COLE v. ESTATE OF LASALLE (2025)

In this case involving an allegedly defective roadway condition, the plaintiff appealed a summary judgment dismissing his suit with prejudice and the defendant answered the appeal. For the reasons set forth herein, we affirm the trial court judgment and deny the answer to the appeal.

FACTS AND PROCEDURAL HISTORY

This suit arises from an August 30, 2017 accident that occurred on I-10 near Slidell, Louisiana, in which the vehicle driven by Jody LaSalle on I-10 eastbound spun out of control, left the roadway, crossed the grassy median, entered I-10 westbound, and collided with the vehicle driven by Louie Cole. Cole was injured and LaSalle was killed as a result of the collision.

Cole filed a petition for damages on August 24, 2018 against LaSalle's estate and/or unopened succession, LaSalle's sole heir, his own uninsured/underinsured motorist insurer, and the Louisiana Department of Transportation and Development (“DOTD”).¹ Cole alleged that DOTD failed to keep the roadway and median, which were in its custody and control, in a reasonably safe condition. Specifically, Cole alleged that DOTD's failure to install a barrier in the median of the roadway was a breach of DOTD's duty to keep the roadway in a reasonably safe condition, which ultimately resulted in his injuries.

A jury trial was held on the matter on June 13-16, 2022. DOTD moved for a directed verdict following the close of Cole's case, which was denied by the trial court. The trial ultimately resulted in a hung jury, and the matter was reset for a new jury trial on October 30, 2023.

On July 24, 2023, DOTD filed a motion for summary judgment contending that Cole could not carry his burden of proving that the roadway was unreasonably dangerous.² In support of its motion, DOTD offered: Cole's petition for damages; the affidavit of DOTD's expert witness, Gary B. Thomas, Ph.D., P.E., as well as excerpts from Thomas's testimony at the June 2022 trial; the affidavit of State Trooper Travis Luken; excerpts from the trial testimony of Cole's expert witness, Vernon “Dean” Tekell, Jr., P.E., P.T.O.E.; the affidavit of DOTD's Highway Safety Administrator, Adriane McRae, as well as excerpts from McRae's trial testimony; and excerpts from the trial testimony of DOTD's project manager, Corey Landry.

Cole opposed DOTD's motion, offering the following in support of his opposition: Tekell's affidavit, curriculum vitae, and expert report, as well as excerpts from his trial testimony; excerpts from the corporate deposition of DOTD taken in connection with another case; a printout from DOTD's website as it appeared on August 24, 2018, regarding cable median barriers; DOTD's responses to Cole's requests for admissions; excerpts from McRae's trial testimony; and excerpts from Landry's trial testimony.

Cole also raised an objection to DOTD's use of trial transcripts in support of its motion for summary judgment, arguing that trial transcripts are not among the documents that can be filed in support of summary judgment. Cole also objected to “all references to design, construction, safety, or other standards relating to anything other than the absence of a barrier in the median of the subject segment of I-10” in Thomas's affidavit. DOTD also raised objections to Cole's summary judgment evidence. In the event the trial court sustained Cole's objection to its use of trial transcripts in support of its motion for summary judgment, DOTD objected to Cole's use of trial transcripts in opposition to the motion for summary judgment. DOTD also objected to Cole's use of privileged information prepared during DOTD's administrative determination to adopt cable median barriers statewide, as well as to evidence relating to certain prior crashes at the site of Cole's accident.³

A hearing was held on DOTD's motion for summary judgment on August 30, 2023. The trial court overruled all objections to evidence submitted in support of or in opposition to the motion for summary judgment and thereafter granted summary judgment dismissing Cole's suit in its entirety, with Cole to bear all costs.⁴

Cole appealed, arguing that the trial court erred in granting DOTD's motion for summary judgment and in casting him with all costs. DOTD filed an answer to the appeal, arguing that the trial court erred in denying its motion in limine and its motion for directed verdict at the jury trial.

