Road Injury Prevention Litigation Journal
Road Injury Prevention & Litigation Journal
Copyright © 1999 by TranSafety, Inc.
April, 1999
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Louisiana DOTD Loses Appeal Because of Employee Failure to Warn of Temporary Obstruction
Originally published in the December 1987 TranSafety Reporter

(This legal summary of a case related to highway work zone safety is reproduced from the December 1987 (Volume V, No. 12) issue of the TranSafety Reporter, published and edited by Roy W. Anderson, P.E. To find technical articles from the Reporter on work zone topics, please check on-line editions of the "Road Management and Engineering Journal" at this web site.)

A Louisiana Court of Appeal recently ruled that Department of Transportation and Development (DOTD) employees failed to erect appropriate warning signs and properly direct traffic, which were the proximate causes of a woman's death and the severe injuries her two sons suffered.

Although the court found that the deceased was contributorily negligent, the DOTD was assessed 85 percent of the negligence and the court awarded $1,022,523.00 to the dead woman's estate.

On April 20, 1983, at approximately 2:30 in the afternoon, Phyllis Hellmers was driving from Slidell to New Orleans in the southbound lane of State Highway 11. As she was approaching a bridge, she suddenly came upon a line of cars stopped in her lane of traffic. She tried to avoid a rear-end collision by swerving into the northbound lane of the two-lane highway. As she did this, her car was hit in the front by another car traveling in the northbound lane. Hellmers died in the accident, and her two-year-old twin sons were severely and permanently injured.

The backed-up line of traffic Hellmers was trying to avoid was caused by a DOTD maintenance truck parked on the bridge and obstructing the southbound lane. The truck was parked there because two employees of the DOTD were doing repair work under the bridge.

Hellmers' husband Donald brought suit against the DOTD, as well as against The Travelers' Insurance Company, which insured the DOTD's truck. His suit alleged that it was the negligence of the DOTD that caused his wife's death and the injuries to his sons.

The district court judge assigned to the case referred it to a Commissioner, pursuant to LSA-R.S.13:1171, who subsequently filed a thirteen-page report which found the DOTD at fault.

In its defense, the state denied all liability for the accident on the grounds that Hellmers' inattentive driving was the sole cause of the accident.

The district court admitted the Commissioner's report into the case and found in favor of the plaintiff. The Court of Appeal subsequently based its examination of the case upon this report. The Commissioner found, among other things, that the proximate cause of the accident was the negligence of the DOTD in failing to adequately warn drivers of the obstruction they faced. The report specifically cited failure of the employees to implement traffic control procedures that were routinely required by the department's own "Maintenance and Traffic Control Handbook," which was the source for absolute and minimum safety standards. The report also asserted that the actions of the DOTD employees were more than a slight deviation from proper traffic control procedures. Their deviation exhibited "a total failure to follow even the minimum safety standards required by the DOTD's own manual."

Expert witnesses for both plaintiff and defendants agreed that the handbook required that warning signs be placed at 1600 feet, 1100 feet, and 600 feet in advance of the obstruction.

Evidence at trial demonstrated that, at the time of the accident, no warning signs were in place. In addition, the DOTD employees who performed the repair work testified that they did not even carry the required signs in their truck. Neither of the two employees had ever received any training in directing or controlling traffic, in flagging traffic, nor in safely blocking lanes of traffic. Moreover, their supervisor, who was responsible for training them, admitted that he had never received any training himself, nor had he even seen a copy of the traffic control handbook.

At the time of the accident, the only warning given to motorists coming upon the bridge consisted of two cones that the workers had set up; however, the cones were not placed in accordance with the pattern shown in the handbook. The employees testified that they had turned on the warning light atop the truck, but this was disputed by witnesses.

While the traffic control handbook required two flaggers at such a maintenance scene, the employees testified that one of them remained on the bridge deck to flag traffic, while the other was working under the bridge. The employee who was flagging did not try to flag the Hellmers car as it approached the site. In fact, he did not know of the accident until another motorist told him.

In light of this evidence, the Court of Appeal affirmed the lower court and found that the DOTD had failed to uphold its "high duty to warn motorists" of risks that it had itself created. The court also found the "extreme deviation from required standards of care" exhibited by the employees justified the assignment of 85 percent of the fault to the DOTD. The court said that "if any of the appropriate safety measures, such as signs, proper flagging, or proper placement of cones, had been implemented, this accident might have been avoided."

The court assigned 15 percent of the negligence to Hellmers, reasoning that other drivers ahead of her were able to stop without incident. The state argued for more negligence on her part, but the court decided that she did not have the benefit of a flagger as others might have; also there was no evidence that she was exceeding the speed limit.

[Hellmers v. Dept. of Transp. & Development 503 So.2d 174 La. App. 4 Cir. 1987.] Charles A. Verderame of New Orleans (504-523-3655) represented Donald Hellmers. Norman Sisson, Baton Rouge (504-379-1237) argued for the Louisiana DOTD.

Copyright © 1999 by TranSafety, Inc.

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