affirmed.

Assignments of Error Numbers Four, Six, Seven, and Eight

In its eighth assignment of error, DOTD asserts that the jury erred in
determining that it was twenty percent at fault for the accident and resulting
injuries. Additionally, in its fourth, sixth, and seventh assignments of error, DOTD
argues that the jury erred by imposing a duty on it to protect against the harm
caused by a highly intoxicated motorist, such as Mr. Adams, and by requiring it to
go above and beyond its mandate to follow the applicable editions of MUTCD and
AASHTO. DOTD further argues that the jury erred by finding that an
unreasonable risk of harm existed and by finding it liable despite a lack of
evidence establishing that it knew or should have known of a defect that posed an
unreasonable risk of harm. As each of these alleged errors relate to the ultimate
issue of DOTD’s liability, we will address them together.

Herein, we must determine whether the jury was manifestly erroneous or
clearly wrong in its determination that DOTD was twenty percent at fault. An
allocation of fault is a factual determination by the trier of fact that is owed some
deference. Thus, on appeal, a jury’s allocation of fault is subject to the manifest
error/clearly wrong standard of review. Clement v. Frey, 95-1119, 95-1163 (La.

1/16/96), 666 So.2d 607.

DOTD has a duty to maintain the public roadways, including
adjacent shoulders and areas in the DOTD’s right of way, in a
condition that is reasonably safe and does not present an unreasonable
tisk of harm to the motoring public exercising ordinary care and
reasonable prudence. Campbell v. State, Through Depart. of
Transportation and Development, 1994-1052, p. 6 (La.1/17/95), 648
So.2d 898, 901-902; Brown v. Louisiana Indem. Co., 1997-1344 p. 3
(La.3/4/98), 707 So.2d 1240, 1242; Oster v. Dept. of Transp. &
Development, 582 So.2d 1285, 1289-91 (La.1991). This duty,
however, does not render DOTD the guarantor for the safety of al! of
the motoring public or the insurer for all injuries or damages resulting
from any risk posed by obstructions on or defects in the roadway or its
appurtenances. Nefecke v. State ex rel. DOTD, 1998-1182, 1998-1197
p. 8 (La.10/19/99), 747 So.2d 489, 495. Further, this court has held
that DOTD’s failure to design or maintain the state’s highways to
modern standards does not establish the existence of a hazardous
defect in and of itself. Myers v. State Farm Mut. Auto. Ins. Co., 493
So.2d 1170, 1173 (La.1986). Whether DOTD has breached its duty to
the public depends on all the facts and circumstances determined on a
case by case basis. Campbell, 1994-10522 p. 6, 648 So.2d at 901-902.

A reviewing court should afford considerable weight to an
administrative agency’s construction and interpretation of its rules and
regulations adopted under a statutory scheme that the agency is
entrusted to administer, and its construction and interpretation should
control unless they are found to be arbitrary, capricious, or manifestly
contrary to its rules and regulations. See, Dixie Electric Membership
Corp. v. Louisiana Public Service Comm’n., 441 So.2d 1208, 1211
(La.1983); see, also, In the Matter of Recovery I, Inc., 1993-0441
(La.App. Ist Cir.4/8/94), 635 So.2d 690, 696, writ denied, 1994-1232
(La.7/1/94), 639 So.2d 1169.

Forbes v. Cockerham, 08-762, pp. 31-33 (La. 1/21/09), 5 So.3d 839, 858-59.
In a roadway design-defect case such as this, a plaintiff must prove four
elements in order for DOTD to be held liable:

(1) DOTD had custody of the thing which caused plaintiffs’ damages,
(2) the thing was defective because it had a condition which created
an unreasonable risk of harm, (3) DOTD had actual or constructive
notice of the defect and failed to take corrective measures within a
reasonable time, and (4) the defect was a cause-in-fact of plaintiffs’
injuries.

Boothe v. Dep’t of Transp. & Dev., 18-1746, p. 7 (La. 6/26/19), 285 So.3d 451,
456.

The existence of an unreasonable risk of harm may not be
inferred solely from the fact that an accident occurred. In fact, the
vice or defect must be of such a nature as to constitute a dangerous
condition that would be reasonably expected to cause injury to a
prudent person using ordinary care under the circumstances. Lasyone
v. Kansas City Southern R.R., 2000-2628 p. 8 (La.4/3/01), 786 So.2d
682, 690.

This court has previously described the unreasonable risk of
harm criterion as a guide in balancing the likelihood and magnitude of
harm against the social utility of the thing, all the while considering a
broad range of social and economic factors, including the cost to the
defendant of avoiding the harm, as well as the risk and the social
utility of the party’s conduct at the time of the accident. Netecke,
1998-1182, 1998-1197 p. 14-15, 747 So.2d at 498. In every
determination, all the circumstances surrounding the particular
accident under review must be considered to determine whether
DOTD’s legal duty encompassed the risk which caused the plaintiff's
damages. Oster, 582 So.2d at 1289.

Forbes, 5 So.3d at 859-60 (footnote omitted).

The liability of DOTD, as a public entity, is based on an extension of La.Civ.

Code art. 2317’s principle that “[w]e 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.”

However, the liability of a public entity pursuant to Article 2317 is tempered by the

application of La.R.S. 9:2800(C), which provides:

[Njo 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.

There is no dispute that DOTD had custody of the intersection where this

accident occurred, as it designed and constructed the roadway. Thus, the first
prong of the test is met. Next, we look to whether the intersection, including the
placement of the signal pole, was defective because of the existence of a condition

that created an unreasonable risk of harm; whether DOTD had actual or

28

constructive notice of the defect and failed to take corrective measures within a
reasonable amount of time; and whether the defect was a cause-in-fact of Plaintiffs’
injuries and damages. In finding DOTD twenty percent at fault, the jury answered
these questions in the affirmative. After a thorough review of the testimony
presented at trial, both for and against DOTD, we find no manifest error in those
decisions.

Highway 385

The roadway at issue, Hwy 385, which runs north and south from upper
Cameron Parish to Lake Charles, Calcasieu Parish, was originally a two-lane road,
consisting of two twelve-foot travel lanes and five to seven-foot aggregate
shoulders. It was classified by DOTD as a rural roadway. In the 1970s, DOTD
initiated a project to widen Hwy 385 into a five-lane urban roadway. However,
due to funding issues, a section of roadway, including the intersection at issue, was
separated from the original project, becoming Project No. XXX-XX-XXXX. The
design for this project originally intended to widen the roadway into a rural major
collector, with four twelve-foot travel lanes and a depressed median.

Due to time and budget constraints, the design engineer sought a design
exception to change the design from a rural major collector to an urban arterial 2
(UA2), consisting of four twelve-foot travel lanes, a fourteen-foot center and left-
turn lane, and ten-foot shoulders. The revised plans were approved by William
Temple, DOTD’s chief engineer, on January 24, 2008, and the contract was let for
bidding on June 17, 2009, with the contract being let to Gilchrist Construction
Company, LLC on July 21, 2009. A final inspection of the constructed roadway
was performed by DOTD on June 8, 2011, with DOTD’s final acceptance of the

roadway occurring on June 10, 2011.

During construction of the traffic signal located at the intersection of Hwys
385 and 3092, DOTD installed a rigid signal pole with a fifty-five-foot
cantilevered mast arm in each quadrant of the intersection. The signal pole at issue
is located in the southwest quadrant of the intersection. At this location, the
shoulder is ten-feet wide, and the signal pole’s concrete foundation is located four
feet from the shoulder and fourteen feet from the travel lane, which is the outer
white line or fog line. The foundation is thirty-six inches in diameter and because
it is located in the foreslope of the ditch, extends fourteen inches above the ground
on the side closest to the roadway and twenty-one inches above the ground on the
side furthest from the roadway.
Applicable Design Guidance

The design guidance relative to signal-pole placement, in effect when the
plans for the project were approved, was developed either nationally or by DOTD.
The national guidance contained in MUTCD (2003), the RDG (2002), a Policy on
Geometric Design of Highways and Streets (2004) (GDHS), and a July 25, 1997
Federal Highway Administration (FHWA) memorandum (Federal Memo),
provided, in part, as follows:

MUTCD
Part 4. HIGHWAY TRAFFIC SIGNALS
CHAPTER 4D. TRAFFIC CONTROL SIGNAL FEATURES

Section 4D.19 Lateral Placement of Signal Supports and Cabinets

Guidance:

The following items should be considered when placing signal
supports and cabinets:

A. Reference should be made to the American Association of State

Highway and Transportation Officials (AASHTO) “Roadside
Design Guide” (see Section 1A.11) and to the “American with

30

Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG)” (see Section 1A.11).

B. Signal supports should be placed as far as practical from the
edge of the traveled way without adversely affecting the
visibility of the signal indications.

Where supports cannot be located based on_ the
recommended AASHTO clearances, consideration should be
given to the use of appropriate safety devices.

No part of a concrete base for a signal support should
extend more than 100 mm (4 in) above the ground level at any
point. This limitation does not apply to the concrete base for a
rigid support.

D. Controller cabinets should be located as far as practical from
the edge of the roadway.

RDG
Chapter 4

Sign, Signal, and Luminaire Supports, Utility Poles, Trees, and
Similar Roadside Features

4.6 SUPPORTS FOR TRAFFIC SIGNALS AND
MISCELLANEOUS TRAFFIC SERVICE DEVICES

4.6.1 TRAFFIC SIGNALS

Traffic signal posts present a special situation where a breakaway
support may not be practical or desirable. As with luminaire supports,
a fallen signal post may become an obstruction. However, the
potential risks associated with the temporary loss of full signalization
at the intersection should be considered.

When traffic signals are installed on high-speed facilities
(generally defined as those having speed limits of 80 km/h [50 mph]
or greater), the signal supports, and the signal support box if not
mounted on one of the signal support poles, should be placed as far
away from the roadway as practicable. Shielding these supports can
be considered if they are within the clear zone for that particular
roadway. Consideration should be given to using breakaway
supports for post-mounted signals installed in wide medians.

GDHS

Foreword

31

The intent of this policy is to provide guidance to the designer
by referencing a recommended range of values for critical dimensions.
It is not intended to be a detailed design manual that could supersede
the need for the application of sound principles by the knowledgeable
design professional. Sufficient flexibility is permitted to encourage
independent designs tailored to particular situations. Minimum values
are either given or implied by the lower value in a given range of
values. The larger values within the ranges will normally be used
where the social, economic, and environmental (S.E.E.) impacts are
not critical.

Cross Section Elements
Horizontal Clearance to Obstructions

The term “clear zone” is used to designate the unobstructed,
relatively flat area provided beyond the edge of the traveled way for
the recovery of errant vehicles. The clear zone includes any shoulders
or auxiliary lanes.

The AASHTO Roadside Design Guide (10) discusses clear-
zone widths as related to speed, volume, and embankment slope. The
Guide may be used as a reference for determination of clear-zone
widths for freeways, rural arterials, and high-speed rural collectors.

For low-speed rural collectors and rural local roads, a minimum clear-
zone width of 3.0 m [10 ft] should be provided.

For urban arterials, collectors, and local streets where curbs are
utilized, space for clear zones is generally restricted. A minimum
offset distance of 500 mm [18 in] should be provided beyond the face
of the curb, with wider offsets provided where practical. This
“operational” offset will generally permit curbside parking and will
not have a negative impact on traffic flow. However, since most
curbs do not have a significant capability to redirect vehicles, a
minimum clear-zone distance commensurate with prevailing traffic
volumes and vehicle speeds should be provided where practical.

FEDERAL MEMO

e Exceptions [to crashworthy requirement]:

6. Traffic signal supports and utility poles are exempt from
the crashworthiness requirements being addressed here.
Actually breakaway utility poles are expressly covered in
the NCHRP Report 350 and guidelines for testing
breakaway sign and luminaire supports could reasonably
be applied to traffic signal supports. Nevertheless,

32

because of the structural requirements for utility poles
and most traffic signal supports, the technical problems
with making them breakaway, and the assumed net
benefit to the public from allowing them, unshielded,
within the clear zone, a requirement that they be made
breakaway, historically, has not been imposed on them.
On the other hand, they constitute real risks for motorists
and all practicable measures should be taken through
their location or a reduction in their numbers to reduce
their risk to motorists. In addition, because of their low
structural requirements, consideration should be given to
making post-top-mounted traffic signal supports
breakaway.

