DAWN MARIE DEPEDRO ET AL v. STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT (2025)

In this road defect case, the wrongful death and survival claims arise out of a motorcycle accident that occurred in 2019 on LA Highway 30 in Ascension Parish, Louisiana. John DePedro, Jr. suffered fatal injuries after his motorcycle struck a traffic control device on the roadway. Mr. DePedro's wife, Dawn—individually and on behalf of her minor children, Alianna and Kamden ¹ —instituted this lawsuit and named the State of Louisiana, through the Department of Transportation and Development (“DOTD”), as the only defendant.

A jury trial resulted in a verdict finding Mr. DePedro 35% at fault in causing the accident and assigning the remaining 65% fault to DOTD. The jury awarded Mrs. DePedro and her children a total of $4,330,000.00 in general damages and $28,451.43 in special damages. The trial court executed a judgment incorporating the jury's verdict. The trial court's reduction of the jury's wrongful death damages award to the statutory cap of $500,000.00,² along with the 35% apportionment of fault allocation to Mr. DePedro, had the effect of reducing the total jury verdict award to $1,592,000.00 in general damages and $18,493.43 in special damages.

DOTD appealed and seeks reversal of the judgment rendered by the trial court pursuant to the jury verdict as well as the trial court's judgment denying its motion for judgment notwithstanding the verdict (“JNOV”). Alternatively, DOTD seeks an increase in Mr. DePedro's fault allocation and a reversal or reduction of the survival damages award of $500,000.00. For the reasons that follow, we affirm the judgment rendered by the trial court pursuant to the jury verdict. We also affirm the trial court's denial of DOTD's motion for JNOV as to the amount of the survival damages award.

BACKGROUND

The accident at issue occurred on April 19, 2019, near mile post 20.94 on LA Highway 30, east of LA Highway 73 and west of I-10. LA Highway 30 consists of two travel lanes—an eastbound lane and a westbound lane—and a center, two-way left turn lane. The posted speed limit at the site of the accident is fifty-five m.p.h. In 2014, DOTD installed traffic control devices at certain intervals along LA Highway 30 inside the center, two-way left turn lane. These traffic control devices included, among other things, four-inch raised concrete islands with sloping curbs that were approximately nine feet by ten feet in size, painted yellow, and covered with reflectors.

The day of the accident was a clear day with no rain. Mr. DePedro, an off-duty deputy with the East Baton Rouge Parish Sheriff's Office (“EBRPSO”), and his off-duty co-worker, Dustin Sellers, decided to take their Sportster Harley Davidson motorcycles out and meet up with some friends for a group ride. Sellers’ wife, Jalissa, rode on the back of his motorcycle. The riders met up in Baton Rouge and traveled east on LA Highway 30 towards Gonzales to meet their friends. Mr. Sellers was the lead motorcycle and drove on the left side of the eastbound lane, while Mr. DePedro followed behind him, driving on the right side of the eastbound lane.

During their ride, Mr. Sellers and Mr. DePedro encountered a red Toyota Prius, which was directly behind an 18-wheeler semi-tractor—pulling a split axle flatbed trailer with a small load—that was driving below the speed limit. Mr. Sellers and Mr. DePedro traveled on their motorcycles behind both vehicles for approximately eight to ten miles. At the intersection of LA Highway 30 with LA Highway 73, all the vehicles were stopped at a red light. When the light turned green, the 18-wheeler proceeded slowly, as if shifting gears. As the vehicles moved forward, Mr. Sellers began an illegal passing maneuver in the center, two-way left turn lane to pass the Prius and the 18-wheeler. As he passed the 18-wheeler, Mr. Sellers observed yellow striped lines in the center, two-way left turn lane. Then, he observed the concrete island, which he could not identify at the time and thought might have been a speed bump, and realized he could not traverse the concrete island on his motorcycle. Mr. Sellers sharply turned his motorcycle to the right into the eastbound travel lane directly in front of the 18-wheeler to avoid striking the concrete island.

Mr. DePedro, who had begun his passing maneuver immediately after Mr. Sellers, was unable to avoid striking the concrete island. At the time Mr. DePedro struck the concrete island, his motorcycle was traveling at approximately sixty-seven to seventy-five m.p.h. Mr. DePedro and his motorcycle went airborne, and he was ejected from his motorcycle. Mr. DePedro struck the roadway and then slid under the rear wheels of the 18-wheeler and was run over.

Mr. Sellers turned his motorcycle around and went to help Mr. DePedro, who was lying unconscious on the roadway. Mrs. Sellers dialed 911 while Mr. Sellers checked for a pulse and immediately began CPR as instructed by the 911 operator until emergency medical services (“EMS”) arrived. An ambulance transported Mr. DePedro to the hospital, where he was later pronounced dead.

PROCEDURAL HISTORY

Mrs. DePedro—individually and on behalf of her minor children, Alianna and Kamden ³ —filed a survival action as his representatives, pursuant to La. C.C. art. 2315.1, and wrongful death actions on their own behalf under La. C.C. art. 2315.2.

Prior to trial, DOTD filed a motion for summary judgment on two issues—breach of duty and scope of duty—contending that there were no genuine issues of material fact that DOTD was not liable under the facts in the instant matter and was entitled to judgment in its favor. DOTD argued the actions of Mr. DePedro at the time of the accident fell outside the scope of DOTD's duty to ensure that the state's highways are reasonably safe for the motoring public exercising ordinary care and reasonable prudence. Further, DOTD argued the evidence showed that the roadway at the site of the accident did not contain an unreasonably dangerous condition—the concrete island in the center turn lane did not violate any applicable standards or reasonable engineering judgment; the roadway was in compliance with all DOTD and American Association of State Highway and Transportation Officials (“AASHTO”) guidelines; and the striping, signage, and other pavement markings were appropriate and conformed with the Manual on Uniform Traffic Control Devices (“MUTCD”).

In opposition, the plaintiffs argued that DOTD breached its duty to maintain LA Highway 30 in a reasonably safe condition and that genuine issues of material fact existed as to whether DOTD designed or constructed the concrete island in the center, two-way left turn lane in compliance with AASHTO, MUTCD, functional and reasonable design standards, or reasonable engineering judgment. The plaintiffs argued that DOTD could not identify any roadway design standard that allowed or provided for the application of concrete islands in high-speed two-way left turn lanes. The plaintiffs averred that DOTD's expert could not produce any evidence disputing the opinion of the plaintiffs’ expert that the concrete islands were unreasonably dangerous to motorcyclists.

Following a hearing, the trial court took the matter under advisement. Thereafter, the trial court signed a judgment on August 16, 2022, denying DOTD's motion for summary judgment, with incorporated reasons. The trial court found genuine issues of material fact existed as to whether Mr. DePedro exercised ordinary care and reasonable prudence; whether the concrete island was unreasonably dangerous; and whether the concrete island was a curb or a median and which guidelines regarding those designs should apply.⁴

DOTD filed a writ application, requesting this court to exercise its supervisory jurisdiction to review the trial court's August 16, 2022 judgment denying its motion for summary judgment. This court denied DOTD's writ application with the following language:

[DOTD] unquestionably had a duty to provide a highway that was not unreasonably dangerous. Duty is a legal question and does not involve the actions of the plaintiff. Expert testimony offered in the motion and opposition differed on this issue. However, the larger and more difficult issue is whether the duty of the DOTD extends to cover the injury to the plaintiff in this case. This is a scope of duty question. The extent of protection owed a particular plaintiff depends on the particular facts and circumstances of the case and is determined on a case-by-case basis to avoid making the defendant the insurer of all persons against all harms. See Doe v. McKesson, 2021-00929 (La. 3/25/22), 339 So.3d 524. In this case, there are genuine issues of material fact as to whether the plaintiff's actions are covered in [DOTD's] scope of duty. These issues of fact preclude this court from determining whether [DOTD's] conduct foreseeably resulted in the plaintiff being injured or whether the plaintiff's conduct was outside of the scope of duty owed by [DOTD] and was the sole cause of his injury. Therefore, summary judgment is not appropriate. Since duty (scope of duty) and unreasonable risk of harm were the only issues raised in the defendant's motion for summary judgment, this court is prohibited from addressing any issues that were not raised in the motion. See La. [C.C.P.] art. 966(F).

Depedro v. State through Dep't of Transp. & Dev., 2022-1028 (La. App. 1 Cir. 12/28/22), 2022 WL 17984929 (unpublished writ action).⁵ DOTD applied for a supervisory writ with the Louisiana Supreme Court, which was also denied. Depedro v. State through Dep't of Transp. & Dev., 2023-00129 (La. 4/4/23), 358 So.3d 873.

The matter proceeded to a five-day jury trial, held on November 13 through 17, 2024. The parties stipulated to the introduction of a joint exhibit book with Exhibits J-1 through J-38. At the conclusion of the presentation of the plaintiffs’ evidence, testimony, and arguments on the third day of trial, DOTD made two oral motions for a directed verdict. First, DOTD moved for a directed verdict on the survival action, arguing that there was no evidence that Mr. DePedro consciously suffered following the accident and thus, he did not incur survival damages from the time of the injury to the moment of death. The trial court took that motion under advisement. Second, DOTD moved for a directed verdict on the issue of whether Mr. DePedro was a reasonably prudent motorist. The trial court orally denied that motion. At the beginning of the fourth day of trial, the trial court orally denied DOTD's motion for a directed verdict as to the survival action, citing the analysis in Maldonado v. Kiewit Louisiana Co., 2012-1868 (La. App. 1 Cir. 5/30/14), 152 So.3d 909, writ denied, 2014-2246 (La. 1/16/15), 15 7 So.3d 1129 (the appellate court reduced the jury's award for pre-death pain and suffering from $1 million to $300,000.00, because although there was evidence the decedent was conscious during the fall to his death, there was no evidence the decedent was conscious after he fell nor immediately before his death after falling).

After closing arguments, the trial court instructed the jury, which then retired to deliberate. Following deliberations, the jury returned a verdict. The jury found that “LA Highway 30 in Ascension Parish at the site of this accident, had a defect on April 19, 2019, which created an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence[.]” The jury found the defect that created an unreasonable risk of harm on LA Highway 30 in Ascension Parish at the site of the accident was a cause-in-fact of the accident involving Mr. DePedro on April 19, 2019. The jury found that DOTD had actual or constructive notice of the defect and had reasonable time to correct the defect but failed to do so, or, that the dangerous condition was created by DOTD by its own acts or negligence. The jury also found that Mr. DePedro was guilty of comparative fault and that his fault was a cause, in whole or in part, of the accident and resulting damages. The jury allocated 65% fault to DOTD and 35% fault to Mr. DePedro.

The jury found that Mr. DePedro suffered damages as a result of the accident and awarded him special damages and survival damages:

(1) $6,835.25 for past medical expenses; and

(2) $500,000.00 for survival damages.

The jury awarded Mrs. DePedro special damages, loss of consortium damages, and wrongful death damages:

(1) $21,616.18 for funeral and burial expenses;

(2) $185,000.00 for loss of past support;

(3) $995,000.00 for loss of future support; and

(4) $650,000.00 for wrongful death damages.

The jury further awarded Mr. DePedro's children, Alianna and Kamden, $1,000,000.00 each in wrongful death damages.

The trial court signed a judgment in accordance with the jury's verdict on December 13, 2023. The trial court reduced the jury's wrongful death damages awards to the statutory cap of $500,000.00,⁶ along with the reduction for the 35% apportionment of fault to Mr. DePedro, and rendered judgment in favor of the plaintiffs and against DOTD, as follows:

• judgment in favor of Mrs. DePedro in the amount of $ 1,013,506.3 5:

o Past Medical Expenses $1,480.97

o Survival Damages $108,333.34

o Funeral and Burial Expenses $14,050.52

o Loss of Past Support $120,250.00

o Loss of Future Support $646,750.00

o Wrongful Death Damages $122,641.52

• judgment in favor of Kamden DePedro in the amount of $298,493.54:

o Past Medical Expenses $1,480.97

o Survival Damages $108,333.33

o Wrongful Death Damages $188,679.24

• judgment in favor of Mrs. DePedro, on behalf of Alianna DePedro, in the amount of $298,493.54:

o Past Medical Expenses $1,480.97

o Survival Damages $108,333.33

o Wrongful Death Damages $188,679.24

The trial court awarded legal interest from October 11, 2019 (date of judicial demand) to December 13, 2023 (signing of judgment) at the rate of 6%⁷ and ordered that any legal interest accruing subsequent to December 13, 2023 be set at the rate fixed by La. R.S. 9:3500.⁸

Thereafter, DOTD filed a motion for JNOV. DOTD argued that no reasonable juror could have found that Mr. DePedro acted as a reasonable, prudent motorist at the time of the accident nor that his actions were within the scope of DOTD's duty. Alternatively, DOTD argued that no reasonable juror could have found that Mr. DePedro survived the accident and thus, the award of survival damages should be reversed. DOTD argued that his survival damages award should be substantially reduced based on prior awards in similar cases if a reasonable juror could have found that Mr. DePedro experienced pre-impact fear. The plaintiffs opposed the motion for JNOV, and following a hearing, the trial court denied DOTD's motion for JNOV in a judgment signed on March 18, 2024.

