KNOLL, Justice.
This case involves a determination of whether the Louisiana Department of Transportation and Development (hereafter "DOTD") should be held liable to a motorist because of the placement of a 90-foot longitudinal guardrail
FACTS AND PROCEDURAL HISTORY
This accident occurred at approximately 6:00 a.m. on October, 20, 1986, as Terry Lasyone (hereafter "Lasyone") drove his tank truck northbound on Louisiana Highway 1 (hereafter "Highway 1") just south of the community of Lettsworth in Pointe Coupee Parish, Louisiana. At the time, Lasyone was transporting a load of 80,000 pounds of asphalt for his employer, James White Trucking.
A single track railroad crosses Highway 1 just south of Lettsworth and generally runs in a north-south direction.
As pertaining to northbound motorists (east of the railroad track), DOTD erected a guardrail 6-feet from the highway's edge which runs from the cantilevered signal light 90 feet on the north shoulder of Highway 1, parallel to the highway; a similar guardrail runs along the south shoulder of Highway 1 across (west of) the railroad track. The guardrail, a metal Wbeam, is attached to 6 by 6 inch creosote wood posts spaced approximately 6-feet
At the point where the railroad crossing and Highway 1 coalesce, the roadway is generally oriented east-west. A 24-inch (diameter) concrete drain crosses beneath the highway and runs basically parallel to the track. This drain begins south of the highway and exits north of the highway beyond the highway shoulder (past the guardrail). The end of the culvert is marked with a striped warning deliminator. The culvert channels water by gravity flow down a sloping embankment into Bayou Lettsworth, a small waterway located well north of Highway 1; because of the topographic layout, the bayou functions as a shallow ditch. A small elevated railroad bridge crosses Bayou Lettsworth north of the highway and an embankment is formed by the raised aggregate earthen work which elevates the track between the bayou and the highway.
As Lasyone came out of a long, sweeping curve in the highway, he failed to notice the railroad crossing and the approaching Kansas City Southern Railway Company (hereafter "KCS") train that was traveling southbound at approximately 40 m.p.h.
Lasyone was thrown from his vehicle to the highway just before the collision destroyed the cab of the truck. Lasyone suffered numerous severe injuries to his left arm, right leg, and both ankles.
On December 21, 1987, the trial judge dismissed the Parish on a motion for summary judgment, finding that it was not contractually obligated to provide and had not provided maintenance or signing services with respect to Highway 1, the railroad, or the intersection. Liberty Mutual Insurance Company (hereafter "Liberty Mutual") intervened in Lasyone's lawsuit, seeking reimbursement of the disability compensation and medical payments it paid to Lasyone pursuant to a policy of worker's compensation insurance that it issued to his employer, James White Trucking. In its intervention, Liberty Mutual alleged that it was owed weekly benefit payments totaling $87,694.49 and medical benefits of $85,543.60.
Just prior to trial, KCS settled with Lasyone and was formally dismissed by court order dated October 1, 1998. Liberty
The trial judge heard this matter on March 24 and 25, and June 2, 1998. On October 7, 1998, the trial judge rendered judgment finding Lasyone and DOTD each 50 per cent at fault. It awarded damages totaling $2,960,168.60 (reducible by 50 per cent)
In its written reasons for judgment, the trial court found that Lasyone attempted to take evasive action, but the placement of the longitudinal guardrail directed his truck into the path of the train and deprived him of his only avenue of escape. The trial court held that DOTD breached its duty to protect Lasyone from the unreasonable risk of harm that the placement of the longitudinal guardrail posed to vehicles approaching the railroad crossing. In its assessment of fault to Lasyone, the trial court commented that although the railroad crossing lights were working prior to the collision, Lasyone was "simply inattentive until it was too late."
The appellate court reversed the trial court, finding that Lasyone failed to prove that the guardrail posed an unreasonable risk of harm. Accordingly, it found that Lasyone was solely responsible for this accident. Lasyone v. Kansas City So. R.R., State of Louisiana through DOTD and the Parish of Pointe Coupee through its governing authority, the Police Jury of Pointe Coupee Parish, 99-0735 (La.App. 1 Cir. 6/23/00) (unpublished opinion). We granted Lasyone's writ application to more closely examine the question of manifest error.
STANDARD OF REVIEW
A trial court's finding of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, Through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880. The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882. The 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. Id. The reviewing court 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." Stobart, 617 So.2d at 882-83, citing Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).
