A Louisiana Court of Appeal recently affirmed a lower court decision which found the state negligent in failing to warn of a barricaded frontage road under construction. A driver, unaware that the road was closed for construction, drove into the barricades, killing a bicyclist who was attempting to move a barricade so he could pass through.

On June 30, 1980, shortly after midnight, James Forest and his 11-year-old son, Kelly, left their home in Carenco and rode their bicycles en route to Angelle's Restaurant. They rode east on Highway 182, then south through highway construction on the frontage road which parallels the southbound lanes of Highway 167 (which is now I- 49).

At the intersection of Highway 726 and the southern end of the frontage road they were on, five barricades blocked traffic from continuing south on the frontage road. The barricades required southerly traffic on the frontage road to turn west at a 90-degree angle.

Upon reaching the barricades, Forest dismounted and began to pick up one of the barricades so that he and his son could continue to ride their bicycles on the un- opened section of the frontage road.

As Forest was lifting the barricade to slip the bicycles through, Joseph Vils drove his GMC pickup truck south on the frontage road and through the center barricade. His truck hit and killed Forest. Kelly Forest asked Vils to summon help for his father, but Vils was upset about the damage to his truck and told Kelly not to worry. Vils then fled the scene of the accident. Kelly Forest later identified Vils, who was charged and pleaded guilty to negligent homicide.

Forest's widow brought action against the state DOTD alleging negligence in not warning drivers of the hazard the barricaded road presented, which she claimed was the cause of her husband's death. The trial court concluded that the state breached its duty to the public by failing to affix amber flashing lights to the barricades, and by failing to place warning signs which would have alerted traffic that the frontage road was closed south of the intersection with Highway 726.

The DOTD appealed the trial court finding, claiming that Vils, the driver of the truck, not the DOTD, was the cause of Forest's death. However, the Appeal Court found that the DOTD had a duty to alert unwary drivers of unusually perilous hazards, such as an unexpected detour. The higher court went on to base its affirmation on the fact that it was foreseeable that pedestrians or bicyclists would be using the road in question.

In addressing the question of whether or not Forest was in any way contributorily negligent for his own death by assuming the risk of moving the barricade and violating statutes in the process, the Appeal Court concluded that his statutory violation did not constitute the cause of the accident. The Appeal Court agreed with the trial judge's opinion that, "[i]t was reasonable for Mr. Forest to rely on the fact that the road was closed and to assume that the truck would follow the frontage road detour to the west."

The Appeal Court found that Forest did not contribute to the accident which took his life and, therefore, upheld the trial court's awards to Mrs. Forest and her four children which amounted to nearly $500,000 all together.

One of the justices dissented from the majority. Judge Stoker, based his dissent upon the belief that an "appropriate duty-risk analysis" should lead to a conclusion that the DOTD breached no duty owed to Forest. In his dissent, he wrote: " . . . the risk or hazard that a bicyclist located at a highway barricade will be hit by an oncoming motorist who does not see the barricade is not within the ambit legal duty of the DOTD to warn motorists of the presence of the barricade."