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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 25

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 11th day of April, 2007 , are as follows:

BY KNOLL, J.: 2006-C -2001 C/W 2006-C -2164 JOHN AND KLEA HEBERT v. RAPIDES PARISH POLICE JURY, ET AL. (Parish of Rapides) For the foregoing reasons, we reverse the judgment of the court of appeal and render judgment finding DOTD had no liability, thereby dismissing plaintiffs' claim against DOTD, with prejudice. REVERSED and RENDERED. JOHNSON, J., dissents. TRAYLOR, J., concurs in the result. KNOLL, J., additionally concurs with reasons.

04/11/07 SUPREME COURT OF LOUISIANA NO. 06-C-2001 consolidated with NO. 06-C-2164 JOHN AND KLEA HEBERT VERSUS RAPIDES PARISH POLICE JURY, ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF RAPIDES

KNOLL, Justice This fatal automobile accident case presents the legal questions of whether the Louisiana State Department of Transportation & Development ("DOTD") assumed a duty for an "off-system" bridge and whether La. Rev. Stat. 48:35 required DOTD to withhold funds allocated to the Rapides Parish Police Jury ("RPPJ") until RPPJ brought the bridge into compliance with DOTD standards. Plaintiffs, John and Klea Hebert ("the Heberts"), brought a wrongful death and survival action against the State through DOTD and RPPJ for their young daughter's death as a result of a oneautomobile accident that occurred on a RPPJ "off-system" road and bridge. Due to RPPJ's request for a bench trial, the trial was bifurcated and DOTD's alleged fault was tried to a jury. The jury found DOTD and RPPJ were both fifty percent at fault. In determining RPPJ's liability, the district judge assessed no fault to DOTD, attributed sixty percent fault to the deceased driver, and assessed the remaining forty percent fault to RPPJ. Both DOTD and the plaintiffs appealed. The court of appeal amended the judgment of the district court, assessing ten percent fault to the deceased driver, forty percent fault to RPPJ, and fifty percent fault to DOTD, and affirmed the

judgment as amended. We granted writs primarily to address the issue of DOTD's alleged duty for the "off-system" bridge. Hebert v. Rapides Parish Police Jury, 062001, 06-2164 (La. 11/9/06), 941 So.2d 29. For the following reasons, we find plaintiffs failed to prove by a preponderance of the evidence that DOTD assumed a duty for the "off-system" bridge or that La. Rev. Stat. 48:35 mandated DOTD should have withheld funds from RPPJ, and reverse the judgment of the court of appeal. FACTS AND PROCEDURAL HISTORY This case arises out of a tragic automobile accident that occurred on October 15, 1995, at approximately 9:00 p.m., on Haines Creek Bridge located on

Philadelphia Road in Ward 11 of Rapides Parish, Louisiana. Katie Hebert ("Katie"), the Heberts' 17-year-old daughter, was driving her parents'1992 four-door Pontiac Grand Am automobile eastbound on Philadelphia Road, an "off-system" road in rural Rapides Parish. As she entered an "on-grade" left-hand curve, the passenger side tires of her vehicle drifted onto the right side, unimproved, gravel shoulder and struck a deep drop-off of six to eight inches, which had formed at the roadway edge. Marks in the dirt and gravel on the shoulder indicated the right tires of the vehicle continued on the shoulder for approximately ninety-nine feet, then the vehicle traveled left and diagonally across the roadway. After traveling approximately fifty-six feet more, the vehicle "oversteered" to the right causing the vehicle to "yaw" out of control. After traveling another sixty feet, the driver's side door struck the end of the pipe bridge rail constructed of heavy gauge "drill-stem" three-inch pipe, which bordered the concrete bridge crossing Haines Creek. Guardrails were not attached to the ends of the pipe bridge rails. Both front and back rims on the left wheels had flattened, heavily scratched spots, which appeared to indicate that the vehicle was "up on two wheels" just prior to impact with the end of the bridge rail.