These standards for manifest error review are not new. They are the guiding
DOTD'S LIABILITY
We must determine whether DOTD was at fault. Under Louisiana law, liability for injuries sustained by one as the result of a defective condition of a thing is based on legal fault, i.e., strict liability. See LA. CIV.CODE ANN. art. 2317.
In an action asserting liability under LA. CIV.CODE ANN. art. 2317 before 1996, the plaintiff bore the burden of proving three elements: (1) that the thing which caused the damages was in the care, custody, and control (garde) of the defendant;
DOTD's duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. LA.REV.STAT. ANN. § 48:21(A); Netecke v. State of Louisiana, through DOTD, 98-1182, 98-1197 (La.10/19/99), 747 So.2d 489; Campbell v. Department of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898, 901-02; Oster v. Department of Transp. & Dev., 582 So.2d 1285, 1288 (La.1991). DOTD must maintain the shoulders and the area off the shoulders, within its right-of-way, in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway and to others, such as pedestrians, who are using the area in a reasonably prudent manner. Brown v. Louisiana Indemnity Co., 97-1344 (La.3/4/98), 707 So.2d 1240, 1242; Oster, 582 So.2d at 1289-91. DOTD's duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566, 572; Rue v. State, Dep't of Highways, 372 So.2d 1197, 1199 (La.1979). This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through La. Dep't of Transp. & Dev., 502 So.2d 1383, 1387 (La.1987).
This duty, however, does not render DOTD the guarantor for the safety of all the motoring public. Graves, 703 So.2d at 572; Briggs v. Hartford Ins. Co., 532 So.2d 1154, 1156 (La.1988). Further, DOTD is not the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances. Id. Moreover, not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983). Whether DOTD breached its duty to the public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on all the facts and circumstances determined on a case by case basis. Campbell, 648 So.2d at 901-02.
Cause-in-fact
In the present case, DOTD contends that Lasyone failed to prove that his injuries were significantly worse because the guardrail was present than had the guardrail not been present. Initially, DOTD argues that Lasyone failed to prove that his tank truck even struck the guardrail. In addition, DOTD, urging inconsistency in testimony, asserts that the expert testimony of Dr. William D. Berg, Lasyone's witness, failed to establish that without the guardrail the collision would not have occurred.
The initial inquiry to determine if a party may be liable under the duty-risk analysis is cause-in-fact. Cay v. State, Dep't of Transp. & Dev., 93-0887 (La.1/14/94), 631 So.2d 393, 395. The plaintiff must prove that the alleged defect
We now turn to DOTD's contention that Lasyone failed to prove that his injuries were significantly worse because the guardrail was present than had the guardrail not been present. Simply stated, DOTD contends that Lasyone failed to demonstrate that he would have fared better had he been able to drive down the embankment. In connection with that contention, DOTD urges that Dr. Berg's expert opinion, the sole evidence on point, was so contradictory on this factor that it was not worthy of belief.
Pretermitting for the moment any question of Dr. Berg's credibility, we find that DOTD relies only upon conjecture. To explore the question of whether Lasyone would have suffered serious injuries had he been able to escape to the right misses the point of the cause-in-fact inquiry. Having found a firm factual basis for the trial court's conclusion that Lasyone's truck hit the guardrail and was propelled into the train, the pertinent question is to what extent did DOTD's placement of this longitudinal guardrail have something to do with the injuries that Lasyone suffered. See Roberts v. Benoit, 605 So.2d 1032 (La. 1991); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620, 622 (1972). The evidence is quite clear that the presence of the guardrail indeed "was a substantial factor in bringing about the harm" that Lasyone suffered. Graves, 703 So.2d at 570. Accordingly, we find no manifest error in the trial court's finding that DOTD's placement of this longitudinal guardrail was a cause-in-fact of Lasyone's injuries.
Notwithstanding our resolution of this aspect of the cause-in-fact question, it is important at this juncture that we examine the issue of Dr. Berg's credibility and the role that this determination played in the appellate court decision. It is clear that Dr. Berg wore more than one hat during the long course of this litigation. Originally, KCS engaged him as its expert witness. However, once KCS settled with Lasyone just prior to trial, Lasyone then relied upon Dr. Berg as his expert witness.