DOTD appealed ⁹ the trial court's December 13, 2023 judgment on the jury's verdict and the March 18, 2024 judgment denying its motion for JNOV.¹⁰ On appeal, DOTD assigns four errors to the trial court's December 13, 2023 judgment on the jury's verdict.

ASSIGNMENT OF ERROR NO. 1: JURY INSTRUCTIONS

In its first assignment of error, DOTD argues that the trial court erred in not instructing the jury regarding a “higher standard of care” for passing motorists.

Louisiana Code of Civil Procedure articles 1792 and 1796 require the trial court to instruct jurors on the law applicable to the cause submitted to them. Thomas v. Dep't of Wildlife & Fisheries, 2018-0869 (La. App. 1 Cir. 10/2/19), 289 So.3d 579, 593, writ denied, 2019-01767 (La. 1/14/20), 291 So.3d 687. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 804; Thomas, 289 So.3d at 593. The question for the reviewing court is whether the trial judge adequately instructed the jury. Barber Brothers Contracting Co., LLC v. Capitol City Produce Co., LLC, 2023-00788 (La. 6/28/24), 388 So.3d 331, 342, reh'g granted on other grounds, 2023-00788 (La. 8/2/24), 389 So.3d 828, and on reh'g, 2023-00788 (La. 12/19/24), 397 So.3d 404, and reh'g denied, 2023-00788 (La. 2/14/25), 400 So.3d 918. Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Adams, 983 So.2d at 804; Thomas, 289 So.3d at 593.

The giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining party has been injured or prejudiced thereby. Rosell v. ESCO, 549 So.2d 840, 849 (La. 1989). Louisiana jurisprudence is well established that an appellate court must exercise great restraint before it reverses a jury verdict because of erroneous jury instructions. Trial courts are given broad discretion in formulating jury instructions, and a trial court judgment should not be reversed so long as the charge correctly states the substance of the law. Adams, 983 So.2d at 804; Thomas, 289 So.3d at 593. The rule of law requiring an appellate court to exercise great restraint before upsetting a jury verdict is based, in part, on respect for the jury determination rendered by citizens chosen from the community who serve a valuable role in the judicial system. We assume a jury will not disregard its sworn duty and be improperly motivated and will render a decision based on the evidence and the totality of the instructions provided by the judge. When a reviewing court finds the jury was erroneously instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Adams, 983 So.2d at 804.

The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the adequacy of the jury instructions as a whole and the circumstances of the case. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 574. The manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Adams, 983 So.2d at 805. Thus, on appellate review of a jury trial, the mere discovery of an error in the trial judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Adams, 983 So.2d at 805. See also Bristol v. Gonzales Police Dep't, 2017-0675 (La. App. 1 Cir. 12/21/17), 240 So.3d 232, 240, writ denied, 2018-0146 (La. 3/23/18), 239 So.3d 296. Considering these principles, we now examine the trial court's jury instructions and those proposed by the parties.

A jury charge conference was held during the trial. The record reflects that DOTD had proposed a jury charge as follows: “A motorist traveling in the left lane in the act of passing slow moving or stopped traffic is held to a higher degree of care because of the dangerous maneuver he is performing,” citing to Gates v. Simpson, 278 So.2d 170, 172 (La. App. 4 Cir. 1973).¹¹ Counsel for DOTD noted that there were “other cases that [held] there is a higher degree of care for a passing motorist, and I think that the jury needs to know that.” On appeal, DOTD cited to three additional cases: Leonard v. Harris, 2007-1481, p. 4 (La. App. 1 Cir. 3/26/08), 978 So.2d 1258 (“Both left-turning motorists and ․ passing motorists are required to exercise a high degree of care due to the dangerous nature of these maneuvers.”);¹² Charan v. Bowman, 2006-0882 (La. App. 1 Cir. 8/1/07), 965 So.2d 466, 473-74, writ denied, 2007-1773 (La. 11/9/07), 967 So.2d 505 (“The law places a duty on a motorist to ascertain whether the ‘left side is clearly visible and is free of oncoming traffic,’ before the motorist attempts to pass using the left lane.”);¹³ and Hatman v. Miller, 2021-284 (La. App. 3 Cir. 11/3/21), 329 So.3d 928, 931 (“[T]he left-turning motorist and the overtaking and passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers.”).¹⁴

Plaintiffs’ counsel objected, arguing that the proposed jury charge and DOTD's cited case was inapplicable because that case involved a collision where a motorist made a passing maneuver in the left lane of a two-lane roadway where traffic ran in opposite directions, and it is “an oncoming vehicle issue” “when someone is passing on the left[,] and [a] motorist makes a left turn in front of them[.]” Plaintiffs’ counsel argued that Mr. DePedro was not “traveling in the left lane” but made his passing maneuver in the center, two-way left turn lane, “which is ․ different[.]”

The trial court rejected DOTD's request that the jury be instructed on the “higher” standard of care of a left-passing motorist.

The trial court charged the jury and gave the following instruction regarding the duties of Mr. DePedro as a motorist, generally, and as a passing motorist:

Any person operating a motor vehicle in the public roads of this State shall drive in a careful and prudent manner so as not to endanger life, limb[,] or property of any person. Our law requires a motorist generally to keep his vehicle under proper control, at a proper speed, and to maintain a proper lookout for hazards which by the use of ordinary care and observation, one should be able to see in time to avoid running into them.

Further, a motorist has the duty to see that which a reasonably prudent observer would have seen under similar circumstances. Under Louisiana law, no person shall drive a vehicle on a highway within this State at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for traffic on and the surface and width of the highway, and in no event, at a speed in excess of the established maximum speeds.

A driver of a passing vehicle has the duty to ascertain before attempting to pass a preceding vehicle that from all of the circumstances of traffic, lay of the land, and the conditions of the roadway, the passing maneuver can be completed with safety. In addition, whenever a highway has been divided into two roadways by a median, physical barrier[,] or clearly indicated dividing section so constructed as to impeded vehicular traffic, every vehicle shall be driven only upon the righthand roadway and no vehicle shall be driven over, across[,] or within the median, barrier [,] or section.

Vehicles shall not be driven across areas delineated with pavement markings consisting of solid lines and filled with diagonal striping. All persons must comply with the instructions or directions of authorized traffic control devices.

Louisiana jurisprudence is well settled that overtaking or passing motorists bear a higher standard of care than “ordinary” since a passing motorist is engaged in a dangerous maneuver. This standard has been described as a “great deal of care,” Morgan v. Lumbermen's Mutual Casualty Co., 317 So.2d 7, 11 (La. App. 1 Cir. 1975); a “higher degree of care,” Gates, 278 So.2d at 172; and a “high degree of care.” Kilpatrick v. Alliance Casualty & Reinsurance Co., 95-17 (La. App. 3 Cir. 7/5/95), 663 So.2d 62, 66, writ denied, 95-2018 (La. 11/17/95), 664 So.2d 406; Benfatti v. Progressive Security Ins. Co., 22-331 (La. App. 5 Cir. 3/1/23), 360 So.3d 13, 16. This standard of care is encompassed in La. R.S. 32:73 and 32:75, which sets forth the duties imposed on overtaking or passing motorists.¹⁵ Louisiana Revised Statutes 32:73 provides:

The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules hereinafter stated:

(1) Except when overtaking and passing on the right is permitted, the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance, and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.

(2) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal, and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

Louisiana Revised Statutes 32:75 sets forth:

No vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.

The driver of an overtaking vehicle must be alert to the actions of the motorists preceding him on the highway. Gohres v. Dryer, 2009-0473 (La. App. 1 Cir. 11/18/09), 29 So.3d 640, 645. Before attempting to pass, the passing driver has a duty to ascertain from all circumstances of traffic, the lay of the land, and conditions of the highway that passing can be completed with safety. Palmieri v. Frierson, 288 So.2d 620, 623 (La. 1974).

Based on the record and applicable law, the trial court correctly charged the jury on the standard of care and duties of passing motorists. At no point did the trial court charge the jury that the standard of care by which Mr. DePedro's actions should be judged was “ordinary” care. The jury was charged that Mr. DePedro had a duty to maintain proper speed and control of his vehicle; a duty to maintain a proper lookout for hazards; a duty to look ahead and observe that which should be seen in the exercise of due diligence; and a duty to ascertain from all circumstances of traffic, the lay of the land, and conditions of the highway that a passing maneuver could be completed with safety. The jury instructions repeated almost verbatim the law defining the duties of passing motorists, which allowed the jurors to reach a verdict by applying the law to the facts of this case. In doing so, and in allocating 35% fault to Mr. DePedro, the jury clearly found that Mr. DePedro's actions fell below the standard of care applicable to passing motorists. We can find no law that required the trial court to explicitly include the phrase “higher degree” or “higher standard of care” in its jury instructions, since the standard of care was encompassed within the trial court's charges on the law outlining the duties of passing motorists. Accordingly, we find no error in the trial court's jury instructions in this respect.

ASSIGNMENT OF ERROR NO. 3: ROADWAY DEFECT

We next examine DOTD's third assignment of error, in which DOTD argues that the evidence presented at trial does not support the jury's finding that the roadway contained a defect that created an unreasonable risk of harm. The plaintiffs’ theory of the case is that the application of the raised concrete island was a cause-in-fact of Mr. DePedro's accident and resulting injuries. DOTD argues its duty to design, construct, and maintain the roadway does not encompass the risk involved in this accident because Mr. Depedro made an illegal passing maneuver at high speed in a turning lane. DOTD argues the condition of the roadway did not present an unreasonable risk of harm because vehicles using the turning lane properly would not have been adversely affected by the concrete island.

Standard of Review

It is well-settled that a court of appeal may not set aside a jury's or the trial court's findings of fact in the absence of manifest error or unless it is clearly wrong. Rosell, 549 So.2d at 844. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844. When there is a jury, the jury is the trier of fact. Eastman v. State Farm Mutual Automobile Ins. Co., 2023-01107 (La. 5/1/24), 384 So.3d 865, 872. Juries are held in high regard and great deference is accorded to their decisions. Eastman, 384 So.3d at 872. This deference recognizes that the right to a jury is statutorily protected. See La. C.C.P. arts. 1731(A), 1736. Thus, overturning a jury's verdict that is reasonably supported by the record is, in essence, the denial of the parties’ right to be heard and judged by the jury. Eastman, 384 So.3d at 872.

Accordingly, appellate review of the factual circumstances and evidence of the case will not be the basis for reversal of the trial court's judgment, in the absence of manifest error, even if the court of appeal is convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell, 549 So.2d at 844. If the factual findings are found to be reasonable and supported by the record, the trial court's determinations must be given much discretion, especially in regard to the credibility of witness testimony, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell, 549 So.2d at 844. Consequently, when there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous. Stobart v. State, Dep't of Transp. & Dev., 617 So.2d 880, 883 (La. 1993). Furthermore, in applying the manifest error standard where the jury makes a finding of liability on the part of DOTD, the reviewing court must presume that the jury concluded that the plaintiff carried its burden of proof. Netecke v. State, Dep't of Transp. & Dev., 98-1182 (La. 10/19/99), 747 So.2d 489, 495.

The reviewing court must review the record in its entirety to determine whether the factfinder's finding was clearly wrong or manifestly erroneous. Stobart, 617 So.2d at 882-83. The Louisiana Supreme Court applies a two-part test to determine if a factfinder's determinations warrant reversal: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Graves v. Page, 96-2201 (La. 11/7/97), 703 So.2d 566, 573.

Relevant Trial Testimony and Evidence

The witnesses at trial testified as to the nature of the accident and the resulting injuries Mr. DePedro sustained and also to the design, installation, and maintenance of the roadway. Expert witnesses testified about how the condition of the roadway—the application of the raised concrete island—related to the accident.

The Roadway 16

The accident at issue occurred near mile post 20.94 on LA Highway 30, east of LA Highway 73 and west of I-10 near the Tanger Outlets in Gonzales. That portion of LA Highway 30 is known as the “plant corridor” in Ascension Parish. The posted speed limit at the site of the accident is fifty-five m.p.h., and LA Highway 30 has two travel lanes—an eastbound lane and a westbound lane—and a center, two-way left turn lane. The center, two-way left turn lane is delineated on each side by an inside yellow dashed line and an outside solid yellow line.

Around 2013, DOTD began receiving complaints that motorists were using the center, two-way left turn lane on this portion of LA Highway 30 for high speed passing to bypass backed-up traffic in the travel lanes. To combat these passing maneuvers, DOTD installed traffic control devices, also known as mountable curb channelizing devices, along with pavement markings, striping, and roadway signage in 2014.

The traffic control devices—placed inside of the center, two-way left turn lane at one-thousand foot intervals along LA Highway 30—consisted of white merge arrows; yellow tapered gore, i.e., diagonal stripes in the shape of a triangle; reflectorized pavement markers inside the gore; and a four-inch, raised concrete island with a sloping or mountable curb, that was approximately nine feet by ten feet in size, painted yellow, and covered with reflectors. The white merge arrows indicated that motorists must merge out of the center, two-way left turn lane into a travel lane. The yellow tapered gore indicated that portion of the center, two-way left turn lane was a no-passing zone and that no vehicle should be driving in that area.