DOTD’s guidance was developed in accordance with La.R.S. 48:35(A),
which provided:

The Department of Transportation and Development shall adopt
minimum safety guidelines with respect to highway and bridge design,
construction, and maintenance. These guidelines shal! 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 allowing the flexibilities incorporated therein.
Hereafter, the state highway system shall conform to such safety
guidelines.

The design guidance adopted pursuant to La.R.S. 48:35(A) was contained in
the TSDM (2002), the Louisiana Standard Specifications for Roads and Bridges
(2006) (SSRB), and the Traffic Signal and Installation Details (Signal Details)
inserted in the construction plans. These provided, in part:

TSDM

1.5 Pole Location

1.5.3 Minimum Clearances — On uncurbed roadways,
it is desirable that poles be located a minimum of 6
feet outside the roadway shoulder or 12 feet
outside the edge of the travelway. On curbed
roadways poles shall be located no closer than 2
feet to the front of the curb. In any case, signal
poles should be located as far as practical from the
edge of the travel lane without adversely affective
signal visibility. (Footnotes omitted.)

33

2.0 Mast Arms — Where used on LA DOTD signal installations, mast
arms shall be in accordance with current LA DOTD standard
details.

2.7. Mast Arm Pole Location — The requirements for locating mast
arm poles are the same as those listed for the location of strain poles
(See paragraph 1.5 of this section).

SSRB

736.04 GENERAL REQUIREMENTS.

Minimum clearances for traffic signal supports and apparatus
shall be in accordance with the MUTCD. Poles shall be located a
minimum of 24 inches (600 mm) outside the shoulder or a minimum
of 10 feet (3 m) outside the edge of the travelway whichever is greater.

SIGNAL DETAILS

NO. 5 HORIZONTAL CLEARANCE

A. Minimum clearances for traffic signal supports are apparatus
shall be located in accordance with the current adopted edition
of the MUTCD.

B. — In rural areas or uncurbed urban areas, the required poles shall
be located as far as practicable beyond the pavement edge. A
minimum clearance of 2 feet outside the shoulder or a
minimum clearance of 10 feet outside the pavement edge,
whichever is greater, shall be provided.

C. — In curbed areas, poles shall be placed as far as practicable from

the edge of the travel lane. A minimum clearance of 2 feet
behind [the] curb shall be maintained.

NO. 12 RIGHT-OF-WAY

A. The contractor shall be responsible for working within the
right-of-way limits.

B. _ The right-of-way limits shown on the plans is not guaranteed to
be accurate. A thorough right-of-way investigation is
recommended to be done by the user agency prior to

34

construction of these plans to determine if additional right-of-
way is required.

NO. 16 SIGNAL EQUIPMENT LOCATION

A.

Locations of poles, signals, loop detectors, system sensors,
controllers and junction boxes are approximate. Exact location
shall be approved by the project engineer.

The contractor shall stake the location of each pole foundation
and notify the project engineer for concurrence in the location
before proceeding with the installation of the pole foundation.

Once the pole foundation is installed, mast arm lengths
specified on plans are to be verified to order the materials. Ifa
time extension is needed, it shall be at the discretion of the
project engineer to grant the extension.

NO. 18 SIGNAL POLE HEIGHT

A.

The contractor shall provide heights that are sufficient to ensure
that the bottom of the lowest signal on an assembly is not less
than 17’ above the pavement. For maximum height refer to the
MUTCD, current adopted edition.

Signal head alignment and clearance shall be in accordance
with the LADOTD Signal Manual.

NO. 22, STANDARDS

A.

All work shall conform to LADOTD’s latest edition of their
Standard Specifications for Roads and Bridges, and the project
special provision specifications.

All signs, signal, pavement markings and temporary traffic
control devices are to conform to the Manual on Uniform
Traffic Control Devices (MUTCD) (Millennium Edition and all
subsequent adopted revisions).

NO. 25 UTILITIES, UNDERGROUND

A.

Underground utilities may exist in the construction areas. The
location and type shown is not guaranteed to be accurate nor all

35

inclusive. The information is shown solely for use in
establishing design controls for the project. The engineer does
not guarantee accuracy or guarantee that all utilities are shown.

B. Before any excavations, the contractor shall contact “Louisiana
One Call”, the appropriate utility company, and LADOTD
Traffic Services .. . for location of the underground service a
minimum of 48 hours prior to beginning construction. The
“Louisiana One Call” number is... .

C. The contractor shall be responsible for determining the exact
location, depth, and size of all underground utilities and
structures and shall be liable for any damages caused by failure
to comply with these instructions. The contractor shall also be
responsible for making independent investigations, including
any subsurface investigations as necessary at no expense to the
department.

Testimony

Doug Robert, Plaintiffs’ forensic engineer, testified that the southwest
quadrant of the intersection was defective due to the shoulder and ditch design and
the location of the signal pole and its foundation. He stated that because the ditch
began at the edge of the shoulder, the signal pole was located in the ditch’s
foreslope, approximately four feet from the shoulder. Mr. Robert opined that the
foreslope, with a slope of 1:4, was too steep, and a better slope would have been
1:6. While he admitted that slope is important for drainage purposes, he testified
that in this case, the foreslope’s steepness and the signal pole’s location increased
the risk that a vehicle leaving the roadway would be pulled into the signal pole. He
stated that this would be a safety objective for a design engineer when placing an
immovable object within this area. He said that the shoulders in the other three
quadrants were more acceptable because the signal pole locations in those areas
were more level than the one at issue.

Mr. Robert testified that because DOTD completely redesigned the ditches

during construction of the roadway, it could have leveled the area where the signal

10 7, oo. .
This equates to one foot of vertical rise for every four feet of horizontal run.

36

pole was located by extending the drainage pipes located under Highway 3092 and
filling in the ditch. He stated that this would have allowed the signal pole to be
located a further two feet, for a total of six feet, from the shoulder. He opined that
because the signal pole was impacted by less than two feet of the vehicle’s right-
front quadrant, the accident would not have occurred if the signal pole had been
located a further two feet west.

Mr. Robert testified that leveling this area would also have resulted in less
exposure of the signal pole’s foundation. He stated that because the foundation
was located in the foreslope, it extended above the ground fourteen inches on one
side and twenty-one inches on the other side. He opined that generally, a
foundation should not extend this far above the ground, and according to DOTD’s
plans, it should have extended no more than four inches above the ground. Mr.
Robert agreed that it was necessary for the foundation to extend above the ground
in order to prevent the traffic signal’s electrical connections, located at the base of
the signal pole, from getting wet. He further opined that because most vehicles
have a clearance of six inches, a vehicle passing near a signal pole would clear a
foundation that only extended four inches above the ground. He added that a
foundation that extended twenty-one inches above the ground was impractical
because it presented a large target.

Both the 2003 and 2009 editions of MUTCD limit a signal pole’s foundation
from extending more than four inches above the ground, unless the signal pole was
a rigid pole. However, Mr. Robert testified that this exception was inapplicable in
this instance because of language from DOTD’s plans, which stated, “4 [inch]
minimum between ground and top of foundation or as directed by the project
engineer[.]” He interpreted this to mean that a foundation cannot extend more than

four inches above the ground. However, he admitted that a project engineer would

37

have flexibility when constructing a foundation based on the phrase “or as directed
by the project engineer.”

Mr. Robert testified that the location of the signal pole was defective
because DOTD failed to consider the use of safety devices in order to mitigate

against the danger presented by its location in the clear zone. He stated that the

iW : .
RDG described the clear zone as “‘an unencumbered roadside recovery area that

+99

is as wide as practical on a specific highway section[,]’” based on a roadway’s
traffic volume, speed, and roadside geometry. Thus, Mr. Robert opined that Hwy
385 was required to be clear of obstacles for thirty feet from the travel lane, and
any object located within the clear zone was required to be either forgiving or
shielded. He explained that a forgiving object is a breakaway object, and a
shielded object is one that deflects vehicles through guardrails, impact attenuators
(crash cushion), or other means. While Mr. Robert admitted that the RDG
provided only guidance, he asserted that pursuant to La.R.S. 48:35(A), DOTD’s
minimum safety guidelines had to conform to AASHTO’s safety guidelines. He
further stated that while AASHTO allowed DOTD flexibility in the design and
construction of roadways, it was not exempt from the RDG’s mitigation
requirements relative to obstructions located within the clear zone.

Mr. Robert testified that even though the Federal Memo declared that non-
breakaway signal poles were exempt from being crashworthy, it did not exempt
them from the clear zone mitigation requirements. Thus, he opined that DOTD
should have considered either relocating the signal pole or using mitigation

techniques, such as a guardrail, impact attenuator, or rumbles strips. He testified

that there was no evidence that the project engineer, Mr. Duberville, considered

"The RDG provides a hierarchy of design options pertaining to fixed objects located
within the clear zone: removal, redesign, relocation, reduction of severity (breakaway device or
impact attenuator), shielding (guardrail), or delineation.

38

placing the signal pole in any other location once he determined its final placement
within the clear zone.

Even though Mr. Robert opined that DOTD should have considered placing
a guardrail in front of the signal pole, he admitted that its policy allowed the use of
non-shielded, rigid (non-breakaway) signal poles on the state highway system.
The policy, which was contained in the Allain Memo, stated:

Intersections have frequent crashes and therefore have a high amount

of errant vehicles paths [sic] at all angles. Utilizing guardrail to shield

objects is a common practice, but it is not practicable to shield signal

supports at intersections. Guardrails primarily function to run parallel

to the roadway and to redirect errant vehicles away from objects.

However, intersections typically have traffic flows which runs

perpendicular to each other such that the guardrail would be parallel

to one direction of traffic and perpendicular to the other. As such,

guardrail would be ineffective and may even be detrimental when

struck at a perpendicular angle. In addition, guardrail at a

perpendicular angle presents a very large area for these errant vehicles

to hit. Based on the above, the use of guardrails around signal

supports is not recommended.

Mr. Robert testified that this passage simply meant that DOTD was not
strong on the use of guardrails at intersections; thus, the design engineer should
have considered the use a guardrail, or if inappropriate, another mitigation
technique. However, he admitted, based on his inspection of the intersection, that
there was insufficient room at the intersection for placement of a guardrail adjacent
to the signal pole. He stated that the only way a guardrail would work was if
DOTD extended the drainage culverts located under Hwy 3092 and filled in the
ditch to level the area adjacent to the shoulder. He did admit, however, that the
primary reason DOTD changed Hwy 385’s design from a major rural collector to a
UA2 roadway was its limited right-of-way.

Mr. Robert testified that a further reason the signal pole was defective was

because it was located less than six feet from the shoulder. He stated that in

addition to the clear zone concept, DOTD should have considered MUTCD, the

39

TSDM, DOTD’s Roadway Design Procedures and Details, and the SSRB when it
designed and constructed the traffic signal. He stated that all of these design
manuals were consistent in stating that signal poles should be placed as far as
practicable from the travel lane. However, he admitted that the GDHS allowed
design engineers the flexibility when designing a roadway to consider the
clearance values provided by the design manuals in relation to situations existing
in the field.

Mr. Robert testified that both the 2003" and 2009" editions of MUTCD,
required signal poles to be placed as far as practicable from the travel lane without
adversely affecting signal visibility. Moreover, he stated that Section 2A.19 of
MUTCD required DOTD to place signal poles a minimum of six feet from the
shoulder. Section 2A.19 stated that the minimum lateral offset for an overhead
sign support shall be six feet “from the edge of the shoulder (or if no shoulder
exists, from the edge of the pavement) to the near edge of overhead sign supports
(cantilever or sign bridges)[.]”

Mr. Robert testified that pursuant to MUTCD, signal visibility was
important in order to avoid confusion over which lane was controlled by the signal
indicator. He stated that moving the signal pole six feet from the shoulder would
not have impaired signal visibility because the signal pole’s mast arm extended
three feet past the turn lane. Thus, although a readjustment of the signal indicator
would have been required, signal visibility would not have been impaired. Mr.
Robert further agreed that had Mr. Duberville located the signal pole so that the
end of the mast arm was even with the end of the turn lane, as he indicated was his

intent in his deposition, the accident would not have occurred.

” Part 4, Highway Traffic Signals, Chapter 4D.19.

° Part 4. Highway Traffic Signals, Chapter 4D.33.
40

Mr. Robert testified that the TSDM also required the signal pole to be
located a minimum of six feet from the shoulder. He stated that because Hwy 385
was uncurbed, the signal pole’s desirable clearance was six feet from the shoulder.
He stated that based on DOTD’s Roadway Design Procedures and Details
manual,” six feet was the preferred clearance. Mr. Robert explained that the
twelve-foot clearance would only apply if the roadway did not have a shoulder. He
further disagreed that DOTD technically complied with the minimum six-foot
clearance because the signal pole was four feet from the shoulder and the shoulder
was two-foot wider than the eight-foot minimum UA2 shoulder width.