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After the impact, the vehicle rolled, coming to rest on the rail overturned with the front of the vehicle projecting from the bridge outward and suspended precariously above the creek. As a result of metal crush, Katie sustained severe mortal injuries and was tightly "pinned" within the vehicle.1 Upon arrival of the volunteer fire department and ambulance personnel, the vehicle and damaged bridge were stabilized, life support initiated on Katie, and extrication procedures commenced. The total time from the collision to the air-med lift-off was

approximately two hours. Although Katie was successfully resuscitated upon arrival at the hospital, she succumbed to her injuries and was pronounced dead at 2:42 a.m. While investigating the accident, State Trooper Daniel B. Westmoreland noted that the eastbound approach to the curve and bridge where the accident occurred had no signs to indicate a speed limit or an impending curve, and lacked a roadway edge (fog-line). Additionally, the yellow-dashed line in the center of the roadway was badly faded in daytime and virtually invisible at night. Philadelphia Road and the Haines Creek Bridge are part of an "off-system" roadway, owned and maintained by RPPJ.2 The bridge was constructed by RPPJ in December of 1980 to replace the previous bridge crossing Haines Creek that was built in 1955 and closed to travel sometime earlier in 1980. In January of 1981, DOTD began to perform bridge inspections on the new construction every two years pursuant to federal regulations. In each of its inspection reports, DOTD made remarks regarding the substandard conditions of the bridge, particularly the lack of guardrails. This deficiency first appeared in the 1983 bridge inspection report issued

While the end of the bridge rail punctured the interior of the car between the front and rear seats, there is no indication in the record the rail pierced her body. According to trial testimony, all roads and bridges are classified as either "on-system," which are on state or federal maintained road systems, or "off-system," which are all other bridges opened to the public, but not on state or federal maintained road systems. 3
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by DOTD, having not been previously noted in the 1981 bridge inspection report. Prior to Katie's accident, neither DOTD nor RPPJ took any action to remediate those conditions. The Heberts sued RPPJ, DOTD, and the contractor who built the bridge, Slocum Construction and/or Slocum Manufacturing ("Slocum") and its liability insurers for damages. Because the suit was filed against the contractor more than five years after the applicable peremptive period had commenced, Slocum and its insurers were dismissed from the suit pursuant to La. Rev. Stat. 9:2772. The suit proceeded against the remaining defendants. The plaintiffs asserted that the absence of guardrails at the end of the bridge rails was the primary cause of Katie's death and that both defendants were responsible for this condition.3 RPPJ and DOTD countered that Katie's excessive speed upon entering the curve was the cause of the accident and resulting injuries. The district judge, completing the same verdict form completed by the jury, found RPPJ forty percent at fault and Katie sixty percent at fault. He did not assess any liability to DOTD. The jury, on the other hand, found RPPJ and DOTD to be equally at fault and assessed each with fifty percent liability for the accident. It assessed no fault to Katie. The jury's verdict form reflected an award for general damages to the Heberts in the amount of $750,000 each, a joint award of survival damages for Katie's pre-death pain and suffering in the amount of $25,000, and special damages to the plaintiffs in the amount of $43,871.24, for a total damage award of $1,568,871.24. The district judge's verdict form reflected an award of $500,000 to Mrs. Hebert in general damages, $700,000 in general damages to Mr.

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See supra, note 2. 4

Hebert, total survival damages in the amount of $100,000, and special damages totaling, $80,066. The district court rendered a single judgment.4 In accordance with the separate verdicts rendered by the court and the jury, DOTD was to pay the Heberts $375,000 each in general damages and $24,435.63 jointly, with legal interest on all amounts awarded from the date of judicial demand until paid. RPPJ was ordered to pay Mrs. Hebert $200,000, to pay Mr. Hebert $280,000, and to pay them jointly special damages in the amount of $53,591.50, with legal interest on all amounts awarded from the date of judicial demand until paid. All court costs were assessed equally to DOTD and RPPJ. DOTD filed a motion for judgment notwithstanding the verdict and alternative motion for new trial, alleging there was insufficient evidence establishing DOTD paid for or participated in the construction of the bridge and no evidence that DOTD maintained the bridge, which the district court denied. DOTD suspensively appealed the judgment to which the Heberts answered,5 and the matter was heard by a fivejudge panel of the Third Circuit Court of Appeal that amended the district court's judgment and affirmed the judgment as amended, with one dissenting judge who would have found no liability against DOTD. Hebert v. Rapides Parish Policy Jury, 05-471 (La. App. 3 Cir. 7/12/06), 934 So.2d 912. Without first determining whether DOTD owed a duty, the appellate court analyzed the reconciling of the inconsistent verdicts. After analyzing the various approaches to reconciling conflicting verdicts, the court of appeal adopted the approach of the Fourth Circuit and undertook a de novo review of the record to make
Even though this was a bifurcated trial, resulting in inconsistent verdicts, we did not grant this writ to address bifurcation and harmonization of verdicts, but to address whether DOTD owed a duty to the plaintiffs.
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RPPJ did not appeal and is not before this Court; the judgment against it is final. 5