Although the appellate court initially depicted Dr. Berg as an individual whose expert opinion might be suspect because he vacillated on the issue of whether the guardrail was a factor in the accident, it relied upon his expert testimony later in the opinion to establish its position that the likelihood of harm was minimal. Nevertheless, it cannot be denied that the trial court was presented evidence of Dr. Berg's differing opinion regarding the importance of the guardrail and whether the guardrail prevented Lasyone from evading the train by maneuvering his truck to the right.
In the present case, the record shows that the trial court was presented with testimony that had the guardrail not been in place, Lasyone could easily have avoided the train by steering right and that his truck would have been channeled alongside the raised aggregate railroad embankment. Moreover, Lasyone himself stated that he attempted to steer his truck to the right because he thought he could avoid a collision with the train. Dr. Berg opined that under this scenario the tank truck would have still overturned, but Lasyone would not have struck the train. Although DOTD's experts professed opinions that differed from Dr. Berg's, it is nonetheless clear that the trial court's reliance on Dr. Berg's opinions cannot be said to be manifestly erroneous, because his statements were well grounded and reasoned, and did not conflict or contradict any objective evidence.
The trial court also made a factual determination that Lasyone attempted to take evasive action to avoid the train, that during this maneuver the tank truck hit the guardrail and was propelled back into the train, and that the presence of this guardrail deprived Lasyone of his only means of escaping the collision.
Lasyone testified that he attempted to avoid the train by steering his tank truck to the right. He further stated that his tank truck struck the guardrail at a speed of approximately 20 m.p.h. and was propelled back into the train's path. In support of his testimony, he offered into evidence photographs taken just nine days after the accident which clearly show that the guardrail was indented and that the 6 by 6 inch creosote support timber was askew. The expert testimony of Dr. Berg established that the indentation was approximately twenty-two feet from the point where the train would overhang the track and was caused by the truck cab. Because of the truck's low speed at the time of impact, he was not surprised that the guardrail was not demolished. DOTD presented the expert testimony of Dr. Neilon Rowan, an expert in lighting design and accident reconstruction, who first contended that Lasyone's truck never hit the guardrail and then later stated that only the rear wheels of the truck cab struck the guardrail. DOTD also relied upon the expert testimony of Dr. William Fogarty, an accident reconstruction expert originally engaged by KCS. Dr. Fogarty opined that the guardrail would not have remained standing if it had been hit by a
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 fact finder 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. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987); Boulos v. Morrison, 503 So.2d 1 (La.1987).
The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990). Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Iseah v. E.A. Conway Memorial Hospital, 591 So.2d 767 (La.App. 2d Cir.1991), writ denied, 595 So.2d 657 (La. 1992).
Applying these standards to the facts before us, we find no manifest error in the trial court's determination that the cab of Lasyone's truck impacted the guardrail prior to striking the KCS train. The photographs corroborate Lasyone's testimony, and the record shows that there was a sufficient basis for the trial court to resolve the experts' conflicting conclusions in favor of Lasyone.
Unreasonable risk of harm
Lasyone contends that the appellate court misapplied the manifest error standard when it reviewed the trial court's determination that DOTD's use of this longitudinal guardrail at this railroad crossing presented an unreasonable risk of harm.
There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. To assist the trier-of-fact, we note that many factors are considered and weighed, including: (1) the claims and interests of the parties; (2) the probability of the risk occurring; (3) the gravity of the consequences; (4) the burden of adequate precautions; (5) individual and societal rights and obligations; and (6) the social utility involved. See Boyle v. Board of Supervisors, L.S.U., 96-1158 (La.1/14/97), 685 So.2d 1080; Langlois v. Allied Chem. Corp., 258 La. 1067, 249 So.2d 133, 140 (1971) ("The activities of man for which he may be liable without acting negligently are to be determined after a study of the law and customs, a balancing of claims and interests, a weighing of the risk and the gravity of harm, and a consideration of individual and societal rights and obligations."); see also King v. Louviere, 543 So.2d 1327, 1328-29 (La. 1989).
