Duty of State of Louisiana, Department of Transportation, to Maintain Highway Shoulders

In Brooks. v. State of Louisiana, Department of Transportation and Development, 2010-1908 (La.7/1/11), the Louisiana Supreme Court held that the scope of duty of the Louisiana Department of Transportation and Development (DOTD) to maintain the shoulder of a Louisiana state highway does not encompass the risk that a driver of an inherently unstable and top-heavy backhoe not authorized for highway use will drive on the shoulder and attempt a sharp turn into a driveway at a relatively high rate of speed, hit a 2-4 inch depression in the asphalt that would have not caused any problem for a vehicle, tip over, and be crushed by the backhoe. DOTD’s duty was summarized by the Supreme Court as follows:

DOTD’s duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. This duty extends to the shoulders of highways as well. DOTD’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons a motorist might find himself on, or partially on, the shoulder. This duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or momentarily inattentive. 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. Id. In other words, we will not impose liability 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. Whether the DOTD breached its duty, that is, whether the shoulder was in an unreasonably dangerous condition, is a question of fact and will depend on the facts and circumstances of each case. If the shoulder did not present an unreasonable risk of harm then DOTD, by definition, did not owe a duty to [the plaintiff] and cannot be held liable for the damages he sustained. As a question of fact, we will review the jury’s determination that the shoulder presented an unreasonable risk of harm under the manifest error standard. Under the manifest error standard, an appellate court may not disturb a jury’s finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. This Court has described the unreasonable risk of harm criterion as a guide in balancing the likelihood and magnitude of harm against the social utility of the thing, all the while considering a broad range of social and economic factors, including the cost to the defendant of avoiding the harm, as well as the risk and social utility of the party’s conduct at the time of the accident. 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 plaintiff’s damages.

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