Road Injury Prevention Litigation Journal
Road Injury Prevention & Litigation Journal
Copyright © 1998 by TranSafety, Inc.
June 1, 1998
TranSafety, Inc.
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Judgment Affirmed Against Louisiana DOT and Contractor in Work Zone Drop-Off Fatality

A Louisiana motorist died of injuries received in a crash where a pavement refinishing project ended in an unmarked drop-off. Although construction zone signs were posted, there was no edge striping and the center stripes were partially obscured. When the motorist's widow sued the state and the construction company for wrongful death, the trial court awarded damages of more than $1,100,000 to the widow and the couple's daughter. The state appealed the assignment of fault and the amount of damages. The appeals court affirmed the lower court's judgment.

THE CRASH

On the night of November 18, 1995, James David Baughman (Baughman) died of injuries suffered in a crash that occurred on Louisiana Highway 1 in Caddo Parish, Louisiana. As Baughman drove through a construction zone, his vehicle left the southbound lane and collided with a truck driven by Allen Ferguson (Ferguson), who was driving in the northbound lane.

At the end of work that day, L. J. Earnest, Inc. (Earnest), a general contractor, had left a three-inch drop-off across the lane that created a bump between the asphalt overlay in the southbound lane and the unfinished portion of the highway. Moreover, there was no striping between the edge of the southbound lane and the shoulder, and the overlay partially covered the center stripes. Construction signs marked the beginning and end of the project. However, no signs warned motorists of the drop-off or bump where the day's work had ended. There were no other warning signs and no reduced speed limit signs. The State of Louisiana, Department of Transportation and Development (DOTD) was responsible for determining where warnings should be placed, for inspecting the construction, and for ensuring that the construction was completed according to the state's specifications.

TRIAL COURT DECISION

Baughman's widow, Jeanette Baughman (Mrs. Baughman) sued DOTD, Earnest, and Southern Gulf Transport (Baughman's employer) seeking damages for her husband's wrongful death. All claims were settled or dismissed except the claim against DOTD. The First Judicial District Court for the Parish of Caddo, State of Louisiana, found DOTD 90 percent at fault for Baughman's death and Earnest 10 percent at fault. The court awarded Mrs. Baughman $300,000 in general damages and $500,000 in economic damages and awarded $300,000 in general damages to Baughman's minor daughter, Kimberly.

APPEALS COURT DECISION

In its appeal, DOTD contended the trial court committed prejudicial error in its failure to admit evidence of Baughman's blood alcohol content. DOTD also argued that the trial court committed manifest error in failing to assign Baughman a percentage of fault for the crash. Finally, DOTD argued the court abused its discretion by awarding Mrs. Baughman and her daughter for general damages and loss of income and services.

The court first examined DOTD's claim that blood samples from Baughman should have been entered into evidence. Citing Bufkin v. Mid-American Indemnity Company, 528 So.2d 589, 593, (La. App. 2d Cir. 1988) quoting Swanson v. Estate of Augusta, 403 So.2d 118, 124 (La.App. 4th Cir. 1981), writ denied, 407 So.2d 732 (La. 1981), the court reviewed the requirements for laying a proper foundation before blood alcohol tests can be admitted.

DOTD cited cases in which the courts deemed blood alcohol test results admissible. The appeals court concluded that, in all these cases, documentation or recollection showed that a specimen was taken from the appropriate body. Neither of the two witnesses (a laboratory director at the forensic pathology company that did Baughman's autopsy and a supervisor of the gas chromatography section at the laboratory where the blood test was performed) could remember the events surrounding taking and testing Baughman's specimen. The trial record provided no evidence that a blood sample was ever taken from Baughman, no evidence that the sample was properly shipped or received, no evidence that the chromatograph was working properly when the sample was tested, and no evidence establishing that an authorized person did the test. In addition, an excessive amount of time passed between the alleged taking of the sample and its testing.

Given this lack of evidence, the appeals court could find no foundation for admitting the blood test results; and it concluded the trial court did not err in its refusal to admit them.

DOTD also contended the trial court committed manifest error in its failure to assign any fault to Baughman. Since Baughman moved out of the lane in which he was traveling, DOTD argued that he was presumptively negligent. DOTD noted, "A motorist who leaves his lane of travel is presumed negligent, and must show that he was not guilty of any dereliction, however slight. Ferrell v. Fireman's Fund Insurance Company, 94, 1252 (La. 2/20/95), 650 So.2d 742." According to the appeals court, the trial record revealed ample evidence that the presumption of Baughman's negligence had been rebutted.

In addition, DOTD contended Baughman moved out of his lane because he was driving with a missing headlight and was intoxicated. DOTD claimed Baughman's intoxication rendered him unable to see and react to the drop-off in time to avoid the crash. DOTD's expert testified that the graduated incline of 2 to 2.25 inches would not cause a driver difficulty in controlling his car. The expert also testified that a sober driver could safely negotiate an unmarked road.

The appeals court pointed out that, other than the inadmissible blood alcohol test results, that was little intoxication evidence. Although Baughman's car contained an empty beer can, only one witness testified that he smelled alcohol at the scene. Ferguson testified that Baughman was driving normally and did not leave his own lane until just before the crash.