DISCUSSION

Summary Judgment

At the outset, we note that we must apply the prior version of La. C.C.P. art. 966 in effect on July 24, 2023, when DOTD filed its motion for summary judgment. See Guidry v. Southern Regional Medical Center, 2024-0760, p. 8 (La.App. 1 Cir. 12/30/24), 403 So.3d 1241, 1247.⁵

Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3).

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Troncoso v. Point Carr Homeowners Association, 2022-0530, p. 16 (La.App. 1 Cir. 1/10/23), 360 So.3d 901, 913.

In ruling on a motion for summary judgment, the court's role is not to evaluate the weight of the evidence or to make a credibility determination, but instead to determine whether or not there is a genuine issue of material fact. Troncoso, 2022-0530 at p. 16, 360 So.3d at 914. A genuine issue is one as to which reasonable persons could disagree. However, if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id. A fact is “material” when its existence or nonexistence is essential to the plaintiff's cause of action under the applicable theory of recovery. Any doubt as to a dispute regarding an issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. Id. Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Troncoso, 2022-0530 at p. 17, 360 So.3d at 914.

The burden of proof on a motion for summary judgment rests with the mover. La. C.C.P. art. 966(D)(1). If the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Rather, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. The mover on a motion for summary judgment can meet its burden of proof on the motion by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with its motion for summary judgment. La. C.C.P. art. 966(A)(4). The court may only consider those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. The court shall consider all objections prior to rendering judgment and shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. La. C.C.P. art. 966(D)(2).

Liability of DOTD

In determining whether liability exists under a duty-risk analysis, a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, that the defendant owed a duty to the plaintiff that the defendant breached, and that the risk of harm was within the scope of protection afforded by the duty breached. Johnson v. State Through Department of Transportation and Development, 2017-0973, p. 13 (La.App. 1 Cir. 4/3/19), 275 So.3d 879, 892, writ denied, 2019-00676 (La. 9/6/19), 278 So.3d 970.

Regarding DOTD's liability, the pertinent legal principles are somewhat different 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. Johnson, 2017-0973 at p. 14, 275 So.3d at 892. Under both theories, the plaintiff bears the burden of showing that: (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, 2017-0973 at p. 14, 275 So.3d at 892.

DOTD has admitted that it had custody of the roadway, median, and shoulders at the crash site on the date of the accident. Accordingly, Cole's burden requires him to prove only that the roadway was defective because it had a condition that created an unreasonable risk of harm, DOTD had actual or constructive knowledge of the defect and failed to take corrective measures within a reasonable time, and the defect was a cause-in-fact of Cole's injuries. See Johnson, 2017-0973 at p. 14, 275 So.3d at 892.

Louisiana law imposes a duty on DOTD to design, construct, and maintain Louisiana's highways. Johnson, 2017-0973 at p. 14, 275 So.3d at 892. 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 the American Association of State Highway and Transportation Officials [(“AASHTO”)].” La. R.S. 48:35(A). 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).

The duty of DOTD is to see that the state highways are reasonably safe and do not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. Brooks v. State ex rel. Department of Transportation and Development, 2010-1908, p. 3 (La. 7/1/11), 74 So.3d 187, 189, citing La. R.S. 48:21(A). DOTD's duty is not limited to the roadway, DOTD also owes a duty to maintain the shoulder of the road, as well as the area off the shoulder of the road, but within the right-of-way, in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner. It is DOTD's knowledge, actual or constructive, that gives rise to the obligation to take adequate measures necessary to prevent injury. DOTD cannot knowingly allow a condition to exist that is a hazard to a reasonably prudent driver, but must take reasonable measures to eliminate or reduce the risks associated with the dangerous condition or may warn the public of the danger, risk, or hazard involved. Johnson, 2017-0973 at p. 15, 275 So.3d at 892-93.

