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Pesson v. Reynolds11/13/1998
Aucoin involved a combination of deviations from AASHTO policy guidelines, along with a number of accidents at the intersection in question that rendered the intersection unreasonably dangerous. The majority, then attempts to distinguish Aucoin from the case sub judice because the trial court here found only one deviation from AASHTO. The Supreme Court's holding in Aucoin does not require that there be multiple AASHTO deviations in order to have an unreasonably dangerous condition. It depends on the facts of the particular case. Under the particular facts of this case, DOTD's failure to adhere to AASHTO sight distance standards or to take reasonable measures to ensure the intersection's safety was properly considered by the trial court in reaching its Conclusion that the intersection was unreasonably dangerous. While failure to adhere to AASHTO standards may not 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. State, DOTD, 545 So.2d 994 (La. 1989).
The trial court, in looking at the specific facts of this case, determined that the Greenwood overpass project was major reconstruction and DOTD was required, during said reconstruction, to implement AASHTO intersectional sight distance or take other reasonable measures to ensure the intersection's safety, such as lowering the speed limit on that portion of the highway, putting up a "No Left Turn" sign on Aycock Street, or denying access to Highway 90 from Aycock Street altogether. The court additionally relied on the testimony of Mr. Domino, who testified that he had seen numerous accidents at this intersection over the years and that he had notified DOTD several times regarding the problems with the intersection. The trial court's decision to credit Mr. Domino's testimony must be given great deference by the appellate court. See, Theriot v. Lasseigne, 93-2661 (La. 7/5/94), 640 So.2d 1305. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).
The Louisiana Supreme Court in Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362 has held that the determination that a thing poses an unreasonably dangerous risk of harm or has an unreasonably dangerous condition is a factual determination subject to the manifest error standard of review. An appellate court may not reverse merely because it would have chosen an alternative view of the evidence. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880 (La. 1993); Lirette v. State Farm Insurance Company, 563 So.2d 850 (La. 1990); Rosell v. ESCO, 549 So.2d 840 (La. 1989).
Under the specific facts of this case, the factual determination by the trial court that the intersection in question was unreasonably dangerous was fully supported by the record. The Conclusions of the trial court were not manifestly erroneous or clearly wrong.
The trier of fact is owed great deference in its allocation of fault and may not be reversed unless clearly wrong. See Clement v. Frey, 95-1119, 95-1163, p. 7 (La. 01/16/96), 666 So.2d 607, 610-11. Like the assessment of damages, fault allocation is a factual determination of the trier of fact which, unlike the appellate court, has the benefit of viewing first hand the witnesses and evidence. Clement v. Frey, 666 So.2d at 610-11. An appellate court may reallocate fault only after it has found a "clearly wrong" apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion. Clement v. Frey, 666 So.2d at 611.
Based upon the evidence, the trial co
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