As a result of the crash, the passengers sued the town of Jonesboro (Town), the state of Louisiana (State), and the driver. The driver also sued the Town and the State. Suits claimed the Town was negligent in not appropriately warning motorists of the hazardous dead end on Fifth Street. The suits maintained the State was negligent in failing to properly mark the through route to Ringgold, thus misguiding traffic onto Fifth Street. The passengers' suit against Stephens asserted he was negligent in failing to see what he should have seen and in not keeping control of his vehicle. In addition, the Town cross-claimed against the State, maintaining the State had assumed responsibility for proper installation of traffic signs within the Town.

The Second Judicial District Court, Parish of Jackson found the Town, the State, and the driver all at fault in the crash. They denied the Town's cross-appeal against the State. When the Town, the passengers, and the driver appealed various aspects of this judgment, the Court of Appeal of Louisiana, Second Circuit amended the trial court's decision to reduce the percentage of fault assigned to the driver and increase the fault assigned to the Town. The appellate court also increased the amount of the award to one passenger. Affirming trial court decisions as amended, the appellate court denied an application for rehearing.

THE CRASH

Before dawn on April 14, 1990, Johnnie Stephens was driving from Winnfield to Plain Dealing, Louisiana on U.S. Highway 167. Alberta Doyle and George Stephens were his guest passengers. Coming into Jonesboro, Stephens looked for the turn onto Louisiana Highway 4 that would take him to Ringgold. He saw a state-maintained sign just before the intersection of Cooper Avenue and Main Street. That sign directed him straight ahead, down Main Street (Fifth Street). He, therefore, continued west on Fifth Street rather than turning left and heading south into Ringgold on Highway 4.

A sign 250 feet from the end of Fifth Street indicated the undivided, paved roadway was a dead end. Not knowing where the street ended and assuming he was following the appropriate road, Stephens drove into a drainage ditch at the end of Fifth Street. There were no barricades or signs warning motorists of the road's end and the presence of a drainage ditch. A grassy area divided the end of the road from the ditch. In the dark and mist, it was difficult, if not impossible, to discern the hazard in time to keep from driving into the ditch. Stephens and his passengers were all injured.

TRIAL COURT DECISION

After a bench trial addressing the resulting suits against the Town, the State, and the driver, the trial court found Jonesboro negligent for failing to post a warning or barricade at the end of Fifth Street. The court found the State negligent for incorrectly signing the route to Ringgold and misleading Stephens so that he ended up on the dead-end street. Finally, the court found Stephens negligent in that he failed to "keep a proper lookout" and did not control his vehicle in such a way that he stopped before the street ended. Assigning 25 percent fault to the Town, 25 percent to the State, and 50 percent to Stephens, the court awarded damages to Stephens and his two passengers. In addition, the court allocated court costs equally to the Town, the State, and Stephens.

The court denied the Town's cross-claim against the State.

APPELLATE COURT DECISION

The court addressed seven points of appeal.

(1) Evidentiary Issue/23 U.S.C.A. 409

On appeal, the Town complained that the trial court erred in not admitting evidence of the State's responsibility for placing highway signs within the Town. The trial court excluded evidence related to the State's contract with the Town because of its interpretation of the provisions of 23 U.S.C.A. 409. The appellate court reviewed the history of the State's contract with Jonesboro and the evidentiary issues addressed in 23 U.S.C.A. 409.

In 1975, the Federal Highway Administration, through the Highway Safety Commission and the Louisiana Department of Transportation and Development, studied the "placement and replacement of road signs" for 31 Louisiana towns. As a result of the study, the State received reimbursement from the federal government for doing the actual installation of recommended signs. Jonesboro was part of this project.

Because their responsibility for installing signs involved federal funds, the State claimed evidence of that responsibility was inadmissible. Specifically, they pointed to 23 U.S.C.A. 409 which reads:

Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists or data. (Emphasis added by the court.)

While the Town agreed that this provision excluded admission of the survey and plat resulting from the study, they argued the court should have admitted the contract between the State and the Town and testimony related to the State's responsibilities described in that contract. However, since the intent for the exclusion provision was "to facilitate candor in administrative evaluation of highway safety hazards" (Robertson v. Union Pacific Railroad Company, 954 F.2d 1433 (8th Cir.1992)), the appellate court disagreed and supported the trial court's decision. According to the court, "the contract entered into between the state of Louisiana and Jonesboro clearly involved information relating to a highway safety construction improvement and is the type of information clearly encompassed within the provisions of 23 U.S.C.A. 409." Citing Martinolich v. Southern Pacific Transportation Co. (532 So.2d 435 (La.App. 1 Cir.1988)), the court further maintained that "not only could the finder of fact not consider the prohibited item, the finder of fact could not consider testimony as to its contents."

(2) Waiver of Objection

The Town next contended that the State had waived its right to object to the admission of evidence excluded by 23 U.S.C.A. 409, because the State's objections were not timely. The Town referred to Airline Construction Company Inc. v. Ascension Parish School Board (568 So.2d 1029 (La. 1990)) in which the court concluded "an objection to a question to a witness or to the introduction of evidence is waived if the objection is not raised at a time when the error can be corrected."

In this case, the appellate court pointed to the State's initial objection to the admissibility of evidence during the introduction of exhibits and to the State's repeated and continuous objections to the admission of testimony it felt violated 23 U.S.C.A. 409. While the trial court allowed specific testimony related to whether the projects involved here were federally funded, the State's objections were repeatedly recognized. The court overruled the Town's claim of error.

(3) Indemnification

Given its conclusion that the trial court had not erred in excluding evidence of the State's involvement in installing highway signs in Jonesboro, the appellate court resolved that the trial court had correctly denied the Town's cross-claim against the State for indemnification.