The unreasonable risk of harm criterion is not a simple rule of law. Rather, it is a criterion established by this Court to facilitate the judicial process required by our Code. Landry v. State, 495 So.2d 1284, 1287 (La.1986). However, we have cautioned that the trier-of-fact cannot apply the unreasonable risk criterion mechanically. Entrevia, 427 So.2d at 1146; Landry, 495 So.2d at 1284. This criterion is a concept employed to symbolize the judicial process of reaching an intelligent and responsible decision and deciding which risks the codal obligations encompass from the standpoint of justice and social utility. Celestine v. Union Oil Co. of California, 652 So.2d 1299, 1304; Sistler,
Further, the fact that an accident occurred because of a vice or defect does not elevate the condition of the thing to that of an unreasonably dangerous defect. See Simeon v. John Doe, d/b/a The Sweet Pepper Grill, 618 So.2d 848 (La. 1993); Shipp v. City of Alexandria, 395 So.2d 727, 729 (La.1981). 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. Id. When harm results from the defect of a thing that creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the thing may be held liable for the damages caused. Loescher, 324 So.2d at 446. Liability arises from his legal relationship to the thing, i.e., whether he has custody, care, and control, and his failure to prevent the thing for which he is responsible from causing an unreasonable risk or injury to others. Id.
In Netecke, we stated:
Netecke, 747 So.2d at 498.
From the outset, we find it necessary to correct the appellate court's appreciation of the law with regard to inattentive motorists. After citing Netecke in its opinion, the appellate court stated that "DOTD's legal duty did not encompass the risk that a tractor-trailer driver would be inattentive and disregard all manner of warning devices such that in a last minute effort to avoid a collision with the train, the driver would utilize the shoulder and subsequently be re-directed into the path of the train." Lasyone, 99-0735, slip op. at 9.
In Netecke, we reiterated jurisprudence, commencing with Rue which was reaffirmed in Ledbetter and Graves, relative to DOTD's duty to inattentive motorists. In particular, we stated:
Netecke, 747 So.2d at 495. (Citations omitted).
Although in Netecke the motorist, who was neither speeding nor inattentive, did not recover against DOTD, we did not abandon this well settled jurisprudence which was first enunciated in Rue. Rather, we were presented with a driver who intentionally steered her vehicle off the highway, across the paved shoulder, and beyond onto the grassy area where she encountered an open culvert clearly marked by a warning deliminator. Against that backdrop, we explored the unreasonable risk of harm criterion by examining the social utility of the culvert, considering the social and economic factors pertinent to the case, and exploring the physical and financial ability of DOTD to maintain the State's highways, shoulders, and rights of way. Only after fully applying the various factors of the unreasonable risk of harm test did we find that DOTD was not liable for the damages the driver suffered. Accordingly, it is clear that Netecke does not stand for the proposition that DOTD does not owe a duty to the inattentive driver. Thus, we proceed to examine Lasyone's contentions.
In the present case, Lasyone argues that the appellate court: (1) failed to acknowledge the AASHTO guidelines and principles enunciated in publications of the Federal Highway Administration; (2) improperly relied on the steepness of the embankment and the presence of the culvert and the ditch as justification for the presence of the longitudinal guardrail; (3) substituted its own social utility and risk/benefit analysis for that of the trial court; (4) relied on a false premise that because trains passed on this crossing only infrequently that the harm caused by the placement of the guardrail at the grade crossing was only minimal; and (5) ignored physical evidence that showed that the guardrail presented a danger to trucks because the facts showed that Lasyone's truck was redirected into the train.
Federal guidelines in general. As provided by Louisiana law:
LA.REV.STAT. ANN. § 48:35.
Heeding those directives, we note that the AASHTO guide cautions:
GUIDE FOR SELECTING, LOCATING, AND DESIGNING TRAFFIC BARRIERS § 1-B.
Furthermore, all of the experts agreed the Federal Highway Administration's RAILROAD-HIGHWAY GRADE CROSSING HANDBOOK, a compilation of what is contained in the federal regulations, provides the following with regard to the placement of a longitudinal guardrail at a railroad crossing:
RAILROAD-HIGHWAY GRADE CROSSING HANDBOOK 142 (U.S. Dept. of Transportation &
In addition, this handbook further provides:
RAILROAD-HIGHWAY GRADE CROSSING HANDBOOK § 5.4 at 128.
Although Dr. Berg, Lasyone's expert, and Dr. Rowan, DOTD's expert, testified at length about the existence of these general principles, a careful reading of the appellate court's decision shows that none of these principles were acknowledged. Even though Dr. Berg and Dr. Rowan disagreed on whether there were exceptions which would have removed this guardrail from the prohibitions enunciated in these federal promulgations, the appellate court decision is void of any discussion of the differing experts' testimonies about these principles and how exactly the trial court was clearly wrong in its appreciation of that testimony.