Mr. Robert testified that the SSRB (2006) required signal-pole placement to
comply with MUTCD and provided a minimum clearance of two feet from the
shoulder and ten feet from the travel lane. He admitted that the design and
construction of this roadway was governed by these specifications.

Mr. Robert described the Signal Details as a “typical” sheet with notes
concerning the traffic signal and installation details. He stated that No. 5(A)
required signal poles to be placed as far as practicable from the travel lane in
accordance with MUTCD, which he said, according to Section 2A.19, was a
minimum of six feet from the shoulder. He stated that No. 5(B) required signal
poles on rural or uncurbed areas to be placed as far as practicable from the
pavement, but with a minimum clearance of two feet from the shoulder or, if there

was no shoulder, ten feet from the pavement.

'* Section 2.2.1 of the Roadway Design Procedures and Details stated:

As shown in the design guidelines, values are given for the preferred and
acceptable conditions. For all items, the designer should strive to provide the
preferred value. If conditions on a project will not allow the use of the preferred
value, the acceptable value should be used. The use of a value less than
acceptable will require a design exception, as discussed in Section 2.3.

4]

Mr. Robert testified that based on these two sections, there was a disconnect
between the engineering group and the construction group because the engineering
group was bound by MUTCD, and the construction group was bound by the SSRB.
He stated that there was a further disconnect between the traffic signal designer,
Ms. Colvin, and Mr. Duberville because Ms. Colvin failed to follow MUTCD’s
and the TSDM’s six-foot clearance, and Mr. Duberville applied No. 5(B)’s
minimum clearance even though Hwy 385 was not a rural highway. However,
under cross-examination, Mr. Robert admitted that No. 5(B) also applied to
uncurbed urban areas, such as Hwy 385, a UA2 roadway. He further admitted that
Mr. Duberville’s placement of the signal pole four feet from the shoulder complied
with No. 5(B)’s two-foot clearance. He added that because the roadway contained
a shoulder, the ten-foot clearance was inapplicable.

Mr. Robert testified that the information contained in the Signal Details was
generic, rather than site specific, and was inserted by DOTD in every traffic signal
design. He stated that the conflicting horizontal distances provided by MUTCD,
the TSDM, and the Signal Details led to confusion regarding the proper distance
the signal pole should have been located from the shoulder. Thus, he said that Mr.
Duberville should have followed the more specific TSDM, rather than the generic
Signal Details when locating the signal pole.

Mr. Robert also claimed that the posted speed at the intersection was too
high because it was unusual for a roadway to be posted at a higher speed than tts
design speed. He explained that design speed is based on a roadway’s functional
classification, which in turn is based on roadway geometry, stopping sight distance,
and off-road development. In this case, he said that because Hwy 385 was
classified as a UA2, it had a design speed of 45 mph. He further stated that

because 55 mph was quite higher than 45 mph, DOTD’s deviation from 45 mph

42

required a design exception, which it failed to obtain. However, he admitted that
design speed was different from posted speed and that Louisiana’s legislature has
statutorily mandated the posted speed of highways within the state highway system.
Mr. Robert further asserted that DOTD increased Hwy 385’s southbound speed
from 45 mph to 55 mph just prior to the intersection. He opined that it would have
been safer for DOTD to set a consistent posted speed based on factors such as
traffic, driveways, interference with obstructions, and roadway operation.

Mr. Robert testified that the only critical thing he saw with the roadway at
the point of the accident was the slope in the path of the vehicle where it hit the
pole. He disagreed with Sergeant Brett Travis’ opinion that Mr. Adams veered off
the road and into the pole. Based on his review of the photographs utilized by
Sergeant Travis, he thought that Mr. Adams took a fairly straight path into the
signal pole, but that he executed a steering maneuver so that the vehicle drove
straight into the pole, rather than hitting it at a stronger angle. Although Mr.
Robert agreed that Mr. Adams’ intoxication was a factor in causing the accident,
he did not know if it was the primary factor. He stated that there could have been
another factor in the vehicle’s cab that caused Mr. Adams to leave the travel lane.
However, he admitted that Sergeant Travis found no evidence of anything
abnormal in the cab or any braking or movement by the vehicle prior to impact.

Jody Colvin, the traffic signal designer, testified that her design only
approximated the location of the signal pole because actual placement was the
responsibility of Mr. Duberville. She said that based on surface topography and
the project’s design, the signal pole was placed in accordance with DOTD’s
guidelines as far as practical from the travel lane. She further stated that placing a
signal pole as far as practical from the travel lane without adversely affecting

signal visibility was her goal in every traffic signal design, as required by MUTCD.

43

Ms. Colvin testified that her design was done in accordance with MUTCD
and the RDG, as well as DOTD’s TSDG, SSRB, and Signal Details. She stated
that even if she could not remember during her 2019 deposition, she was aware of
MUTCD’s and the RDG’s guidance when she completed her design in 2007. She
explained that although DOTD had adopted MUTCD, its compliance with Section
4D.19 was only recommended, but not required. Ms. Colvin denied that DOTD
had adopted AASHTO. However, she stated that in complying with La.R.S.
48:35(A), DOTD utilized the flexibility inherent in the RDG and the GDHS by
adopting only those AASHTO guidelines it determined were acceptable and
desirable for use on Louisiana highways.

Ms. Colvin disagreed that Section 2A.19 required the signal pole to be
placed six feet from the edge of the shoulder. She stated that this guidance only
applied to signs, and MUTCD treated signs differently from traffic signals because
signs typically are not found at intersections and because their supports typically
do not extend over travel lanes or involve electrical devices such as signal
indicators.

Ms. Colvin testified that MUTCD required engineers to determine signal-
pole placement based either on engineering judgment or through an engineering
study. She stated that the practice of engineering does not allow the use of a
cookie-cutter approach because no two locations are alike and what works in one
location will not work in another. Thus, she said that engineers have to exercise
engineering judgment even when applying a mandatory practice. She asserted that
she applied her engineering judgment in designing the traffic signal at issue.

Ms. Colvin testified that the signal pole’s foundation complied with
MUTCD despite the fact that it extended more than four inches above the ground.

She stated that once DOTD determined that the overall safety of an intersection

44

required a traffic signal, it did whatever was necessary for the traffic signal to
operate as safely and efficiently as possible, including locating it in the foreslope
of a ditch on a foundation such as the one at issue. She said that DOTD had built
comparable foundations all over the state due to surface-topography issues.

Ms. Colvin testified that although MUTCD restricted breakaway signal-
pole foundations from extending more than four inches above the ground, no such
restriction existed for rigid signal poles. She further disagreed that DOTD’s plans
limited the foundation from extending more than four inches above the ground.
She explained that signal-indicator height above the roadway is fixed, as is the
elevation of the top of the foundation, which has to be level with the roadway
crown. Thus, foundation heights can vary due to surface topography. In this
instance, she stated that moving the signal pole two feet further to the west would
have placed the foundation further in the ditch, requiring it to extend even further
above the ground in order for its elevation to reach the required elevation,

Ms. Colvin testified that despite the RDG’s clear-zone requirements, the
Federal Memo exempted rigid signal poles from being either crashworthy or
shielded when located in the clear zone. She stated that the exemption was based
on the support required for rigid signal poles and because their safety benefits
outweighed the need for them to be breakaway. Ms. Colvin testified that during
construction, DOTD did not have mast-arms signal poles long enough to ensure
proper signal placement if the signal pole was located outside the clear zone.
However, she stated DOTD complied with the RDG because the signal pole was
located as far as practicable from the roadway. She testified that in addition to the
FHWA exemption, DOTD’s decision to use rigid mast-arm signal poles was based
on research finding that the safest location for a signal indicator was directly in

front of its applicable lane. She stated that the danger posed to motorists from

45

breakaway poles and the frequency of hurricanes in Southwest Louisiana also
factored into its decision.

Ms. Colvin acknowledged that although she was not explicitly required by
DOTD to consider shielding, she asserted that safety mitigation considerations
were factored into her design. She stated that she had to consider and approve
every specification and detail of the design, including the type of signal pole used
and whether a safety device was required before she could sign and stamp her
name to the design. However, she claimed that it would have been inappropriate to
shield the signal pole in this instance based on guardrail design and the danger
resultant from the placement of a fixed object alongside the travel lane.

Ms. Colvin testified that because Section 1.5.3 of the TSDM contained “or,”
both minimum clearances were desirable. Thus, she stated that placement of the
signal pole fourteen feet from the travel lane satisfied the twelve-foot clearance.
Ms. Colvin admitted that the TSDM’s minimum clearance varied somewhat from
that provided by other DOTD guidance and the Signal Details. However, she
denied that this caused a conflict. She explained that the TDSM was used by
designers for more situations than signal instailations on newly constructed
roadways, and the construction plans allowed project engineers and contractors the
flexibility to adjust to conditions existing in the field when determining signal pole
placement.

Ms. Colvin testified that the Signal Details were based on national
guidelines approved by DOTD for use in Louisiana and were included in every
DOTD design that contained a traffic signal. She stated that according to No.
22(A), the 2006 edition of the SSRB governed the project. She said that Nos. 5(A),
(B) both required signal poles to be located as far as practical from the travel lane

in accordance with MUTCD.

46

Ms. Colvin further testified that both minimum clearances provided by No.
5(B) were desirable because of the use of “or,” which gave her the option to locate
a signal pole either six feet from the shoulder or ten feet from the travel lane.
However, she admitted that she said in her deposition that “or” meant that the ten-
foot clearance applied only if there was no shoulder. Ms. Colvin testified that No.
5(B) differed from MUTCD in that it provided the actual minimum distances,
rather than the broad possibilities provided by MUTCD. She stated that DOTD
included “whichever is greater” in the guidance in order to provide engineers with
two choices because shoulders in the state’s highway system varied in width from
zero and fifteen feet.

Ms. Colvin testified that because Hwy 385 was an uncurbed urban roadway,
No. 5(B)’s clearance was applicable, and the signal pole’s location four feet from
the shoulder and fourteen feet from the travel lane satisfied both minimum
clearances. She further stated that pursuant to No. 16(A), her design only
approximated signal pole locations, and Mr. Duberville was authorized to use his
engineering judgment to move the signal pole two feet further west from its
location in her design. As the design engineer, she said that she would have found
any signal pole location acceptable so long as signal visibility was not affected.

Ms. Colvin testified that pursuant to No. 25(A), utility locations shown on
the plans were not guaranteed, and those locations did not figure into her design
because she assumed that ail utilities would be relocated when the roadway was
widened. Thus, she said it was more critical for Mr. Duberville to know the
location of utilities during the construction phase. Although she was unaware if
utilities prevented Mr. Duberville from moving the signal pole two feet further to
the west, she stated that doing so would have affected the ditch. She further agreed

that the location of the ditch was a limiting factor in moving the signal pole, but

47

she stated that whether the ditch could have been moved was outside her level of
expertise.

Ms. Colvin denied that there was a disconnect between DOTD’s design
group and its construction group. She stated that she tries to do the best job she
can by ensuring that the traveling public moves from point A to point B in the
safest and most efficient manner possible. She further stated that Mr. Robert was
wrong in stating that she failed to follow MUTCD, AASHTO, or DOTD’s own
guidance. She said that she followed all of the guidance and MUTCD in designing
the traffic signal.

Ms. Colvin further testified that the policy established by the Allain Memo
was inapplicable in this instance because it was not in effect when plans for the
project were approved. The policy provided that the desirable clearance for rigid
signal poles on roads with a greater than four-foot shoulder was six feet. She
disagreed that DOTD would have adopted the policy sooner had its engineers been
more experienced. Rather, she explained that the policy arose from guidelines that
were updated as a result of research projects and information obtained from around
the country and the world.

Ms. Colvin testified that a roadway’s design speed does not factor into its
posted speed. In this instance, she stated that DOTD would have already
determined whether the roadway required advisory speeds or warning signs based
on its 45 mph design speed. She stated that the posted speed would have been
determined after construction based on the speed driven by the eighty-fifth
percentile driver over the roadway. Ms. Colvin testified that a speed study,
performed along a straightaway, determines a roadway’s maximum, rather than

minimum, speed based on the speed that “everybody feels comfortable and

48

reasonable going roughly the same speed so we can have the safest roadway that
we can have.”