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. Johnson, 2017-0973 at p. 16, 275 So.3d at 893. Furthermore, DOTD's failure to reconstruct the state's highways to modern standards does not establish the existence of a hazardous defect in and of itself. 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. Id. 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, 2017-0973 at p. 16, 275 So.3d at 893. Whether DOTD breached its duty, that is, whether the roadway was in an unreasonably dangerous condition, is a question of fact and will depend on the facts and circumstances of each case. Brooks, 2010-1908 at p. 4, 74 So.3d at 190.

DOTD's Motion for Summary Judgment

DOTD sought summary judgment on the grounds that Cole could not carry his burden of proving that DOTD failed to properly maintain the road in a reasonably safe condition for use by prudent drivers. DOTD argued that it does not have a duty to construct cable median barriers and that the roadway did not present an unreasonable risk of harm without a cable barrier present in the median. In opposition to DOTD's motion for summary judgment, Cole argued that the absence of a cable median barrier at the crash site presented an unreasonable risk of harm and that DOTD had actual notice of this defect and failed to take corrective measures within a reasonable period of time.

Affidavit and Trial Testimony of Gary B. Thomas, Ph.D., P.E.

In support of its motion for summary judgment, DOTD filed the affidavit and trial testimony of Gary B. Thomas, Ph.D., P.E., a professional engineer with over thirty years of experience in the field of transportation engineering. Dr. Thomas was retained on DOTD's behalf to investigate and evaluate the facts and circumstances surrounding the accident at issue in this case.

Dr. Thomas described the portion of I-10 where the crash occurred as a six-lane divided freeway, with a 64-foot-wide median separating the eastbound and westbound travel lanes. According to Dr. Thomas, the median in this location consisted of 42 feet of grassy median and two 11-foot-wide paved shoulders. According to Dr. Thomas, the traffic control signage, warning devices, and pavement markings that were posted and present at the crash site and surrounding areas at the time of the crash were in compliance with the Manual on Uniform Traffic Control Devices (“MUTCD”); there were no abnormalities or design deficiencies in the roadway at issue that were in violation or derogation of any standards or recommendations set forth by the State of Louisiana Department of Highways Design Standards in effect at the time of the crash; the roadway in the area where the crash occurred was in good condition; and the traffic control signage, warning devices, and pavement markings were (and remain) in good condition. Dr. Thomas concluded that the area of the roadway where the crash occurred was not unreasonably dangerous.

Dr. Thomas disagreed with Cole's allegation that DOTD breached its duty by failing to install a cable median barrier at the crash site prior to the accident. He explained that Cole's expert witness, Vernon “Dean” Tekell, Jr., P.E., P.T.O.E., offered no specific evidence to support the allegation that a cable median barrier was required to be installed at the crash site; rather, Tekell only concluded that a cable median barrier would more probably than not have prevented LaSalle's vehicle from entering the westbound travel lanes. Further, Dr. Thomas pointed out that Cole presented no evidence that the roadway was not properly constructed or maintained. According to Dr. Thomas's testimony, this section of roadway met or exceeded all required design standards in the mid-1960s when this roadway was originally designed and constructed. These requirements included 12-foot travel lanes, a 10-foot outside shoulder, a 6-foot inside shoulder, and a minimum 16-foot median. Dr. Thomas stated that due to the width of the median, there were no federal or state requirements mandating the installation of median barriers along this section of roadway, nor was there any requirement that drivers be warned of the lack of a median barrier. In fact, he pointed out that the MUTCD does not contain any standard signage to warn drivers of a lack of a median barrier. Finally, Dr. Thomas pointed out that Cole has not presented any evidence that the roadway was not properly inspected.