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This was DOTD's first application of a raised concrete island as part of a traffic control device in a center, two-way left turn lane on a rural highway in the State of Louisiana. After DOTD installed these traffic control devices along LA Highway 30, DOTD stopped receiving complaints about high speed passing in the center, two-way left turn lane.

Prior to the accident at issue, DOTD had begun to approve the removal of some of the traffic control devices, including the concrete islands, because new private driveways were being installed on LA Highway 30 that needed access to the roadway; at the time of the accident, two traffic control devices had been removed. After Mr. DePedro's accident, DOTD removed the remainder of the traffic control devices on LA Highway 30. DOTD's removal of the raised concrete islands were excluded from evidence at trial.¹⁷

AASHTO

AASHTO, also known as “The Green Book”, refers to the national guidelines published by the American Association of State Highway and Transportation Officials to highway agencies to promote adequate highway design and safety. See La. R.S. 48:35(A). The AASHTO guidelines are not legal standards, not mandatory, and do not constitute a prescriptive design manual. The AASHTO guidelines are used by states to develop their own design standards.

Pertinent to this appeal, the design of the roadway incorporated different AASHTO guidelines to create a complete design of the mountable curb channelizing devices, pavement markings, and roadway signage located at and near the site of the accident, including but not limited to, Section 3.4.1 Curbs; Section 4.7 Curbs; Section 10.2.1.1 Curbs; Section 10.2.1.3 Channelization and Medians; and Section 10.2.4.3.1 Roadside and Median Barriers.

The following sections of the AASHTO guidelines were discussed during trial. In Section 3.4.1 “Curbs,” the AASHTO guidelines provide that “[s]loping curbs are those having a sloping traffic face [six inches] or less in height. Sloping curbs, especially those with heights of [four inches] or less, can be readily traversed by a motorist when necessary.” The guidelines further provide that “curbs are not desirable along high-speed roadways[.] ․ In other impact conditions, a vehicle may become airborne, which may result in loss of control by the motorist.” See Section 3.4.1, “Curbs,” p. 3-13, Roadside Topography and Drainage Features, 2011 AASHTO (6th Edition).

In Section 4.7.1 “General Considerations,” the AASHTO guidelines provide:

Sloping curbs with heights up to [four inches] may be considered for use on high-speed facilities when necessary due to drainage considerations, restricted right-of-way, or where there is a need for access control. When used under these circumstances, [sloping curbs] should be located at the outside edge of shoulder.

Section 4.7.1, “General Considerations,” p. 4-16, A Policy on Geometric Design of Highways and Streets, 2011 AASHTO (6th Edition). See also Section 4.7.1, “General Considerations,” p. 4-19, A Policy on Geometric Design of Highways and Streets, 2018 AASHTO (7th Edition). In Section 4.7.2 “Curb Configurations,” the AASHTO guidelines set forth that ““[s]loping curbs are designed so vehicles can cross them readily when the need arises.” Section 4.7.2, “Curb Configurations,” p. 4-21, A Policy on Geometric Design of Highways and Streets, 2018 AASHTO (7th Edition). Further, in Section 4.7.3 “Curb Placement,” the AASHTO guidelines provide that “[s]loping curbs placed at the edge of the traveled way, although considered mountable in emergencies, can be mounted satisfactorily only at reduced speeds.” Section 4.7.3, “Curb Placement,” p. 4-19, A Policy on Geometric Design of Highways and Streets, 2011 AASHTO (6th Edition). See also Section 4.7.3, “Curb Placement,” p. 4-22, A Policy on Geometric Design of Highways and Streets, 2018 AASHTO (7th Edition).

Finally, in Section 10.2.4.3.1 “Common Urban Barrier Treatments: Roadside and Median Barriers,” the AASHTO guidelines provide that “[f]lush medians are preferred over raised medians on highways with design speeds greater than [forty-five m.p.h.] because raised medians can cause errant vehicles to vault.” Section 10.2.4.3.1 “Common Urban Barrier Treatments: Roadside and Median Barriers,” p. 10-17, Roadside Safety in Urban or Restrict Environments, 2011 AASHTO (6th Edition).

MUTCD

The MUTCD is a national standard, administered by the Federal Highway Administration, that sets minimum standards for all traffic control devices, including signs, signals, and markings used on public roads. State highway agencies, including DOTD, are required by law to comply with MUTCD “so far as possible.” See La. R.S. 32:235.

The following sections of the MUTCD were discussed during trial: Section 1A.02.02(E), “Principles of Traffic Control Devices,” sets forth that one of the five basic requirements of a traffic control device is that it gives adequate time for a proper response. Section 1A.02.02, “Principles of Traffic Control Devices” p. 1, Manual on Uniform Traffic Control Devices for Streets and Highways (2009 Edition).

Section 1A.03.01, “Design of Traffic Control Devices,” provides that traffic control devices should be “designed so that features such as size, shape, color, composition, lighting or retroreflection, and contrast are combined to draw attention to the devices[.]” Section 1A.03.01, “Design of Traffic Control Devices,” p. 1, Manual on Uniform Traffic Control Devices for Streets and Highways (2009 Edition).

Section 1A.04.01, “Placement and Operation of Traffic Control Devices,” states that traffic control devices should be placed “within the road user's view so that adequate visibility is provided” and “be appropriately positioned with respect to the location, object, or situation to which it applies.” Further, “location and legibility of the traffic control device should be such that a road user has adequate time to make the proper response in both day and night conditions.” Section 1A.04.01, “Placement and Operation of Traffic Control Devices,” p. 2, Manual on Uniform Traffic Control Devices for Streets and Highways (2009 Edition).

Section 1A.06.01, “Uniformity of Traffic Control Devices,” provides:

Uniformity of devices simplifies the task of the road user because it aids in recognition and understanding, thereby reducing perception/reaction time. Uniformity assists road users, law enforcement officers, and traffic courts by giving everyone the same interpretation. ․ The use of uniform traffic control devices does not, in itself, constitute uniformity. A standard device used where it is not appropriate is as objectionable as a non-standard device; in fact, this might be worse, because such misuse might result in disrespect at those locations where the device is needed and appropriate.

Section 1A.06.01, “Uniformity of Traffic Control Devices,” p. 2, Manual on Uniform Traffic Control Devices for Streets and Highways (2009 Edition).

Section 1A. 10.01, “Interpretations, Experimentations, Changes, and Interim Approvals,” sets forth that the “[d]esign, application, and placement of traffic control devices other than those adopted in [MUTCD] shall be prohibited unless the provisions of this Section are followed.” Section 1A. 10.01, “Interpretations, Experimentations, Changes, and Interim Approvals,” p. 4, Manual on Uniform Traffic Control Devices for Streets and Highways (2009 Edition).

Section 3B.02.11, “No-Passing Zone Pavement Markings and Warrants,” provides that “[o]n three-lane roadways where the direction of travel in the center lane transitions from one direction to the other, a no-passing buffer zone shall be provided in the center lane[.] A lane-reduction transition ․ shall be provided at each end of the buffer zone.” Section 3B.02.12 sets forth that “[t]he buffer zone shall be a flush median island formed by two sets of double yellow center line markings that is at least 50 feet in length.” Sections 3B.02.11 and Section 3B.02.12, “No-Passing Zone Pavement Markings and Warrants,” p. 355, Manual on Uniform Traffic Control Devices for Streets and Highways (2009 Edition).

DOTD Traffic Engineering Manual

DOTD's Traffic Engineering Manual supplements the MUTCD by clarifying DOTD policy concerning the study and installation of traffic control devices. See La. R.S. 32:235. The following sections of the DOTD Traffic Engineering Manual were discussed during trial: Section 5.5.7 “Curbed Islands,” provides that “[w]here the roadway is curbed, islands shall be offset a minimum of [two feet] from the edge of the travel lane.” Section 5.5.7, “Curbed Islands,” p. 5-8, Roadway Design Procedures and Details, Louisiana Department of Transportation and Development (May 2019).

Section 5.5.8 “Conditions for Use of Curbs,” sets forth that “[w]here curbs are used, they shall be mountable and offset from the edge of the travel lane the full width of the shoulder. Typically, [four feet] beyond the edge of the inside travel lane and [eight feet] beyond the edge of the outside travel lane.” Section 5.5.8, “Conditions for Use of Curbs,” p. 5-8, Roadway Design Procedures and Details, Louisiana Department of Transportation and Development (May 2019).

Dustin Sellers

Mr. Sellers, who worked with Mr. DePedro in the Special Community Anti-Crimes Unit with the EBRPSO, testified that on several occasions, he engaged in recreational activities with Mr. DePedro outside of work and had, prior to the date of the accident, ridden motorcycles with Mr. DePedro for about one year. On the day of the accident, Mr. Sellers was the lead motorcycle and drove on the left side of the eastbound lane of LA Highway 30, while Mr. DePedro followed behind him, driving on the right side of the eastbound lane.

Mr. Sellers recalled encountering the red Toyota Prius, which was directly behind an 18-wheeler semi-tractor trailer that was driving below the speed limit. Mr. Sellers and Mr. DePedro traveled on their motorcycles behind both vehicles for approximately eight to ten miles. At the intersection of LA Highway 30 with LA Highway 73, while all the vehicles were stopped at the red light, Mr. Sellers either discussed passing the Prius and the 18-wheeler with Mr. DePedro, or hand-signaled to Mr. DePedro that he would attempt a pass. When the red light turned green and the 18-wheeler proceeded forward slowly, Mr. Sellers was able to “go out a little bit” to the left to observe the roadway and saw that ahead, the center lane was a two-way left turn lane. He did not see any obstacles or vehicles coming towards him, stating that he “could see straight for miles.” Mr. Sellers testified, “I assumed it was safe to go ahead and go around the 18-wheeler.” At the time he executed his admittedly illegal passing maneuver around the Prius and the 18-wheeler, Mr. Sellers stated that the 18-wheeler was traveling under forty m.p.h. and that he was not traveling above sixty m.p.h. Mr. Sellers testified that he assumed that when he made his passing maneuver, Mr. DePedro would follow him.

As Mr. Sellers passed the 18-wheeler, when he reached the cab of the truck, he noticed yellow markings or striping in the center, two-way left turn lane, like one would see in a roadway. Mr. Sellers testified that out of the corner of his eye, he then saw something raised in the roadway, like a “speed bump,” and knew that he should not run over the bump on his motorcycle. “[A]t the last second,” Mr. Sellers stated he was able to move over back into the right travel lane in front of the 18-wheeler. When Mr. Sellers looked back to see if Mr. DePedro was also passing, Mr. DePedro had already struck the “bump.” Mr. Sellers recalled observing in his rearview mirrors Mr. DePedro “go airborne[,] and then wipe out on the pavement.” Mr. Sellers turned his motorcycle around to go back to help Mr. DePedro. He observed Mr. DePedro lying on the ground; his wife, Jalissa, called 911. Mr. Sellers testified that Mr. DePedro was unconscious. He checked for a pulse and immediately began CPR until EMS arrived. Mr. Sellers stated that Mr. DePedro never regained consciousness while he rendered aid.

Prior to the accident, Mr. Sellers and Mr. DePedro had passed another traffic control device, but Mr. Sellers testified that he did not notice the concrete island, but he did notice the yellow striping on the roadway when the riders passed it. Mr. Sellers did not observe any posted signs warning of a “speed bump” in the roadway. Mr. Sellers admitted he made an illegal passing maneuver in the center, two-way left turn lane, which is a no-passing zone.

Edmond Gerrad Landry

Mr. Landry operated the red Prius, driving approximately sixty feet behind the 18-wheeler and in front of the motorcycles. Mr. Landry's wife and grandson were passengers in the car on the day of the accident. Mr. Landry observed the motorcycles traveling behind his Prius for approximately eight to ten miles prior to the accident. He noticed Mr. Sellers was on the inside of the lane closer behind him, and Mr. DePedro was on the outside of the lane along the shoulder line, some distance behind Mr. Landry's Prius.

Mr. Landry stated that when the motorcycles began their passing maneuvers, the 18-wheeler was driving slowly, “going through the gears,” and traveling around forty m.p.h. Mr. Landry testified that the pass appeared safe. He observed the center, two-way left turn lane, and then, “all of a sudden,” he observed the white arrow and diagonal lines, and then he saw the bump. Mr. Landry testified that he did not see the traffic control device when Mr. Sellers began his passing maneuver, affirming that “[y]ou couldn't see it until you got close to it” while also agreeing that he was not looking down at the roadway before the accident occurred. Mr. Landry recalled observing Mr. Sellers “bury the handlebars to the right,” which is a motorcycle safety maneuver to avoid hitting an object in the road.

Mr. Landry testified: “But there was a flash, and it was Mr. DePedro right behind him. I mean it was a split second. And I believe coming from the right side behind me, all the way to the left, that put him more in the center [of the turn lane], unfortunately, to where he couldn't avoid [the concrete island].” Mr. Landry stated there was no time for Mr. DePedro to react to avoid hitting the concrete island. Mr. Landry testified that Mr. DePedro lost control of the motorcycle and went airborne: “All he did was flinch just to try and hold on as best he could. And the front tire became airborne, the back tire hit, and they both flew.” He then saw Mr. DePedro hit the roadway and roll under the wheels of the 18-wheeler, so Mr. Landry quickly braked and pulled over onto the right shoulder to avoid running over Mr. DePedro.

