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Pesson v. Reynolds11/13/1998
prove: (1) that the defendant owned or had custody of the thing which caused the damage; (2) that the thing was defective in that it created an unreasonable risk of harm to others; (3) that the defendant had actual or constructive knowledge of the defect or risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Faulkner v. State, Department of Transportation and Development, 645 So.2d at 273.
DOTD has a legal duty to the traveling public to maintain the highways in a reasonably safe condition for non-negligent motorists. Liability based upon negligence is imposed when DOTD is actually or constructively aware of a hazardous condition and fails to take corrective action within a reasonable time. Sinitiere v. Lavergne, 391 So.2d 821, 824-825 (La. 1980). DOTD's duty extends not only to prudent and attentive drivers, but also to motorists who are slightly exceeding the speed limit or are momentarily inattentive. Trahan v. State, Department of Transportation and Development, 536 So.2d 1269, 1273 (La. App. 3rd Cir. 1988), writ denied, 541 So.2d 854 (La. 1989).
Whether the roadway at the scene of the accident was in an unreasonably dangerous condition will depend on the facts and circumstances of each case. Hunter v. Department of Transportation and Development, 620 So.2d 1149, 1151 (La. 1993). Design standards, both at the time of original construction and at the time of the accident, may be relevant factors in determining whether a given stretch of roadway presents an unreasonable risk of harm, but are not determinative of the issue. Dill v. State, Department of Transportation and Development, 545 So.2d 994, 996 (La. 1989).
The standard of review is manifest error in causes where unreasonable risk of harm is at issue. Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362, 364. The trial court's factual findings are reversible only when there is no reasonable basis for the Conclusions, or they are clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987).
The trial court relied upon the intersection's failure to meet certain AASHTO policy guidelines for intersectional sight distance to find that the intersection was unreasonably dangerous. However, no court in Louisiana has found that the AASHTO policy guidelines for intersectional sight distance must be met at every intersection in the state. And further, we note, these are guidelines, not regulations. Rogers v. Roch., 95-242 (La. App. 5th Cir. 10/18/95), 663 So.2d 811, 815 n. 3, writ denied, 95-2769 (La. 1/26/96), 666 So.2d 678. The intersectional sight distance for Mr. Reynolds to the left was 580 feet, according to plaintiffs' expert, Dr. Olin Dart. There is no evidence in the record to show that, bad Mr. Reynolds bad an additional 200 to 300 feet of intersectional sight distance, he would not have made the turn when he did. Accordingly, we find the trial court committed manifest error in finding that the failure of the intersection to meet the AASHTO policy guidelines for intersectional sight distance created an unreasonable risk of harm.
We note the recent case of Aucoin v. State, through Department of Transportation and Development, 97-1938, 97-1967 (La. 4/24/98), 712 So.2d 62. In Aucoin, there were three deviations from AASHTO guidelines in the off-roadway area: a "drop off" shoulder, a nonrecoverable slope, and limited horizontal clearance. The Aucoin court noted that:
"While failure to adhere to AASHTO standards may not in itself attach liability, whether DOTD has conformed to those standards is a relevant factor in determining the ultimate issue of whether the roadway is unreasonably dangerous." Dill v. DOTD, 545 So.2d 994 (La. 1989
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