Don Duberville, the project engineer, oversaw construction of the project for
DOTD. He stated that he considered and approved every signal-pole location at
the intersection, and he was satisfied with the location of the subject signal pole
because he cleared the utility conflicts, achieved proper signal-pole elevation and
signal alignment, and located the foundation in solid ground outside of the ditch.
He stated that it was of no concern that the mast arm extended approximately three
feet past the edge of the left turn lane.

Mr. Duberville testified that his primary objective as project engineer was to
carry out the plans and specifications for the project, whereas it was the designers’
responsibility to consider the guidance provided by MUTCD and AASHTO.
However, he stated that guidance did not supplant either his or the designers’
engineering judgment or his “ability to fit those devices in the constraints given to
me on that project.” He stated that pursuant to Signal Detail No. 22(A), the project
was required to conform to the SSRB (2006), which provided a minimum
clearance of two feet from the shoulder or ten feet from the travel lane, whichever
was greater. He stated that he exceeded this guidance by placing the signal pole
fourteen feet from the travel lane.

Mr. Duberville was absolutely convinced that the signal-pole location
satisfied MUTCD and Nos. 5{A), (B) because it was as far as practicable from the
travel lane without adversely affecting signal visibility. He was also convinced
that the location satisfied the TSDM, the SSRB, and the second part of No. 5(B)
because it was located fourteen feet from the travel lane. He further stated that just

because No. 5(A) required the signal pole location to comply with MUTCD’s

49

minimum clearance, compliance with MUTCD did not convert Section 4D.19’s
guidance into a mandatory standard.

Mr. Duberviile testified that No. 16(A} gave him the authority to use his
engineering judgment during the construction of this project. He stated that DOTD
“employs licensed engineers to, essentially, take the plans and understand the
intent of the designer and also to understand [the] unique project conditions, and
then rectify any conflict between the two.” Mr. Duberville testified that the “as
built” plans differed from the design plans in that they contained his notes
regarding any changes he made to the plans in the field. He agreed that building a
road required more than just following manuals and guidelines. He said, “The
manuals provide guidance and advice, but that doesn’t replace the judgment and
experience of a project engineer.”

Mr. Duberville testified that the traffic-signal design differed from the rest of
the construction plans in that it was basically a schematic, consisting of the traffic-
signal components and the signal layout, whereas the remainder of the plans
contained fixed dimensions and locations. Thus, he stated that the location of the
signal pole was his responsibility, and in this instance, its location was influenced
by underground utilities located at the intersection, the ditch, foundation placement,
and the bordering airport. With regard to the airport, he stated that signal-pole
height was limited because the airport’s flight plan went right over the intersection.

Mr. Duberville testified that he moved the signal pole further south from the
location shown in Ms. Colvin’s design due to the presence of two high-pressure
gas pipelines, a fuel pipeline, and a fiber optic cable, all running east and west
along Hwy 3092’s southern lane. Although he did not recall which utilities were
present, he stated that underground utilities also ran north and south along both

lanes of Hwy 385 and along a twelve-foot corridor located at the outer edge of the

50

right-of-way. Mr. Duberville testified that he utilized his engineering judgment in
choosing the signal pole’s location because the location was free of utilities and
exceeded the minimum clearance provided by the Signal Details. He stated that he
did not consider any other location after he chose that location. He agreed that the
pipelines did not affect the east and west attitude of the signal pole and that most of
the other utilities were located in the utility corridor.

Mr. Duberville testified that utilities are an issue on every construction
project, especially five-lane projects such as this because DOTD shares its right-of-
way with utility providers. He said that although all known utilities were indicated
on the intersection plan sheet, DOTD did not guarantee, as indicated by Signal
Detail No. 25(A), accuracy with regard to the location and known presence of all
utilities.

Mr. Duberville testified that the section of roadway at the intersection
consisted of five travel lanes, two ten-foot shoulders, two ditches, and two twelve-
foot utility corridors. He stated that because the ditch was an engineering feature
of the project, he was not allowed to move it during construction. He explained
that drainage was important because it rained quite heavily in South Louisiana;
thus, draining water from the roadway prevented motorists from hydroplaning and
protected the integrity of the roadway. He said that the longer water remained on
the roadway, the greater the damage to its subgrade.

Mr. Duberville testified that the ditch affected the location of the signal pole
because its foreslope tied directly into the shoulder, and the elevation of the ditch’s
foreslope (1:4) and back slope (1:3) were directed by DOTD’s UA2 design
standards. He stated that he was not authorized to change a typical section
contained in the plan and that moving the ditch would have violated the UA2

design standards. He explained:

5]

All of these points are fixed points on the typical section. This
foreslope begins at the edge of the shoulder and goes down to the
ditch bottom. A 4 foot ditch bottom is the requirement of a typical
section.

The back slope also begins on the other side of the other side of

the 4 foot ditch bottom and goes up to — returns to the natural ground
elevation. Okay? This slope is | vertical to 4 horizontal.

... There’s no way to slide this ditch bottom over and keep this slope
ona | vertical and 4 horizontal. The only way to accomplish that is to
change the typical section and somehow create some kind of flat area
next to the shoulder before you started the ditch.

There’s no way to change that unless you would have some sort
of design exception by the chief engineer to change the typical section.

Mr. Duberville further testified that it would have been impossible to obtain
a design exception to move the ditch due to the utilities that were relocated to the
utility corridor. Although he admitted that it could have been moved during the
design phase if it was conceded that the minimum clearance for the signal pole was
six feet from the shoulder, he denied that the plan’s specifications required a six-
foot clearance. Mr. Duberville testified that in his opinion, the signal pole was
located in the right place. He further stated that the six-foot requirement was
guidance rather than a standard DOTD had to comply with.

Mr. Duberville testified that he further saw no reason to move the ditch
because “[t]he fact that there was a slope around the curvature of the connection of
the two roads is not an issue at all. There is no requirement that it should be flat or
anything.” He stated that in his thirty-two years of DOTD employment, he had
never constructed a road with a flat area between the shoulder and the ditch’s
foreslope. He said that the shoulder in the southeast quadrant was flatter than the

one at issue because that ditch tied directly into property that had been developed

52

and had a raised elevation. Otherwise, he stated that the drainage structures in the
southwest and the southeast quadrants were very similar. He said that because the
southeast quadrant was flatter, he used his engineering judgment to move the
traffic signal controller to that corner, rather than the placing it in the southwest
comer as designed by Ms. Colvin.

Mr. Duberville testified that he would not have moved the foundation deeper
into the ditch because he wanted to ensure that the signal pole did not fall. He
stated that he would have been concerned about moving it further in the ditch
because two thirty-six-inch culverts emptied into the ditch, and he expected the
ditch to fill with water based on the rainfall experienced in the area. He explained
that constant exposure to water increased the risk that the foundation would fail
due to the softening of the soil around the foundation.

Mr. Duberville also testified that locating the foundation further in the ditch
could have prevented the ditch from draining. He stated that the foundation at
issue was three feet in diameter and twelve feet in length and was the largest used
by DOTD. However, he stated that moving the foundation further in the ditch
would have required him to redesign the foundation in order to increase its size.
He explained that the further it was located down the foreslope, the greater the
foundation would have had to extend both above and below the ground.

Mr. Duberville testified that there was nothing in the plan or any design
manual which restricted the top of the foundation from extending more than four
inches above the ground. He explained that the top of the foundation was required
to be level with the crown elevation of the roadway because both signal-pole
height and signal-indicator height were fixed. Thus, he stated that in order to
satisfy these height requirements, the foundation had to be built up so that its top

was level with the roadway crown. He explained that the extension of the

53

foundation fourteen inches above the ground on one side and twenty-one inches on
the other side was “just a function of the slope that had to be built for the ditch.”

Mr. Duberville testified that he did not consider moving the signal pole even
though the mast arm extended three feet past the turn lane because to do so would
place it further in the ditch. However, when asked if he could have moved it, he
stated, “I don’t know that today.” He further stated that because mast-arm poles
stay up for years, he wanted to ensure that there was ample room on the mast arm
for future technological changes, such as flashing yellow signal-indicators and
detection devices.

Mr. Duberville testified that the right-of-way, in and of itself, did not limit
his placement of the foundation. However, he stated that he could not locate the
signal pole on the opposite side of the ditch because the mast arm was not long
enough to attain proper signal-indicator placement. Although he indicated in his
deposition that his primary objective in locating the signal pole was to ensure that
the mast arm extended to the outer edge of the left-turn lane, he testified that a
further objective was to place the signal pole as far as practical from the travel lane.

Mr. Duberville agreed that the GDHS (1990) stated that “[t]raffic control
devices should be applied consistently and uniformly[,]” but he stated that the
word “devices” applied to more than just signal poles. Although he agreed that
there was no uniformity in his placement of the signal poles at the intersection, he
explained that conditions differed in each quadrant and each location represented
his best effort to locate the signal pole as far as practicable from the travel lane.
With regard to the foundations, Mr. Duberville testified that “each foundation was
set, and the projection out of the ground has to do with the — whether it’s sloped or

not and the conditions, maybe, that they were tying into.”

54

Mr. Duberville testified he was not aware of any disconnect between his
office and the design group during the project. He stated that he consulted with the
design group and the design consultant as required and that safety was the
overriding consideration in all of his decisions. Mr. Duberville testified that he
saw no reason to move the signal pole, and if he had to do it again, he would place
it in the same location.

Mr. Allain testified that he had no independent recollection regarding either
the project or his personal involvement with it. He stated the project originated in
1976, as a rural major collector but was redesigned as a UA2 pursuant to the
January 24, 2008 design exception. He stated that DOTD changed the design
because the UA2 design required less right-of-way, was less expensive, and had
been used in other parts of the state. Mr. Allain testified that the project was
developed in accordance with and was governed by the SSRB (2006), and plan
revisions were not required after SSRB updates because to require otherwise would
prevent DOTD from ever finishing a design plan. He stated that because the
project involved a major reconstruction, DOTD’s design engineers were required
to be familiar with all DOTD guidance in effect when the project was designed.
He stated that he was not aware of any policy when the design was approved that
required a signal pole to be located an exact distance from the travel lane.

Mr. Allain testified that a project such as this is built by the contractor in
accordance with DOTD’s final plans. He stated that during construction, any
changes found necessary by the project engineer as a result of unanticipated
conditions in the field are included in the as-built plans, which show what is
actually built during construction. Thus, he said that the project engineer has a

tremendous amount of responsibility with regard to a project.

55

Mr. Allain testified that because traffic signals are constructed by the
contractor, their design has to be meticulous:

[Y]ou need meticulous plans showing actual locations of relative to

the — the typical section of the roadway where — distances from the

edge of the road, relative locations of the stop bars. All of those

details are actually formally prepared in the plans and then let the

contract — and a contractor does the installation with oversight from a

DOTD project engineer.

However, he stated that although Ms. Colvin’s design included highly technical
details, it did not specify actual signal-pole location because this required the use
of basic engineering judgment. He stated that engineering judgment is used to
determine the best solution for a particular situation and that all guidelines require
engineers to “practice and use our judgment to make decisions.”

Mr. Allain testified that the project engineer was responsible for locating
signal poles in accordance with DOTD’s guidance, and the most important criteria
being that the signal pole was located outside the shoulder, as far as practicable
from the travel lane. He stated that signal-pole placement is controlled by mast-
arm length and signal visibility and that engineers typically determine placement
by measuring from the outer edge of the turn lane the corresponding length of the
mast arm. He further stated that the required distance between a signal indicator
and a stop bar increased the probability that the signal pole will be located near the
travel lane or shoulder.

Mr. Allain testified that DOTD usually placed signal poles two feet from the
shoulder based on its two-foot requirement for curbed roadways, which allowed a
buffer zone for larger vehicles with a tendency to overhang the roadway.

Therefore, he stated that it would have been reasonable for Mr. Duberville to locate

the signal pole two feet from the shoulder. He further said that DOTD placed

56

signal poles on shoulders in the past, but that later guidance moved them beyond
the shoulder in order to reserve that space for breakdowns and errant vehicles.

Mr. Allain testified that design guidelines for a UA2 roadway specified a
minimum clear zone of twenty-four feet. He stated that although the signal pole
was located within the clear zone, placement there was necessary because the
intersection was controlled by a traffic signal. Although he agreed that fixed
objects should not be located within the clear zone, he explained that traffic
engineering has made an exception for signal poles because of the impossibility of
placing signal poles twenty-five feet from the travel lane, while still maintaining
proper signal-indicator placement. Thus, he stated that signal poles should be
located as far as practical from the travel lane without affecting signal visibility.
He explained that a signal pole’s “distance off the shoulder would be a function of
what space is available and the head placement.”

