Clarkston v. Louisiana Farm Bureau Casualty Insurance
Docket: Nos. 2007-CA-0158, 2007-CA-1282
Court: Louisiana Court of Appeal; July 2, 2008; Louisiana; State Appellate Court
In May 1997, nine-year-old Julius Clarkston was severely injured after being struck by a vehicle while walking along Highway U.S. 65 in Lake Providence, Louisiana. Following a jury trial, the State of Louisiana, represented by the Department of Transportation and Development (DOTD), was found to be 20% at fault due to the roadway’s unreasonably dangerous condition contributing to the accident. The case was consolidated with an appeal from the DOTD regarding procedural errors, fault allocation, and the damage awards granted to the plaintiffs, James Clarkston and his minor son Julius.
The DOTD had previously contracted T.L. James Construction Company to resurface and expand approximately 1.5 miles of the highway, which was a major thoroughfare. During the construction, which began in spring 1997, there was a lack of permanent street markings, cones, or barricades, leading to dangerous conditions for pedestrians. On the day of the accident, Julius and three other boys were walking single file along the edge of the road due to the absence of sidewalks. Gina Evans, the driver of the vehicle that struck Julius, was traveling at 45 miles per hour, above the construction zone speed limit of 35 miles per hour. The trial court's judgments in favor of the Clarkstons were affirmed, finding no errors in the trial court's decisions.
Julius was ejected into the air during a vehicular accident, striking the windshield of a car before landing headfirst on the street. Witness Arnold Johnson, who was driving in the opposite lane, observed the incident and provided emergency assistance until medical help arrived. Julius was taken to Lake Providence Hospital and then quickly transferred to Glenwood Hospital in Monroe, Louisiana, due to severe life-threatening head and internal injuries. He spent several weeks there undergoing multiple treatments for serious injuries before being flown to Children’s Hospital of New Orleans for two months of inpatient therapy and rehabilitation for cognitive impairment and leg injuries. After his discharge, Julius continued therapy at home, and after a failed attempt to return to school ten months later, he received home schooling for the remainder of the year.
In February 1998, Julius's guardians filed a tort action against various parties, including the DOTD and T.L. James. During the jury trial that began in October 2006, T.L. James settled with the plaintiffs, leaving the DOTD as the sole defendant. Testimonies revealed significant issues with the road conditions on Sparrow Street during construction, including the lack of shoulders, street markings, cones, barricades, and adequate lighting. Gina Evans, the driver involved in the accident, noted she was traveling at 45 mph when she saw children playing in the street and could not avoid hitting Julius. Arnold Johnson corroborated her account, citing poor visibility due to dust from construction and the absence of safety measures that made it difficult to discern road boundaries. He emphasized the danger posed by the conditions and expressed disbelief that Julius survived the accident given the extent of his injuries.
Terry Baham, Jr. testified that on the day of the accident, Sparrow Street was unmarked and covered in rocks and gravel. He described walking in a single file with Julius directly in front of him when Ms. Evans’ vehicle approached rapidly from behind. By the time Terry reacted, Julius had already been struck and fell headfirst to the ground. James Clarkston, III, Julius' older brother, supported Terry's account, noting they were walking in a single file and that he first saw Ms. Evans' vehicle approaching quickly, leaving him no time to warn the others. He observed that after the impact, Julius exhibited severe symptoms, including shaking and foaming at the mouth.
James also recounted assisting Julius with rehabilitation at home after his discharge from the hospital, where Julius had been in a body cast and unable to walk, leading to frustration for both siblings. James Clarkston, Julius' father, who had traffic investigation experience from his time as a New Orleans police officer, visited the accident scene and found it devoid of street markings or safety signage. He described the road as cold-planed with visible grooves and gravel.
Upon arriving at the hospital hours after the accident, Mr. Clarkston found Julius in a comatose state with significant swelling. He noted that his wife managed Julius' medical care during his recovery, which was prolonged and complicated by worsening conditions initially. Julius communicated nonverbally after his condition improved, and Mr. Clarkston expressed concerns about Julius' psychological state post-accident, indicating that he exhibited frustration and aggression, leading to issues at home and difficulties in school, including behavioral problems and academic setbacks.
