The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
09-662
ANTHONY LAVALAIS
VERSUS
STATE OF LOUISIANA, THROUGH [THE]
DEPARTMENT OF TRANSPORTATION
AND DEVELOPMENT
************
APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2006-8815-A
MARK A. JEANSONNE, DISTRICT JUDGE
************
JAMES T. GENOVESE
JUDGE
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Court composed of Elizabeth A. Pickett, J. David Painter, and James T. Genovese,
Judges.
REVERSED.
Cory P. Roy
Beau R. Layfield
Law Offices of Cory P. Roy
107 North Washington Street
Post Office Box 544
Marksville, Louisiana 71351
(318) 240-7800
COUNSEL FOR PLAINTIFF/APPELLEE:
Anthony Lavalais
James D. “Buddy” Caldwell, Attorney General
Paula E. Miles, Assistant Attorney General
Louisiana Department of Justice
Division of Risk Litigation
429 Murray Street, 4th Floor (71301)
Post Office Box 1710
Alexandria, Louisiana 71309-1710
(318) 487-5944
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, through the Department
of Transportation and Development
GENOVESE, Judge.
In this personal injury action arising out of a motor vehicle accident,
Defendant, the State of Louisiana, through the Department of Transportation and
Development (the DOTD), appeals the trial court’s judgment assessing it with fifty
percent fault in causing the accident and casting it in judgment for $25,000.00 in
damages in accordance therewith. For the following reasons, we reverse the trial
court’s judgment.
FACTS
At approximately 7:40 p.m. on January 14, 2005, Plaintiff, Anthony Lavalais,
was traveling northbound on Louisiana Highway 1 in Avoyelles Parish, Louisiana.
As he approached the intersection of Louisiana Highway 1 and Louisiana Highway
1194, Mr. Lavalais collided with a truck that was stopped at the intersection due to
a prior accident. Mr. Lavalais instituted suit against the DOTD alleging that “[d]ue
to the defective design and conditions in the highway, [he] was unable to visually
observe the traffic congestion and collided into other vehicles.”
The matter proceeded to bench trial on the sole issue of liability. At the
conclusion of the trial, the trial court gave the following oral reasons for judgment:
Time and space of course after an accident with or without a concussion
can escape you but a lot hinges on what I draw as an inescapable
conclusion from [Mr. Lavalais’] testimony that he [sic] obviously these
lights and sirens are not there when the [P]laintiff comes to the scene.
If they were there, I don’t think we would have had this accident.
Based upon the jurisprudence referenced in its oral reasons for judgment,1 and the
“un-controverted” testimony of Mr. Lavalais, the trial court assessed fifty percent of
the fault for the accident to Mr. Lavalais and fifty percent of the fault for the accident
1
In its oral reasons for judgment, the trial court discussed Nunez v. Commercial Union
Insurance Co., 00-106 (La.App. 3 Cir. 8/23/00), 774 So.2d 208, reversed in part on other grounds,
00-3062 (La. 2/26/01), 780 So.2d 348, which, in its opinion, “was similar.”
to the DOTD. The trial court then awarded damages of $25,000.00 pursuant to the
stipulation of the parties.2 A judgment in accordance therewith was signed by the
trial court on March 23, 2009. It is from said judgment that the DOTD appeals.
ASSIGNMENTS OF ERROR
The DOTD asserts that the trial court erred in allocating fifty percent fault to
it since there was no evidence that the DOTD had a “duty to provide lights and
sirens” or that the DOTD “had knowledge of the accidents.” Additionally, the DOTD
contends that the trial court erred in finding it at fault due to the absence of “evidence
to show that the highway was defective” and that the DOTD “had notice of any
defects.”
STANDARD OF REVIEW
An appellate court is to apply the manifest error standard of review to a
factfinder’s allocation of fault. Cheairs v. State, Dep’t of Transp. and Dev., 03-680
(La. 12/3/03), 861 So.2d 536. As this court recently stated:
A two-tiered test must be applied in order to reverse the findings of the
trial court:
1). [t]he appellate court must find from the record that a
reasonable factual basis does not exist for the finding of the
trial court, and
2). [t]he appellate court must further determine that the
record establishes that the finding is not clearly wrong
(manifestly erroneous).
Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (quoting Arceneaux v.
Domingue, 365 So.2d 1330, 1333 (La.1979)).
Cole v. Brookshire Grocery Co., 08-1093, p. 2 (La.App. 3 Cir. 3/4/09), 5 So.3d 1010,
2
The parties stipulated that the damages did not exceed $50,000.00, exclusive of interest and
costs. Thus, the trial court awarded damages as limited by the stipulation of $50,000.00 and granted
judgment in favor of Mr. Lavalais against the DOTD for the sum of $25,000.00, which represents
fifty percent of the $50,000.00 stipulated cap on damages.
2
1012, writ denied, 09-728 (La. 5/15/09), 8 So.3d 589.
LAW AND DISCUSSION
The DOTD asserts in brief that Mr. Lavalais failed to prove that it “had a duty
to provide lights and sirens following the original accident at the intersection at issue
in this case.” On this issue, the DOTD presents the following arguments:
1) The DOTD would point out first, that it is the sole defendant in
this case, and there has been no evidence to show that lights
and/or sirens at the accident scene were within [the] DOTD’s
control. Nor has there been any evidence introduced to establish
that the DOTD had any reason to know of the preceding accident,
such that lights and sirens should be provided to warn subsequent
motorist of the first accident at the scene.
