A motorist driving through a construction zone entered the Interstate median while passing a truck. When he tried to return to the highway, he lost control of his vehicle, crossed to the right shoulder, and overturned. He claimed a drop-off between the median and the left lane caused him to lose control of his vehicle. Moreover, because of the lack of temporary edge striping, he said he could not tell where the left lane ended. The 22nd Judicial District Court, Parish of St. Tammany found that the driver's actions caused the crash and his injuries. The Court of Appeal of Louisiana, First Circuit, affirmed the trial court's judgment.

THE CRASH

On January 25, 1989, Morris R. Hardenstein (Hardenstein) drove his truck on Interstate Highway 12 between Mandeville and Slidell, Louisiana. Keith Haydel (Haydel) was a passenger. It was daylight, with clear weather and a dry road. The highway was being resurfaced, but no construction work was in progress in that area. Warning signs and barrels were present, and a 45-mile-per-hour (mph) speed limit was posted. The center line was temporarily marked; there was no edge striping. While the surface of the travel lanes was even with both shoulders, there was a height differential (drop-off) of several inches between the left shoulder and the grassy median.

Hardenstein was driving at least 65 mph when he went into the left lane to pass an eighteen-wheeler. While passing, he drove off the left lane, across the four-foot-wide shoulder, and into the median. He drove 200 to 300 feet on the median without slowing. When he was almost past the truck, he turned to the right to re-enter the highway.

Hardenstein's truck went back over the drop-off at a high speed and crossed both lanes of traffic, just in front of the eighteen-wheeler. The truck driver braked to avoid hitting Hardenstein's truck. Hardenstein ran off the ten-foot-wide right shoulder onto the embankment. He quickly turned his wheels to the left, and his truck overturned. Hardenstein was thrown from the truck and broke his back; he is now a paraplegic. Haydel was not thrown from the truck and was not seriously injured.

Hardenstein sued the State of Louisiana, Department of Transportation and Development (DOTD), Cook Construction Company, Inc., and the construction company's liability insurers (collectively, Cook). Hardenstein argued that both defendants had a duty to keep the road and shoulders safe during the construction project and that their failure to do so caused his injuries. He claimed he would have known where the travel lane ended if it had been marked and, thus, would not have crossed onto the median. He also contended that without a drop-off between the shoulder and the median, he would not have lost control of his truck when he re-entered the highway.

TRIAL COURT DECISION

The trial court determined that the drop-off from the shoulder to the median was approximately three to four inches. After reviewing similar cases, the court found that DOTD had fulfilled its duty to inform drivers of hazards in the construction area--through warning signs, barrels, and a lower posted speed limit. The trial court thus concluded that "the drop-off was not a vice or defect sufficient to have been a cause in fact of this accident." The court found no case law regarding the presence or absence of temporary edge striping, nor any requirement for its use in construction zones in Louisiana.

The court focused on Hardenstein's behavior and concluded that DOTD had no liability for causing the crash. Though familiar with the road and construction conditions, Hardenstein exceeded the posted speed limit, was talking with his passenger, did not slow down in the median, and ignored Haydel's warning that he should not try to re-enter the highway. The court stated that Hardenstein showed "total disregard of his duties as a driver."

The 22nd Judicial District court, Parish of St. Tammany, Louisiana, in its judgment signed November 21, 1995, concluded that Hardenstein's actions caused the crash and his resulting injuries and dismissed Hardenstein's claims.

APPEALS COURT DECISION

Hardenstein appealed the trial court's decision, stating that the lack of temporary edge striping, the drop-off between the shoulder and median, and the lack of warning about these conditions were vices or defects that DOTD knew about and failed to correct. He claimed the decision of the court, which resulted in no damage award, was an additional error.

Hardenstein also argued the trial court erred in refusing to admit into evidence a Federal Highway Administration (FHWA) engineer's report describing several conditions at the construction site as deficiencies. This report cited the lack of temporary edge striping as a defect. Federal highway funds partially financed the construction project, and the inspection report evaluated the progress of that project. Because of this, DOTD argued at trial that the provisions of 23 U.S.C.A. Section(s) 409 applied to shield the report from admission into evidence here:

The report included the inspector's opinions and recommendations as well as an evaluation of the ongoing construction project. Because the report contained more than just raw data, the appeals court agreed with the trial court that it could not be admitted into evidence.