Mr. Clarkston sought psychiatric care for his son Julius, who exhibited mood swings and impulsive behavior, but he refused inpatient admission due to discomfort stemming from his law enforcement background. He felt responsible for teaching Julius to manage his anger and accept limitations, specifically instructing him to "retreat" when frustrated. Mr. Clarkston noted that Julius’s condition has led to increased social withdrawal and isolation, hindering his educational prospects compared to his siblings due to cognitive impairments from injuries.
Marvette Clarkston, Julius's stepmother and primary caregiver, provided detailed testimony about his medical treatment. Upon arrival at the hospital, she learned Julius's prognosis was poor; he had suffered a severe head injury that required a drug-induced coma and ventilation for collapsed lungs. He underwent multiple surgeries, including the placement and later removal of a metal bolt in his head to alleviate swelling and a bronchoscopy to drain lung fluid. After awakening from the coma, Julius lacked motor control, speech, and recognition of people or objects. His injuries delayed the application of orthopedic casts until stabilization occurred.
Upon transfer to Children’s Hospital for rehabilitation, Mrs. Clarkston described Julius as having the capabilities of a newborn, unable to eat or walk, with significant cognitive impairments including aphasia and permanent memory loss regarding his life before the incident. He engaged in a rigorous rehabilitation program and underwent two orthopedic surgeries, which involved hardware placement and subsequent removal in his leg. Mrs. Clarkston highlighted the limitations Julius faced while in a body cast, including the inability to bathe and the need for diapers, even after regaining bowel control. Her observations about Julius's mental health echoed those of her husband and stepson James, noting that Julius displayed childish temper tantrums for years post-accident.
Julius suffers from unpredictable behavior, mood swings, and chronic headaches, which affect his academic performance. Although he has shown some improvement in anger management, he still faces challenges, particularly related to his schooling. He testified that he has no recollection of the accident or his subsequent medical treatment and has been home-schooled due to difficulties attending school while recovering from injuries, including a body cast. He has been expelled from two schools for fighting, which he attributes to being mocked about scars from the accident. Additionally, he experiences chronic headaches, nosebleeds, and mobility issues with his left leg, particularly in winter. His cognitive challenges hinder his reading comprehension and job performance, leading him to believe he cannot attend college, unlike his academically successful siblings. He expressed interest in hands-on training or military service.
Johnny Matthews, a DOTD construction inspector, testified about the reconstruction site where the accident occurred. He maintained daily logs indicating that appropriate signage was used throughout the project; however, he acknowledged that no signage was present at the accident site. On the day before the accident, he reported laying down asphalt and placing temporary center line markings, though no line markings were applied on the day of the accident. Matthews also noted that while asphalt can create debris, he could not confirm that the area was cleaned prior to the accident.
Mr. Matthews acknowledged that no accommodations were made for pedestrian traffic during the project but believed T.L. James had no contractual obligation to provide them. He had limited knowledge of the Louisiana Standard Specifications for Roads and Bridges (LSSRB) and the Manual on Uniform Traffic Control Devices (MUTCD) and was unaware of their requirements regarding debris cleaning, marker placement, and pedestrian traffic control in construction zones. Gary Dean Icenogle, the DOTD project supervisor, confirmed that T.L. James was required to implement temporary street markings, signage, and barricades at the end of each workday and to maintain traffic control at all times. He also admitted the contract mandated compliance with LSSRB and MUTCD provisions, particularly concerning street cleaning and pedestrian accommodations. However, project diaries indicated no street cleaning was conducted after laying approximately eighty tons of asphalt, and no measures were taken to separate pedestrians from the roadway.