2) Second, the [P]laintiff never alleged in his petition that the
lighting conditions at the scene were defective or played any role
in causing the accident. This failure placed the DOTD in the
position of being ambushed at trial with this allegation, with no
reasonable opportunity to defend against it.
3) Third, notwithstanding the fact that the [P]laintiff failed to
establish a duty on the part of the DOTD to provide lights and
sirens at the scene of this accident, and having failed to introduce
any evidence that the DOTD was even aware of the preceding
accident, the [P]laintiff has utterly failed to provide sufficient
evidence offered to prove that the lighting at the scene of the
accident played any causative role whatsoever.
We agree. Mr. Lavalais failed to establish that the DOTD had a duty to provide lights
and sirens at the accident scene. We find that the record is void of any evidence
whatsoever tending to establish such a duty on the part of the DOTD. Additionally,
we find the jurisprudence relied upon by the trial court to be distinguishable.
Based upon the evidence presented, the trial court concluded that such a duty
on the part of the DOTD existed, citing Nunez, 774 So.2d 208. However, not only are
the facts of Nunez readily distinguishable from the case at bar, the defendant in Nunez
to which fault was assessed was the Department of Public Safety and Corrections, not
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the DOTD. These are two different departments of the State of Louisiana with
separate and distinct legal authority and responsibility. Mr. Lavalais failed to
establish any facts evidencing a duty on the part of the DOTD relative to lights and/or
sirens in this case. For these reasons, we do not find Nunez to be relevant authority
for the trial court’s conclusion that the DOTD had a duty in the instant case relative
to lights and/or sirens at the accident scene.
The only two witnesses to testify at the trial of this matter were Mr. Lavalais
and Sheriff Doug Anderson of the Avoyelles Parish Sheriff’s Office.3 Neither Mr.
Lavalais nor Sheriff Anderson were qualified as experts, and neither were employees
of the DOTD; therefore, neither of these witnesses testified, nor were they capable of
testifying, that the DOTD had custody or control of the intersection. Neither of these
witnesses testified, nor were they capable of testifying, that the DOTD had custody
or control over lighting and/or sirens at the intersection. And, neither of these
witnesses testified, nor were they capable of testifying, that the DOTD had
knowledge of the preceding accident.
The DOTD also argues to this court that the trial court erred in granting Mr.
Lavalais relief due to the absence of “evidence to show that the highway was
defective” and/or that the DOTD “had notice of any defects.” We agree.
Paragraph “V.” of Mr. Lavalais’ Petition for Damages alleges that the subject
accident “was caused by the gross negligence” of the DOTD. Our Louisiana Supreme
Court, in Lockett v. State, Department of Transportation and Development, 03-1767,
pp. 10-11 (La. 2/25/04), 869 So.2d 87, 95, set forth the law relative to the DOTD’s
liability for highway-related accidents as follows:
3
On January 14, 2005, Sheriff Anderson, then employed by the Louisiana State Police, was
called upon to investigate the subject accident.
4
A plaintiff may proceed against the State through DOTD under
either a theory of negligence or a theory of strict liability. Netecke v.
State ex rel. DOTD, 98-1182, p. 7 (La.10/19/99), 747 So.2d 489, 494.
In order for DOTD to be held liable, the burden of proof is the same
under either theory, and the plaintiff bears the burden of showing that:
(1) DOTD had custody of the thing that caused the plaintiff’s
injuries or damages;
(2) the thing was defective because it had a condition that
created an unreasonable risk of harm;
(3) DOTD had actual or constructive knowledge of the
defect and failed to take corrective measures within a
reasonable time; and
(4) the defect in the thing was a cause-in-fact of the
plaintiff's injuries.
Id.
In addition to failing to establish the requisite element of custody or control,
our review of the record confirms that Mr. Lavalais presented absolutely no evidence
to show that the roadway was defective in either design or construction. Moreover,
the Plaintiff himself denied that the slope of the roadway, as it approached the
intersection, caused him any difficultly in seeing the preceding accident.
Additionally, Mr. Lavalais failed to establish that the DOTD had actual or
constructive knowledge of any alleged defect.
On the issue of defect, Mr. Lavalais, in brief, references the testimony of
Sheriff Anderson wherein he stated that the slope of the roadway “could” cause
visibility problems. However, we note that Sheriff Anderson was not qualified as an
expert in any field and, therefore, was not competent to render an expert opinion on
an alleged defective condition of the roadway. Additionally, such speculation on the
part of Sheriff Anderson is insufficient to establish the presence of a defect as
asserted by Mr. Lavalais.
5
Sheriff Anderson’s testimony that other accidents had occurred in this area also
fails to establish the requisite element of notice on the part of the DOTD as argued
by Mr. Lavalais. Of particular note is Sheriff Anderson’s testimony that these prior
accidents were “not similar accidents.” We agree with the DOTD that “[t]his
testimony offers no support to [Mr. Lavalais’] contention that the [DOTD] had notice
of an alleged defective road condition.”
For the foregoing reasons, we find that there is no reasonable factual basis for
the trial court’s assessment of fifty percent of the fault for the subject accident to the
DOTD. Therefore, we find that the trial court’s decision in this case was manifestly
erroneous and clearly wrong.
DECREE
For the foregoing reasons, the judgment of the trial court allocating fifty
percent of the fault for the subject accident to the State of Louisiana, through the
Department of Transportation and Development, and casting it in judgment in the
amount of $25,000.00 is reversed. Costs of this appeal are assessed to Anthony
Lavalais.
REVERSED.
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