Sergeant Zack Graffia

Sergeant Zack Graffia, a shift supervisor and accident reconstructionist with the Louisiana State Police who responded to the scene and participated in investigating the accident, testified that the speed limit at the site of the accident was fifty-five m.p.h. Sgt. Graffia also stated that there is no special speed limit for the center, two-way left turn lane, so it adopts the roadway speed limit of fifty-five m.p.h.

Regarding the traffic control device, Sgt. Graffia testified that the striped area in the center, two-way left turn lane designated that area as a no-passing zone. He stated that the white arrow indicated that motorists must merge out of the turn lane into a travel lane. He further posited that the yellow diagonal stripes, i.e. gore marks, indicated that no vehicle should be driving in that area. Sgt. Graffia testified that the roadway at the site of the traffic control device was flat and that there were no visibility obstructions. According to Sgt. Graffia, other than the concrete island, there was nothing else that Mr. DePedro could have struck in that area of the roadway. He also noted that the raised median island had tire marks on it that were not Mr. DePedro's tire marks.

In preparing his investigative findings, Sgt. Graffia examined a speed analysis performed by another investigating Louisiana State Police officer, Sergeant Doug Thompson. The speed analysis found that Mr. DePedro's bike was travelling approximately sixty-seven to seventy-five m.p.h. when it hit the ground after going airborne, meaning that Mr. DePedro was likely traveling faster than that at the time he struck the concrete island.

Sgt. Graffia agreed that a passing maneuver is one of the more dangerous things a motorist can do on a roadway, especially in a no-passing zone, stating that before passing, a driver should make sure the roadway is clear before exiting his lane of travel and starting a passing maneuver. Sgt. Graffia testified that there was no evidence to prove nor any way to tell if Mr. DePedro looked before he began to pass the Prius and the 18-wheeler. Based on the investigative findings and accident reconstruction, Sgt. Graffia agreed that there was no evidence that Mr. DePedro would have lost control or been ejected from his motorcycle but for striking the concrete island.

Aaron Elisar, P.E.

Aaron Elisar, a civil engineer and DOTD's project engineer in 2013-2014, did not play a role in designing the concrete island, but he did oversee an overlay project that included the installation of the concrete island on LA Highway 30. In his thirteen years working at DOTD prior to 2014, Mr. Elisar testified that he had never constructed a raised concrete island in a center, two-way left turn lane until the application at issue. Mr. Elisar later became DOTD's area engineer over Ascension, Assumption, Iberville, and St. James Parishes, and he oversaw construction and maintenance operations in those four parishes. Mr. Elisar testified that a parish maintenance superintendent who worked under him performed bi-weekly inspections of the roadways in those four parishes to look for dangerous conditions such as pavement defects or edge drop-offs. In his four years as area engineer before the accident at issue herein occurred, Mr. Elisar stated that he never received any maintenance complaints regarding the raised concrete island or the striping or signage of the area at the site of the accident.

After reviewing a picture of the raised concrete island at the time of the accident, Mr. Elisar observed minor damage to the bottom right corner of the concrete island caused by wear and tear from vehicle impacts and exposure to the elements. He noted tire marks and possibly scrapes and gouges, indicating the concrete island had been struck by vehicles. Mr. Elisar stated the paint appeared slightly faded and that some of the concrete island's reflectors were missing.

Josh Harrouch, P.E.

Josh Harrouch, a civil engineer and DOTD's corridor management engineer in 2013, designed the concrete island at the direction of DOTD.¹⁸ In designing the concrete island, Mr. Harrouch applied his “engineering judgment,” which he testified meant he used the AASHTO guidelines, his education, experience, and knowledge to make decisions about the design.

Mr. Harrouch designed a raised concrete island with a four-inch mountable curb that was nine feet wide, ten feet across, and four inches high. This was the first raised concrete island Mr. Harrouch had ever designed. Mr. Harrouch testified that the concrete island had a four-inch mountable, or “sloping,” curb, which was standard for those types of traffic control devices pursuant to the AASHTO guidelines, in order to allow motor vehicles the ability to traverse the raised concrete island at reduced speeds. Mr. Harrouch's design also featured a two-foot offset that was based upon the AASHTO guidelines and the DOTD Traffic Engineering Manual, which permitted the use of a sloped curb on a traffic control device within two feet of a travel lane.

Mr. Harrouch testified that the mountable curb of the concrete island was designed for any vehicle on the roadway, including motorcycles, and that DOTD did not discuss or conduct testing regarding any potential risks specific to motorcyclists presented by the concrete island, such as vaulting, loss of control, or a motorist's perception and reaction time to the raised concrete island. Mr. Harrouch agreed that the AASHTO recommendation that flush medians are preferred over raised medians on highways with design speeds greater than forty-five m.p.h. was not applicable to his design of the concrete island at issue.

Mr. Harrouch agreed that the application of his design was the “first of its kind” and that he was not aware of any other four-inch, raised concrete island placed in a center, two-way left turn lane on a highway where the posted speed of the travel lanes was fifty-five m.p.h.

Jody Colvin, P.E.

Ms. Colvin was DOTD's traffic engineering administrator from 2014-2015. She supervised Mr. Harrouch's design and DOTD's installation of the concrete island at issue.¹⁹ Ms. Colvin confirmed that DOTD had knowledge that the center, two-way left turn lane on LA Highway 30 was being used by motorists for high-speed passing. Because it was foreseeable that a traffic control device installed inside of a center, two-way left turn lane is going to be run over by motor vehicles, Ms. Colvin testified that DOTD included a mountable curb in the design of the raised concrete island, which was supported by the AASHTO guidelines.

Ms. Colvin testified that DOTD did not install the raised concrete island in a high-speed travel lane—the concrete island was installed to “cut off the turn lane so people had a shorter distance to use that turn lane ․ [and t]o discourage people from thinking they could go a long way and use that to bypass ․ traffic that was sitting still.” Ms. Colvin stated that DOTD's intent was to merge traffic out of the center turn lane into the travel lane. Ms. Colvin stated a turn lane is not a travel lane, and that motorists should not go the posted speed limit of the adjoining travel lanes because turn lanes are used for acceleration or deceleration. However, Ms. Colvin could not point to a law that sets forth that a center, two-way left turn lane has a different speed limit than its adjoining travel lanes.

Ms. Colvin agreed that LA Highway 30 was inspected every two weeks by DOTD and that based on the damage to the raised concrete island, DOTD had actual notice that it was being traversed by motor vehicles. Ms. Colvin agreed with Mr. Elisar's testimony that prior to this incident, the raised concrete island had sustained damage, including chipped paint, tire marks, missing reflectors, and cracked concrete. Ms. Colvin testified that DOTD designed the island to be traversed if necessary.

Ms. Colvin indicated that the raised median island was not the first of its kind designed nor installed on a roadway in Louisiana; however, Ms. Colvin stated that it was not “DOTD's typical procedure” to install raised concrete islands in center, two-way left turn lanes to deter high-speed passing and that it had not been done before. Ms. Colvin testified that the installation of the raised concrete island Mr. DePedro struck was the first application of that type of traffic control device to prevent high-speed passing in a center, two-way left turn lane on a rural highway. Ms. Colvin stated that there are no AASHTO, MUTCD, or DOTD guidelines that disallow the application of the raised concrete islands in a center, two-way left turn lane. DOTD designed the curb to be traversable, admittedly at reduced speeds.

Plaintiffs’ Expert—Dr. Brian Wolshon, P.E.

Dr. Brian Wolshon, a professional civil engineer and professor of civil and environmental engineering at Louisiana State University, testified on behalf of the plaintiffs as an expert in highway design, highway safety, traffic control, and traffic operations regarding the design and application of the raised concrete island in the center, two-way left turn lane on LA Highway 30. Dr. Wolshon opined that the concrete island was unreasonably dangerous to motorcyclists. When asked, “In your travels and your experience and on the basis of your education, have you ever seen any entity install a four-inch raised median island in a high-speed two-way left turn lane for this application?”, Dr. Wolshon responded, “I've never seen anything like this before, no ․ [e]ver, in any country or any state in the United States.” Dr. Wolshon noted that a raised concrete island in this application was not mentioned in the AASHTO or MUTCD guidelines. Dr. Wolshon emphasized that the mere absence of an explicit prohibition in the AASHTO or MUTCD guidelines does not mean that a design is compliant.

He testified that the raised concrete island is a “very aggressive preventative measure” to prevent motorists from passing other vehicles in the center, two-way left turn lane, which DOTD knew motorists were using for high-speed passing. Based on his engineering expertise, Dr. Wolshon stated that he would never recommend such a design or installing raised concrete islands in a center, two-way left turn lane because such an application would increase the risk of accidents, particularly for motorcyclists and is inconsistent with safe roadway design principles. Dr. Wolshon explained that the fundamental purpose of traffic control devices is to communicate intent to drivers (how to drive, where to drive, what speed to use) and that a raised concrete island creates an “enormously increased risk” if struck by a motorcycle, especially when there is no separate speed limit for the center, two-way left turn lane. Dr. Wolshon testified that motor vehicles are likely to be in the center, two-way left turn lane at the same high-speed posted for the adjoining travel lanes. He maintained that introducing an obstacle, like the raised concrete island, in a high-speed environment is going to cause problems.

DOTD's Expert—Larry Peterson, M.E.

Larry Peterson, a professional mechanical engineer and accident reconstructionist, testified on behalf of DOTD as an expert in accident reconstruction. Mr. Peterson opined that the raised concrete island was traversable at the speeds intended for the center, two-way left turn lane. Mr. Peterson testified that the center, two-way left turn lane is intended for “slow speed maneuvers,” not for high-speed passing maneuvers or high-speed through travel. He stated that the intended use of the dedicated center, two-way left turn lane was to allow for low-speed travel, turning maneuvers, and merging maneuvers for vehicles traveling in either direction on LA Highway 30.

Mr. Peterson testified that the large white arrows, part of the traffic control device, were placed in the turn lane to convey to motorists to “move out of that lane because there's islands beginning.” He also stated that the gore appeared to be visible and in good condition at the time of the accident.

Mr. Peterson agreed that the motorcycle driven by Mr. DePedro could have safely traversed the raised concrete island if it had been traveling at lower speeds as intended for making turns and for which the turn lane was designed. Mr. Peterson testified that Mr. DePedro's view into the center, two-way left turn lane would have been blocked by the Prius and the 18-wheeler prior to making his passing maneuver. He opined that Mr. DePedro pulled out and began his passing maneuver without ensuring it was safe to do so. Mr. Peterson reiterated that the raised concrete island could be traversed safely at the expected lower speeds of a left-turning vehicle.

DOTD's Expert—Edward Patterson

Edward Patterson, the part-time program manager for the Motorcycle Safety Awareness and Operator Training Program for the Office of State Police under the Department of Public Safety, testified on behalf of DOTD as an expert in motorcycle safety and human factors as it relates to the operation of motorcycles.²⁰ Mr. Patterson is not an employee of DOTD and was not consulted regarding the design or installation of the concrete island.

Regarding the proper use of the center, two-way left turn lane to makes turns, Mr. Patterson testified that a motorist should pull out of the travel lane into the center turn lane, slow down, and adjust his speed to make a left turn. As to the traffic control device, Mr. Patterson stated that the concrete island was raised four inches with a slope, or what DOTD calls a mountable curb. According to Mr. Patterson, an obstacle on the roadway, such as the concrete island, could be more hazardous to a motorcyclist as opposed to any other four-wheel or multi-wheel vehicle. Mr. Patterson testified that the safest speed at which he would feel comfortable traversing the raised concrete island would have been twenty to thirty m.p.h. using the “right technique.” He clarified that a motorcycle could have traversed the concrete island because it was tapered on both sides. Mr. Patterson confirmed that if a motorcyclist brought his speed down to a reasonably slow speed, he would be able to cross the raised island median without too much upset, but stated that he would not personally traverse the concrete island on a motorcycle at the posted speed limit of fifty-five m.p.h. Mr. Patterson testified that the danger of “vaulting” or going airborne, as well as change of trajectory and control becomes more possible for a motorcyclist traveling at the speed of fifty-five m.p.h.

Mr. Patterson did not consider Mr. DePedro's actions in attempting the passing maneuver at this location and violating traffic law to be “reasonable”, opining that the actions and inactions of Mr. DePedro were a cause contributing to this accident. Mr. Patterson testified that if Mr. DePedro had waited to make sure there was no hazard in the roadway, or to find a place where it was safe and legal to pass, this accident probably would not have occurred. Mr. Patterson also agreed, however, that but for hitting the concrete island, Mr. DePedro would not have vaulted and been ejected from his motorcycle. He agreed that in all probability, Mr. DePedro could have safely completed his passing maneuver but for the concrete island.

DOTD's Expert—Dr. Gary Thomas, P.E.

Dr. Gary Thomas, a licensed professional engineer, testified on behalf of DOTD as an expert in highway design and traffic engineering. Dr. Thomas performed an analysis for DOTD of the roadway where the accident occurred. He opined that the section of LA Highway 30 where the accident occurred, including the raised concrete island, was not unreasonably dangerous and was safe for a reasonably prudent motorist.