James Clary, an expert witness, highlighted the classification of U.S. 65 as a Class A urban arterial and noted the average traffic volume of 5,400 cars per day in 1996, indicating a foreseeable need for pedestrian travel. He supported Icenogle’s testimony about compliance obligations and criticized Mr. Matthews for his lack of familiarity with relevant regulations, pointing out several non-compliances related to traffic control and pedestrian safety. Clary questioned the appropriateness of an increased speed limit during construction and noted that the presence of debris made it difficult to identify roadway boundaries, rendering the street hazardous. In contrast, DOTD's expert, Joseph D. Blaschke, argued that Sparrow Street was not unreasonably dangerous at the time of the accident, claiming that temporary edge lines were unnecessary if they were to be in place for less than two weeks.
During cross-examination, a witness failed to provide authoritative support for his assertion that MUTCD regulations regarding pedestrian accommodations in construction zones were inapplicable due to the lack of preexisting walkways at the site. Dr. J.A. Bermudez, a pediatric neurosurgeon, treated Julius for severe head trauma, including a 15 cm laceration and a skull fracture, resulting in significant brain bleeding and decreased consciousness. He noted additional injuries, including fluid in the lungs and severe leg injuries, and described Julius’s condition as "precarious," indicating a high risk of death and brain damage. Dr. Bermudez performed brain surgery to monitor intracranial pressure and expressed concerns about potential residual neurological issues.
Dr. Joseph Nadell, another pediatric neurosurgeon, testified that Julius required 12 days to stabilize due to his brain injury and cranial fluid buildup. He prescribed medication to prevent seizures for nearly a year and diagnosed significant memory and language delays contributing to mobility issues. Upon discharge after nearly two months, Julius exhibited frontal lobe vision problems and language disorders, alongside impulsive behavior that raised safety concerns. Dr. Nadell indicated Julius would face long-term challenges with memory and impulse control.
Defense expert Dr. Meghan Ciota, a clinical neuropsychologist, assessed Julius seven years post-accident. Her examination revealed a lack of motivation during testing, leading to cognitive impairment indicators. Although she acknowledged some mild right-sided issues suggesting left brain injury, she contested the extent of the brain damage and attributed Julius's poor academic performance more to motivational issues than to the accident.
Dr. Ciota, on cross-examination, acknowledged her lack of medical training and deferred to Dr. Nadell, Julius’ treating neurosurgeon, regarding frontal lobe damage. She confirmed that Julius displayed issues such as delayed response time, short-term memory problems, language difficulties, and impulsive behavior. Julius reported ongoing symptoms seven years post-accident, including leg pain, chronic nosebleeds, headaches, emotional dysregulation, and a "blunted effect" indicative of depression. Dr. Ciota recommended therapy for anger management.
In the jury verdict, fault was apportioned as follows: Gina Evans 67.5%, DOTD 20%, T.L. James 10%, Julius Clarkston 2.5%, Eddie Sue Baham 0%. Damages awarded included: future medical expenses ($12,000), impairment of earning capacity ($100,000), loss of enjoyment of life ($150,000), and general damages ($1,000,000). The DOTD was ordered to pay all costs and subsequently appealed, challenging the trial court's denial of its directed verdict motion, the use of certain jury instructions, the fault allocation, and the damages awarded.
In discussing the procedural errors, the DOTD argued that the trial court improperly denied its directed verdict motion based on the Clarkstons’ failure to meet the burden under La. R.S. 9:2800 for strict liability claims. However, the court noted that the Clarkstons did not pursue a strict liability claim in their petitions, rendering La. R.S. 9:2800 inapplicable and justifying the trial court's decision. Regarding jury instructions, the DOTD claimed errors in the denial of certain jury charges related to driver and pedestrian responsibilities. It was noted that specific objections must be made during trial to preserve issues for appeal, and general objections are inadequate.
A party cannot assign error regarding jury instructions unless an objection is made before the jury retires, specifying the matter and grounds for objection. The Department of Transportation and Development (DOTD) failed to object to the absence of certain jury charges, thereby waiving its right to raise these issues on appeal. Discovery of an error in jury instructions does not automatically warrant a de novo review; instead, the severity of the error must be assessed in context. A de novo review is justified only if the jury instructions were so flawed that they prevented the jury from reaching a lawful verdict. In this case, the appellate court found that the jury instructions were sufficient and did not impede justice. The court reviewed specific instructions related to a motorist's responsibilities and pedestrian safety, noting that the jury had adequate information to assign fault. The failure to include certain charges was deemed not to constitute reversible error. Furthermore, appellate courts are limited in overturning trial court factual findings unless clearly wrong or manifestly erroneous. The court upheld the trial court's findings, emphasizing that reasonable factual conclusions should not be disturbed.