Mr. Allain did not know why the roadway’s shoulder was two feet wider
than the UA2 design-standard minimum width of eight feet. He stated the ten-foot
shoulder provided more room for drivers than an eight-foot shoulder. He further
disagreed that a design exception was required to change the shoulder width from
eight to ten feet. He stated, “There’s not an exception for more; there’s always an
exception for less.”

Mr. Allain testified that surface topography affects foundation placement
because signal-indicator height over the roadway is controlled by the elevation of
the top of the foundation. Thus, he said that the lower the top of the foundation
was in relation to the roadway crown, the higher it had to extend out of the ground.
He stated that if this occurred the foundation would have to be redesigned because
for every foot of foundation above the ground, there was one less foot of

foundation below ground.

37

Mr. Allain testified that whether it was more reasonable to place the signal
pole six feet from the shoulder depended on the ditch. He stated that the further
the signal pole was in the ditch, the steeper the slope on which it was located. He
further explained that South Louisiana ditches are very soft; thus, placement in the
ditch increased the possibility of lateral-support problems caused by the high winds
experienced in the region. Although he agreed that it was desirable for the signal
pole to be located six feet from the shoulder, he said there would have been no
problem locating it less than six feet from the shoulder.

Mr. Allain did not recall the height that DOTD allowed a foundation to
extend above the ground. However, he testified that it was necessary for the
foundation to extend above the ground in order to prevent corrosion of the bolts
connecting the signal pole to the foundation. He further stated that if it was
necessary to extend a foundation twelve inches above ground in order to ensure
proper signal-pole and signal-indicator placement, DOTD would find that
acceptable.

Mr. Allain testified that underground utilities can affect signal-pole
placement because utility providers share the right-of-way with DOTD and caution
is necessary when placing a foundation because of the likelihood of unknown
utilities being present. He explained that utility location should be addressed by
the project engineer, rather than the designer, because of the possibility that
utilities were placed in the right-of-way subsequent to the design’s approval. He
stated that all utilities, except pipelines, would be relocated prior to construction.

Mr. Allain testified that it was within the scope of the project engineer’s
engineering judgment to adjust signal-pole location based on all existing factors
including utilities. In this instance, he stated that the signal pole was moved

further south from where it was in the design due to the presence of pipelines in the

58

southwest quadrant. Mr. Allain testified that the pipelines would not have affected
signal-pole placement unless the design placed the pole on top of the pipelines. In
addition to utilities running parallel to Hwy 385, he stated that there also appeared
to be utilities located under or along the shoulder of the roadway, which might
have affected Mr. Duberville’s placement of the signal pole.

Mr. Allain denied that it was a mistake for Ms. Colvin to locate the signal
pole on the pipelines when she approximated its location because her design did
not involve the utilities. He further denied that it was a mistake for Mr. Duberville
to deviate from Ms. Colvin’s design because he was authorized to move the signal
pole further south. Thus, he stated that Mr. Duberville corrected the design
because of the pipelines’ presence. He further testified that it was not a violation
of MUTCD to move the signal pole further south of the south-bound stop bar
because signal indicators are allowed to be located between forty to one hundred
fifty feet from the travel lane. In this instance, he stated that moving the signal
pole did not change the presentation of the signal indicators.

Mr. Allain testified that he saw no reason for Mr. Duberville to investigate
other locations for the signal pole once he determined its present location. He
stated that any location Mr. Duberville chose outside of the shoulder would have
been reasonable as long as it took into account correct signal placement and
underground utility conflicts.

Mr. Allain was questioned about DOTD’s EDSM" No: IV.7.1.5, issued on
September 14, 2009, which stated that due to the prevalence of hurricanes, rigid
traffic signals would be used in certain districts and parishes, including District 07,
which encompassed Calcasieu Parish. He agreed that the directive required the

poles to be located as far as possible from the travel lane; however, he stated that

15 . : : .
° Engineering Directives and Standards

39

“as far as possible” and “as far as practicable” were similar in nature, and his goal
in either instance would be to put the signal pole away from the travel lane. Mr.
Allain testified that either placement inferred that the engineer was required to
make a judgment call. He said that these terms did not mean the maximum or
absolute distance from the roadway, and he opined that “[a]s long as it’s a safe
judgment call, and it can be a tremendous range within that judgment call, and |
think that’s the case is the — we’re within that range. It’s a reasonable location and
a choice that the project engineer made.” He said that while he thought the signal
pole was located as far as practical from the travel lane, he was not sure if its
location was as far as possible from the travel lane.

Mr. Allain testified that he wrote the Allain Memo in order to establish a
consistent policy within DOTD on the issue of rigid signal-pole placement in the
clear zone. He stated that the memo updated a 1999 site-specific letter on the use
of non-breakaway signal poles within the clear zone. He stated that the policy
change, which was based on revisions of MUTCD, the RDG, and the GDHR, still
allowed placement of signal poles within the clear zone based on “their uniqueness
within the right-of-way and within the clear zone.”

Mr. Allain testified that the Allain Memo differed from the 1999 letter in
that it contained desirable clearances for signal poles, which the 1999 letter did not.
He agreed that the memo provided a desirable six-foot clearance for roadways with
a greater than four-foot shoulder, but he stated that this was not a mandatory
clearance. He further stated that he was not aware of any guidance recommending
a six-foot clearance prior to the memo or if the memo was applicable to the plans
when they were approved in 2008.

Mr. Allain testified that design speed differed from posted speed, and “the

only similarity” between them was they “both use the word speed.” He explained

60

that design speed allowed engineers to quantify various fixtures on a roadway,
such as lane and shoulder width, super elevation, stopping sight distances, and
horizontal and vertical curves. He stated that a roadway’s posted speed was
determined through a different process, and it was not inconsistent for a roadway
to have a design speed of 45 mph and a posted speed of 55 mph. He stated that
Louisiana’s legislature has determined that the posted speed for every two-lane
roadway in the highway system was 55 mph, but that DOTD was authorized to
lower that speed if necessary.

Mr. Allain testified that there was no reasonable way to design a roadway
that would prevent intoxicated drivers from leaving the roadway. He stated that
assuming that Mr. Adams’ blood alcohol level was approximately .13% at the time
of the accident, he knew of nothing that DOTD could have done to keep him on the
roadway. In fact, he said that when evaluating possible corrections to the highway
system as a crash data engineer, he left out data pertaining to intoxicated drivers
because there was no way to predict or correct their behavior.

William Temple, DOTD’s chief engineer, was not involved in the design or
construction of this project. He testified that Hwy 385, which had a history of
accidents, was redesigned by DOTD in order to improve the surface of the
roadway and to make it safer for motorists. He stated that the project began in the
1990s, but was shelved by DOTD while awaiting funding. Mr. Temple testified
that the design plans were finally approved on January 24, 2008, and were
governed by the SSRB (2006).

Mr. Temple testified that the project engineer acts as the chief engineer’s
agent to ensure that the project is built by the contractor according to the plans and
specifications. He stated that the information contained in the plans included

typical section layouts of roadway geometry, embankment material quantities,

61

earth-moving processes, traffic signal layouts, and traffic considerations. He said
that the only information not contained in the plans was the SSRB’s specifications.

Mr. Temple testified that based on his review of the as-built plans, there was
insufficient room to move the signal pole further away from the roadway. He
explained that the right-of-way was very limited at the intersection, and the
purchase of additional right-of-way would have been prohibited because the
project was funded by the sale of state bonds. He stated that once the money for a
project funded in this manner was set, it could not be increased. Thus, he opined
that DOTD’s inability to purchase additional right-of-way impacted the distance
the signal pole could be moved beyond the shoulder.

Mr. Temple was not aware that any underground utilities or drainage
problems affected the signal pole’s placement. It was his impression that there was
just enough room to locate the signal pole off the shoulder. He testified that the
design engineers would not have thought it worth the added expense to change the
drainage in order to extend the shoulder. He further stated that it would not have
been a good engineering decision to place the signal pole further in the middle of
the ditch.

Mr. Temple testified that design engineers are required to consider the
existing standards when designing a project, and he agreed that both MUTCD and
the TSDM recommend signal poles be located as far as practical from the travel
lane without adversely affecting signal visibility. While he agreed that the RDG
required DOTD to consider alternative designs when putting a signal pole within
the clear zone, he stated that this was done during the design process. Mr. Temple
testified once the design team determined signal-pole location, it was not required
to consider the use of any further safety or mitigating devices, and the reviewing

engineer, by stamping the plans, indicated that the design satisfied DOTD’s

62

standards. He testified that the project engineer would also go through some type
of process in order to determine the best location for the signal pole. He asserted
that DOTD incorporated safety into every project, and it spent a great deal of
money on safety to the extent practicable. However, he stated that when a
project’s space is limited, DOTD’s options become more limited.

Mr. Temple testified that he was unaware of any DOTD policy that required
signal poles to be placed six feet from the shoulder. When asked about the Allain
Memo, he agreed that it recommended the placement of rigid signal poles as far as
practical from the travel lane without affecting signal visibility and that it
recommended signal poles be placed six feet from the shoulder, in accordance with
AASHTO. However, Mr. Temple clarified that the six-foot clearance was only a
recommendation.

Mr. Temple agreed that EDSM No: IV.7.1.5 stated that rigid signal poles
should be located as far as possible from the travel lane. However, he testified that
“possible” could mean many things, and the further a signal pole was from the
roadway, the longer its mast arm and the larger its foundation, which increased its
expense. He stated that here, Mr. Duberville also had to consider the room
available within the right-of-way. Thus, he felt that DOTD placed the signal pole
as far as practical from the travel lane based on the limited amount of space
provided by the right-of-way.

Mr. Temple testified that he did not think DOTD violated any policies,
procedures, or guidelines in its placement of the signal pole. While he agreed that
the signal pole was located in the clear zone, he stated that its placement there was
a permissible exception of the clear-zone policy because of the prohibitive expense
associated with locating signal poles outside the clear zone. He stated that in

choosing the optimal location for a signal pole, the project engineer had to consider

63

foundation size as well as the distance from both the drainage feature and the
shoulder.

Mr. Temple further disagreed that DOTD should have considered the use of
an impact attenuator or a guardrail because DOTD’s policy did not require their
use at intersections. He stated that impact attenuators were only used in medians,
and not on the outside of shoulders. Mr. Temple further testified that it would have
been impossible to use a guardrail at the intersection due to the restricted space.
He stated that the purpose of the guardrail is to deflect vehicles back onto the
roadway in the direction they were traveling, but when hit at an intersection, there
was a danger that it would be impacted from many different directions. He further
testified that a guardrail required a buffer zone between the guardrail and the object
being shielded.

Mr. Temple testified that he was not involved in Hwy 385 being posted at 55
mph. However, he explained that design speed is related more to stopping sight
distance; thus, there was no reason to post Hwy 385 at less than 55 mph because
the roadway was extremely flat. He stated that traffic studies encompass speed and
volume, including the number and types of vehicles, as well as lane preference,
and DOTD would have performed the traffic study for this roadway prior to
construction. He stated that while speed limit was set by state law, DOTD was
authorized to reduce that speed if it determined the reduction necessary based on
the results of a traffic study performed on the roadway.

Mr. Temple testified that DOTD cannot guarantee the safety of all drivers on
its roadways. However, he stated that a lot of what DOTD incorporated into its
projects was specifically aimed at safety, including wide-paved shoulders, striping,

and raised pavement markers.

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Dr. Joseph Blaschke, DOTD’s expert in highway and traffic signal design,
traffic engineering, and accident reconstruction, testified that he considered three
issues in determining whether the signal pole at issue was defective: breakaway,
horizontal clearance, and shielding. He stated that it was well settled at both the
national and state levels that rigid signal poles are not required to be breakaway
because of the danger they posed to motorists should they fall into an intersection.
He further stated a rigid breakaway signal pole has not yet been developed because
most cars cannot generate the energy required to cause a fifty-five-foot mast-arm
signal pole to break away when hit.

Dr. Blaschke testified that with regard to horizontal clearance, the national
publications, such as MUTCD, the RDG, and all AASHTO manuals, recommend
that a signal pole be placed as far as practical from the travel lane. He explained
that what is practical is “basically in the eye of the engineer who makes that
decision.” He stated that the only signal-pole clearance standard provided by
MUTCD requires signal poles on curbed roadways to be located two feet from the
face of the curb. For uncurbed roadways, he stated that guidelines recommended
signal poles be located at least two feet from the shoulder and ten feet from the
travel lane. He stated that the two-foot clearance allowed a driver, who was parked
on the shoulder, sufficient room to open their door.