Affidavit of Travis Luken

DOTD also filed the affidavit of State Trooper Travis Luken in support of its motion for summary judgment. Trooper Luken was dispatched to the scene of the accident to investigate the crash and prepare a Uniform Motor Vehicle Traffic Crash Report. Upon his arrival at the scene, Trooper Luken observed Cole's Ford F-250 disabled in the center lane of I-10 westbound, facing south, and LaSalle's Ford F-150 engulfed in flames on the grassy shoulder of I-10 westbound, facing south. Trooper Luken noted that the speed limit is 70 mph at the location of the crash and that the three eastbound and three westbound lanes of travel are separated by a grassy median that he estimated was 39.44 feet wide. Trooper Luken described the weather at the time of the accident as “cloudy with heavy precipitation” and noted that the roadway was wet; however, he noted that there were no physical defects in the roadway and all the traffic control lines placed on the pavement were visible and in good condition. Following his investigation of the crash, Trooper Luken concluded that LaSalle's vehicle, which had been traveling in the left lane of I-10 eastbound, crossed the paved shoulder and entered the grassy median, where it began to rotate counter-clockwise and across the westbound lane of travel into the path of Cole's vehicle, which had been traveling in the center lane of I-10 westbound, where the two vehicles collided.

Trial Testimony of Vernon “Dean” Tekell, Jr., P.E., P.T.O.E.

DOTD filed excerpts from the trial testimony of Cole's expert witness, Vernon “Dean” Tekell, Jr., P.E., P.T.O.E., in support of its motion for summary judgment. Tekell testified that the design of the roadway at the crash site, including the median, met federal highway safety requirements and did not violate any engineering standards propounded by AASHTO or the Federal Highway Administration (“FHWA”). Tekell also noted that the median at the crash site exceeded the recommended 30 feet of “clear zone” to allow a vehicle that inadvertently leaves the roadway an opportunity to recover and return to the roadway safety. Although Tekell believed that it would be good practice to install a cable median barrier at the crash site because cross-median crashes are foreseeable and can be prevented by cable median barriers and because funding is available for the installation, he testified that cable median barriers are merely voluntary safety enhancements. Further, he noted that the federal recommendation for states to consider installing cable median barriers was for medians less than 50 feet in width, while the median at the crash site was in excess of 60 feet.

Trial Testimony and Affidavit of Adriane McRae

DOTD filed excerpts from the trial testimony of its Highway Safety Administrator and civil engineer, Adriane McRae, in support of its motion for summary judgment. McRae testified that an informational study had been conducted by DOTD regarding the potential installation of cable median barriers in the state, which considered factors such as traffic counts and included a cost-benefit analysis of the installation of cable median barriers. Based on this study, DOTD determined “locations [where] there would be a potential for improvements to safety” by installation of cable median barriers, and the Highway Safety Section prepared a “priority list” based on the safety data for installation of cable median barriers at those locations. McRae testified that using highway safety funds to install cable median barriers was a high priority for the Highway Safety Section. However, she explained that the study was informational in nature, and despite the potential for improvements to safety, there was no requirement for cable median barriers at any of the locations studied, nor was there a commitment to construct cable median barriers in all of the locations in the study.

DOTD also filed McRae's affidavit, which was based on her “personal knowledge of safety projects related to the installation of interstate cable median barriers,” in support of its motion for summary judgment. According to McRae's affidavit, in 2014, a “Stage 0” for a project along I-10 in St. Tammany Parish was proposed and accepted into the Highway Safety Program to include a cable median barrier and concrete barrier along I-10 and lighting at the Oak Harbor interchange. The project was assigned Project No. H-011308 and given a projected letting (bid opening) date of June 8, 2016; however, in January 2015, the original projected letting date for the project was changed to February 14, 2018, due to a change in the scope of the project to include a high mast lighting tower, shoulder widening, and additional drainage work. Then, in October of 2015, in order to improve efficiency and reduce overall costs and disruptions to the motoring public resulting from the construction, the median barrier and lighting project (Project No. H-011308) was combined with another project in the same area, the I-10 Oak Harbor Ramps project (Project No. H-011024), which involved raising the elevation of the ramps by redesigning the roadway and drainage. According to McRae, the actual letting date for the combined projects was September 12, 2018, the contract between DOTD and the contractor was executed on November 19, 2018, and a notice to proceed was issued for the construction on January 18, 2019.