Dr. Thomas explained that AASHTO provides guidelines, not mandatory standards, that are used for new highway designs or major rehabilitations, while DOTD develops its own standards based on those guidelines. Dr. Thomas also indicated that MUTCD promotes uniformity in road design across states. Both AASHTO and MUTCD apply generally for the motoring public, including motorcycles. In applying the guidelines, Dr. Thomas testified that neither AASHTO nor MUTCD prohibits the application of the raised concrete island. He also stated that MUTCD Sections 3B.02.11 and Section 3B.02.12, “No-Passing Zone Pavement Markings and Warrants,” do not require a flush median buffer zone in a center, two-way left turn lane. Dr. Thomas noted that the traffic control device at issue here was not changing the direction of travel in the center lane through a transition to another travel lane because LA Highway 30 has only one travel lane in each direction. Dr. Thomas testified that the center, two-way left turn lane was not a high-speed travel lane, but he acknowledged that there is no state law specifying different speed limits for travel lanes and turn lanes.

On cross-examination, Dr. Thomas clarified that while AASHTO are guidelines, they help shape state standards, and DOTD follows AASHTO. Although MUTCD does not specifically address a raised concrete island installed in a center, two-way left turn lane as was done on LA Highway 30, Dr. Thomas saw no issue with its application. Dr. Thomas agreed that DOTD's responsibility includes considering foreseeable risks, but that it is not possible to account for every motorist's actions. He confirmed that if the center, two-way left turn lane is used as designed, a motorist should be traveling in the turn lane at speeds of twenty to thirty m.p.h. Dr. Thomas testified that he was not aware of another application of a raised concrete island with a four-inch mountable curb in a center, two-way left turn lane in the State of Louisiana.

LAW: DOTD's Liability Based on a Defect in the Design, Construction, or Condition of a State Roadway

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles as set forth in the Civil Code. See Brewer v. J.B. Hunt Transport, Inc., 2009-1408 (La. 3/16/10), 35 So.3d 230, 240. In order for liability to attach under the duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of duty element); and (5) proof of actual damages (damages element). Farrell v. Circle K Stores, Inc., 2022-00849 (La. 3/17/23), 359 So.3d 467, 473. See also Bellanger v. Webre, 2010-0720 (La. App. 1 Cir. 5/6/11), 65 So.3d 201, 207, writ denied, 2011-1171 (La. 9/16/11), 69 So.3d 1149.

Regarding DOTD's liability in the instant matter, the pertinent legal principles differ slightly insofar as tort claims may be pursued against the public entity in strict liability pursuant to La. C.C. art. 2317 and La. R.S. 9:2800, as well as in negligence pursuant to La. C.C. art. 2315. See Johnson v. State Through Dep't of Transp. & Dev., 2017-0973 (La. App. 1 Cir. 4/3/19), 275 So.3d 879, 892, writ denied, 2019-00676 (La. 9/6/19), 278 So.3d 970. When addressing an action under either theory, the legal analysis is the same. In order to find DOTD liable based on the design, construction, or condition of a state roadway, a plaintiff must prove: (1) DOTD had custody of the thing that caused the plaintiff's injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiff's injuries. Johnson, 275 So.3d at 892.

Louisiana law imposes a duty on DOTD to design, construct, and maintain Louisiana's highways. See La. R.S. 48:21(A). To further this end, La. R.S. 48:35(A) requires DOTD to “adopt minimum safety guidelines with respect to highway and bridge design, construction, and maintenance.” Those guidelines are required to “correlate with and, so far as possible, conform to the system then current as approved by [AASHTO.]” La. R.S. 48:35(C). Furthermore, DOTD has “a duty to maintain, repair, construct, or reconstruct any public road, highway, bridge, or street, or any portion thereof, in a manner that is not unreasonably dangerous for a reasonably prudent driver.” La. R.S. 48:35(E)(1)(a). DOTD's statutory duty to keep the state's highways in a reasonably safe condition includes a duty to maintain appropriate signs and traffic signals along the roadway. Charan, 965 So.2d at 473.

DOTD's duty extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition. Johnson, 275 So.3d at 892. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Johnson, 275 So.3d at 893. Nonetheless, DOTD is not a guarantor of the safety of all the motoring public under every circumstance, nor is DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. Fontenot v. Patterson Ins., 2009-0669 (La. 10/20/09), 23 So.3d 259, 271; Johnson, 275 So.3d at 893. DOTD is liable only for those damages caused by a defective or unreasonably dangerous roadway of which DOTD had actual or constructive knowledge. Charan, 965 So.2d at 473.

While design standards may be relevant factors in deciding whether a roadway presents an unreasonable risk of harm, standards alone are not determinative. Charan, 965 So.2d at 473. DOTD's failure to design or maintain the state's highways to modern standards does not establish the existence of a hazardous defect in and of itself. Fontenot, 23 So.3d at 271. DOTD has no duty to bring old highways up to modern AASHTO standards, unless a new construction or major reconstruction has taken place. Nevertheless, DOTD has a duty to correct conditions existing on old highways that are unreasonably dangerous. Moreover, the duty of DOTD to maintain public roads in safe condition includes, among other things, the specific duty of providing proper safeguards or adequate warnings of dangerous conditions on highways. Johnson, 275 So.3d at 893. In other words, liability will not be imposed for every imperfection or irregularity, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Fontenot, 23 So.3d at 271.

To determine if DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, is a question of fact and will depend on the facts and circumstances of each case. Brooks v. State ex rel. Dep't of Transp. & Dev., 2010-1908 (La. 7/1/11), 74 So.3d 187, 190. Whether an unreasonably dangerous condition existed is measured using a risk/utility balancing test. The relevant factors are: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of social utility or whether the activities were dangerous by nature. Farrell, 359 So.3d at 474. And in every determination, all the circumstances surrounding the particular accident under review must be considered with the scope of duty in mind—i.e., whether DOTD's legal duty encompassed the risk which caused the plaintiff's damages. See Brooks, 74 So.3d at 190.

ANALYSIS: DOTD's Liability Based on a Defect in the Design, Construction, or Condition of a State Roadway

As outlined previously, the plaintiffs had the burden of proving: (1) DOTD had custody of the thing that caused the plaintiffs’ injuries or damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive knowledge of the defect and did not take corrective measures within a reasonable time; and (4) the defect in the thing was a cause-in-fact of the plaintiffs’ injuries. Johnson, 275 So.3d at 892.

1. Custody

There is no dispute that the roadway at issue was in the custody and control of DOTD, as DOTD stipulated that it owned or was in control of LA Highway 30 at the time of the accident.

2. Defective Condition Created an Unreasonable Risk of Harm

Plaintiffs allege that DOTD's liability stems from the unreasonably dangerous condition of the application of the raised concrete island. Plaintiffs do not contend that there was any defect in the design of the raised concrete island, but argues that its application, i.e., where DOTD placed the raised concrete island—in a center, two-way left turn lane that is part of a two-lane, high-speed roadway—is what makes the raised concrete island unreasonably dangerous. We must consider the unique facts and circumstances of this case and review the jury's determination that the concrete island presented an unreasonable risk of harm under the manifest error standard. Brooks, 74 So.3d at 190; Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 365. We examine the factors of the risk/utility balancing test to determine whether the raised concrete island presented an unreasonably dangerous condition. See Farrell, 359 So.3d at 474; Brooks, 74 So.3d at 190.

(i) Utility of the Complained-of Condition

We examine whether the alleged defect was intended or present by design. If it was meant to be there, it often will have social utility, and in the balancing test, weigh against a finding that the premises were unsafe. Farrell, 359 So.3d at 474. There is no dispute that DOTD purposefully installed the raised concrete islands at issue inside of the center, two-way left turn lane at one-thousand-foot intervals along LA Highway 30 in 2014 after DOTD began receiving complaints that motorists were using the turn lane on this portion of LA Highway 30 for high speed passing to bypass backed-up traffic in the travel lanes. After DOTD installed these traffic control devices along LA Highway 30, DOTD stopped receiving complaints about high speed passing in the center, two-way left turn lane. This factor weighs in DOTD's favor.

(ii) Likelihood and Magnitude of the Harm

The likelihood of the harm factor asks the degree to which the condition will likely cause harm. If it is likely to cause harm, that weighs in favor of finding it unreasonably dangerous. If it is unlikely to cause harm, that weighs in favor of it not being unreasonably dangerous. The magnitude of the harm factor asks whether the condition presents a risk of great or small injury and the likelihood of each.²¹ Farrell, 359 So.3d at 474.

There is no doubt that the magnitude of the harm in this case, Mr. DePedro's injuries and death, was tremendous, and this is a factor to be weighed. As to the likelihood of harm, the plaintiffs’ expert, Dr. Wolshon, testified that the application of raised concrete island in a center, two-way left turn lane increased the risk of accidents, particularly for motorcyclists, opining that such a traffic control device created an “enormously increased risk” if struck by a motorcycle, especially when there is no separate speed limit for the center, two-way left turn lane versus the travel lanes. DOTD's motorcycle safety expert, Mr. Patterson, testified that the danger of “vaulting” or going airborne, as well as change of trajectory and control becomes more possible for a motorcyclist traveling at the posted speed limit of fifty-five m.p.h. when traversing the raised concrete island. The Louisiana State Police investigation and accident reconstruction revealed that Mr. DePedro was likely traveling faster than sixty-seven to seventy-five m.p.h. when he struck the concrete island.

Mr. Patterson also testified that the safest speed at which he would feel comfortable traversing the raised concrete island would have been twenty to thirty m.p.h. using the “right technique”, clarifying that a motorcycle could have traversed the concrete island because it had a mountable curb that was tapered on both sides. Mr. Patterson confirmed that if a motorcyclist brought his speed down to a reasonably slow speed, he would be able to cross the raised concrete island without too much upset. DOTD's accident reconstruction expert, Mr. Peterson, likewise agreed that the motorcycle driven by Mr. DePedro could have safely traversed the raised concrete island if it had been traveling at lower speeds as intended for making turns and for which the turn lane was designed.

A trier of fact may accept or reject, in whole or in part, the opinions expressed by an expert. Furthermore, where the testimony of expert witnesses differs, the trier of fact has great, even vast discretion in determining the credibility of the evidence and a finding in this regard will not be overturned unless clearly wrong. Johnson, 275 So.3d at 895. Therefore, giving due deference to the jury's credibility determinations, we cannot say the jury was manifestly erroneous in choosing to accept the testimony of the witnesses that weighed heavily in favor of the finding that the raised concrete island was likely to cause harm to a motorcyclist, such as Mr. DePedro. Considering the testimony and evidence presented at trial, it was reasonable for the jury to conclude that a motorcyclist traveling at the posted roadway speed limit of fifty-five m.p.h. could be placed in harm's way if his motorcycle struck the raised concrete island installed in the center, two-way left turn lane. The likelihood of harm to motorcyclists traveling at high speeds (such as Mr. DePedro) is significant based on the testimony and evidence presented at trial. The potential for severe injury or death further supports the argument that the raised concrete island could present an unreasonably dangerous condition to motorcyclists under these circumstances.

(iii) Cost of Preventing the Harm

In examining the third factor of the risk/utility balancing test, the cost of prevention, Farrell, 359 So.3d at 474, the record indicates that DOTD has since removed the raised concrete islands along LA Highway 30. As a result, it appears that the cost of removing the traffic control devices was reasonable.

(iv) Nature of Plaintiff's Activities in Terms of Social Utility or Whether the Activities were Dangerous by Nature

Finally, the fourth factor of the risk/utility balancing test involves a consideration of the nature of the plaintiff's activity in terms of social utility or whether the activities were dangerous by nature. Farrell, 359 So.3d at 474. The social utility of Mr. DePedro's conduct, executing a high-speed passing maneuver in a no-passing zone in a center, two-way left turn lane, was minimal. It is likely that Mr. DePedro, as Mr. Sellers testified, was simply trying to reach his destination faster and avoid being stuck driving slowly on a motorcycle behind an 18-wheeler. However, we must also consider the dangerous nature of Mr. DePedro's actions. He was not authorized by law to pass slow-moving traffic by speeding in a no-passing zone located in a center, two-way left turn lane. And, as DOTD's motorcycle safety expert Mr. Patterson testified, Mr. DePedro's action of speeding on his motorcycle was dangerous by nature because the risk of “vaulting” or going airborne, as well as change of trajectory and control, became more possible for Mr. DePedro traveling at the speed of fifty-five m.p.h. when traversing the raised concrete island. The evidence presented at trial revealed that Mr. DePedro was likely traveling faster than sixty-seven to seventy-five m.p.h. when he struck the concrete island.

(v) Conclusion

While the raised concrete island had a clear utility in addressing the complaints of high-speed passing by motorists in the center, two-way left turn lane on LA Highway 30, the significant risk of harm, particularly to motorcyclists traveling at high speeds, and the relatively low cost of removing the traffic control devices, indicate that the raised concrete island presented an unreasonably dangerous condition. Therefore, weighing the factors of the risk/utility balancing test, we find that it was reasonable for the jury to conclude that the raised concrete island was unreasonably dangerous, especially in the context of Mr. DePedro's accident, when considering the facts and circumstances of this case. See Brooks, 74 So.3d at 190. Based on our review of the record on appeal, we find that a reasonable factual basis exists that supports the jury's determination that the raised concrete island was unreasonably dangerous. See Graves, 703 So.2d at 573.