The DOTD argues there is no evidence it created an unreasonable risk of harm leading to Julius's injuries. It acknowledges its responsibility to maintain highways and shoulders safely but claims this duty does not extend to protecting pedestrians from driver negligence. Ms. Evans's negligence in operating her vehicle is acknowledged as a substantial cause of the accident, establishing her fault. However, under Louisiana's comparative negligence laws, the DOTD may also bear fault for the injuries.
The Clarkstons' claim is based on negligence, requiring proof that the DOTD's actions caused harm, that it owed a legal duty to Julius, and that it breached this duty. Although the DOTD is not a guarantor of highway safety, it has a continuous obligation to keep highways and shoulders reasonably safe for pedestrians. This duty includes maintaining areas adjacent to roadways to prevent unreasonable risks and providing adequate warnings of hazardous conditions, especially in construction zones. The DOTD must ensure that warnings and safeguards are appropriate for the potential dangers, guided by the Manual on Uniform Traffic Control Devices, which outlines the minimum standards for road construction and maintenance.
Compliance with the MUTCD serves as prima facie evidence of the DOTD's lack of fault in cases where an injured motorist or pedestrian claims the DOTD is liable for improper maintenance. Noncompliance alone does not indicate liability but is a relevant factor in evaluating whether a roadway is unreasonably dangerous. The determination of roadway danger is a factual question dependent on the specific circumstances of each case, and the trial court's findings are evaluated under the manifest error standard.
In this instance, the evidence strongly suggests that the DOTD failed to meet even the minimal MUTCD standards for safe travel conditions. Specifically, the DOTD neglected to clean the highway after significant asphalt repairs, resulting in visibility issues for motorists. The plaintiff's expert testified that had the speed limit been reduced from forty-five to thirty-five miles per hour, the driver would have had more time to respond to the hazardous conditions. The decision to increase the speed limit during road construction was criticized, especially given that DOTD personnel could not justify this increase or recall any similar instances.
Moreover, there was a lack of temporary street markings, cones, or barricades in the construction zone, leading to confusion about the roadway edges. Witnesses testified that pedestrians were forced to walk on the edge of the road, creating a dangerous situation when a vehicle passed too closely. The area in question is predominantly residential with commercial establishments nearby, highlighting the importance of safe pedestrian access.
Pedestrian travel in the area was foreseeable, prompting the Department of Transportation and Development (DOTD) to incorporate a provision in its Sparrow Street reconstruction contract requiring temporary pavement markings and proper signage at the end of each overlay operation. The DOTD failed to enforce compliance by T.L. James with this contractual language and the minimum standards set forth by the Manual on Uniform Traffic Control Devices (MUTCD). Site inspector Mr. Matthews admitted a lack of knowledge regarding the Louisiana Standard Specifications for Roads and Bridges (LSSRB) and MUTCD requirements, which were integral to the contract he was supposed to oversee. The absence of adequate safety measures, such as barricades and temporary markings, contributed significantly to the accident involving Julius. Although other parties, including Ms. Evans and T.L. James, also bore some fault, the jury found DOTD 20% at fault, with Ms. Evans and Julius assigned 67.5% and 2.5% fault, respectively. The allocation of fault is inherently complex, and Louisiana law emphasizes deference to the jury's determination unless it is clearly erroneous. The trier of fact considers the nature of each party's conduct and its causal relationship to the damages claimed when making fault allocations.