Trial Testimony of Corey Landry

DOTD also filed excerpts from the trial testimony of Corey Landry, DOTD's project manager for Project Nos. H-011308 and H-011024, concerning the need to combine the projects for the portion of I-10 where the crash occurred. Landry explained:

From an engineering standpoint, a lot of the projects specifically around the Oak Harbor interchange ․ had to be done together because we can't have contractors within the same work zone [at the same time]. So our engineering were [sic] intertwined with one another. Their cable barriers were right adjacent to the lighting system. A lot of the drainage and everything that was done within the median directly impacts your cable median barrier. There's a lot of things that were within this same construction work zone that impacts those cable median barriers above and beyond what you just explained as the made [sic] part of the cable project.

Corporate Deposition of DOTD

In opposition to DOTD's motion, Cole filed the corporate deposition of DOTD's representative, Adriane McRae, which was taken in connection with another case. In that deposition, McRae testified concerning DOTD's procedures for prioritizing and scheduling projects. According to McRae, the Highway Safety Improvement Program receives a certain amount of federal funds each year; however, those funds are not designated for a specific project. DOTD chose to put Highway Safety Improvement Program funds towards cable median barrier projects. Although there were other highway safety improvement projects for which the funds could be used, between 2015 and 2019, McRae considered the cable median barrier projects to be the highest priority projects. McRae explained that “[m]any of the cable barrier projects were already programs ․ in 2015. They had just finished a study for cable barriers and kind of had an idea of where they were trying to propose the cable barrier projects so that was already pretty much planned ․ so it was just a matter of keeping tabs on [the projects] and making sure they were moving along.”

Information on “DOTD Cable Barriers” on DOTD's Website

Cole also filed a printout from DOTD's website dated August 24, 2018, entitled “DOTD Cable Barriers,” in opposition to DOTD's motion for summary judgment. On the website, DOTD explained the importance of cable barriers as a safety feature to prevent fatalities by deflecting vehicles that veer into the median and stopping them from crossing over into oncoming traffic. The website explained that DOTD performed analyses on all interstates throughout Louisiana to determine where cable median barriers would be most beneficial in preventing crossover collisions, using as criteria the number of vehicles crossing the median per mile. The website identified the areas where approximately 230 miles of cable median barriers had already been installed as of July 2017, noted that there were currently another 181 miles of cable median barriers under construction, and further stated that “[o]ur goal is to install cable barriers along all of our interstate highways [totaling nearly 508 miles] over the next three fiscal years.”

DOTD's Discovery Responses

Cole also offered DOTD's discovery responses in opposition to the motion for summary judgment. In these responses, DOTD admitted that on the date of the accident, it had custody of the roadway, median, and shoulders where the crash occurred and there was no cable or concrete median barrier installed at the crash site.

