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The parking lot for construction workers was on one side of a five-lane highway and the plant at which they worked on the other. When a car hit a worker crossing the highway from the lot to work in the early morning darkness, the injured worker sued the driver of the vehicle, the plant at which he was working, and the Louisiana Department of Transportation and Development (DOTD). A jury in the Fourth District Court of the Parish of Ouachita found the worker and the driver each 25 percent at fault. The jury assigned 40 percent fault to the owner of the plant and 10 percent to the DOTD. The plant owner and the DOTD appealed. Finding the plant owner negligent for failing to provide the employee safe access to the plant and the DOTD negligent in its installation of the crosswalk, the Court of Appeal of Louisiana, Second Circuit upheld the lower court's assignment of fault. The appellate court, however, amended the lower court's decision on apportioning of court costs, determining court costs must be divided according to the same percentages as the damages.

THE COLLISION

Roland B. Donavan, III, arrived for his third day of work at Riverwood International (Riverwood) in West Monroe, Louisiana at 5:30 a.m. Donavan was a boilermaker general foreman contracted by Riverwood to repair a recovery boiler. Riverwood had designated a potholed, unimproved lot across five-lane Louisiana Highway 34 from the plant as the place for contracted employees to park. Donavan parked his vehicle and started to cross the highway in the dark. He crossed on a direct path from where he parked to the plant entrance, not using the marked pedestrian crosswalk at the south end of the lot. He later said he was not aware of the crosswalk, although he would have driven over it arriving at work and entering the parking lot. When he had crossed the two southbound lanes, Donavan saw a vehicle approaching in the far northbound lane. He would explain in court that he "took only a few steps into the inside northbound lane, angling slowly toward [the] vehicle so he could walk behind it as it passed." Donavan said he looked down briefly, looked up, and was struck.

Marlin S. Jones drove the vehicle that struck Donavan. He was traveling northbound on Highway 34 at about 40 miles per hour (mph) in a 45-mph zone. When he saw the pedestrian, who was wearing dark clothing, step into his lane, Jones quickly moved to the inside northbound lane to avoid hitting him. Donavan, however, abruptly stepped back into the inside northbound lane. The vehicle hit Donavan, severely breaking his right leg.

In 1984, Riverwood had become concerned about the safety of workers crossing from the parking lot to the plant. The year before, the state had converted the two-lane highway the workers crossed to a five-lane highway--based on a traffic count of 3,000 to 12,000 vehicles per day. After the change to five lanes, the state also increased the speed limit from 35 mph to 45 mph. Riverwood contracted with the DOTD to install a crosswalk, which they jointly decided should be at the south end of the parking lot.

Joel Williams was the district traffic operations engineer in charge of designing the crosswalk and deciding what safety devices the DOTD would install. Following the Manual on Uniform Traffic Control Devices (MUTCD), Williams developed a crosswalk design that included: two painted white lines, six inches wide and 15 feet apart; advance pedestrian warning signs about 500 feet from the crosswalk on each approach; and two pedestrian crossing signs at the crosswalk itself, one facing north and the other south.

Williams testified that he knew additional crosswalk precautions such as a pedestrian traffic signal, crosswalk lighting, and reduced speed limits were available. While Williams said he realized pedestrians would be crossing at this location in the dark, he felt that lighting was not necessary. He found no policy for pedestrian crosswalk lighting in the MUTCD, and he had not installed lighting at any of the crosswalks he previously designed.

LOWER COURT DECISION

Dr. John Glennon served as a plaintiff's expert in Donavan's suit against Riverwood, the DOTD, and Jones. Glennon was an expert in traffic engineering, highway design, and crash reconstruction. Testifying that a midblock pedestrian crosswalk on a five-line highway with a 45-mph speed limit was highly unusual and very hazardous, Glennon stressed that a motorist with headlights on low beam and with no supplemental lighting on the roadway can only see about 200 feet ahead. Motorists must be traveling no more than 30 mph to be able to stop within that 200 feet should they see an obstacle in their path.

Glennon felt that, under the existing circumstances, Jones would have seen Donavan only three seconds before impact. Allowing a standard perception-reaction time ("time it takes to perceive that the object is a hazard, decide on a course of action and begin to implement it) of 2.5 seconds, Jones would have taken action to respond to Donavan's presence when he was only 50 feet from him. The stopping sight distance (the distance a vehicle will move during the time needed for a driver to perceive a hazard and stop the vehicle), in Glennon's opinion, was simply not sufficient for those driving in the dark at the legal speed limit to see a pedestrian in their path at the collision location and stop in time to avoid hitting the person.