Dr. Blaschke testified that the TSDM recommended signal poles be located
six feet from the shoulder or twelve feet from the travel lane. He disagreed that Ms.
Colvin said the twelve-foot clearance only applied when there was no shoulder.
He stated that she was very clear that the TSDM’s minimum clearances were
either/or, allowing the engineer to choose whether to locate the signal pole six feet
from the shoulder or twelve feet from the travel lane. He said that twelve feet from

the travel lane was just as desirable a distance as six feet from the shoulder.

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Dr. Blaschke testified that No. 5(A) of the Signal Details required the signal
pole to be located in accordance with MUTCD, and No. 5(B) provided a minimum
clearance of two feet from the shoulder or ten feet from the travel lane. He
disagreed that it would be a failure of good engineering judgment if the designing
engineer failed to look at MUTCD when designing a traffic signal. He testified
that he did not look at MUTCD every time he designed a traffic signal because he
knew its requirements. With regard to Ms. Colvin’s statement from her deposition
that she did not remember MUTCD’s 2007 requirements, Dr. Blaschke testified,
“Well, again, I’ll let Mrs. Colvin defend herself. But she — design is 2007 — and
you’re asking her 12 years later. I’m not sure how much she — remembered
everything that was in the MUTCD.” He further disagreed that the twelve-foot
clearance only applied if the roadway did not have a shoulder.

Dr. Blaschke testified that like DOTD, every state has a set of standard plans
and specifications and standard detail sheets like the Signal Details. He stated,
“They don’t redesign every time they do a traffic installation, they don’t redesign
the pole and the foundation. They have a standard plan.” Dr. Blaschke agreed
with Ms. Colvin that anytime he required a variance from a specific detail, he
made a note in the design plan. However, he did not know why the TSDM’s
minimum clearances were not included in the Signal Details.

Dr. Blaschke testified that he found no evidence that DOTD violated
MUTCD, the TSDM, or any other manual in its design and construction of the
roadway or its location of the signal pole. He stated that he found great
consistency between DOTD’s design and the designs of other states and his own
designs. He further disagreed that there was a disconnect between the designer and
the project engineer if Ms. Colvin, hypothetically, was unaware of MUTCD’s

requirements when she designed the traffic signal, and Mr. Duberville applied the

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minimum requirements provided by No. 5(B), rather than that provided by
MUTCD. He testified that there was no disconnect because MUTCD only
required the signal pole to be placed as far as practical from the travel lane without
affecting signal visibility.

Dr. Blaschke testified that the most important consideration when locating
the signal pole was signal visibility, and he agreed that there was sufficient mast-
arm length to allow proper signal visibility even if the signal pole was moved three
feet to the west. However, he stated that despite the fact that there was extra mast-
arm length, Mr. Duberville chose not to locate the signal pole further west because
he did not want to place the foundation in the ditch.

Dr. Blaschke testified that although signal-pole placement was normally the
responsibility of the design engineer, here it fell to Mr. Duberville because the
intersection was not in place when Ms. Colvin designed the traffic signal. He
stated that the fact that she did not know utility locations, was not unusual because
she could only assume their locations after their relocation when the roadway was
widened. Moreover, he said that utility locations shown on construction plans are
only assumed to be approximate, and their exact locations have to be determined
by the contractor, project engineer, and utility providers after construction begins.

Dr. Blaschke testified that based upon Mr. Duberville’s explanation, his
location of the signal pole “made perfect sense.” He stated:

Because that’s how — that’s how it is in the real world. You

have an imperfect world, first of all, and if you’re trying to find

perfection you'll never find it. So you have to — once you’re in the

field you have to make adjustments in the field, and that’s what — you

know, the project engineers do and inspectors in the field, they have to
make those decisions.

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The following discussion occurred between Dr. Blaschke and Ms. Roach’s counsel
when he was asked if the signal pole was placed as far as practical from the
roadway:

Counsel for Ms. Roach:

You’re saying it’s most practical and most reasonable to be right there
and not to be another 2 feet.

Dr. Blaschke:

Just based on the testimony of Mr. Duberville, that’s all I can
do, ‘cause I wasn’t there at the time of the project. But he submitted
that location ‘cause it met all the qualifications and all requirements,
and he thought that was the most practical site. And there’s no reason
to say it wasn’t.

Counsel for Ms. Roach:

He said he didn’t even consider moving it further.
Dr. Blaschke:

I’m sure he didn’t he was far enough away from the road already.
Counsel for Ms. Roach:

So why is it not possible or practical to move it — move that
edge 2 feet over?

Dr. Blaschke:

I think — from an engineering viewpoint and the first day I was
out there without knowing anything else, I was surprised — I wouldn’t
say I’m surprised it was that far in the ditch, but I — I was surprised it
was more than 2 feet away from the edge of the shoulder, ‘cause I
would not have wanted to put it any further into the ditch even then.

Counsel for Ms. Roach:

If Mr. Duberville did not consider moving it 2 feet over, again,
the edge would be about right there. If he didn’t even consider that
alternative, is that good engineering practice?

Dr. Blaschke:

I would say so, ‘cause he followed all the requirements. That’s
the point. He had it further away from the travel lane than he needed
it to be.

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Dr. Blaschke stated that based on his perspective, Mr. Duberville was not required
to consider any other location once he settled on the signal pole’s location.

Dr. Blaschke testified that Mr. Allain’s explanation that experience was the
reason behind the Allain Memo’s policy change, did not mean that the previous
policy was based on a lack of experience by DOTD’s engineers. Instead, he stated
that Mr. Allain meant that the policy changed after AASHTO revised its guidance
as a result of experience it had gained on the subject matter since its previous
revision.

Dr. Blaschke testified that the Federal Memo made it clear that the FHWA
did not recommend shielding signal poles. While he agreed that the memo stated
that all practicable measures should be taken to reduce the risk posed by signal
poles, he stated that “practicable” meant only those measures that were feasible or
reasonable, and not all measures that were possible. Dr. Blaschke further stated
that “should” meant that the use of practicable measures was not an absolute
requirement, but rather something that was encouraged. He further explained that
in engineering, “shall” statements are mandatory, but “should” statements are
strongly encouraged. He stated that engineers write their own policies and
procedures and understand the difference between “shall” and “should.” He
further clarified that AASHTO did not contain standards, rather it contained
guidance.

Dr. Blaschke testified that it was unsafe to use a guardrail at the intersection
because it would place a large, fixed object very close to the travel lane. He stated
that because a guardrail extends 100 feet upstream from the object being shielded,
locating it at an intersection would cause it to extend across the intersection. Thus,
the only way a guardrail would work was by wrapping it around the corner.

However, Dr. Blaschke testified that once installed, a guardrail, which is rigid,

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becomes a fixed object and constitutes a danger to motorists. He explained that
guardrails are designed to be hit at a slight angle and can cause tremendous
damage when hit otherwise. He stated that if DOTD had installed a guardrail, the
intersection would have contained a one hundred fifty-foot-long fixed object rather
than a three-foot fixed object.

Dr. Blaschke further testified that there was insufficient room at the
intersection for a guardrail because it required six feet of a relatively flat area along
the shoulder, consisting of a two-foot offset from the shoulder, a two-foot
installation area, and a two-foot cushion between the guardrail and the shielded
object. He said that based on its surface topography, the intersection would have
required significant reconstruction before it would have been possible to place a
guardrail there.

Dr. Blaschke testified that there was no way for DOTD to design a roadway
that prevents accidents caused by intoxicated drivers. He stated that this would be
true no matter whether the signal pole was located two, four, six, or ten feet from
the shoulder. He explained that there was no way to predict what would happen
after a severely impaired driver lost control of their vehicle, and the clear zone was
designed to allow a driver the opportunity to recover control of their vehicle after it
left the roadway. Although Dr. Blaschke agreed that the RDG said nothing about
whether the driver was awake, he testified that common sense indicated that the
only way a driver could recover control was if they were awake. Thus, he claimed
that the RDG assumed that the driver was awake and able to regain control of their
vehicle. He further opined that the clear zone concept had no effect for
unconscious or intoxicated drivers that lost control of their vehicles.

Dr. Blaschke testified that when he visited the intersection, he immediately

noticed that the foreslope of the ditch began right at the edge of the shoulder.

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Based on his observation, he concluded that the space the project engineer had to
work with was tight because otherwise he would not have started the ditch right
after the shoulder. He further testified that because of the need for drainage,
DOTD’s placement of the ditch made sense if it had no other alternatives.

Dr. Blaschke testified that whether DOTD could have changed the
configuration of the ditch was a question for the design engineer. He stated that
moving the ditch would have changed its configuration, as well as infringed on the
area provided for utilities beyond the ditch. He stated that in its present
configuration, moving the ditch would have resulted in a steeper foreslope and
back slope, whereas moving it while maintaining the foreslope and back slope
would have made it impossible to maintain the bottom of the ditch. Dr. Blaschke
testified that ideally, the ditch would be located further away from the travel lanes.
While he agreed that the forty-one feet of right-of-way extending from the travel
lane was a lot of space, he stated, “Depends on what you have to do within it[.]”
When asked about the utilities located at the intersection, he stated that he could
only refer to Mr. Duberville’s testimony. However, he agreed that it was common
for utilities to share a roadway right-of-way.

Dr. Blaschke testified that it was neither unusual nor improper for the
foundation to extend above the ground. He explained that the top of the foundation
had to be level with the roadway crown; thus, because it was located in the
foreslope, the foundation had to be built up so that the signal pole’s mast arm was
tall enough to clear the roadway. However, he admitted that it was unusual to
place a foundation in the foreslope of a ditch.

Dr. Blaschke testified that the concern with putting the foundation in the
ditch was related to the possibility that it would be affected by water. He stated

that the traffic signal’s electrical connections are located at the base of the pole and

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would be affected if covered by water. He said that the greater concern was that
constant exposure to water would cause the soil surrounding the foundation to
soften, causing the signal pole to fall. Additionally, Dr. Blaschke testified that
moving the foundation further into the ditch would have required it to extend at
least another foot above the ground in order to maintain the proper elevation level
with the roadway crown. Although he did not know if the ditch’s soil was too weak
to support the foundation, he stated that the closer the foundation was to the bottom
of the ditch, the weaker it would have been.

Dr. Blaschke disagreed with Mr. Robert’s pronouncement that posted speed
should be the same as design speed. He stated, “The critical issue of any highway
is providing adequate sight distance for the driver driving down the highway to see
an object and stop.” He explained:

Design speed is a selected speed to allow the engineer to design a

highway to provide the stopping sight distance for that speed. The

critical issue of any highway is providing adequate sight distance for

the driver driving down the highway to see an object and stop.

So sight distance is the primary element of highway design. If

you select a design speed of whatever mile an hour it is, you design a

highway to make sure you always have that amount of stopping sight

distance for that speed.

For instance, 45 miles an hour is about 450 feet. That’s the
stopping sight distance.

We have in our geometric design horizontal and vertical curves
that we select to provide at least that amount of sight distance.

So if we design for 45 miles an hour and we provide one of
those minimum vertical curves or horizontal curves, then we’re at
basically the minimum sight distance for that speed.

On the other hand, if we select 45 miles an hour for a design
speed and the roadway is flat and straight, we basically have provided,
you know, half a mile of sight distance, and that’s the design speed of
160 miles an hour.

So we’re not going to design for 160 miles an hour. But the
bottom line is, you have plenty of sight distance available for speeds

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well beyond 45 miles an hour. And drivers are gonna drive the speeds
they’re comfortable.

This is an area — of a suburban area not well developed, wide
travel lanes, wide median and wide shoulders, it’s a wide median and

wide shoulders, it’s a wide-open area and it will encourage drivers to

drive faster because of its configuration.

So it’s not unusual why they have the speed in this case to be
posted over 45 miles an hour. In Texas alone ail our frontage roads

on our freeways have a 45 miles an hour design speed, and a high

percentage of them have speed limits over 45 because adequate sight

distance is there and drivers drive accordingly. That’s why they’re

not related really.

After reviewing the investigating state trooper’s accident diagram, Dr.
Blaschke testified that it did not indicate that the roadway caused Mr. Adams to
leave the travel lane. He stated that the accident report indicated that Mr. Adams
drifted off the roadway and hit the signal pole. He stated that Mr. Adams was
significantly impaired and was not in control of the vehicle when that occurred;
thus, the logical conclusion was that either his impairment or fatigue caused him to
lose control.