(4) Comparative Negligence

Here the driver claimed the trial court erred in assigning him 50 percent fault for the crash. Reviewing the evidence and testimony, the appellate court concluded the trial court was "clearly wrong or manifestly erroneous" in their apportioning of fault. Accordingly, they reduced the fault assigned to Stephens to 15 percent and increased the Town's fault to 60 percent.

The court pointed out that Stephens was driving in dark and mist in an unfamiliar town. Stephens wore his glasses, as required on his license. Expert witness testimony placed his speed at 15 to 20 miles per hour, well within the speed limit.

Testimony from several witnesses supported Stephens' claim of error in allocation of fault. The district traffic operations engineer acknowledged that the dead-end sign for Fifth Street did not specify where the street ended. Moreover, the sign was placed so that, especially at night, motorists might already be on Fifth Street before they knew it was a dead end. Nevertheless, he felt the sign was sufficient to warn motorists that the street was a dead end; however, he thought there was insufficient warning of "the condition at the end of the street."

Two expert witnesses addressed the lack of warning at the end of Fifth Street. They concluded that without barriers or other warning devices, Stephens (who was 70 years old at the time of the crash) could not possibly have seen the hazard at the end of Fifth Street in time to avoid running into the ditch--even when traveling only 15 miles per hour. One expert called the situation a "trap" for the unwary motorist.

Citing Hutson v. Madison Parish Police Jury (496 So.2d 360 (La.App. 2d Cir.1986)), the court observed:

The responsible governing authority which has jurisdiction over the highway, road, street or thoroughfare has the legal duty to erect warning signs or barricades sufficient to warn motorists of any unusual obstruction, perilous condition or defect in the road face that would entail danger to the physical safety of those proceeding over such routes.

Two similar cases offered precedents for deciding this case. In LeJeune v. State, Department of Highways (215 So.2d 150 (La.App. 3d Cir.1968)), the court found no negligence on the part of a motorist who died when his vehicle skidded into a deep ditch at the end of a highway. The actual ditch had no signs or barricades to warn traffic. A "road closed to through traffic" sign had been placed seven miles east of the ditch, and the only sign near the hazard read "end road repairs." Deciding LeJeune, the court found "motorists are not required to anticipate that a roadway on which they are traveling will suddenly end in an unmarked ditch or body of water." McCoy v. Franklin Parish Police Jury (414 So.2d 1369 (La.App. 2d Cir.1982)) concerned a plaintiff who suffered injury when her vehicle went into a ditch at an unmarked "T" intersection. The plaintiff knew the road was going to end, but no signs or warnings told her where. The crash happened at night in fog. The appellate court declined to accept the trial court's finding of negligence on the driver's part.

The above testimony and cases addressed the issue of the Town's negligence in not warning Stephens of the hazard at the end of Fifth Street. The court also looked at the State's negligence in misguiding Stephens so that he mistakenly took Fifth Street. While the State had complied with the Manual of Uniform Traffic Control Devices in its placement of the sign directing traffic to Ringgold, testimony confirmed that, in this case, the location of the sign was confusing and led motorists to take a wrong turn. Witnesses agreed that placing an additional sign would most likely have prevented the confusion and the crash. Therefore, the State, which was responsible for placing the guide signs, was negligent.

The appeals court concluded that the highest percentage of fault they could confirm for the driver was 15 percent. The lowest percentage of fault they could confirm for the Town was 60 percent. Amending the allocation of fault to reflect this, they kept the State's percentage at the same level--25 percent.

(5) Damages

Both the Town and State claimed the trial court erred by making the amounts of the general damage awards to all three plaintiffs too high. To the contrary, the three plaintiffs argued the general damage awards were inadequate. In addition, Alberta Doyle claimed her award for past and future medical expenses was too low.

As a guideline for considering these claims, the appellate court looked first to the individual circumstances of each case. Only after this examination would they consider similar cases. In any event, the awards would be disturbed only if there were evidence of clear abuse of discretion.

After examining the medical evidence concerning the injuries to each plaintiff and the past and future suffering and costs resulting from these injuries, the appellate court affirmed a general damage award to Johnnie Stephens of $100,000, to Alberta Doyle of $300,000, and to George Stephens of $50,000. On Alberta Doyle's claim of inadequate award for past and future medical expenses, the court reviewed the testimony of two physicians concerning the costs involved. Lacking contradictory testimony, the court accepted these figures and increased the award by $13,344--from $112,920 to $126,264.21.

(6) Costs

Plaintiff Stephens argued that the trial court erred in apportioning equal shares of court costs to him, the State, and the Town. Recognizing the trial court's broad discretion in apportioning court costs and the fact that all three parties were found to have some fault, the appellate court affirmed the assigning of court costs.

(7) Expert Witness Fees

Finally, the plaintiffs argued that "the trial court abused its discretion in failing to award expert witness fees according to the testimony of each witness relevant to the cost of his services."

Again, the appeals court recognized the trial court's broad discretion--this time in awarding expert fees and costs. Referring to Murphy v. Boeing Petroleum Services (600 So.2d 823 (La.App. 3d Cir.1992)), the court found, "The trial judge is not required to set an expert fee at the amount charged by the expert witness." The appellate court found no abuse of discretion in the amounts awarded by the trial court.

In summary, the appellate court amended the trial court's judgment to lower the percentage of fault assigned to the driver to 15 percent while increasing the Town's fault to 60 percent. The court also increased the medical expense judgment to Alberta Doyle. They affirmed the remainder of the trial court's decisions.

[For further reference, see Stephens v. Town of Jonesboro (La.App. 2 Cir. 1994) from West Publishing Vol. 642 Southern Reporter, 2d Series, 274]

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