Key considerations in assessing liability include: 1) whether actions were inadvertent or knowingly risky; 2) the level of risk created; 3) the importance of the conduct's objective; 4) the actor's capacities; and 5) any extenuating circumstances necessitating hasty actions. The court found no error in attributing fault to the minor child, Julius, who, despite being young and inexperienced, was engaged in an activity that did not require specialized skills beyond his age-appropriate knowledge. As a pedestrian, Julius had a responsibility to avoid construction areas and could not safely exit a secure position to enter traffic where vehicles were too close to yield. He contributed to the traffic flow impediment, breaching his duty to coexist safely with Ms. Evans.
Conversely, Ms. Evans demonstrated substantial negligence contributing to the accident, as the driver of a vehicle—a dangerous instrumentality—bears a heightened responsibility to prevent pedestrian injuries. The Louisiana Supreme Court underscores that motorists must maintain vigilance for potential pedestrian negligence and ensure vehicle control. Ms. Evans failed to keep a proper lookout, drove too fast for the conditions, did not sound her horn to warn pedestrians, and ultimately lost control of her vehicle.
Additionally, the Louisiana Department of Transportation and Development (DOTD) had a duty to ensure highway safety, which it neglected by not adequately supervising safety measures. The comparative liability analysis suggested that Ms. Evans had the last clear chance to mitigate risks while driving in the construction zone. There was insufficient evidence to justify reducing the DOTD's fault allocation or increasing that of Ms. Evans and Julius. The district court's findings were supported by the evidence, and the judgment was deemed reasonable, warranting no reversal.
The DOTD challenges several damage awards in the consolidated proceedings No. 2007-0158, including $12,000 for future medical expenses, $100,000 for impairment of earning capacity, $150,000 for loss of enjoyment of life, and $1,000,000 for general damages. The standard for reviewing these awards requires proof that the trier of fact abused its discretion such that the amounts awarded are disproportionate to the injury or fault involved.
Regarding future medical expenses, the court highlights that while certainty is not required, there must be credible evidence supporting the probability of future costs. The DOTD claims insufficient evidence for the $12,000 award, noting that the plaintiff has not sought medical treatment for nearly nine years. However, it acknowledges the need for treatment, particularly mental health care, which is substantiated by testimonies from the plaintiff and doctors, including the DOTD’s expert. Thus, the challenge to the future medical expenses award lacks merit.
For impairment of earning capacity, Louisiana courts recognize that even young children can receive compensation. The DOTD argues that such awards are speculative, but the courts maintain that while they should be based on factual evidence, the trier of fact has broad discretion in assessing them.
Julius and his parents testified that his cognitive limitations, resulting from an accident, hinder his academic performance and reduce the likelihood of attending college compared to his siblings. This was supported by Dr. Black, a neuropsychologist who evaluated Julius. They also noted Julius' persistent difficulties in maintaining part-time employment, attributing this to his inability to manage frustration stemming from cognitive challenges. The jury, having heard the testimonies, was deemed to have acted within its discretion in awarding damages for Julius' loss of earning capacity.
In assessing general damages, the court emphasized the jury's broad discretion, stating that appellate courts should only intervene in cases of clear abuse of that discretion. The testimony revealed that Julius, as a young child, endured life-threatening injuries requiring extended hospitalization, including a comatose state and multiple surgeries, which resulted in significant brain damage and extensive rehabilitation. While he regained some verbal skills, he still faced delayed speech, memory loss of his pre-injury life, and ongoing cognitive issues. He also suffered from chronic nosebleeds and debilitating headaches. Additionally, Julius underwent various orthopedic procedures for a thigh bone fracture, leading to a disfiguring scar and necessitating a year of rehabilitation, which prevented him from returning to school and hindered his academic potential.
The award of $1,000,000 is deemed within the discretionary limits of the trier of fact, and thus, there is no abuse of discretion to warrant overturning the decision. The claim from the Department of Transportation and Development (DOTD) regarding the duplicative nature of the award for loss of enjoyment of life in relation to general damages lacks merit. Loss of enjoyment of life, also referred to as hedonic damages, pertains to significant changes in a person’s lifestyle and inability to engage in previously enjoyed activities, which falls under general damages—characterized as inherently speculative and not strictly quantifiable in monetary terms.
