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MARIA WOODBURY, SILVIA MORIEL, LILIANA  NO. 03-CA-13 C/W  
JACKSON, LUCRECIA HERNANDEZ, MAGDA BECKMAN,  03-CA-14  
JULIA PULLIN, CARLOS VILLAVERDE, AND MARTA  
RODRIGUEZ  FIFTH CIRCUIT  

VERSUS COURT OF APPEAL
LOUISIANA DEPARTMENT OF TRANSPORTATION AND STATE OF LOUISIANA DEVELOPMENT
CONSOLIDATED WITH
VALUE RENT-A-CAR, INC.
VERSUS
CARLOS VILLAVERDE, ET AL
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN, STATE OF LOUISIANA
NO. 28,174 C/W 29,048-B, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

MAY 28, 2003
WALTER J. ROTHSCHILD JUDGE
Panel composed of Judges Sol Gothard, James L. Cannella And Walter J. Rothschild
FRANK J. D'AMICO DARLA D'AMICO FRANK D'AMICO, APLC
210 Baronne Street Suite 1447 New Orleans, Louisiana 70112 COUNSEL FOR MARIA WOODBURY, SILVIA MORIEL, LILIANA JACKSON, LUCRECIA HERNANDEZ, MAGDA BECKMAN, JULIA PULLIN, AND MARTHA RODRIQUEZ, PLAINTIFFS/SECOND APPELLANTS
MICHAEL R. GUIDRY
210 Baronne Street
Suite 1410 New Orleans, Louisiana 70112 COUNSEL FOR CARLOS VILLAVERDE, PLAINTIFF/SECOND
APPELLANT
RICHARD P. IEYOUB Attorney General GARY A. COTOGNO Special Assistant Attorney General Pickering & Cotogno
301 Magazine Street New Orleans, Louisiana 70130 COUNSEL FOR LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, DEFENDANT/APPELLANT
AFFIRMED
Following a lengthy bench trial in this single vehicle accident case, the trial court rendered judgment in favor of plaintiffs and against the Louisiana Department of Transportation and Development ("DOTD"). Both plaintiffs and DOTD have appealed from this judgment. For the reasons stated more fully herein, we affirm. Facts and Procedural Historv
On the afternoon of June 16, 1991, Carlos Villaverde was driving a 1991 Mitsubishi Mirage which was owned by Value Rent-A-Car along La. Hwy. 18 near Edgard, Louisiana. His mother and two aunts accompanied him, and the group was returning to New Orleans after lunch and a plantation tour. Carlos' mother, Julia, was seated in the front passenger seat, and his two aunts, Carmen Woodbury and Marta Rodriguez, were seated in the rear seat of the vehicle. Carlos Villaverde testified at trial that he was traveling south on River Road (La. 18) when an oncoming vehicle crossed the center line into his lane of travel. He stated that he veered right in an attempt to avoid the vehicle, and his vehicle proceeded through a grassy roadside ditch and struck a utility pole. Both Julia Villaverde and Carmen Woodbury were killed in the collision, Carlos Villaverde and Marta Rodriguez sustained serious injuries.
Plaintiffs, the two survivors of the accident and the relatives of the
deceased passengers, filed the present lawsuit against DOTD for its acts of negligence in failing to properly mark and sign the roadway, in failing to have the proper elevation and shoulders, in placing stationery objects on the side of the roadway, and in failing to properly design and construct and maintain the roadway and the shoulder. Plaintiffs subsequently amended their petition to name as defendants Mitsubshi International Corporation, the manufacturer of the vehicle involved in the accident, Value Rent-A-Car, Inc., the owner of the vehicle, Louisiana Power and Light Company (n/k/a Entergy), the owner of the utility pole involved in the accident and American Express Company, which supplied insurance for the rental car. All defendants except DOTD settled plaintiffs' demands prior to trial and were released from the lawsuit.
The matter proceeded to a bench trial solely against DOTD on May 26, 1998 and continued on an intermittent basis until the conclusion of trial on September 7, 1999. On May 30, 2001, the trial court rendered judgment in favor of plaintiffs. The trial court allocated 85% of the fault to Carlos Villaverde on the basis that the accident was primarily caused by his inattentiveness and inexperience. The remaining 15% of the fault was assessed to DOTD on the basis that the placement of the utility pole at the end of a ditch and culvert near the curve in the road created an unreasonably dangerous condition which rendered the roadway defective.
DOTD moved for a new trial on the basis that the utility pole was not in the custody of DOTD and that it did not create an unreasonable risk of harm. The trial court denied DOTD's motion on August 15, 2001, and DOTD now suspensively appeals from this judgment on the basis of several assignments of error. The plaintiffs have also brought a devolutive appeal
from the judgment on the basis that the trial court erred in its apportionment

of fault.
Applicable Law
In Stobart v. State, 617 So.2d 880, 882 (La.1993), the Louisiana
Supreme Court explained the standard of review the appellate courts must
apply when reviewing the trial court's findings of fact:
A court of appeal may not set aside a trial court's
or a jury's finding of fact in the absence of "manifest
error" or unless it is "clearly wrong." Rosell v. ESCO,
549 So.2d 840 (La.1989). There is a two-part test for the
reversal of a factfinder's determinations:

(1)
The appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court, and


(2)
the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).
See, Mart v. Hill, 505 So.2d 1120 (La.1987).



This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. M. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a
reviewing court is not whether the trier of fact was right
or wrong, but whether the factfinder's conclusion was a
reasonable one. See generally, Cosse v. Allen-Bradley

, 601 So.2d 1349, 1351 (La.1992); Houslev v.
Cerise, 579 So.2d 973 (La.1991); Sistler v. Libertv
Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even
though an appellate court may feel its own evaluations
and inferences are more reasonable than the factfinder's,
reasonable evaluations of credibility and reasonable
inferences of fact should not be disturbed upon review
where conflict exists in the testimony. Rosell v. ESCO,
549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365
So.2d 1330 (La.1978).

In order for the DOTD to be held liable under either a negligence or
strict liability theory, the plaintiff must prove that (1) the DOTD had custody
of the thing which caused plaintiffs' damages, (2) the thing was defective
because it had a condition which created an unreasonable risk of harm, (3)
the DOTD had actual or constructive notice of the defect and failed to take
corrective measures within a reasonable time, and (4) the defect was a cause

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