In Fontenot v. Patterson Insurance, 09-669 (La. 10/20/09), 23 So.3d 259,
the supreme court reversed an appellate decision finding DOTD partially at fault
for a vehicular collision that occurred at an intersection designed and in the
custody of DOTD. There, the plaintiffs and their insurer alleged that DOTD’s
liability stemmed from the unreasonably dangerous condition of the intersection
resulting from the absence of a stop bar and the flashing configuration of the traffic
signal. DOTD emphatically disputed that the intersection was either defective or a
cause-in-fact of the plaintiffs’ injuries. Noting that the jury in the case was faced
with conflicting expert testimony relative to whether the intersection was

unreasonably dangerous, the supreme court reinstated the jury’s verdict, stating as

follows:

Having reviewed and considered the evidence in its entirety, it
is evident the parties essentially agree on the salient facts surrounding
the accident, and the jury’s decision as to the DOTD’s liability turned
on its choice between two theories of liability presented by the experts.
Employing the principles of appellate review, our only inquiry at this
stage is whether the jury’s factual findings were reasonable, regardless
as to how we may have weighed the evidence sitting as trier of fact.
Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In the
absence of finding the testimony of the DOTD’s experts to be so
internally inconsistent or implausible, this Court is barred from
discrediting their statements to conclude the jury’s findings were
clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989).
This is attributable to the fact the jury was in a better capacity to
evaluate the demeanor of the live witnesses, as compared with our
access to only a cold record. /d., 549 So.2d at 844 (“When findings
are based on determinations regarding the credibility of witnesses, the
manifest error—clearly wrong standard demands great deference to
the trier of fact’s findings; for only the factfinder can be aware of the
variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said.”). Under this
standard, we are aware that when “‘a factfinder’s finding is based on
its decision to credit the testimony of one of two or more witnesses,
that finding can virtually never be manifestly erroneous.” /d., 549
So.2d at 844-845.

Applying these precepts, we find no error in the jury’s decision

to place greater weight on the evidence presented by the DOTD. The

evidence was not in any respect internally inconsistent or unworthy of

belief to warrant a substitution of the jury’s credibility determination.
Id. at 273.

On the issue of duty, the supreme court, in Petre v. State, through
Department of Transportation and Development, 01-876, p. 12 (La. 4/3/02), 817
So.2d 1107, 1114, refused to create a rule that would prevent an intoxicated driver
from recovering from DOTD “even when an unreasonably dangerous defect in the
road is a substantial factor in contributing to an accident.” Rather, the court,
quoted with approval, the appellate court’s finding that:

While no one would take issue with the fact that Ms.
Petre’s unacceptable and illegal actions in driving while
intoxicated should be weighed heavily against her in
considering the extent of DOTD’s duty to her,

intoxication alone is not enough to automatically prevent
her from recovering for DOTD’s fault. It is merely a

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factor to consider in Louisiana’s comparative negligence
scheme.

Id.

Accordingly, the fact that Mr. Adams was intoxicated at the time of the
accident is just one issue to be considered in determining the comparative fault of
all parties in this matter. Thus, we find no merit in DOTD’s argument on this issue.

In the instant case, the jury was faced with valid arguments for and against
whether the design and construction of the intersection was defective, whether the
location of the signal pole was defective, and whether DOTD should have taken
any practicable measures to render its location safer. In essence, the jury was
faced with a choice of two theories of liability as presented through the testimonies
of the expert witnesses.

Mr. Robert testified that DOTD had approximately three feet of mast arm
available such that the signal pole’s foundation could have been moved three feet
further away from the shoulder. Based on his testimony, three feet would have
made the difference in whether the vehicle actually collided with the foundation.
Several of DOTD’s witnesses acknowledged that there was an additional three feet
of mast arm. Thus, if there was an additional three feet by which the signal pole
could have been moved further away from the shoulder, was the post actually “as
far as practicable” from the shoulder or the travel lane? The jury answered “no” to
this question.

Further, Mr. Robert testified that DOTD should have designed the southwest
quadrant of the intersection consistent with the other three quadrants, so that the
area off the shoulder was more level, which would have allowed the signal pole to
be moved two feet further away from the shoulder. He claimed that the steepness

of the foreslope, located right off the shoulder, and the location of the signal pole

75

led to the risk that a vehicle, leaving the shoulder, would be pulled into the signal
pole, such as happened in this instance.

Additionally, Mr. Robert’s opinion was that as this was not a breakaway
pole, DOTD was required to consider the use of some type of mitigation strategy,
including rumble strips, impact attenuators, or guardrails. None were employed in
this case. Mr. Robert further opined that the speed limit through the intersection
should have been 45 mph, in alignment with its design speed, rather than the 55
mph that it was posted by DOTD. Finally, Mr. Robert was of the opinion that it
was improper for DOTD to build the signal pole’s foundation so that it extended
fourteen and twenty-one inches above the ground. As an appellate court, it is not
our function to question the jury’s conclusions, so long as those conclusions are
based on the jury’s evaluation of the witnesses, including expert witness opinions,
and those opinions are not internally inconsistent with the facts. We find that they
are not in this case.

DOTD further argues that there was no proof for the jury to conclude that it
had either actual or constructive knowledge of the defective condition posed by the
signal pole’s location at the intersection. We disagree. The Allain Memo clearly
reflects that DOTD had changed its policy to require rigid signal poles to be
located at least six feet from the shoulder. By its own policy, DOTD clearly had
actual knowledge that the signal pole at issue should have been located at least six
feet from the shoulder, and it had this knowledge approximately six months prior
to the accident. Accordingly, we find there was adequate evidence presented for
the jury to conclude that DOTD had actual knowledge of the signal pole’s
defective condition.

We further find that the jury was presented with differing views of the

evidence with regard to whether the defective condition of the signal pole was a

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cause-in-fact of Plaintiffs’ injuries. It is undisputed that Mr. Adams was
intoxicated at the time of the accident. However, although Dr. Blaschke found that
this was the primary factor in causing the accident, Mr. Robert, while admitting
that it was a factor, could not say that it was the primary factor in causing the
accident. Further, it was Mr. Robert’s opinion that there was a risk that a vehicle
leaving the roadway would be pulled into the signal pole due to the steepness of
the foreslope and the signal pole’s placement in the foreslope. Dr. Blaschke even
testified that ideally, the ditch would have been located further from the shoulder
and that it was unusual to place a signal pole’s foundation in the foreslope of a
ditch. Accordingly, we find that it was not manifestly erroneous for the jury to
find that the steepness of the ditch’s foreslope and the location of the signal pole
was a cause-in-fact of the accident.

Based on our review of the record, we find nothing internally inconsistent,
implausible, or unworthy of belief in the jury’s decision to credit Mr. Robert’s
testimony over that of Dr. Blaschke. Thus, even though we may have weighed the
evidence differently had we been sitting as trier of fact, we cannot say that it was
manifestly erroneous for the jury to place greater weight on the evidence presented
by Plaintiffs rather than on that presented by DOTD. Accordingly, the judgment of
the trial court allocating DOTD twenty percent of the fault in this matter is
affirmed.

Assignment of Error Number Ten

In its final assignment of error, DOTD argues that the trial court abused its
discretion in taxing it with all trial and court costs despite the fact that it was only
allocated twenty percent of the fault for the accident; by improperly allowing
certain expenses as court costs; and by failing to award it any of its own trial costs.

Specifically, DOTD argues that because it was found only twenty percent at fault,

77

the trial court could also have assessed costs against Allstate, the liability auto
insurer of Mr. Adams’ parents, and State Farm, the liability auto insurer of the
2013 Honda Accord driven by Mr. Adams at the time of the accident. It further
argues that the trial court should have denied or reduced specific expert witness
fees and the costs charged by Scan Solutions.

Subsequent to the jury trial, Plaintiffs filed a joint motion to tax as trial costs
amounts spent on depositions, expert witness fees, and trial expenses in the amount
of $45,804.30 for Ms. Roach and $31,943.71 for the McVeys. They further moved
to have all court costs assessed to DOTD. DOTD also filed a motion seeking to
have its trial expenses, in the amount of $26,023.15,’ taxed as costs against
Plaintiffs, Allstate, and State Farm.

Following a September 9, 2019 hearing, the trial court orally assessed
DOTD with all of Plaintiffs’ trial and court costs. In its September 17, 2019
written judgment, the trial court assessed DOTD with Ms. Roach’s trial costs of
$45,354.30 and the McVeys’ trial costs of $32,174.71." It further assessed DOTD
with Ms. Roach’s court costs of $9,260.00 and the McVeys’ court costs of
$2,960.90.

The law pertaining to the award of costs was thoroughly examined in
Reynolds v. Louisiana Department of Transportation, 15-1304, pp. 3-4 (La.App. 1

Cir. 4/13/16), 194 So.3d 56, 59 (alteration in original):

° In its motion and memorandum in support of its motion to tax costs, as well as its
supplemental memorandum, DOTD sought to have $26,0233.15 taxed as trial costs. However,
based on the amounts listed in the spreadsheet attached to its motion, the correct amount it
sought to have taxed as trial costs was $26,023.15.

7 At the hearing. the McVeys supplemented their trial expense list, which added a
$115.00 fee for a video copy of Trooper Brett Davis’ deposition to the $31,943.71 requested. In
awarding the McVeys $32,174.71 in costs, the $115.00 fee was added twice, and the trial court
added an extra dollar to the amount. The correct amount of costs awarded by the trial court
should have been $32,058.71. Although this error in calculation was not raised on appeal, we
correct the mistake based on the power granted to this court by La.Code Civ.P. art. 2164.

78

The district court is not required to tax the costs of the
defense’s experts and witnesses against an unsuccessful plaintiff.
Bourgeois v. Heritage Manor of Houma, 96-0135 (La.App. Ist
Cir.2/14/97), 691 So.2d 703, 707. Nevertheless, the law is well
settled that the party cast in judgment will generally be assessed with
all costs of the litigation, including its own and those of the prevailing
party. See La.Code Civ. P. art.1920; Bonfanti Marine, Inc. v. State
Through Div. of Admin., 444 So.2d 218, 219 (La.App. Ist Cir.1983).
Louisiana Code of Civil Procedure article 1920 allows the district
court an option to make a different provision for costs based on equity,
providing as follows: “[e]xcept as otherwise provided by law, the
court may render judgment for costs, or any part thereof, against any
party, as it may consider equitable.”

The district court has great discretion in awarding costs,
including expert witness fees, deposition costs, exhibit costs, and
related expenses. Arnaud v. Scottsdale Ins. Co., 2015-0185 (La.App.

Ist Cir.9/18/15), 181 So.3d 759, 761. On appeal, the district court’s

assessment of costs will not be disturbed absent an abuse of discretion.

Polk Chevrolet, Inc. v. Webb, 572 So.2d 1112, 1116 (La.App. Ist

Cir.1990), writ denied, 575 So.2d 394 (La.1991). Moreover, an

assessment of costs against a prevailing party is considered an abuse

of discretion absent proof that the prevailing party incurred costs

pointlessly or engaged in other conduct that justified the allocation. /d.

As pointed out by Ms. Roach both at the hearing to tax costs and in her
appellate brief, the only party named as a defendant in her petition was DOTD. As
provided by La.Code Civ.P. art. 1920, “Unless the judgment provides otherwise,
costs shall be paid by the party cast, and may be taxed by a rule to show cause.”
Thus, because DOTD was the only defendant in Ms. Roach’s suit, it was the only
party which could be cast with costs. Accordingly, there was no error in the trial
court casting it with all of Ms. Roach’s trial and court costs.

With regard to the McVeys’ trial and court costs, this court has held that
“[a]ssessing a negligent party with all court costs when other parties are jointly
liable is not a per se abuse of the trial court’s discretion.” Renfro v. Burlington N.
Santa Fe Ry. Co., 15-372, p. 25 (La.App. 3 Cir. 5/11/16), 193 So.3d 1192, 1210-11.

On August 22, 2016, the trial court granted judgment in favor of State Farm,

as the liability insurer of a 2011 Chevrolet 1500 and a 2013 Hyundai Sonata,

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vehicles owned by the McVeys, and dismissed the McVeys’ claims against it, with
prejudice. An order dismissing the McVeys’ claims against State Farm, in its
capacity as the liability insurer of the two named vehicles, was rendered by the trial
court on October 5, 2017. The order stated that State Farm was to “be dismissed
with prejudice, with all costs awaiting the final disposition of this matter.”