The DOTD argued that the crosswalk was constructed according to guidelines in the MUTCD from the Federal Highway Administration. Glennon countered that the MUTCD does not address all crosswalk situations; and an unlit, midblock crosswalk in a 45-mph zone would be outside the guidelines in the MUTCD. He suggested lighting guidelines published by the American Association of State Highway and Transportation Officials (AASHTO) were available, and DOTD should have used them in this instance.

Moreover, Glennon felt that pedestrians were probably not going to use the crosswalk because it was inconvenient and inaccessible. The parking area was large, and pedestrians were not likely to walk to the south end to get to the crosswalk and then double back to the entrance of the plant unless guided to do so by some method--such as fencing the parking lot to prevent access to the highway at other locations. In addition, the parking lot was what Glennon called a "hostile pedestrian environment," since it was potholed and unlit. Pedestrians could be expected to avoid walking in such a lot. One solution to this problem would be to light the parking lot. An additional benefit to lighting the lot would have been calling attention to its presence and increasing motorist awareness of pedestrians in the area.

Testifying for Riverwood were Don Tatum, vice-president of engineering, and Dr. Richard Glen Robertson, expert on traffic engineering, roadway design, and crash reconstruction. Tatum acknowledged that his department was responsible for ensuring the safety of contracted employees at Riverwood. While he was aware that workers were making dangerous, random crossings of Highway 34, the only action Riverwood had taken to protect worker safety was to contract with DOTD to put in a crosswalk. He said he was not aware the plant had any duty to light or fence the parking lot.

Contradicting Glennon's conclusions, Robertson "used an average of one second perception-reaction time and a speed of 40 mph, and concluded Jones had ample time to stop before hitting Donavan." He conceded, however, that a crosswalk should be designed for maximum safety, allowing from 2 to 2.7 seconds for a motorist to respond to an unexpected situation and 325 to 400 feet of stopping sight distance under the circumstances that existed at the collision site. Therefore, Robertson said that "under this 'worse case scenario,' the crosswalk fell below acceptable standards." Nevertheless, Robertson testified that the pedestrian crossing signs and striping were the "most important" requirements and that the engineering judgment used in the design of this crosswalk was reasonable.

Jones' expert, Alfred Gonzales, reconstructed the collision and concluded Jones saw Donavan about 175 to 180 feet before the point of impact. Gonzales believed that "had Jones applied absolute maximum braking, he could have stopped before hitting Donavan." However, Gonzales also believed that Jones' evasive action was reasonable and expected under the circumstances. With no crosswalk lighting and with Donavan wearing dark clothing, Jones did not have time to complete the evasive action successfully.

The trial court found negligence on the parts of all three defendants. The court concluded that Riverwood knew of the dangerous condition created by its workers' continued random crossings of Highway 34 yet failed to take reasonable corrective measures to lessen the danger. Such measures might have included: "relocating the parking lot, improving its surface, lighting it, installing channeling fences directing contractor employees to the crosswalk, or lighting the crosswalk area to draw the attention of motorists to pedestrians and of pedestrians to the crosswalk." Given this lack of action, the court found Riverwood 40 percent at fault for the collision and resulting injuries.

DOTD, the court contended, has a statutory duty "to maintain the public roads and highways in a reasonably safe condition. La.R.S. 48:21." Since a midblock crosswalk on a five-lane, 45-mph road was an unusual threat to the safety of pedestrians, the court interpreted DOTD's duty to include recognizing and adapting to these conditions with specialized engineering design. Without accommodations (such as lighting the area, putting up a pedestrian signal, or reducing the speed limit), the crosswalk was unreasonably hazardous at night. The court found, therefore, that DOTD was 10 percent at fault.

The court also allocated 25 percent fault to both Donavan and Jones. Donavan had a statutory duty to "yield right-of-way to all vehicles upon the roadway. La.R.S. 32:213A." Reconstructing events from the testimony of witnesses to the collision, the court felt that when Donavan left the center refuge lane and walked into the northbound lanes of traffic, he "deliberately left a position of relative safety and walked out onto the highway in the face of oncoming traffic." Jones, on the other hand, was at fault because he failed "to exercise proper care to avoid hitting Donavan."