The ruling in McGee v. AC. S, Inc. establishes that loss of enjoyment of life is a recognized component of general damages and can be awarded separately without conflicting with the established framework for general damages in Louisiana. This component is distinct from pain and suffering, which encompasses the physical and emotional distress resulting from an injury. The Clarkstons provided adequate evidence for jurors to differentiate between Julius' pain and suffering related to his injuries and his loss of enjoyment of life due to permanent lifestyle changes caused by those injuries. Testimonies indicated that Julius has had to adjust to debilitating symptoms and cognitive impairments, leading to social isolation and emotional challenges.
The DOTD's expert also noted signs of Julius' emotional distress, reinforcing the validity of the award. After reviewing the evidence, the conclusion is that the trier of fact appropriately assessed $150,000 for the loss of enjoyment of life, and no error was found regarding the trial court's decision to allocate costs incurred by both parties against the DOTD.
The Department of Transportation and Development (DOTD) challenged the reasonableness of the contractual fee of the plaintiffs' expert, James Claver, amounting to $4,668.40, as well as the assessment of costs. According to Louisiana Civil Procedure Article 1920, unless specified otherwise in a judgment, costs are typically borne by the losing party, with the court having discretion to allocate costs as it sees fit. The prevailing party's costs can only be assessed against them if there's evidence of unnecessary expenditure or misconduct. The Clarkstons filed a rule to show cause to clarify the costs they sought, submitting an affidavit from their attorney, which detailed the costs incurred. The trial court ruled that the DOTD was responsible for $19,292.45 in costs, as the DOTD did not present any opposing evidence. The court's decision was within its discretionary authority, and the ruling was affirmed. A dissenting opinion highlighted the duty-risk analysis necessary for establishing liability under Louisiana law, outlining five elements that must be proven by the plaintiff for damages to be awarded.
Breach of duty, cause in fact, and actual damages are factual issues requiring determination by the fact finder. In cases with concurrent causes of an accident, the inquiry focuses on whether the defendant's conduct was a substantial factor in causing the harm. Louisiana Civil Code article 2323(A) mandates that the degree of fault of all parties involved in causing an injury be assessed, with damages reduced proportionately if the injured party shares any negligence. Factors influencing the allocation of fault include the awareness of danger, the risk created by the conduct, the significance of the conduct's objective, the capacities of the actor, and extenuating circumstances necessitating hasty actions. Percentages of fault are determined as factual findings, and appellate courts may adjust these only if the allocation is deemed "clearly wrong."
In the case at hand, plaintiffs contended that the Louisiana Department of Transportation and Development (DOTD) was negligent for failing to accommodate pedestrian traffic on U.S. Highway 65 and lacking appropriate road striping. However, the DOTD is not obligated to provide for pedestrian traffic in this area, and evidence indicated that there was sufficient space for pedestrians. Testimony from the driver, Gina Evans, revealed that she noticed the children before the incident, indicating that the lack of striping did not contribute to the accident. Consequently, the DOTD cannot be held liable under the duty-risk analysis established in previous case law, as the cause in fact is evaluated through a "but-for" lens.
A defendant's conduct can be considered a cause in fact if the victim likely would not have encountered harm but for that conduct. A counter-factual hypothesis is useful in this determination; if it is probable that the victim would still have suffered damages even with corrected conduct from the defendant, then the defendant's actions are not a cause in fact. In this case, testimony from Evans indicated that Julius collided with her vehicle, and she did not claim any driving incapacity or road defects. She had previously driven the highway without issues and did not mention visibility problems. Therefore, the jury's decision to assign twenty percent fault to the Department of Transportation and Development (DOTD) was seen as an abuse of discretion. The condition of U.S. Highway 65 was not deemed a cause in fact of the accident, and Evans was aware of the children prior to the incident, suggesting she should have exercised more caution.