On March 30, 2017 and July 11, 2017, the McVeys entered into partial
settlements with Mr. Adams and Allstate, as his liability insurer, and with Mr.
Adams and State Farm, as the liability insurer of the 2013 Honda Accord. In both
settlements, the McVeys reserved their rights against Mr. Adams, only to the
extent necessary for them to maintain a direct action against a non-settling insurer,
and against DOTD. Orders dismissing the McVeys’ claims against these parties,
with prejudice, were rendered by the trial court on April 27, 2017 and August 10,
2017. Both orders stated that the dismissals were subject to the dismissed party
paying their own court costs.

At the conclusion of the September 9, 2019 hearing on the motions to tax
costs, the trial court rendered the following oral ruling:

To say that this was a contentious matter would be an
understatement, and it became fairly certain to all very much from the
beginning of this trial as to who this trial was really versus. Although
in the McVey matter Mr. Adams was a nominal defendant, it was very
clear from the very beginning, from opening statements, that Mr.
Adams. . . didn’t really have any real exposure or expectations of
recovery from him. AIl of that being said, I recognize that the [S]tate
Department of Transportation and Development was determined after
trial in this matter to be the [sic] 20 percent at fault for the recovery. |
am going to tax all of the costs to the Department of Transportation
and Development in Victoria Roach, 2014-4275, Department of
Transportation and Development, that those costs are $45,354.30.

In Michael McVey, Norma McVey, 2014-4289, Department of
Transportation and Development, Allstate, State Farm, and Ryan
Adams all of those costs of $32,174.71, as well as the court — clerk of
court costs, whatever those are. Those are documented. I’m sure the
clerk will let the Department of Transportation and Development
know what they expect.

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After reviewing the record, we find that the trial court did not abuse its
discretion by assessing all of the McVeys’ trial and court costs against DOTD.
The only other defendant remaining in the suit at the time of trial was State Farm,
in its capacity as the UM carrier of the 2013 Honda Accord. All other defendants
had been dismissed from the McVeys’ suit approximately two years earlier. Thus,
the trial court did not abuse its discretion by not assessing the dismissed defendants
with court costs. Additionally, in its motion to tax costs, DOTD only sought to
have State Farm, in its capacity as the liability insurer of the McVeys’ three
vehicles, taxed with costs. It did not seek to have State Farm, in its capacity as the
UM carrier, taxed with costs. Accordingly, we find no abuse of discretion in the
trial court’s decision to assess DOTD with all of the McVeys’ trial and court costs
or its decision denying DOTD’s request for court costs.

DOTD next argues it was an abuse of discretion for the trial court to. award
the full expert witness fee of Jeffrey Peterson, a rehabilitation counselor; the full
expert witness fee of Mr. Robert in the amount of $11,570.00, for work done
outside the courtroom and $10,908.12 for trial testimony and a hotel bill; the expert
witness fee of Dr. William George, a toxicologist, in the amount of $5,775.00;
$450.00 for the report by Dr. Bettinger that the trial court excluded from evidence;
and all costs charged by Scan Solutions, who assisted all parties with the electronic
exhibits and video depositions during the trial.

The question of whether the assessed costs are excessive is a
separate issue. Taxable costs are defined narrowly by positive law in

La. R.S. 13:4533 to include “costs of the clerk, sheriff, witness’ fees,

costs of taking depositions and copies of acts used on the trial, and all

other costs allowed by the court[.]” Generally, “on the trial” has been

held to include costs that are necessary to investigate and defend a

lawsuit and to bring a case to trial on a motion for summary judgment.

See Riddle v. Louisiana Power and Light Co., 94-1386 (La.App. Ist

Cir.4/7/95), 654 So.2d 698, 703, writ denied, 95-1599 (La.9/29/95),

660 So.2d 871; Breaux v. Romero & Associates, Inc., 95-691 (La.App.
3d Cir.11/2/95), 664 So.2d 683, 686-87. Further, the taxing of

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medical records costs and expert witness fees is governed by La. R.S.
13:3666. As to expert witness fees in particular, La. R.S. 13:3666
provides, in pertinent part, as follows:

A. Witnesses called to testify in court only to an opinion
founded on special study or experience in any branch of
science, or to make scientific or professional
examinations, and to state the results thereof, shall
receive additional compensation, to be fixed by the court,
with reference to the value of time employed and the
degree of learning or skill required.

B. The court shall determine the amount of the fees of
said expert witnesses which are to be taxed as costs to be
paid by the party cast in judgment either:

(1) From the testimony of the expert relative
to his time rendered and the cost of his
services adduced upon the trial of the cause,
outside the presence of the jury, the court
shall determine the amount thereof and
include same.

(2) By rule to show cause brought by the
party in whose favor a judgment is rendered
against the party cast in judgment for the
purpose of determining the amount of the
expert fees to be paid by the party cast in
judgment, which rule upon being made
absolute by the trial court shall for [sic] a
part of the final judgment in the cause.

Expert witnesses are entitled to reasonable compensation for
their time in court and for preparatory work done. Bourgeois, 691
So.2d at 708. A district court can fix expert witness fees based upon
its own observations and evidence presented at trial. See Smith v.
Roussel, 2000-1672 (La.App. Ist Cir.6/22/01), 808 So.2d 726, 730.
However, a party can only have taxed as court costs the reasonable
cost of time spent by the expert in gathering facts necessary for his
testimony, but not for time spent in consultation that only assists the
attorney in preparation for the litigation. /d., 808 So.2d at 731.

The district court may award the full amount charged by an
expert witness if the amount is reasonable in light of the many factors
considered in fixing expert witness fees, such as time spent in
preparatory work for trial, the extent and nature of the work
performed, the knowledge, attainments, and skill of the expert, and the
helpfulness of the expert’s report and opinion to the district court. See
Bourgeois, 691 So.2d at 708. See also Albin v. Illinois Cent. Gulf R.

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Co., 607 So.2d 844, 845-46 (La.App. Ist Cir.1992). Generally, the

amount and fixing of expert fees lies within the sound discretion of

the district court and will not be disturbed in the absence of an abuse

of discretion. Bourgeois, 691 So.2d at 709. Fees of expert witnesses

may be reduced if expenses were needlessly or excessively incurred.

Wampold v. Fisher, 2001-0808 (La.App. Ist Cir.6/26/02), 837 So.2d

638, 640.

Reynolds, 194 So.3d at 59-61 (first alteration in original).

Other than laying out the factors a trial court should consider in fixing the
expert fees that will be assessed as costs, DOTD does not state why Ms. Roach
should not receive the entirety of Mr. Peterson’s $18,346.04 expert witness fee. In
its supplemental memorandum, DOTD argued that Ms. Roach was only entitled to
recover $3,788.00 of Mr. Peterson’s fee that reflected the amount of actual trial
work performed by him. However, as the remainder of his fee represented work he
performed in preparation for trial, we find that the trial court did not abuse its
discretion by assessing as costs the entire $18,346.04 fee.

DOTD next argues that the trial court abused its discretion by awarding the
McVeys the total amount of Mr. Robert’s expert witness fee, which totaled
$22,478.12, including a $173.12 hotel bill. DOTD argues that the McVeys are
only entitled to recover the $10,735.00 that represented Mr. Robert’s actual trial
work, but not the $11,750.00 that represented work performed outside of the court
room, as well as a $173.12 hotel-room charge. As above, we find that the trial
court did not abuse its discretion in assessing as costs Mr. Robert’s $11,750.00 fee
for work he performed in preparation for trial.

However, we do find it was an abuse of discretion for the trial court to award
the McVeys the $173.12 for Mr. Robert’s hotel room. In Meyers v. Broussard, 96-
1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88, this court held that La.R.S. 13:3666

does not provide recovery of travel expenses as part of an expert witness fee.

Rather, we held that travel expenses for in-state witnesses, as provided by La.R.S.

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13:3661, allowed reimbursement for hotel and meal expenses for those witnesses
compelled to appear at civil trials at a rate of $5.00 per day. In Meyers, 696 So.2d
at 102, we stated, “While we recognize that the amount authorized is woefully
inadequate for travel expenses, it is the only statutory authority for such an award.”
Thus, we amend the amount awarded for Mr. Robert’s hotel-room charge from
$173.12 to $5.00. Accordingly, the amount awarded for Mr. Robert’s expert
witness fee is amended from $22,478.12 to $22,310.00.

DOTD next argues that the trial court abused its discretion by assessing as
costs the $5,775.00 expert witness fee of Dr. George, who was hired by Ms. Roach
to counter testimony by Dr. Wimbish relative to the effect that Mr. Adams’ pre-
accident marijuana use had on his impairment. However, Dr. Wimbish’s
testimony was excluded by the trial court after Plaintiffs moved to exclude the
evidence via a motion in limine. During the hearing on the motion, counsel for Ms.
Roach stated that Dr. George was hired after Dr. Wimbish testified in his
deposition that Mr. Adams’ marijuana use increased his impairment, contrary to
his report’s finding that Mr. Adams’ impairment was alcohol-related only.
Following the trial court’s exclusion of Dr. Wimbish’s testimony on this issue,
counsel for Ms. Roach indicated that Dr. George would not testify at trial.

In Burtner v. Lafayette Parish Consolidated Government, 14-1180 (La.App.
3 Cir. 4/15/15), 176 So.3d 1056, writ denied, 15-938 (La. 6/19/15), 169 So.3d 350,
this court affirmed a cost award for the preparation of an expert report, which
although not used by the plaintiff at trial, was instrumental in the defendants’
withdrawal of an affirmative defense. In rejecting the defendants’ argument that
the trial court erred in awarding this cost because the expert did not testify at trial,

this court stated:

Defendants argue that La.R.S. 13:3666(A) provides in pertinent part

that “[w]itnesses called to testify in court only to an opinion founded

on special study or experience in any breach of science . . . shall

receive additional compensation, to be fixed by the court, with

reference to the value of the time employed and the degree of learning

or skill required.” The above statute in no way prevents the trial court

from awarding court costs for the preparation of Dr. King’s report. It

simply allows, in the trial court’s discretion, for “additional

compensation” to be awarded should Dr. King be required to testify in

court. Thus, there was no error in this award.

Id. at 1065 (alteration in original).

As Dr. George’s report was utilized in Plaintiffs’ successful motion in limine
to exclude portions of Dr. Wimbish’s testimony, we find that the trial court did not
abuse its discretion in assessing his $5,775.00 fee as costs.

DOTD next argues that it was an abuse of discretion for the trial court to
assess as costs $450.00 for the report by Dr. Bettinger that the trial court excluded
prior to trial. However, counsel for Ms. Roach stipulated at the hearing on the
motion that he was subtracting this fee from the amount she was seeking as costs.
Although Ms. Roach initially sought $45,804.30 in trial costs, the amount awarded
by the trial court was $45,354.30, with the difference between the two amounts
being $450.00. Accordingly, we find no merit in DOTD’s argument on this issue.

Finally, DOTD argues that the trial court erred in awarding as costs all
amounts charged to Ms. Roach and the McVeys by Scan Solutions. In a footnote,
DOTD explained that Scan Solutions’ services were utilized by all parties during
the trial “to assist with the display of electronic exhibits and the playing of video
depositions.” It stated, “This was done as a convenience to the parties, and
because these costs do not fit within the definition provided by La.R.S. 13:4533,

these costs should not have been assessed against” it. We find no merit in this

argument,

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In their joint motion to tax costs, Ms. Roach sought $3,908.25 and the
McVeys sought $3,647.00 in charges from Scan Solutions. In Mace v. Turner, 18-
339, pp. 6-7 (La.App. 3 Cir. 12/6/18), 2018 WL 6433016, this court held that
exhibit and technology costs assessed by the trial court as court costs “were
reasonable and fall under the ‘other costs allowed by law’ noted in La.R.S.
13:4533.” Accordingly, we find no abuse of discretion in the assessment of these
charges as court costs.

DECREE

Based on the foregoing, the judgment of the trial court awarding Michael
Lee McVey and Norma Cheryl McVey $32,174.71 in trial costs is amended to
award $31,890.59 in trial costs. The judgment of the trial court in favor of Victoria
Roach and Michael Lee McVey and Norma Cheryl McVey is affirmed in all other
respects. In accordance with La.R.S. 13:5112, the costs of this appeal are assessed
to the State of Louisiana, through the Department of Transportation and
Development in the amount of $28,134.10.

AFFIRMED AS AMENDED.

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