Following an almost daily pattern, Mrs. Juanita Domingue drove from her home in Westlake to Sulphur, Louisiana. She traveled east on Burton Street, crossing Arizona Street. Stopping for the stop sign confronting her on Burton, she proceeded onto Arizona. Previous experience led her to believe that Arizona Street traffic also had to stop. However, as of the day before, Arizona had become a through street. A loaded dump truck struck Mrs. Domingue’s car; she died 43 days later, having never regained consciousness. When Mrs. Domingue’s four children, all of whom received some financial support from their mother, sued the Louisiana Department of Transportation and Development (DOTD) for failure to adequately warn motorists of the change in signage at the intersection, the district court assigned 70% of the fault to DOTD and awarded damages accordingly. Among other damage amounts, the court awarded the plaintiffs $83, 528–the money Mrs. Domingue would have earned had she worked until her sixty-fifth birthday. DOTD appealed; the appellate court affirmed–with a dissenting opinion from William A. Culpepper. A summary of the issues considered follows.

The Arizona-Burton Street intersection was under construction for some time prior to Mrs. Domingue’s accident. Before the construction project, Arizona Street had been a two-lane, bidirectional road, paved to the south of Burton and graveled to the north. Burton Street traffic had the right-of-way, while stop signs confronted Arizona Street motorists traveling either north or south. During construction, Arizona became a five- lane highway, and DOTD controlled the intersection with four-way stop signs. Nine days before the accident, DOTD removed the stop signs on Arizona Street; however, a barricade prevented traffic from traveling north of the intersection of Burton and Arizona. At this time, DOTD installed 36-inch, oversized stop signs to replace the four- way stop signs on Burton and added “Stop Ahead” signs 600 to 800 feet before the intersection. On the day before the accident, construction workers removed the barricade and, for the first time, allowed traffic on Arizona to go through the intersection and continue north uncontrolled.

In affirming the lower court’s decision that DOTD had liability in Mrs. Domingue’s death, the appellate court applied Valet v. City of Hammond (577 So.2d 155, La.App. 1 Cir.1991) which stated plaintiffs must prove that:

1. the defendant owned or had custody of the thing which caused the damage;
2. the thing was defective in that it created an unreasonable risk of harm to others;
3. the defendant had actual or constructive notice of the defect or risk of harm posed thereby and failed to take corrective action within a reasonable time; and
4. causation.

While DOTD contended it had no notice of an unreasonable risk at this intersection, the courts asserted that “a public body charged with maintaining a public route cannot claim lack of knowledge of the need to provide warnings where the danger is obvious and inherent in the design and construction of the facility” (Faucheaux v. Terrebonne Consol. Government, 615 So.2d 289 (La.1993)). DOTD made the changes in this intersection, and the courts felt DOTD should have recognized that, given the type of changes the new design involved, even a reasonable and prudent driver would need a warning.

DOTD’s traffic engineers testified the department had followed its manual in placing signs at this intersection. The manual specified that where DOTD used four-way stop signs during construction, the signage it used on completion of construction depended on the volume of traffic. Duane T. Evans, an expert witness for the plaintiffs, argued the signage DOTD installed was insufficient. Evans asserted motorists who were accustomed to a four-way stop would predictably expect cross traffic at that intersection to continue stopping. Therefore, Evans said DOTD should have placed signs below the Burton Street stop signs reading “No Longer A Four-Way Stop,” “Observe Other Traffic,” or “Cross Street No Longer Stops.” In addition, Jiles Morgan, DOTD’s traffic operations engineer for the district in which the accident happened, had been sufficiently concerned about notifying the public that the Arizona Street stop sign was to be removed to cooperate with the City of Sulphur in placing an announcement in the Sulphur newspaper about the change. Since Mrs. Domingue did not live in Sulphur, she did not see this notice. After Mrs. Domingue’s accident, Morgan also studied the accident rate at this intersection and found there were six similar collisions within one month. Considering this accident rate and a future increase in traffic on Arizona that would result from an in-progress construction project widening another section of the street to five-lanes, Morgan concluded in a written report that DOTD needed to install traffic lights at the intersection of Burton and Arizona. Taking all these factors into account, the courts decided the signage DOTD chose to place at the intersection when Arizona traffic began uncontrolled travel across Burton was insufficient to warn the reasonable, prudent motorist on Burton.