Vernon “Dean” Tekell, Jr. ’s Expert Report and Trial Testimony

Tekell, a registered civil engineer and traffic operations engineer, prepared an expert report concerning DOTD's installation of a cable median barrier at the crash site. Tekell explained that the slope of the median adjacent to the travel lanes at the crash site is designed to allow a vehicle that leaves the roadway an opportunity to recover and return to its travel lane without rolling over or suffering other adverse consequences from leaving the travel surface, and in fact, most vehicles are able to recover or stop before entering the opposing lanes of travel, although that did not happen in this case. According to Tekell's report, the FHWA has reported that 8% of all fatalities on divided highways are due to median crossover crashes, and the installation of median barriers has resulted in a 97% reduction in median crossover crashes; as a result, the FHWA urged transportation agencies to review median crossover crash history to identify locations where median barriers are most warranted and consider implementing a systematic median barrier policy based on cross-median crash risk factors. In June of 2015, DOTD published data used to determine the need and potential for cable median barriers in Louisiana, identify candidate locations, and prioritize funding. Tekell described the crash site as “a high traffic volume roadway for Louisiana” and noted that from 2009-2013, the 7-mile segment of I-10 where the crash occurred experienced 247 total crashes per year, with 2.6 crashes per year being fatal and 5.8 crashes per year being severe-to-moderate. When the benefit of constructing a cable median barrier along this segment of I-10 was ranked by DOTD in comparison with other highway segments, this segment was ranked in the top 10 in Louisiana. Tekell opined that it was foreseeable that a motor vehicle would depart the travel lanes of I-10 eastbound, cross the median, enter the travel lanes of I-10 westbound, and collide with a westbound vehicle, and if a cable median barrier had been present at the crash site on the date of the crash, more probably than not, it would have prevented LaSalle's vehicle from entering the westbound travel lanes and colliding with Cole's vehicle. Having determined that the cable median barriers could reasonably have been in place at the crash site on the date of the crash if DOTD had not delayed the proposed letting date, Tekell opined that the failure to construct a barrier, as scheduled, to limit median crossover crashes was a contributing factor to the crash at issue in this case. Finally, Tekell expressed the opinion that DOTD did not install a cable median barrier at the crash site in a reasonable amount of time, considering that the crash site was identified as a high priority for installation of barriers compared to other locations in the state.

Cole also offered excerpts from Tekell's trial testimony in opposition to DOTD's motion for summary judgment. Tekell testified that in the latter part of 2016, there were two fatal median crossover crashes in the 7-mile segment of I-10 where the accident took place. Although he acknowledged that cable median barriers were not required, Tekell testified that there are situations where a cost-benefit analysis would suggest that a safety precaution should be taken even though it is not required by AASHTO or the MUTCD. Further, he noted that it is common for safety features to be added to highways even though they are not required, listing as examples raised reflective markers, rumble strips, and certain warning signs. Tekell considered the voluntary installation of cable median barriers to be “a matter of keeping up with modern highway practices ․ even though ․ it's not required.”

Trial Testimony of Adriane McRae

In the excerpts of McRae's trial testimony filed by Cole in opposition to DOTD's motion, she testified that in mid-2015, DOTD completed a study on cable median barriers in order to prioritize locations for installation in the state. At that time, federal funding for the installation of cable median barriers existed and project managers had been assigned to the cable median barrier projects that had been selected for inclusion in the Highway Safety Improvement Program. The project to install cable median barriers, concrete barriers, and lighting along the segment of I-10 where the crash occurred was accepted into the Highway Safety Improvement Program in mid-2014. McRae testified that once a project is included in the program, there is a commitment to fund the project, and the Highway Safety Improvement Program tries to push the district to get the project completed as quickly as possible; however, she explained that “there's only so much we can do, as far as what the districts have, the resources and staff at the district level to design the projects.” Further, although she testified that safety is the highest priority in getting a project included in the program, she explained that there are a lot of other factors at play that can delay project delivery, such as design, surveying, dealing with other local entities, and drainage issues. Additionally, McRae noted that In addition, although funding is secured once a project is included in the program, a project still may have to be moved to another year if there is not enough funding to include that project in the current year.