Justifications for guardrail placement. After recognizing the federal guidelines, DOTD presented the trial court with three justifications to consider in its determination of whether this longitudinal guardrail presented an unreasonable risk of harm. First, DOTD attempted to show that the "steep embankment" exception recognized in the federal guidelines justified the presence of the guardrail.
Even though Berthelot's credibility was significantly impugned, the appellate court decision made no reference to this fact. It is well recognized that it is the duty of the appellate court to "do more than just simply review the record for some evidence which supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's finding was clearly wrong
Not only was it permissible for the trial court to discount the slope theory that DOTD advanced, the evidence further shows no support for the contention that the trial court would have been clearly wrong or manifestly erroneous in its rejection of the ditch as additional justification for the guardrail. It is noteworthy that the ditch that does exist is perpendicular to the highway, not parallel to it, and runs under the roadway via a culvert. Dr. Berg examined the pictures of the area as it existed in 1986 at the time of the accident. He pointed out that there was no ditch as that term is commonly understood because it had no backslope; instead, he basically described this topographic feature as an embankment that simply sloped downward to the bayou. Thus, he stated that there was no backslope to the ditch for an errant vehicle to run into and could not justify the guardrail placement at this crossing. William P. Shrewsberry, a DOTD staff engineer supervisor and a rail-highway safety engineer, agreed with Dr. Berg's assessment of the ditch after he viewed the photographs, and admitted that the ditch would not justify a guardrail. Thus, we find that this critical issue did not present the appellate court with any basis to hold the trial court manifestly erroneous.
A similar result in favor of the trial court's appreciation of the legal issue is also dictated with regard to the culvert, the other reason advanced by the appellate court as justification for the guardrail. As noted above, a culvert runs under the roadway and drains water from south of the road into Bayou Lettsworth, a small waterway located north of the roadway beyond the clear zone. Dr. Rowan, DOTD's safety engineer and accident reconstructionist, agreed that application of the AASHTO guideline to the culvert did not justify the guardrail presence because "fixed objects within the clear zone that warrant protection should be removed." Instead of placing a guardrail to shield motorists from it, DOTD could have simply lengthened the culvert so that the exposed end north of the roadway would have been moved farther away from the travel portion of the highway.
Dr. Rowan also testified that the aggregate railroad embankment provided a additional justification for the placement of the guardrail at the railroad crossing. In essence, Dr. Rowan treated this physical feature as a ditch backslope. Contrarily, Dr. Berg testified that if that were the rule, all railroad crossings would have longitudinal guardrails because all crossings have railroad embankments. Thus, here too the trial court was presented with well grounded, diametrically opposing expert opinions.
Even if the appellate court is convinced that it would have ruled differently had it been the trier of fact, our jurisprudence is replete with citation for the proposition that reversal is not permitted if the trial court's findings are "reasonable in light of the record reviewed in its entirety, ..." Stobart, 617 So.2d at 882-83; see also Housley, 579 So.2d at 976; Sistler, 558 So.2d at 1112. Based upon the record evidence on this issue, we find that the appellate court clearly substituted its opinion for that of the trial court on this question.
Infrequency of daily train crossings. In its analysis, the appellate court also concluded that the likelihood of harm from the placement of the longitudinal guardrail was minimal because trains crossed this highway at this intersection only six times per day. As adroitly pointed out by Lasyone, this conclusion directly contradicts the AASHTO guidelines which state:
GUIDE FOR SELECTING, LOCATING, AND DESIGNING TRAFFIC BARRIERS § II-A. (Emphasis in original).
From this excerpt it is clear that the severity of impact rather than the frequency of encountering an errant vehicle should have been the focal consideration of the appellate court. To this end, Dr. Berg testified that because this guardrail was placed at the railroad crossing, it was most reasonable to assume that the majority of guardrail impacts at that location would be in avoidance of a train. Thus, we find no basis to support the appellate court's statement to the contrary.
CONCLUSION
Considering the record evidence in light of the manifest error standard, we find that the record clearly supports that the trial court was not manifestly erroneous in its determination that the longitudinal guardrail at this railroad crossing posed an unreasonable risk of harm to this motorist. The record clearly shows that the trial court was presented with sufficient, credible evidence to determine that the guardrail re-directed Lasyone's tank truck into the path of the train and eliminated the means for him to avoid collision with the train.