3. Constructive Notice

While DOTD cannot be imputed with knowledge of every defect on its roadways and shoulders, neither can DOTD escape liability by negligently failing to discover that which is easily discoverable. Hager v. State, Dep't of Transp. & Dev., 2006-1557 (La. App. 1 Cir. 1/16/08), 978 So.2d 454, 467-68, writs denied, 2008-0347, 2008-0385 (La. 4/18/08), 978 So.2d 349.

The evidence at trial was that DOTD conducted bi-weekly inspections of LA Highway 30 to assess the roadway and discover dangerous conditions. Mr. Elisar, DOTD's project engineer and area engineer who supervised inspections of the roadway, testified that prior to this incident, the raised concrete island exhibited damage including chipped paint, tire marks, missing reflectors, and cracked concrete. Ms. Colvin, DOTD's traffic engineering administrator who oversaw the design and installation of the concrete islands, agreed that LA Highway 30 was inspected every two weeks by DOTD and that based on the damage to the concrete island, DOTD had actual notice that it was being traversed by motor vehicles. The trier of fact is charged with assessing the credibility of the witnesses and, in doing so, is free to accept or reject, in whole or in part, the testimony of any witness. Johnson, 275 So. at 898. Based on the foregoing, we cannot find that the jury manifestly erred in determining that DOTD had actual or constructive knowledge of the defect.

4. Cause-in-Fact

Finally, we examine whether the raised concrete island was a cause-in-fact of Mr. DePedro's injuries and death. Cause-in-fact is generally a “but for” inquiry; if the plaintiff probably would not have sustained the injuries but for the defendant's substandard conduct, such conduct is a cause-in-fact. In other words, the inquiry is whether the defendant contributed to plaintiff's harm. Guzman v. State, 95-0957 (La. App. 1 Cir. 12/15/95), 664 So.2d 1343, 1351. Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Guzman, 664 So.2d at 1348. The fact that more than one party can contribute to the harm is the reason for our comparative fault system. See La. C.C. art. 2323; Campbell v. Louisiana Dep't of Transp. & Dev., 94-1052 (La. 1/17/95), 648 So.2d 898, 902.

Mr. Landry testified that after striking the raised concrete island, Mr. DePedro loss of control of his motorcycle and suffered injuries. Sgt. Graffia, the Louisiana State Police officer and accident reconstructionist who participated in the investigation of the accident, testified that there was no evidence to demonstrate that Mr. DePedro would have been involved in this accident, but for striking the raised concrete island. According to Sgt. Graffia, other than the concrete island, there was nothing else that Mr. DePedro could have struck in that area of the roadway that would have caused this accident. DOTD's motorcycle expert, Mr. Patterson, likewise agreed that the raised concrete island was a but-for cause of Mr. DePedro's accident and injuries. Furthermore, the evidence shows that Mr. Sellers was able to successfully execute the passing maneuver in the center, two-way left turn lane while speeding in a no-passing zone and because he did not strike the raised concrete island, he was not involved in an accident and did not suffer injuries.

Based on the evidence and testimony presented at trial, we cannot say that the jury was manifestly erroneous in determining that the raised concrete island was a cause-in-fact of Mr. DePedro's injuries and death.

5. Conclusion

Based on our review of the record on appeal, we find that the jury did not manifestly err in finding DOTD liable. A reasonable factual basis exists for the jury's determination that the raised concrete island was unreasonably dangerous, that DOTD had notice of same, and that the raised concrete island was a cause-in-fact of the plaintiffs’ damages. See Johnson, 275 So.3d at 892.

ASSIGNMENT OF ERROR NO. 2: SCOPE OF DOTD'S DUTY; FAULT ALLOCATION

We next turn to DOTD's second assignment of error. DOTD argues that the jury's verdict—which found DOTD liable based on the defective design, construction, or condition of a state roadway—should be reversed as a matter of law because Mr. DePedro's actions did not fall within the scope of DOTD's duty. DOTD argues that the evidence showed that Mr. DePedro was at fault because he attempted a passing maneuver in a no-passing zone, while greatly exceeding the speed limit and disregarding every traffic control device in the area without ascertaining if the passing maneuver could be performed safely. DOTD argues that the witnesses who testified regarding Mr. DePedro's actions all agreed that Mr. DePedro did not act as a reasonably prudent motorist. In the alternative, should this court uphold the jury's finding of liability against DOTD, DOTD argues that Mr. DePedro's percentage of fault should be substantially increased.

LAW: Scope of DOTD's Duty; Fault Allocation

A motorist owes a legal duty to use reasonable care in the operation and control of his vehicle. See La. 32:58; Johnson, 275 So.3d at 904. A motorist's duty of reasonable care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards. Johnson, 275 So.3d at 904. Motorists also have a duty to drive at a speed reasonable for the conditions of the road, the weather, the traffic and the time of day. See La. R.S. 32:61; La. R.S. 32:64; Richardson v. Aldridge, 37,192 (La. App. 2 Cir. 5/16/03), 854 So.2d 923, 936 (on reh'g), writ denied, 2003-3034 (La. 2/6/04), 865 So.2d 743; Miller v. Bailey, 621 So.2d 1174, 1184 (La. App. 3 Cir.), writ denied, 629 So.2d 3 5 8 (La. 1993). Furthermore, the driver of an overtaking vehicle must be alert to the actions of the motorists preceding him on the highway. Gohres, 29 So.3d at 645. Before attempting to pass, the passing driver has a duty to ascertain from all circumstances of traffic, the lay of the land, and conditions of the highway that passing can be completed with safety. La. R.S. 32:73 and 32:75; Palmieri, 288 So.2d at 623.

As outlined, supra, DOTD has “a duty to maintain, repair, construct, or reconstruct any public road, highway, bridge, or street, or any portion thereof, in a manner that is not unreasonably dangerous for a reasonably prudent driver.” La. R.S. 48:35(E)(1)(a); Charan, 965 So.2d at 473. DOTD's duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. Johnson, 275 So.3d at 893. Nonetheless, DOTD is not a guarantor of the safety of all the motoring public under every circumstance, nor is DOTD the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway. Fontenot, 23 So.3d at 271; Johnson, 275 So.3d at 893.

The extent of protection owed to a particular plaintiff is determined on a case-to-case basis to avoid making a defendant an insurer of all persons against all harms. Todd v. State Through Dep't of Social Services, Office of Community Services, 96-3090 (La. 9/9/97), 699 So.2d 35, 39. A risk may be found not within the scope of a duty where the circumstances of that injury to the plaintiff could not reasonably be foreseen or anticipated because there was no ease of association between the risk of that injury and the legal duty. Lazard v. Foti, 2002-2888 (La. 10/21/03), 859 So.2d 656, 661. In every determination, all the circumstances surrounding the particular accident under review must be considered to determine whether DOTD's legal duty encompassed the risk which caused the plaintiffs’ damages. Johnson, 275 So.3d at 900.

The fact that more than one party can contribute to the harm is the reason for our comparative fault system. See La. C.C. art. 2323; Campbell, 648 So.2d at 902. In apportioning fault, the trier of fact must consider both the nature of the conduct of each party and the extent of the causal relation between the conduct and the damages claimed. Bourg v. Cajun Cutters, Inc., 2014-0210 (La. App. 1 Cir. 5/7/15), 174 So.3d 56, 68, writs denied, 2015-1306, 2015-1253 (La. 4/4/16), 190 So.3d 1201, 1205 (citing Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967, 974 (La. 1985)). In assessing the nature of the parties’ conduct, factors that may influence the degree of fault allocated include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances that might require the actor to proceed in haste, without proper thought. Watson, 469 So.2d at 974. The law provides we must give great deference to the allocation of fault as determined by the trier of fact. We are also aware that the allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and that any allocation by the factfinder within that range cannot be clearly wrong. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong or manifestly erroneous can an appellate court disturb the award. Fontenot, 23 So.3d at 274. The trier of fact is charged with assessing the credibility of the witnesses and, in doing so, is free to accept or reject, in whole or in part, the testimony of any witness. Johnson, 275 So.3d at 898.

ANALYSIS: Scope of DOTD's Duty; Fault Allocation

In analyzing the first Watson factor, whether the conduct resulted from inadvertence or involved an awareness of the danger, the record shows that Mr. DePedro disobeyed traffic laws by speeding and attempting an illegal passing maneuver in a no-passing zone, showing his awareness of the danger. DOTD likewise had a special awareness of the danger that motorists were engaging in illegal high-speed passing maneuvers in the center, two-way left turn lane on LA Highway 30, which is why DOTD installed traffic control devices along the roadway. The evidence also showed that after DOTD installed the traffic control devices, DOTD had knowledge that motor vehicles were traversing the raised concrete islands.

The jury could have certainly concluded that the second Watson factor, how great a risk was created by the conduct, weighed heavily against DOTD. Although Mr. DePedro was speeding and attempting an illegal passing maneuver at the time the accident occurred, but for DOTD's application of the raised concrete island in the center, two-way left turn lane on LA Highway 30, the accident would not have occurred. The jury found that the application of the raised concrete island in the center, two-way left turn lane presented an unreasonably dangerous condition, especially at higher speeds for motorcyclists. The fact that Mr. DePedro could not avoid the raised concrete island evidences that the risk was significant and ultimately fatal.

The third Watson factor, the significance of what was sought by the conduct, is the only factor that balances in favor of DOTD. Mr. DePedro placed himself in danger for the purpose of riding motorcycles with his friends, while DOTD's installation of the raised concrete island was for the purpose of deterring high-speed passing maneuvers by motorists in a center, two-way left turn lane in order to prevent vehicle collisions.

In analyzing the capacities of the actor, whether superior or inferior, the fourth Watson factor, the jury could have reasonably found that DOTD was in a superior position to remedy the dangerous defect, while also acknowledging that Mr. DePedro's own actions could have prevented this accident had he not been speeding or attempting an illegal passing maneuver.

As to the fifth Watson factor, there is no evidence that either Mr. DePedro or DOTD was subject to any extenuating circumstance that might have required proceeding without proper thought and in haste. DOTD's eventual removal of the raised concrete islands was not safety-driven, suggesting a lack of urgency in maintaining the safety measures in place.

Here, the jury clearly recognized Mr. DePedro's duty as a passing motorist and allocated 35% fault to him, which is supported by the testimony and evidence presented at trial regarding Mr. DePedro's actions and manner of driving his motorcycle prior to the accident. Mr. DePedro's negligent actions are merely a factor to be considered in Louisiana's comparative fault scheme. While Mr. DePedro's negligence (speeding and passing in a no-passing zone in a center, two-way left turn lane) set the course for an accident to happen, his injuries were a direct result of his impact with the raised concrete island. See Petre v. State ex rel. Dep't of Transp. & Dev., 2001-0876 (La. 4/3/02), 817 So.2d 1107, 1113-14.

Whether or not we agree with the allocation of fault between Mr. DePedro and DOTD, we find it difficult, if not impossible, to conclude that the jury's reasoning was manifestly erroneous. See Petre, 817 So.2d at 1114. We must give great deference to the jury's allocation of fault. See Fontenot, 23 So.3d at 274.

ASSIGNMENT OF ERROR NO. 4: SURVIVAL DAMAGES

In its fourth and final assignment of error, DOTD argues that the jury abused its discretion in awarding $500,000.00 in survival damages to Mr. DePedro.

LAW: Quantum

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Jones v. Market Basket Stores, Inc., 2022-00841 (La. 3/17/23), 359 So.3d 452, 464. It is well-settled that a trial judge or jury is given great discretion in the assessment of quantum, of both general and special damages.²² La. C.C. art. 2324.1; Fontenot v. Louisiana Dep't of Public Safety & Corrections, 2021-1213 (La. App. 1 Cir. 4/8/22), 342 So.3d 28, 35 (citing Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So.3d 1104, 1116). Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge or jury is a determination of fact that is entitled to great deference on review. Fontenot, 342 So.3d at 35 (citing Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74).

In conducting a review of a damage award, we are mindful that neither the trial court nor this court may substitute its evaluation of the proper amount of damages for that of the jury unless the jury's award totally offend reasonable inferences from the evidence. Gutierrez v. Louisiana Dep't of Transp. & Dev., 2011-1774 (La. App. 1 Cir. 3/23/12), 92 So.3d 3 80, 3 86, writ denied, 2012-123 7 (La. 9/21/12), 98 So.3d 343. To find abuse of discretion warranting the disturbance of a factfinder's award of damages, the reviewing court must find that the award is so out of proportion to the injury complained of “that it shocks the conscience.” See Baack v. McIntosh, 2020-01054 (La. 6/30/21), 333 So.3d 1206, 1215; Johnson v. Montoya, 2013-1951 (La. App. 1 Cir. 5/2/14), 145 So.3d 418, 421; Patin v. Duplessis Pontiac-Buick-GMC Trucks, Inc., 632 So.2d 790, 793 (La. App. 1 Cir. 1993), writ denied, 63 8 So.2d 1096 (La. 1994).