Trial Testimony of Corey Landry

In opposition to DOTD's motion for summary judgment, Cole filed additional excerpts from Landry's trial testimony regarding the delays in the installation of the cable median barrier at the crash site. Landry testified that he was designated as the project manager for Project No. H-011308 in May of 2014, and the engineering design phase of the project began in the fall of 2014. As project manager, Landry was involved with the scope, schedule, and budget for the project. The scope of Project No. H-011308 originally included the installation of seven miles of cable median barrier, as well as the installation of lighting in a portion of that seven-mile segment. Project No. H-011308 had a projected letting date of June 8, 2016, but that date was changed to February of 2018 due to the scope of the work involved in the project. Landry explained that although the cable median barrier is essentially a fence, there are a lot of things that have to be considered in the engineering design phase, such as bridge tie-ins for the concrete median barrier, subsurface conditions, hydraulic drainage, and tie-ins to the roadway itself. In October of 2015, Project No. H-011308 was combined with Project No. H-011024, which involved regrading exit ramps within the seven-mile segment where the cable median barrier and lighting was being installed, and Landry became the project manager for the combined projects. Landry explained that although the exit ramp work only involved a portion of the seven-mile segment of roadway where the cable median barrier was being installed, the projects needed to be combined because “[b]oth projects were in the same construction area ․ and both had about the same letting date[,] [s]o there was no way to construct both of them without having two contractors overlapping.” Thereafter, the letting date was changed one more time from February of 2018 to September of 2018 due to lighting design problems and other issues. Landry testified that when he made the decision to extend the letting date, he did not consider crash data, traffic counts, or any of the other safety data that had been a consideration in prioritizing the location for installation of a cable median barrier; rather, these extensions of the letting date were strictly due to the scope of the work involved.

Cole has failed to offer any evidence to create a genuine issue of fact as to whether the roadway was unreasonably dangerous on the date of the crash. The evidence offered in support of and in opposition to DOTD's motion for summary judgment shows that the design of the roadway at the crash site, including the median, met federal highway safety requirements and did not violate any engineering standards propounded by AASHTO or the FHWA; median barriers were not required and were merely voluntary safety enhancements; and the federal recommendation for states to consider the voluntary installation of cable median barriers was for medians narrower than the median at the crash site. Because Cole has failed to offer any evidence to show that he will be able to carry his burden of proving that the roadway was unreasonably dangerous, summary judgment is appropriate.

Cole also argues on appeal that the trial court erred in granting summary judgment and dismissing his suit against DOTD because DOTD was operationally negligent in postponing the installation of the cable median barrier at the crash site, thereby allowing an unreasonably dangerous condition to remain. However, since we have determined that Cole could not carry his burden of proving that the roadway was unreasonably dangerous, we find this issue is moot.

Costs

Cole next argues that the trial court erred in assessing costs to him because he was not afforded an opportunity for argument or a contradictory hearing. Cole seeks a remand “for a hearing concerning the equitable considerations of [La. C.C.P. art. 1920], including, without limitation, Louie Cole's limited financial resources compared to the State's more ample resources; close, difficult, and important legal issues presented; and [Cole's] good faith in litigating the case.”

Louisiana Code of Civil Procedure article 1920 provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.

Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

A court has great discretion in awarding costs and may tax costs against any party in any manner it considers equitable. See La. C.C.P. arts. 1920, 2164; see also Harrelson v. UTC Laboratories, LLC, 2023-64, p. 10 (La.App. 5 Cir. 11/2/23), 376 So.3d 1038, 1046; Latour v. Steamboats, LLC, 2023-00027, p. 17 n.10 (La. 10/20/23), 371 So.3d 1026, 1041 n.10. Further, although La. C.C.P. art. 1920 provides that costs may be taxed by a rule to show cause, this language is not mandatory, and it is not an abuse of discretion for the trial court to tax costs without holding a contradictory hearing. Palacios v. Louisiana & Delta Railroad, Inc., 2005-590, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 561, 563. Accordingly, we cannot say that the trial court abused its discretion in taxing costs to Cole following the dismissal of his suit.

DOTD's Answer to the Appeal

In its answer to the appeal, DOTD urges that the trial court erred in denying its motion in limine and its motion for directed verdict at the jury trial. However, since we have affirmed the trial court judgment granting DOTD's motion for summary judgment and dismissing Cole's claims against DOTD with prejudice, the issues raised in DOTD's answer to the appeal are moot. Accordingly, we deny the answer to the appeal.