Minors are generally immune from being found legally at fault unless they are of a tender age and lack discernment. The standard for assessing a child's fault is not based on adult expectations but rather on their age, intelligence, and experience. In the case of a ten-year-old boy who accidentally hit a friend with a golf club, he was not found to understand the risks involved due to his lack of maturity. Conversely, a nearly ten-year-old boy was deemed legally at fault for an incident involving an oil well, as he demonstrated awareness of the potential dangers and had been warned to stay away.
The First Circuit upheld a trial court's dismissal of a negligent supervision claim against the parents of a twelve-year-old boy, ruling that such a claim applies only to younger children who cannot recognize danger. The court determined that a child who has reached the age of discernment, capable of understanding risks and taking precautions, does not warrant adult supervision in potentially dangerous situations. In this case, the jury concluded that Julius, at age nine, understood the dangers of moving vehicles, leading to the assignment of 2.5 percent of the liability to him. Louisiana law requires pedestrians to walk facing traffic where no sidewalks are present, and testimony indicated that Julius and other children were not following this guideline. Witnesses described the children running in the street and not adhering to safety measures. The jury ultimately found Julius primarily at fault, amending the liability to assign him a total of 22.5 percent of the fault. The Department of Transportation and Development (DOTD) was exonerated from liability. Although Julius reached the age of majority before trial, his father continued the lawsuit for past medical expenses. Conflicting testimonies were presented regarding the presence of adults supervising the children, but the jury determined that the testimonies from the children and an eyewitness were more credible.
The Clarkstons initiated legal action against the Louisiana Department of Transportation and Development (DOTD), Ms. Evans, her insurer Louisiana Farm Bureau Casualty Insurance Company, and State Farm Mutual Automobile Insurance Company, which provided underinsured motorist coverage. The DOTD subsequently filed a claim against T.L. James, leading the Clarkstons to amend their petition to include the construction company. They settled claims with Ms. Evans, Farm Bureau, and State Farm through a concursus proceeding, resulting in a court judgment.
Post-accident, Ms. Parker passed away before the trial. The contract between T.L. James and the DOTD requires adherence to safety specifications outlined in the Louisiana Standard Specifications for Roads and Bridges, which mandates that construction sites be kept safe and dust-free for public travel. Safety measures include the installation and maintenance of barricades, lights, danger signals, signs, and other traffic control devices, all conforming to the Manual on Uniform Traffic Control Devices (MUTCD), which establishes minimal safety standards for pedestrian management in construction zones. The MUTCD emphasizes the importance of providing safe travel paths for pedestrians, minimizing conflicts with vehicular traffic, and ensuring separation from work site activities. The DOTD's contract for the Sparrow Street project specifies that temporary pavement markings and proper signage must be in place at the end of daily operations, and prohibits the storage of materials or parking of equipment on roadway shoulders. Additionally, La. R.S. 9:2800 outlines limitations of liability for public bodies.
Liability against a public entity for damages under Civil Code Article 2317 requires proof that the entity had actual or constructive notice of the defect causing the damage, along with a reasonable opportunity to address the issue, which it failed to do. Jury instruction 11 emphasizes pedestrian responsibility to avoid oncoming vehicles, referencing Bacle v. Wade, while instruction 13, citing Howard v. Allstate Ins. Co., clarifies that children must exercise ordinary care appropriate for their age and experience. Louisiana’s comparative negligence law (La. Civ. Code art. 2323) mandates that all parties' fault in causing injury must be assessed, affecting damage recovery proportional to the injured party's own negligence. The Department of Transportation and Development (DOTD) does not dispute the 10% fault attributed to T.L. James but challenges the jury's finding regarding Mrs. Baham's negligence related to her supervision of Julius, asserting that her actions were not a contributing factor to the injuries. The DOTD failed to provide evidence linking her negligence to the incident. Additionally, Dr. Ciota recommended 18 months of weekly counseling for Julius at a total cost of approximately $12,000, which the jury awarded. The Supreme Court's ruling in McGee v. AC. S, Inc. allows separate awards for loss of enjoyment of life, contradicting the Fourth Circuit's previous stance that such awards are legally erroneous, a view that has not gained widespread acceptance among lower courts.
