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KERRY JUDE LEBLANC AND ANNETTE NO. 07-CA-139 C/W ST. PIERRE LEBLANC 07-CA-162 VERSUS STATE OF LOUISIANA, THROUGH THE FIFTH CIRCUIT DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND RONALD COURT OF APPEAL HAYES
STATE OF LOUISIANA C/W
WARREN ST. PIERRE AND CAROLE ST.
PIERRE COURT OF APPFAL, FIFTH CIRCUIT
VERSUS STATE OF LOUISIANA, THROUGH THE O 1 1 2007 DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND RONALD HAYES
ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 59,388 C/W 62,539, DIVISION "C"
HONORABLE EMILE R. ST. PIERRE, JUDGE PRESIDING

DECEMBER 11, 2007

GREG G. GUIDRY
JUDGE

Panel composed of Judges Clarence E. McManus,
Fredericka Homberg Wicker, and Greg G. Guidry

STEPHEN S. STIPELCOVICH
MICHAEL J. SAMANIE Attorneys at Law 7836 Park Avenue Houma, Louisiana 70364 COUNSEL FOR PLAINTIFF/APPELLEE
CHARLES C. FOTI, JR. Attorney General
WILLIAM S. CULVER, JR. Assistant Attorney General Louisiana Department of Justice Litigation Division 601 Poydras Street Suite 1725 New Orleans, Louisiana 70130 COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED
In this automobile accident case, the Defendant, State of Louisiana, through the Department of Transportation and Development (DOTD), appeals a jury verdict in favor of the Plaintiffs, Kerry Jude LeBlanc and Annette St. Pierre LeBlanc, for damages sustained by Kerry LeBlanc. We affirm.
In the early morning hours of December 29, 2001, Kerry LeBlanc and his
father-in-law, Warren St. Pierre, were traveling eastbound on a two-lane section of Louisiana Highway 3127 (La. 3127) in St. Charles Parish. Around 5:30 a.m., a van driven by the Defendant, Ronald Hays, traveling in the opposite direction, crossed the median colliding head-on with the St. Pierre vehicle. All three men were injured. The accident occurred near the intersection with Louisiana Highway 3141(La. 3141), and approximately one mile from where La. 3127 changes from four to two-lanes. It was dark and foggy at the time of the impact.
LeBlanc suffered catastrophic injuries in the collision. His left leg was

amputated below the knee, his right leg was badly broken, and his foot and right
hand were crushed.
The Plaintiffs filed suit against Hays and the DOTD for negligence. A jury trial was held on October 9, 2006, resulting in a verdict in favor of the Plaintiffs. The jury found Hayes 78% at fault and DOTD 22% at fault. It awarded the Plaintiffs a total of $3,856,337.76, with costs assessed against the Defendants. The award consisted of $1,000,000 in general damages, $550,000 for loss of enjoyment of life, $379,960.76 for past medical expenses, $1,100,000 for future medical expenses, $155,377 for lost past wages, and $471,000 for future lost wages. The jury awarded Annette St. Pierre $200,000 in loss of consortium damages.
After the award was apportioned by percentage of fault, DOTD was assessed $200,000 for general damages, $121,000 for loss of enjoyment of life, $83,591.37 for past medical expenses, $242,000 for future medical expenses, $34,182.94 for lost past wages, $103,620 for future lost wages, and $44,000 for loss of consortium.
The DOTD appealed the judgment. The Plaintiff answered the appeal.2
The DOTD asserts the trial judge erred in denying its motion for directed verdict on liability because the Plaintiffs failed to prove that non-mandatory warning signs of the lanes' transition from four to two lanes were missing at the time of the accident, that any missing signs would have contributed to the accident, or that DOTD failed to replace the allegedly missing signs in a
' The St. Pierre suit was settled before trial.
2 Hays did not appeal.

reasonable period of time. DOTD further asserts that the Plaintiffs failed to

prove Hays would have seen or obeyed any warning signs in any event, considering the dense fog. DOTD also asserts that the jury's award for general damages, loss of enjoyment of life, future medical expenses, and loss of consortium was excessive.
The Plaintiffs assert that the trial judge erroneously allowed Defendant's employee to testify regarding inadmissible documents, and that the Defendant's percentage of fault should be increased. LIABILITY
In actions against a public entity, the plaintiffmust establish that the thing which caused the damage was in the custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was a cause in fact of plaintiffs injuries. La. R.S. 9:2800; Fuselier v. Matranga, 01-721, p. 5 (La.App. 5 Cir. 11/27/01), 803 So.2d 151, 154-155; writ den. 01-3393 (La.3/15/02), 811 So.2d 908; Warden v. Richoux, 06-702 p. 7 (La.App. 5 Cir. 2/27/07), 952 So.2d 828, 831.
"Constructive notice shall mean the existence of facts which infer actual knowledge." La. R.S. 9:2800 D. Constructive notice can be found ifthe conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Blount v. East Jefferson General Hosp., 04-407, p. 5 (La.App. 5 Cir. 10/12/04), 887 So.2d 535, 538; Warden, 06-702 at 7, 952 So.2d at 832.
The Defendant asserts Hays had sufficient warning of the lane change