CONCLUSION

For the reasons set forth herein, the September 26, 2023 trial court judgment granting summary judgment in favor of DOTD and dismissing Cole's suit with prejudice is affirmed. DOTD's answer to the appeal is denied. Costs of this appeal are to be borne by plaintiff, Louie Cole.

AFFIRMED; ANSWER TO APPEAL DENIED.

I respectfully dissent. DOTD, as mover on summary judgment, carried the initial burden of proof on summary judgment. After establishing the absence of factual support for Cole's contention that a lack of a cable median barrier presented an unreasonable risk of harm, the burden then shifted to Cole to produce factual support sufficient to establish the existence of a genuine issue of material fact or that DOTD is not entitled to judgment as a matter of law. See La. C.C.P. art. 966(D)(1).

In opposition to DOTD's motion for summary judgment, Cole submitted the expert report and prior trial testimony of his expert, Mr. Tekell. Mr. Tekell detailed data from DOTD and FHWA regarding the likelihood and magnitude of the harm caused by the lack of a cable median barrier. Mr. Tekell also performed a cost/benefit analysis and determined that the benefit of installing cable median barriers at this stretch of I-10 would substantially outweigh the cost of installing them. In a report to the State Traffic Engineers Meeting on June 25, 2015, DOTD acknowledged the benefit of installing the barriers would outweigh the cost.

I find this evidence sufficient to establish the existence of a genuine issue of material fact as to whether the absence of cable barriers at this particular segment of I-10 created an unreasonable risk of harm. See Johnson v. State Through Department of Transportation and Development, 2017-0973 (La. App. 1 Cir. 4/3/19), 275 So.3d 879, 895 (“Whether a road condition is unreasonably dangerous is a question of fact.”), writ denied, 2019-00676 (La. 9/6/19), 278 So. 3d 970. Accordingly, I would reverse the summary judgment granted in favor of DOTD.

FOOTNOTES

1.   All defendants other than DOTD were dismissed prior to trial, and this appeal concerns only Cole's claims against DOTD.

2.   A previous motion for summary judgment by DOTD was denied by the trial court prior to the June 2022 jury trial. As DOTD's first motion for summary judgment was not included in the record before us on appeal, it is unclear whether DOTD asserted the same or different grounds for summary judgment in its first motion.

3.   Prior to the trial on the matter, DOTD filed a motion in limine seeking to exclude certain documents, data, and expert testimony pursuant to 23 USC § 407 (formerly § 409), which provided:Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.DOTD's motion in limine was denied by the trial court. DOTD sought supervisory writs, which were also denied. See Cole v. Estate of LaSalle, 2021-0853 (La.App. 1 Cir. 10/5/21), 2021 WL 4551715, writ denied, 2021-01627 (La. 1/12/22), 330 So.3d 620.

4.   Cole objected to the proposed judgment prepared by counsel for DOTD, which awarded court costs to DOTD, and requested a status conference or contradictory hearing “if argument for or against such an award is to be considered.” The record before us on appeal does not contain any indication that such a status conference or contradictory hearing was held.

5.   Louisiana Code of Civil Procedure article 966 was amended by 2023 La. Acts No. 317, § 1 (eff. Aug. 1, 2023), and 2023 La. Acts No. 368, § 1 (eff. Aug. 1, 2023). Here, DOTD filed its motion for summary judgment on July 24, 2023, prior to the August 1, 2023 effective date of Acts 317 and 368. Cole filed his opposition on August 15, 2023, and the hearing on the motion was held on August 30, 2023, after the August 1, 2023 effective date of Acts 317 and 368. This court has determined that the 2023 amendments to La. C.C.P. art. 966 are substantive and cannot be applied retroactively. See Guidry, 2024-0760 at p. 8, n.9, 403 So.3d at 1247, n.9. Thus, we apply the prior version of La. C.C.P. art. 966 in effect on July 24, 2023, when DOTD filed its motion for summary judgment. Id.

THERIOT, J.

BDE dissent with reasons