its own independent findings.6 Based on its de novo review, the appellate court determined that DOTD, as well as RPPJ, were both legally responsible for the maintenance of the bridge and concluded that the lack of the guardrails on the Haines Creek Bridge created a hazardous and dangerous condition. specifically, the court found: Without addressing whether La. R.S. 48:35 imposes a legal duty on the DOTD in this case, we find that the DOTD assumed a duty to maintain this bridge because it carried out biennial inspections of this non-conforming bridge over a fifteen-year period, participated in the construction of the bridge in 1980, and had constructive and, eventually, actual knowledge that it was built in a non-conforming manner. See Archon v. Union Pac. R.R., et al., 94-2728, 97-2743 (La. 7/2/96), 675 So.2d 1055 (finding that the DOTD assumed a duty of upgrading a railroad crossing with active signals when it ordered a site survey and breached that duty when it failed to upgrade the crossing after the survey). Hebert, 05-471 at pp. 12-13, 934 So.2d at 922. Although the panel concluded that Katie's negligence likely set the course for the accident to happen, it found the extent of the resulting harm to her was a direct result of her vehicle's impact with the exposed and unguarded pipes of the bridge railing. Accordingly, the court found RPPJ's and DOTD's fault was more substantial and, therefore, allocated ten percent of the fault to Katie, fifty percent to DOTD, and forty percent to RPPJ. General damages in the amount of $750,000 each were awarded to Mr. and Mrs. Hebert for the wrongful death of Katie; $100,000 was awarded to the Heberts jointly for the pre-death pain and suffering of Katie; and various special damages were awarded as well. LAW AND ANALYSIS The seminal issue in this case is whether DOTD assumed a duty for the "offsystem" bridge at issue and more specifically, whether plaintiffs proved the existence As to DOTD

We are not commenting upon the correctness of the appellate court's harmonizing of the verdicts as we find the issue of DOTD's liability is dispositive. 6

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of an assumption of duty by a reasonable preponderance of the evidence. Also of issue is whether La. Rev. Stat. 48:35 required DOTD to withhold all funding allocated to RPPJ until the bridge was brought into compliance with DOTD standards.7 Negligence of DOTD Most cases alleging negligence on the part of a public body have been analyzed by this Court under the duty-risk analysis. Cormier v. T.H.E. Ins. Co., 98-2208, p. 6 (La. 9/8/99), 745 So.2d 1, 7. In the classic duty-risk analysis, one of the inquiries the court must answer is: What, if any, duties were owed by the respective parties? Cormier, 98-2208 at pp. 6-7, 745 So.2d at 7; Mart v. Hill, 505 So.2d 1120, 1122 (La. 1987). The particular facts and circumstances of each individual case determine the extent of the duty and the resulting degree of care necessary to fulfill that duty. Cormier, 98-2208 at p. 7, 745 So.2d at 7. A plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Id.; Berry v. State Through Dept. of Health and Human Resources, 93-2748, p. 4 (La. 5/23/94), 637 So.2d 412, 414. The plaintiff bears the burden of proof and must establish his claim by a preponderance of the evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La. 12/1/04), 893 So.2d 1, 4-5. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La.

Because we find these issues dispositive, we pretermit discussion of all other issues, to include the issue of harmonization of the inconsistent verdicts, raised in the applications. 7

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1989). It follows from this, that speculation, conjecture, mere possibility, and even unsupported probabilities are not sufficient to prove a plaintiff's claim. See Coon v. Placid Oil Co., 493 So.2d 1236, 1240 (La. App. 3d Cir.), writ denied, 497 So.2d 1002 (La. 1986). Whether a particular duty should be imposed on a particular governmental agency is a policy question to be determined by the court. Cormier, 98-2208 at p. 7, 745 So.2d at 8. The inquiry is whether the plaintiff has any law

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