Damage awards to Donavan were: $228,000, general damages; $36,774.22, medical expenses; $213,184, past lost wages; and $547,385, future loss of earnings. The award was reduced by 25 percent for Donavan's portion of the fault. Court costs went 50 percent to Riverwood and 25 percent each to DOTD and Jones. APPELLATE COURT DECISION

Considering appeals by the DOTD and Riverwood, the Second Circuit Court of Appeal of Louisiana approached the issues of duty and risk. From Mundy v. Dept. of Health and Human Resources (620 So.2d 811 (La.1993)), the court took guidelines for legal responsibility:

The court first addressed the question of duty owed by the DOTD and Riverwood. As a matter of law, by installing the crosswalk, the DOTD assumed the duty to protect pedestrians at the collision location. In addition, La.R.S. 32:235 A. requires that the DOTD follow the MUTCD; however, mere compliance does not always protect the public authority from liability (Humphries v. La. Dept. of Public Works, 545 So.2d 610 (La.App. 3d Cir.), writ denied, 548 So.2d 1249 (1989)). To establish duty on the part of Riverwood, the court referred to Lenoir v. Sewerage and Water Bd., 535 So.2d 490 (La.App. 4th Cir.1988), writ denied, 540 So.2d 332 (1989)) in which it was decided:

The DOTD argued the lower court erred in finding the crosswalk (1) was unsafe for pedestrians at night, (2) created an unreasonable risk, and (3) represented negligence that contributed to the collision. The DOTD concluded the entire fault was Donavan's. The court reviewed testimony by other employees who said it was almost impossible to cross Highway 34 without stopping in the middle to wait for traffic; however, they "believed that passing motorists could at least see them, even in the dark, standing in the roadway." Considering the expert testimony, the court pointed out, "No expert testified that the safety devices used at this crosswalk gave Jones sufficient time to see the pedestrian and complete an evasive maneuver." By not providing adequate visibility for pedestrians crossing in the dark, the DOTD's actions and omissions were a cause-in-fact of this collision.

In regard to the argument that the DOTD had complied with the MUTCD, the court found the MUTCD did not cover the design situation involved, where the crosswalk was midblock, in a 45-mph zone, and used in the dark. The DOTD knew of these unique circumstanced, yet did nothing to accommodate the safety of pedestrians. This failure to install appropriate safety measures constituted a breach of duty. Moreover, the court found the DOTD had a duty to all pedestrians "in the area" and was not shielded from liability by the fact that Donavan did not cross at the crosswalk.

Riverwood also contended they owed no duty; and if they did, they had not breached the duty. They, too, argued Donavan was 100 percent at fault. The court, however, concluded Riverwood knew about the dangerous condition created by requiring contractor employees to cross the highway and was negligent in not finding an effective solution. Riverwood could have moved the parking lot, lit the existing lot, fenced the lot, or improved the lot's surface. Since Riverwood had not taken preventive measures, it was not manifest error for the lower court to find Riverwood breached a duty of reasonable care.

In like manner, the appeals court agreed that Donavan's actions were negligent in that he did not use the designated crosswalk, failed to yield right-of-way to Jones' vehicle, and left the relative safety of the middle lane. This negligence was also a cause-in-fact of the collision.

Addressing the issue of comparative fault, the appellate court noted that Riverwood, the DOTD, and Donavan were all aware of the dangers involved in crossing a highway at night. Moreover, Jones' actions in abruptly switching lanes contributed to the collision. This court declined to find that the lower court erred in deciding that Riverwood had the "superior capacity to avert the danger." The appellate court upheld the apportioning of fault for each of the four parties involved.

However, the appeals court agreed with Riverwood's claim of error in dividing trial costs. LeBlanc v. Opt, Inc. (421 So.2d 984 (La.App. 3d Cir.1982) established that the trial court's discretion to distribute trial costs was not unlimited. In the absence of an explanation for splitting Donavan's portion of the costs between Riverwood and the DOTD, the appeals court amended the apportioning of trial costs to reflect the apportioning of fault. Apportioning appeal costs in the same way, the court affirmed the remainder of the lower court decisions.

DISSENTING OPINION

Judge Lindsay concurred with the majority on the findings of duty and breach of duty; however, the dissenting judge felt significantly more fault should have been assigned to Donavan and less to Riverwood. Pointing to Donavan's choosing to cross the highway in the dark in dark clothing, the judge emphasized Donavan's decision to move out of the center lane and into the northbound traffic lanes. The judge mentioned that Donavan was not even looking at traffic when he was hit and that he could have chosen to use the crosswalk rather than cross directly from the parking lot to the plant. Finding Donavan at least 40 percent at fault for his own injuries, the judge would reduce Riverwood's fault to 25 percent. Riverwood, according to the judge, did breach a duty but was only guilty of "passive negligence" in not providing a sufficiently safe work place.