The appeals court concluded the evidence amply supported these trial court findings:

iii. that there was no properly constructed paper joint [a temporary joint of brown paper and asphalt that tapers from the new overlay to the old pavement, creating a gradual incline rather than a drop-off or bump] in place; instead, there was a discontinuity on the southbound lane which caused Mr. Baughman . . . to experience a hard jolt;

iv. that the area was dark and weather conditions were cloudy;

v. that there were a maximum of two warning signs within a fifteen mile radius--each sign 7.5 miles before the construction site at each end of the project;

vi. there were no cautionary signs warning of the multiple defects and dangerous conditions at the overlay site due to the failure of DOTD employees to erect them;

vii. that, in accordance with the testimony [of three witnesses] there was at least a three (3) inch drop-off between the southbound and northbound lanes at the site where Baughman left his lane;

xi. the cumulative effect of the multiple defects in the construction site and lack of warning [signs] caused Baughman's death.

Several people who had traveled the highway while it was under construction testified that: (1) seeing the overlay at night was difficult, (2) they felt they might lose control of their vehicles as they traveled over the crash site, (3) there were no warning signs or reduced speed signs to alert drivers to the overlay drop-off, (4) there were several bad bumps in the area, and (5) it was dark on that area of the highway. One witness estimated the height of the drop-off at three to five inches.

Passengers in Ferguson's truck also testified. One passenger said she could not see the drop-off at night and estimated its height at four to six inches. Another estimated its height at two to three inches. All the passengers testified they saw no warning or construction signs. Ferguson testified he saw no warning signs and did not know the bump was there until he hit it.

The plaintiff's traffic and safety engineering expert testified that the lack of warning signs and the partially covered center stripes violated provisions of the Manual for Uniform Traffic Control and Safety Devices [sic] and certain standards of the State of Louisiana. The expert's opinion was that "the lack of warning signs, the lack of reduced speed signs, the height of the drop-off and the partial covering of the center stripes gave rise to a lack of guidance for drivers, and these omissions caused the accident." He theorized that when Baughman hit the drop-off, he became disoriented and, therefore, crossed into the oncoming lane and collided with Ferguson's truck.

The appeals court found that this testimony provided "ample evidence to conclude that it was the condition of the roadway and not any dereliction on Baughman's part due to intoxication that caused the accident."

As to the DOTD's allegation that Baughman's missing headlight contributed to the crash, the court agreed with the trial judge that the missing headlight was not a "legal cause or cause-in-fact." Although driving with a missing headlight is a violation and constitutes negligence per se, it "must also be a legal cause of the accident in order to be actionable. . . . The legal causation test requires that there be a 'substantial relationship' between the conduct complained of and the harm incurred. Poland v. Glenn, 623 So.2d 227 (La.App. 2d Cir. 1993)."

Several witnesses testified that the drop-off was not visible at night, and the record did not show any of them were driving with defective headlights. Mrs. Baughman's expert described the crash site as a "black hole." Finding trial testimony indicated the crash would most likely have occurred even if both of Baughman's headlights had been operating, the appeals court agreed with the trial court's finding that the missing headlight was not a cause in fact or the legal cause of the crash.

The appeals court next considered the trial court's damage award, which the DOTD argued was an abuse of discretion. The court noted, "Damages unsusceptible to precise measurement, such as wrongful death, are wisely left to the great discretion of the trier of fact. Reid v. State Through Department of Transportation and Development, 25, 778 (La.App. 2d Cir. 5/4/94) 637 So.2d 618."

Mrs. Baughman testified that Baughman had stopped drinking several weeks before his death. The trial record established that Baughman was a devoted husband and father and that Mrs. Baughman and her daughter had a close relationship with him. Citing various cases supporting damage awards to minor children, the trial court awarded damages to the Baughman's minor child. The appeals court found that the record supported the trial court's award; therefore, there was no abuse of discretion in the $300,000 award of general damages to Kimberly Baughman.

Regarding the award to Mrs. Baughman, the court commented, "Since the testimony shows that Jeannette and James David Baughman shared a close relationship, and that she depended on him for support in her part-time work as well as to make family decisions and take care of the house, we cannot say that the trial court abused its vast discretion in awarding $300,000 in general damages to Jeanette Baughman. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993)."

Finally, the DOTD argued that Baughman had a sporadic work history and that a total award of $500,000 was appropriate for special economic damages. In reviewing the trial record, the appeals court found no evidence that Baughman was ever unemployed. The appeals court concluded that the trial court did not abuse its vast discretion in either of its damage awards, pointing out that "the trial court is not bound to fix future income awards on the basis of past actual income. Hobgood v. Aucoin, 574 So.2d 344 (La. 1990)."

On May 8, 1996, the Court of Appeal of Louisiana, Second Circuit affirmed the trial court judgment in its entirety, assessing all costs to DOTD. Rehearing denied June 20, 1996.

[For further reference, see Jeanette D. Baughman, et al., v. State of Louisiana, Department of Transportation and Development, et al., Court of Appeal of Louisiana, Second Circuit, May 8, 1996.]

Copyright © 1998 by TranSafety, Inc.



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