because there were reflector bumps and yellow striping on the highway, and furthermore, failed to prove the warning signs were missing. Alternatively, it argues that Plaintiffs failed to prove that the missing signs caused the accident, or that they "existed for such a period oftime that those responsible, by the exercise of ordinary care and diligence, must have known oftheir existence in general and could have guarded the public from injury." Blount, 04-407 at 5, 887 So.2d at 538; Warden, 952 So.2d at 832.
Hays was on his way to work the morning of the accident, traveling in the left lane on the four-lane portion of the highway. It was dark and foggy, and he was fan1iliar with that portion of the highway. Hays traveled in the left lane focusing on the center line because of these conditions. He failed to notice when the lanes narrowed and unknowingly crossed the center line and began traveling on the wrong side of the highway.
Hays did not see cross-hatching at the lane merger. He did not notice reflector bumps along the road, or see any signs warning of the lane change. Hays testified that the fog was dense at the location of the accident, but, despite his focus on the highway's central stripe, he would have noticed at least one sign at the merger area had there been any. He did not remember seeing a car behind or on the side of him, or notice the sign at the intersection he had just passed that instructed drivers not to pick up hitchhikers because of the nearby prison.
Ralph Borne was driving behind Hays prior to, and at the time of the accident. Borne testified that another car was traveling in the right lane alongside Hays for several miles, and was on Hays' right side when the accident occurred. However, the car did not stop.
Borne has driven along the roadway in question 14 days a month for 25

years to and from work. He was familiar with the lane merger. He testified there were no merger signs along the highway at the time of the accident. Borne also stated that the fog was dense at the accident site, but less so at and leading up to the merger area. He was in position to see any merger warning signs had there been any. When Borne realized Hays was in the wrong lane, he tried to warn Hays by flashing his lights and honking his horn.
Warren St. Pierre's brothers, Glenn and George St. Pierre, were following Warren St. Pierre's vehicle on the morning of the accident. According to the three men, the fog was patchy prior to the accident, but heavy fog abruptly descended near the impact zone. Warren saw headlights coming toward him through dense fog. He unsuccessfully tried to avoid the collision.
The St. Pierre brothers were very familiar with that section of the highway. They testified that there were no warning signs or reflector bumps prior to the accident. Glenn St. Pierre further stated there were only speed limit signs and a hitchhiker warning sign. George St. Pierre added that, according to his measurements taken shortly after the collision, the distance from the merger to the point of impact was one mile.
The scene was in the same condition in January 2002 when Denise Gauthreaux, Plaintiff's sister-in-law, took photographs and video images on two different days.
Donna Reamey, a DOTD Highway Foreman II, testified that placement of most highway signs are not mandatory. This includes stop signs and merger warning signs. Although they may be recommended by the Manual on Uniform Traffic Control Devices (MUTCD), this publication is used in most states only
as a guide. Individual states exercise discretion in placing signs according to

particular needs.
Reamey is responsible for signage on state roads in seven parishes. She instructs her crews on where to place signs. Reamey spends 85% of her working time traveling the roadways in these parishes evaluating the status of signs. Most of her inspections are done in the daytime, but she inspects the signs at night once a year to evaluate their reflective ability. In addition to these inspections, all highway workers are expected to report damaged or missing signs. When Reamey receives a complaint or request for a sign, she prepares a work order. She also maintains a daily report of completed work. Near the time of this accident, periodic inspections were also made by driving along the roadways videotaping pertinent areas using a VIZA data inspection system.3 In addition, Reamey maintains a notebook to record the location and type of signs needed along the roads. Reamey maintains these reports for five years.
According to Reamey's records, a work order was submitted in 1990 to install five merger warning signs at the particular accident site. However, nothing in her records indicated that warning signs were actually installed. Her records do show that in August of 2001 four hitchhiker warning signs were placed near the merger area because of the prison proximity. Those signs were in place on the morning of the accident
In July 2001 Reamey's crew was in the accident area replacing highway route markers. Reamey was unaware if the merger warning signs were in place at that time, but she had no record of receiving complaints concerning missing or damaged signs. A VIZA data inspection made along that section of the road
* The VIZA inspection program was later discontinued.
during this time period failed to show any warning signs or sign posts without

signs. A DOTD crew was the in the area again in November. No missing signs were reported.
When presented with Gauthreaux's photographs at the scene, Reamey acknowledged that it was odd that all five of the signs ordered in 1990 were missing. She did note that signs disappear routinely as a result of theft or collisions. She acknowledged that the posts were also missing. This was also highly unusual because she stated that the posts are driven three feet into the ground and are hard to remove.
In September 2002 the Defendant's investigators revisited the accident scene and took additional photographs. There were no warning signs present in those photographs. Reamey had no records of any type to establish that merger warning signs were installed between 1990 and September 2002.
The Plaintiffs' expert traffic engineer, Duaine Evans, testified that the MUTCD recommends the placement of warning signs near lane mergers to indicate that two-way traffic lies ahead. Although such signs are not mandatory, he believed that the safety of motorists mandated signs at this merger. He testified that these type of signs are especially important where weather conditions can be foggy or create poor visibility. In Evans opinion, Reamey's system was inadequate to insure that safety signs are installed where necessary. A reasonable time for replacing missing signs would be two to three weeks.
David Hall, the Defendant's expert in traffic engineering, testified that ground stripes are the primary control devices for any road. Stripes are visible in all weather, and can warn motorists even when signs are missing. However, he also said that striping is difficult to see in foggy conditions.
According to the majority of the evidence, the warning signs were missing

in July 2001, on the date of the accident, December 29, 2001, and in March, July and September of 2002. The only evidence that the signs were in position at any time in 2001 was Reamey's testimony that she saw most of the signs in place twelve days before the accident. However, her notes on this topic were sketchy at best and there were no documents showing that the signs ordered in 1990 were in fact ever installed, or that any signs were ordered anytime after that until the date of the accident. Furthermore, credible witnesses testified that no cross

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