Recently, the Louisiana Supreme Court in Pete v. Boland Marine & Manufacturing Co., LLC, 2023-00170 (La. 10/20/23), 379 So.3d 636, 644, concisely summarized the required two-step analysis for appellate review of a damage award: (i) determining whether abuse of discretion occurred by examining the particular facts and circumstances of the case under review while including a “consideration of prior awards in similar cases”; and (ii) if abuse of discretion is found, “the court is to then also consider those prior awards to determine ‘the highest or lowest point which is reasonably within that discretion.’ ” Barber Brothers Contracting Co., LLC v. Capitol City Produce Co., LLC, 2023-00788 (La. 12/19/24), 397 So.3d 404, 409 (on rehearing) (quoting Pete, 379 So.3d at 644). We acknowledge the reality that general damage awards will fluctuate and increase over time given changes in economic conditions, including inflation. Walker v. Anco Insulations, Inc., 2022-0763 (La. App. 4 Cir. 5/3/23), 382 So.3d 243, 252 (as amended on reh'g, May 30, 2023) (citing Coco v. Winston Industries, Inc., 341 So.2d 332, 335-36 (La. 1976)).

LAW: Survival Action

Applying these standards, we address the jury's award for the survival action. In a survival action, certain beneficiaries of the deceased have the right to recover the damages for injuries that the deceased suffered and would have been entitled to recover from the tortfeasor, had the deceased lived. See La. C.C. art. 2315.1; Sacco v. Allred, 2002-0141 (La. App. 1 Cir. 2/19/03), 845 So.2d 528, 538. The survival action permits recovery only for the damages suffered by the victim from the time of the injury to the moment of death. White v. Entergy Gulf States Louisiana, L.L.C., 2013-1608 (La. App. 1 Cir. 11/10/14), 167 So.3d 764, 770, writ denied, 2015-0478 (La. 5/15/15), 170 So.3d 163. See also Thompson v. Crawford, 2017-1400 (La. 11/13/17), 229 So.3d 451, 452 (per curiam). The prevailing principle in awarding survival damages is that “[s]urvival damages are properly awarded if there is even a scintilla of evidence of pain or suffering on the part of the decedent, and fright, fear, or mental anguish during an ordeal leading to the death is compensable.” Maldonado, 152 So.3d at 936. There is no requirement that the decedent be alert and consciously aware after the injury occurs, as long as there is evidence of life and a reasonable inference can be made that the decedent suffered, however slight. See Maldonado, 152 So.3d 909. The elements of damage for the survival action are pain and suffering, loss of earnings, and other damages sustained by the victim up to the moment of death. White, 167 So.3d at 770. See also Thompson, 229 So.3d at 452.

ANALYSIS: Survival Action Quantum

In order to determine whether the trial court abused its discretion in awarding Mr. DePedro $500,000.00 in survival damages, we must review the particular facts and circumstances of this case and consider prior awards in similar cases. Barber Brothers, 397 So.3d at 409.

Seconds before the accident occurred, Mr. Landry testified that he saw Mr. DePedro flinch, indicating that Mr. DePedro knew he was about to strike the raised concrete island and be ejected from his motorcycle. There was a period of time where Mr. DePedro flew through the air before he hit the roadway and slid underneath the 18-wheeler and was run over. Mr. Sellers testified that he made it to where Mr. DePedro lay unconscious on the roadway approximately one minute after the accident occurred and initiated CPR on Mr. DePedro immediately as instructed by the 911 operator after checking for Mr. DePedro's pulse. First responders with the Fire Department next arrived on the scene and delivered a shock to Mr. DePedro with an automated external defibrillator (“AED”) device. Eight minutes after Mrs. Sellers’ 911 call, Acadian Ambulance Services arrived on the scene and located a faint carotid pulse on Mr. DePedro. Paramedics reinstated CPR after the carotid pulse was lost, placed electrocardiogram (“ECG”) monitoring pads on Mr. DePedro, ventilated him with a bag-valve-mask (“BVM”), and applied direct pressure to his femoral region in an attempt to control blood loss from his injuries. Upon arrival at the emergency room at Our Lady of the Lake Ascension, twenty-eight minutes after the 911 call, Mr. DePedro had no pulse, no neurological activity, and was placed on a monitor to ensure he had no evidence of cardiac activity. Emergency medicine physicians pronounced Mr. DePedro dead thirty-three minutes after the 911 call.

In Thompson, 229 So.3d 451, the Louisiana Supreme Court reversed this court and reinstated survival damages in the amount of $450,000.00 in an electrocution case, where a bar patron was electrocuted and killed after coming in contact with a live electrical wire. The supreme court pointed to witness testimony that the decedent began shaking after clutching the wire and that this went on for what seemed like “a long time,” and, while the decedent's voluntary grasp of the wire soon became or resulted in an involuntary clutching of the wire, it was undisputed that the decedent remained standing throughout his electrocution and slumped only after his hand was completely burned away. Thompson, 229 So.3d at 452. When adjusted for inflation using the U.S. Bureau of Labor Statistics Consumer Price Index (“CPI”) Inflation Calculator,²³ the Thompson award would be $575,556.11 at the time of trial of the instant matter.

In Ditcharo v. State, 2017-0221 (La. App. 4 Cir. 10/18/17), 316 So.3d 926, a road defect case, the widow and children of the decedent—whose vehicle hit a puddle of standing water, causing him to lose control of his vehicle as it hydroplaned and flipped over—filed a wrongful death and survival action against DOTD alleging negligence in the design and maintenance of the roadway allowing a defective and unreasonably dangerous condition to exist. The trial court affirmed the jury's survival damage award of $345,000.00 ²⁴ based on the evidence and testimony presented at trial:

In this case, the coroner, Dr. Fraser McKenzie, concluded after the autopsy, that Mr. Ditcharo died from exsanguination, which is the severe loss of blood, within fifteen to twenty minutes after the accident. However, there was no one at the scene to be an eyewitness to his state of consciousness, and Dr. McKenzie was unable to conclude with medical certainty if Mr. Ditcharo was conscious upon impact and prior to his death.

DOTD focuses on the lack of certainty of Mr. Ditcharo's conscious suffering; yet, that is not the test. On appeal, this Court must review the evidence that is in the record to determine if a reasonable juror could have concluded that there was a scintilla of evidence in support of Mr. Ditcharo's conscious suffering.

The evidence that the jurors did have was the testimony of Dr. McKenzie explaining that Mr. Ditcharo's death was due to him bleeding out of a laceration on his scalp. He described the wound as just a few inches in length and further informed the jurors that the impact that caused the laceration did not cause the skull or brain to be injured. Dr. McKenzie also described the manner in which the body reacts to exsanguination. In his testimony, he explained that as the body loses blood it struggles to stay alive while the organs begin to shut down and ultimately the brain shuts down resulting in death.

Additionally, based on the investigating officer and two accident reconstruction experts, Mr. Ditcharo was conscious when his vehicle encountered the standing water and began hydroplaning. There is also nothing in the record that would indicate he was unconscious after impact when his vehicle began to flip end over end eventually ejecting Mr. Dicharo before coming to a rest. It was several minutes before anyone was on the scene. Mr. Ditcharo was not pronounced dead on the scene but at the hospital.

Ditcharo, 316 So.3d at 934-35. When adjusted for inflation using the CPI Inflation Calculator, the Ditcharo award would be $451,605.63 at the time of trial of the instant matter.

In Maldonado, the decedent's wife, individually and as representative of his estate, filed suit against the decedent's employer (a subcontractor on a bridge-widening project), the general contractor, the engineering firm that designed the guy-wiring plans, the engineering firm's insurer, and other defendants for survival and wrongful death. The decedent, a 33-year-old bridge construction worker, was working on a steel rebar cage that had been raised by a crane and placed on top of a column footing, when the cage collapsed, and the decedent fell sixty feet to his death. Maldonado, 152 So.3d at 916-17. The decedent was found lying face down and breathing, but he died shortly thereafter. There was no evidence that he was conscious at the scene. Maldonado, 152 So.3d at 936. On appeal, the Maldonado court found that the jury's award of $1 million in survival damages, including $250,000.00 for terror during the fall from over sixty feet, and $500,000.00 for mental anguish, was excessive and that the highest amount of survival damages reasonably within the jury's discretion to award was $300,000.00. Maldonado, 152 So.3d at 936-37. Although the evidence supported a finding that the decedent would have been frightfully aware that he was likely to die or suffer serious injury when the rebar cage started its descent, and although the decedent was found lying face down and breathing, there was no evidence that he was conscious, and he died at the scene shortly after. Maldonado, 152 So.3d at 936-37. When adjusted for inflation using the CPI Inflation Calculator, the Maldonado award would be $397,847.41 at the time of trial of the instant matter.

In Smith v. Louisiana Farm Bureau Casualty Ins. Co., 45,013 (La. App. 2 Cir. 4/23/10), 3 5 So.3d 463, writ denied, 2010-1205 (La. 9/17/10), 45 So.3d 1052, the widow and son of a driver killed in a motor vehicle collision sought wrongful death and survival damages, and pertinently herein, the jury awarded the decedent $250,000.00 in survival damages. Smith, 35 So.3d at 467. On appeal, the Smith court found that there was sufficient evidence to prove that the decedent survived the accident even for an instant. Smith, 35 So.3d at 472-73. After the accident, the other driver approached the decedent and heard the sound of gurgling blood, which sounded like it was coming from the decedent's mouth. The trooper at the scene testified that it appeared the decedent saw the other vehicle coming at him and attempted to move his vehicle to the right shoulder. The impact from the other vehicle completely removed the decedent's vehicle's driver side door, the vehicle's “B-pillar,” and left rear passenger door. The decedent's death certificate listed severe chest and abdominal trauma and head trauma as causes of death. Smith, 35 So.3d at 472-73. When adjusted for inflation using the CPI Inflation Calculator, the Smith award would be $361,788.96 at the time of trial of the instant matter.

In Joshua v. Community Care Center of Heritage House, LLC, 2022-1288 (La. App. 1 Cir. 9/5/23), 371 So.3d 1097, the decedent, a wheelchair-bound nursing home resident who was on a diet of only pureed food, was found “unresponsive” after she choked on a sandwich that had been inadvertently delivered to her room, and despite attempts by EMS to resuscitate her, she subsequently died. Joshua, 371 So.3d at 1102. The decedent's daughter settled with the nursing home and reserved her right to proceed against the Louisiana Patients’ Compensation Fund (“PCF”) for damages in excess of $1,000,000.00 on her wrongful death claims and survival action, brought individually and as a representative of her mother's estate. Following a trial, the jury awarded the decedent $250,000.00 for her survival action claim (which was reduced, along with the wrongful death damages award, to one amount of $400,000.00, in accordance with the medical malpractice statutory damages cap). Joshua, 371 So.3d at 1103. The testimony presented at trial reflected that the decedent suffered a tragic death, consciously suffering for a period of time, up to her death thirteen minutes after being fed the sandwich. Joshua, 371 So.3d at 1114. When adjusted for inflation, using the CPI Inflation Calculator, the Joshua award would be $283,769.81 at the time of trial of the instant matter.

In Mouton v. AAA Cooper Transportation, 2017-666 (La. App. 3 Cir. 7/18/18), 251 So.3d 516, writ denied, 2018-1697 (La. 1/8/19), 259 So.3d 1025, after a truck driver was killed in a motor vehicle accident with another 18-wheeler, the decedent's widow and son filed suit against the driver of the 18-wheeler and his employer. Following a jury trial, the trial court granted a motion for JNOV filed by the plaintiffs and increased the survival damages award from $50,000.00 to $150,000.00. Mouton, 251 So.3d at 521. The evidence at trial showed that the decedent died of positional asphyxiation and multiple traumatic injuries, experienced excruciating pain, and survived the accident for approximately twenty-five to thirty minutes. Mouton, 251 So.3d at 530-31. When adjusted for inflation using the CPI Inflation Calculator, the Mouton award would be $190,062.89 at the time of trial of the instant matter.

Here, the jury awarded Mr. DePedro $500,000.00 in survival damages. Although this award is on the higher end when considering similar prior awards, we cannot say the jury abused its discretion based on the horrific nature of this accident, the fact that Mr. DePedro experienced pre-accident fright and fear, flew through the air for an amount of time, struck the roadway, slid under an 18-wheeler, and was run over. The jury's action of awarding survival damages to Mr. DePedro indicates that the jury found “a scintilla of evidence” that Mr. DePedro did experience pain and suffering in the approximately thirty-three minutes between the time of the accident and his ultimate death. See Maldonado, 152 So.3d at 936. Accordingly, we find that the jury did not abuse its discretion in awarding Mr. DePedro $500,000.00 in survival damages to warrant a disturbance of that award. The award is not so out of proportion with prior similar awards “that it shocks the conscience.” See Baack, 333 So.3d at 1215; Barber Brothers, 397 So.3d at 409.

DECREE

We affirm the December 13, 2023 judgment rendered by the trial court pursuant to the jury verdict. We also affirm the trial court's March 18, 2024 judgment denying the motion for judgment notwithstanding the verdict filed by the defendant, the State of Louisiana, through the Department of Transportation and Development. Costs of appeal, in the amount of $14,306.00, are assessed to the defendant, the State of Louisiana, through the Department of Transportation and Development.

AFFIRMED.

FOOTNOTES

1.   On September 7, 2022, Kamden attained the age of majority. The trial court granted an ex parte motion to substitute Kamden as a proper party plaintiff in his own representative capacity.