DOTD also alleged it was Mrs. Domingue’s inattentive driving that caused the accident. DOTD stated the signs it placed at the intersection fulfilled its duty to motorists, and, moreover, Vallery v. State through DOTD (480 So.2d 818 (La.App. 3 Cir.1985 writ denied, 481 So.2d 1350 (La.1986)) assigned duty to Mrs. Domingue to notice and yield to a vehicle approaching as closely as the dump truck, regardless of whether she was in a four-way or two-way stop situation. Disputing the application of Vallery, the appellate court stated the motorist entering the intersection in that case was not driving under the presumption that a four-way stop continued to control traffic; hence the situation was not the same and the decision did not relate to the present case. On the issue of Mrs. Domingue’s accident, the driver of the dump truck, who swerved to the right to avoid hitting Mrs. Domingue’s car, testified she took no evasive action before the collision. A police investigator found no skid marks or other indications Mrs. Domingue tried to avoid the accident. The courts concluded that she simply relied on her previous experience and assumed the dump truck would stop. Therefore, she went on without giving the truck further notice or action. The courts did assign 30% of the fault to Mrs. Domingue, stating she failed to perceive that a dump truck traveling at 35 miles per hour only 135 feet from the intersection presented a hazard in view of the fact that she needed to cross four lanes of traffic before being past the point where that truck would hit her.

Appellate court summarized by affirming the lower court’s correctness in considering:

The appellate court confirmed there was evidence that Mrs. Domingue financially supported all four of her major children and was primary provider for one daughter and sole provider of monthly finances for an incarcerated son. The appellate court did not find the district court clearly in error when it awarded wrongful death damages, decedent’s loss of wages between the time of the accident and her sixty-fifth birthday, medical expenses, and funeral costs to the plaintiffs. In addition, DOTD had to pay the costs of appeal.

William A. Culpepper wrote a dissenting opinion. Culpepper referred to testimony of the DOTD traffic engineers indicating DOTD followed procedures from its manual in choosing appropriate signage for the intersection of Burton and Arizona upon completion of construction. According to the engineers, additional signage would have only confused Mrs. Domingue, and it should have been obvious to any motorist that a five-lane highway would have right-of-way at this intersection. Culpepper felt Vallery did serve here as a previous court decision establishing that the signage at Burton and Arizona was adequate for a prudent motorist; thus DOTD had fulfilled its duty.

On the other hand, Culpepper contended it was unreasonable to conclude Mrs. Domingue saw the dump truck, presumed it had a stop sign, and still took the risk of entering the intersection when the truck was only 135 feet away and traveling at 35 miles per hour. Given that such a conclusion was unreasonable, Culpepper felt evidence showed Mrs. Domingue never saw the dump truck. Edmund George, the driver directly behind Mrs. Domingue on Burton Road, supported the dissenting judge’s opinion. George testified it was obvious to him that Arizona Street, a five-lane highway, would have right-of-way at this intersection. He also said that it did not appear Mrs. Domingue saw the dump truck. Finally, Culpepper referred to the dump truck driver’s testimony that Mrs. Domingue took no evasive action. Reaching the conclusion that Mrs. Domingue was inattentive in not seeing the dump truck, Culpepper assigned total fault to her.

[Newsom v. State of Louisiana, Department of Transportation and Development, No. 93-815, Court of Appeal of Louisiana, Third Circuit, March 30, 1994 from West Publishing Vol. 640 Southern Reporter, 2d Series]