It was critical for DOTD to prove that a steep embankment, or some other condition, justified the presence of the guardrail. We find it significant that on this critical issue, DOTD failed to offer into evidence any detailed drawings which would have shown the lay of the land at this crossing when the guardrail was installed and when the crossing was upgraded. Moreover, DOTD submitted no evidence to establish what the slope of the embankment was at the time of the accident.
In view of the record evidence, we find that the appellate court failed to heed the manifest error rule and instead impermissibly substituted its opinion for that of the trial court. We must reverse.
REMAND FOR QUANTUM REVIEW
The trial court awarded $2,960,168.60 and made it reducible by the 50 per cent fault attributed to Lasyone. Because the appellate court reversed the trial court on liability, it never addressed the damage award.
Although this Court, like the court of appeal, has appellate jurisdiction of both law and fact, and may perform an independent review and render judgment on the question of damages, see LA. CONST. art. V, § 5(C) and Thomas v. Missoui Pacific R.R. Co., 466 So.2d 1280 (La.1985), we prefer that the court of appeal perform the first appellate review of the damage award.
DECREE
For the foregoing reasons, the judgment of the appellate court is reversed and set aside, and the district court judgment is reinstated. This matter is remanded to the court of appeal to perform the first appellate review of the damages which the trial court awarded to Lasyone.
REVERSED AND REMANDED.
VICTORY, J., dissents and assigns reasons.
TRAYLOR, J., dissents for reasons assigned by VICTORY, J.
LEMMON, J., concurs in part and dissents in part, and assigns reasons.
LEMMON, J., Concurring in Part and Dissenting in Part.
I concur in holding the Department partially liable. While the dissenters would hold plaintiff strictly to his uneducated estimates of time, speed and distance, the trier of fact heard and observed plaintiff on cross-examination about these matters,
Nevertheless, I disagree that this case should be analyzed on the basis of strict liability and with any suggestion that the result would be different if the accident had occurred after the legislative abolition of strict liability.
As the majority notes, the essential difference between a case of simple negligence and a case of strict liability is that the plaintiff in the former case has the additional burden of proving the defendant's knowledge of the harm-causing hazardous or defective condition for which the defendant was responsible. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La. 1982). In the present case, the Department clearly knew of the guardrail that it constructed and either knew or should have known that the placement of the guardrail violated prevailing safety standards. Plaintiff proved that the placement of the guardrail violated applicable safety standards, and the Department failed to produce evidence that the placement of the guardrail was warranted by the presence of a steep embankment. Because the Department was negligent in placing the guardrail at that location and that negligence was a contributing cause of plaintiffs injury, I concur in the determination that the Department was partially at fault.
On the other hand, I dissent from the allocation of fifty percent of the fault to the Department, whose negligence pales greatly in comparison to that of plaintiff. I would not fix the Department's fault at any amount higher than twenty-five percent.
VICTORY, J., dissenting.
Plaintiff was driving an eighteen wheel tractor trailer loaded with 80,000 pounds of asphalt at the time of the accident. According to plaintiff, the only eye witness that testified, when he finally recognized that there was a train in his path, he was only 25-50 feet away from impact. He mashed on his brakes and pulled right simultaneously. At that point he was still going 40-43 mph. Plaintiff claims that when he steered right, he hit the guardrail located only 6 feet off the roadway and was then thrown back into the roadway. He testified that after hitting the guardrail, he was still traveling at least 20 mph when he hit the train.
At his deposition one week before trial, plaintiffs expert agreed that by the time plaintiff hit the train, he was still traveling at 20 mph or greater and that the damage to the train was consistent with the train having been struck at that speed. However by the time of trial, after plaintiff had settled with the railroad, plaintiff's expert formed a new opinion that plaintiff had to have been traveling much slower than plaintiff testified to at trial, that the longitudinal guardrail was improperly placed, and that plaintiff stuck it, causing plaintiff's
In my view, the evidence in this case clearly shows that by the time plaintiff saw the train only 25-50 feet from the point of impact and while he was still traveling at 40-43 mph, it was impossible for him to avoid a collision with the train. The guardrail in question, which is still in place on Highway 1, did not cause or contribute to plaintiffs injuries. Even if plaintiff did hit it, traveling at the speed he testified to and pulling an 80,000 pound load, his truck would have driven through the guardrail and he would have hit the train anyway if he was operating his vehicle in the manner he described at trial.
Accordingly, I respectfully dissent.
Comment
User Comments