2.   Pursuant to La. R.S. 13:5106(B)(2), “[t]he total liability of the state and political subdivisions for all damages for wrongful death of any one person, including all claims and derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support ․ shall not exceed five hundred thousand dollars, regardless of the number of suits filed or claims made for the wrongful death of that person.”

3.   See Footnote 1, supra.

4.   Pertinently, the trial court also granted in part a motion in limine filed by DOTD. Specifically, the trial court decreed that evidence of subsequent remedial measures was to be excluded as evidence at trial. The trial court found that the removal of the concrete island that Mr. DePedro struck occurred after the accident at issue to allow access to new developments and driveways from the center, two-way left turn lane, and that there was no evidence that DOTD intended to remove the concrete island prior to this accident.

5.   We note that this court is not bound by a writ panel's previous decision, regardless of whether that decision is published or not. See Elee v. White, 2019-1633 (La. App. 1 Cir. 7/24/20), 393 So.3d 896, 900, writ denied, 2020-01048 (La. 11/10/20), 303 So.3d 1038.

6.   See Footnote 2, supra.

7.   The trial court awarded pre-judgment interest at the rate of 6% in accordance with La. R.S. 13:5112(C), which provides that in any suit against the state or any department thereof, “[l]egal interest on any claim for personal injury or wrongful death shall accrue at six percent [6%] per annum from the date service is requested following judicial demand until the judgment thereon is signed by the trial judge in accordance with [La. C.C.P. art.] 1911. Legal interest accruing subsequent to the signing of the judgment shall be at the rate fixed by [La.] R.S. 9:3500.”

8.   Under La. R.S. 9:3500, legal interest is fixed at the rate set forth in La. R.S. 13:4202 “on all sums which are the object of a judicial demand[.]” Louisiana Revised Statutes 13:4202 pertinently provides that “[t]he judicial interest rate for the calendar year following the calculation date shall be published in the December issue of the Louisiana Bar Journal[.]” The Louisiana Bar Journal announced the following judicial interest rates for the applicable years: 6.5% in 2023; 8.75% in 2024; and 8.25% in 2025. See Stanley M. Dameron, “2023 Judicial Interest Rate is 6.5%”, Louisiana Bar Journal, Vol. 70, No. 4, December 2022/January 2023, p. 255; P. Scott Jolly, “2024 Judicial Interest Rate is 8.75%,” Louisiana Bar Journal, Vol. 71, No. 4, December 2023/January 2024, p. 221; and P. Scott Jolly, “2025 Judicial Interest Rate is 8.25%,” Louisiana Bar Journal, Vol. 72, No. 4, December 2024/January 2025, p. 229.

9.   DOTD filed a motion for suspensive appeal on March 28, 2024. The trial court signed an order of appeal on April 10, 2024, notice of which was transmitted by the Clerk of Court to the parties on April 12, 2024.

10.   The denial of a motion for JNOV is an interlocutory and non-appealable judgment. La. C.C.P. art. 1914(C). However, an appellate court may consider interlocutory judgments, such as the denial of a JNOV, as part of an unrestricted appeal from a final judgment when the appellant's brief indicates that he implicitly intended to appeal the judgment on the merits. Barnett v. Woodburn, 2020-0675 (La. App. 1 Cir. 4/16/21), 324 So.3d 641, 645 n.2. Thus, to the extent that DOTD's appeal of the denial of its motion for JNOV challenges the jury's apportionment of fault and survival damages award on the merits, we will consider the denial of the JNOV as part of the unrestricted appeal of the final judgment herein. See Barnett, 324 So.3d at 645 n.2.A JNOV is a procedural device authorized by La. C.C.P. art. 1811, by which the trial court may correct an erroneous jury verdict by modifying the jury's finding of fault or damages or both. Bourg v. Cajun Cutters, Inc., 2014-0210 (La. App. 1 Cir. 5/7/15), 174 So.3d 56, 61, writs denied, 2015-1306, 2015-1253 (La. 4/4/16), 190 So.3d 1201, 1205. If the verdict is supported by competent evidence and is not wholly unreasonable, the trial judge may not set it aside. Daigle v. U.S. Fidelity & Guaranty Ins. Co., 94-0304 (La. App. 1 Cir. 5/5/95), 655 So.2d 431, 435.A JNOV should be granted only when the evidence points so strongly in favor of the moving party that the trial court believes that reasonable persons could not arrive at a contrary verdict. A JNOV should be denied if there is evidence opposed to the motion that is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Falcon v. Louisiana Dep't of Transp. & Dev., 2013-1404 (La. App. 1 Cir. 12/19/14), 168 So.3d 476, 488, writ denied, 2015-0133 (La. 4/10/15), 163 So.3d 813 (citing Smith v. State, Dep't of Transp. & Dev., 2004-1317 (La. 3/11/05), 899 So.2d 516, 524-25). This standard for granting a JNOV is rigorous because “[w]hen there is a jury, the jury is the trier of fact.” Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La. 10/30/00), 772 So.2d 94, 99 (quoting Scott v. Hospital Service District No. 1 of St. Charles Parish, 496 So.2d 270, 273 (La. 1986)).The standard of review of a JNOV on appeal is twofold. The appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether or not to grant the motion. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So.2d 84, 89. That is, the appellate court must determine whether the jury verdict is supported by competent evidence and is not wholly unreasonable. If the verdict is supported by competent evidence and not wholly unreasonable, then the appellate court may not set it aside. To make this determination, the appellate court must, after considering all of the evidence in the light most favorable to the party opposing the motion, find that it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue. Faul v. Robinson, 2019-1450 (La. App. 1 Cir. 12/16/20), 316 So.3d 1077, 1081, writ denied, 2021-00081 (La. 3/9/21), 312 So.3d 584. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Davis, 774 So.2d at 89; Faul, 316 So.3d at 1081.

11.   The Gates case involved an accident where a passing motorcycle and a left-turning motor vehicle collided. The plaintiff was driving his motorcycle north on Hickory Street in Jefferson Parish—a street with two travel lanes running in opposite directions—at a time when traffic was heavy and described as “bumper to bumper.” The defendant motorist entered the northbound lane from a parking lot east of that lane. A separate motorist stopped and permitted the defendant to proceed across the northbound lane so she could turn left into the southbound lane. Just as the front portion of her motor vehicle entered the southbound lane, she was struck by the plaintiff's northbound-traveling motorcycle as he was engaged in his passing maneuver in the left (southbound) lane. Gates, 278 So.2d at 171. On appeal, the Gates court found that the plaintiff chose to leave his position in a line of slow moving or stopped traffic to move ahead of that traffic by passing in the left lane. “In doing so, he performed an extremely dangerous maneuver” and, “a motorist traveling in the left lane in the act of passing slow moving or stopped traffic must be held to a higher degree of care because of the dangerous maneuver he is performing.” Gates, 278 So.2d at 172.

12.   The Leonard case involved a 2003 motor vehicle collision where the plaintiff was driving his vehicle east on LA Highway 70 (a two-lane rural highway at the site of the accident) behind the defendant, who was operating a tractor pulling two sugar cane trailers and proceeding at a slow rate of speed. As the plaintiff began a passing maneuver in the left (westbound) lane, the defendant suddenly turned left, causing the plaintiff to swerve, sideswipe an unoccupied vehicle parked on the westbound shoulder, and ultimately impact the defendant's trailers. Leonard, 2007-1481 at p. 2. After a trial, the jury allocated 50% fault to the plaintiff and 50% fault to the defendant. Leonard, 2007-1481 at p. 3. On appeal, the Leonard court reversed the 50% allocation of fault to the plaintiff and awarded 100% fault to the defendant, reasoning that the plaintiff was executing a legal passing maneuver when the defendant turned into his path while attempting to make a left turn into a private driveway. Leonard, 2007-1481 at p. 7. The Leonard court stated: “Both left-turning motorists and ․ passing motorists are required to exercise a high degree of care due to the dangerous nature of these maneuvers. Based on [La.] R.S. 32:73 and 32:75, the jurisprudence holds that the driver of a following or overtaking vehicle must be alert to the actions of motorists preceding him on the highway. Generally, the driver of [a] passing vehicle has the duty to ascertain before attempting to pass a preceding vehicle that, from all the circumstances of traffic, lay of the land, and conditions of the roadway, the passing can be completed with safety.” Leonard, 2007-1481 at p. 4 (internal case citations omitted).

13.   The Charan case, a DOTD road defect suit, involved a 1997 motor vehicle accident that occurred on a foggy morning on the Morganza Floodway Bridge, which is a two-lane bridge. The defendant attempted to pass an 18-wheeler in the left lane and collided head on with the vehicle driven by the plaintiff, who sustained a traumatic brain injury and was left in a chronic vegetative state. Charan, 965 So.2d at 468-69. The plaintiff's surviving parents filed wrongful death and survival actions against various defendants, including DOTD, who plaintiffs alleged defectively designed and constructed the bridge, failed to reduce the bridge's speed limit, and failed to designate the bridge as a no-passing zone. Following trial, the jury allocated 30% of the fault to DOTD in causing the accident. Charan, 965 So.2d at 469. On appeal, the Charan court reversed the fault allocated to DOTD, finding that the defendant who attempted to pass the 18-wheeler in the left lane was the sole cause of the accident “in light of the duty placed on a passing motorist and the heightened duty required of a motorist during obvious adverse weather conditions[.]” Charan, 965 So.2d at 478. Although the bridge was narrow and there were no posted signs prohibiting passing, the foggy weather conditions were open and obvious, and the defendant was driving erratically and subsequently pled guilty to driving while intoxicated. Charan, 965 So.2d at 474-78. The Charan court stated: “The law places a duty on a motorist to ascertain whether the ‘left side is clearly visible and is free of oncoming traffic,’ before the motorist attempts to pass using the left lane. [La.] R.S. 32:75. A driver does not have the right to assume the course of travel is free from danger if he cannot see clearly ahead. If he continues to travel as if he knew there was perfect clearance, he does so at his own risk and peril.” Charan, 965 So. 2d at 473-74.

14.   Similar to Leonard, the Third Circuit Hatman case involved a 2017 motor vehicle collision where the plaintiff was driving his vehicle south on Prairie Rhonde Highway in St. Landry Parish (a two-lane rural highway with no shoulder at the site of the accident) behind the defendant, who was operating a large sprayer tractor. As the vehicles reached the intersection with School Road, the plaintiff attempted to pass the defendant in the left lane. Unaware, the defendant began turning left, and a collision ensued. Hatman, 329 So.3d at 930. Following a bench trial, the trial court found the left-turning defendant 100% at fault. On appeal, the Hatman court amended the trial court's judgment, concluding that the accident and resulting injuries “would never have happened but for the combined negligence of both drivers” and allocated 50% fault to both the plaintiff and the defendant. Hatman, 329 So.3d at 930. As to the plaintiff, the Hatman court found that he lived less than two miles from where the accident occurred; that he was trying to leave town for a vacation; that he held a commercial driver's license; that he knew not to pass within 100 feet of a highway intersection; that he nevertheless attempted to pass the defendant within 100 feet of the intersection with School Road; and that in doing so, he was ticketed for violating La. R.S. 32:76(A)(2), which prohibits motorists from passing within 100 feet of an intersection. Hatman, 329 So.3d at 934. In discussing the duties imposed on left-turning motorists under La. R.S. 32:104 and passing drivers under La. R.S. 32:73, 32:75, and 32:76, the Hatman court stated, “the left-turning motorist and the overtaking and passing motorist must exercise a high degree of care because they are engaged in dangerous maneuvers.” Hatman, 329 So.3d at 931.

15.   In the absence of any statute specifically applicable to the issue of negligence in the operation of a motor vehicle, the ordinary rules of negligence apply. Cf. Southern Air Transport v. Gulf Airways, 40 So.2d 787, 789 (La. 1949) (noting that in the absence of any statute specifically applicable to the issue of negligence in the operation of aircraft, the ordinary rules of negligence apply.).

17.   See Footnote 4, supra.

18.   Mr. Harrouch's supervisor in 2013 was Jody Colvin, who also testified at trial.

19.   Ms. Colvin currently serves as DOTD's traffic services administrator over the statewide traffic signal installation and maintenance crews and the interstate sign maintenance and installation crews.

20.   Mr. Patterson was also called by the plaintiffs to testify during their case-in-chief.

21.   Additionally, the likelihood and magnitude of the harm includes a consideration of the open and obviousness of the condition. The size of the allegedly unreasonably dangerous condition is relevant. The more obvious the risk, the less likely it is to cause injury because it will be avoided. Farrell, 359 So.3d at 474.

22.   In contrast to general damages, special damages are those which have a ready market value, such that the amount of damages theoretically may be determined with relative certainty. Awards of special damages, including medical expenses, are reviewed under the manifest error standard. Baack v. McIntosh, 2020-01054 (La. 6/30/21), 333 So.3d 1206, 1215.

23.   The CPI Inflation Calculator is located at https://www.bls.gov/data/inflation_calculator.htm (last accessed June 30, 2025).

24.   The Ditcharo court itemizes survival damages of $345,000.00, 316 So.3d at 934, but initially states in the “Facts” section that survival damages were $325,000.00. Ditcharo, 316 So.3d at 929.

EDWARDS, J.