The court next considered Hardenstein's theory of negligence and (or) strict liability. Determination of liability requires the analysis of four inquiries:

Citing various cases, the court declared that the state (DOTD) does not guarantee travelers' safety. The state's duty does not extend to drivers who know of highway defects and have a "reasonable opportunity" to avoid them. According to the court, "A motorist has a duty to keep his vehicle under control at all times. . . . Prudent behavior for a motorist who inadvertently drives off the paved roadway onto the shoulder is first to reduce speed and then to attempt a gradual re-entry after the motorist has regained control of the vehicle."

The trial court found that DOTD controlled the section of highway where the crash occurred. Accordingly, the appeals court maintained that DOTD's duty was to keep the highway section, "including the travel lanes and shoulders," reasonably safe and to post warnings concerning any potentially hazardous conditions.

Hardenstein argued that DOTD was negligent in not correcting three conditions that qualified as defects and caused his crash: the lack of temporary edge striping, the drop-off between the shoulder and the median, and the lack of warning signs.

Temporary Edge Striping

Evidence showed that the crash occurred on a clear morning, on a straight, dry stretch of road with no obstacles to visibility. The newly resurfaced highway had no holes or uneven places on the road or its shoulder. The centerline was marked with white dashes. No witnesses testified of any traffic obstructing Hardenstein's view of the highway. Hardenstein admitted he had enough room on the highway itself to pass the truck and offered no explanation why he moved onto the left shoulder and median. Photographs of the crash site clearly showed where the travel lane ended and the shoulder and grassy median began.

The appeals court weighed the probability of risk, noting that the most probable result of a lack of edge striping would be that a driver would go beyond the normal travel lane. As the paved surface was even, this should not have caused an injury. The flat, grassy median should not have presented a hazard. It was not Hardenstein's movement from the roadway to the median that caused him to lose control of his vehicle. He did not need edge striping to see where the pavement ended. A photo of the site showed Hardenstein's straight and even tracks in the median. According to the investigative officer, Hardenstein still had control of his truck while he was driving on the median.

From this evidence, the appeals court determined the trial court had a "reasonable factual basis" for its conclusion that the lack of temporary edge striping did not constitute a defect.

Drop-Off Between Shoulder and Median

Hardenstein also argued that the drop-off between the shoulder and the median was a defect. Haydel and Hardenstein testified that they "thought" the drop-off was 6 to 8 inches high, but neither measured it. A photo showed the drop-off appearing to be several inches higher than the median--but not as much as 6 to 8 inches. Testimony by a police sergeant, the only witness who walked around the area after the crash, supported the trial court's determination that the drop-off was closer to 3 to 4 inches.

In examining the unreasonable risk of harm from this drop-off, the appeals court concluded it was possible under the conditions Hardenstein experienced to return safely from the median to the paved road surface. Cases cited by Hardenstein to the contrary included bad weather conditions, bumpy pavement, driver distractions, and other circumstances that did not apply. (Hardenstein cited, among others, Christine M. Barsavage v. State of Louisiana, through the Department of Transportation and Development, a case described in the first article of this . The court concluded that darkness, differences in driver behavior, and the fact that the drop-off in Barsavage caused the plaintiff's vehicle to blow a tire and flip made the circumstances in that crash substantially different from the present case.) The court found no evidence that the drop-off, an "inevitable" result of the construction process, was a defect.

Hardenstein was passing other vehicles at a high rate of speed in a construction area, he admitted seeing the drop-off before he attempted to pass the truck, he drove his entire vehicle onto the median without slowing, and he ignored his passenger's warnings not to try to re-enter the highway under these circumstances. No evidence showed that Hardenstein ever tried to brake.

From this behavioral evidence, the appeals court determined, "The trial court did not err in concluding that Hardenstein's own actions and reactions, not the drop-off between the shoulder and the median, were the cause of his injuries."

Warning Signs

Hardenstein alleged DOTD failed to adequately warn drivers of the hazardous conditions and, therefore, breached its duty. All witnesses, including Haydel and Hardenstein, testified that construction warning signs and 45-mph speed limit signs were posted and that they knew the highway was under construction. The appeals court found these warnings adequate under the circumstances of Hardenstein's case.

Further agreeing with the trial court that DOTD's duty does not extend to drivers who know about highway defects and have a reasonable opportunity to avoid harm but fail to do so, the court maintained that Hardenstein could have avoided the crash by driving at the posted speed. He drove over a drop-off that he knew existed, and he could have slowed down. Because he continued his reckless actions, he placed his passenger and himself in a dangerous situation that DOTD could not conceivably have prevented.

On February 14, 1997, the Court of Appeal of Louisiana, First Circuit affirmed the trial court's judgment, dismissing Hardenstein's claims and assessing all appeal costs against him. Writ denied April 25, 1997.