Boudreaux v. State, DOTD

Citation49 So.3d 1041
Decision Date03 November 2010
Docket NumberNo. 10-189.,10-189.
PartiesTonya L. BOUDREAUX v. STATE of Louisiana, DOTD, and Diamond B. Construction, LLC.
CourtCourt of Appeal of Louisiana (US)
49 So.3d 1041

Tonya L. BOUDREAUX
v.
STATE of Louisiana, DOTD, and Diamond B. Construction, LLC.


No. 10-189.

Court of Appeal of Louisiana,
Third Circuit.


Nov. 3, 2010.

49 So.3d 1042

Rudie R. Soileau, Jr., Lundy, Lundy, Soileau & South, Lake Charles, LA, Richard Putnam, Abbeville, LA, for Plaintiff/Appellant, Tonya L. Boudreaux.

Charles J. Foret, Jason R. Garrot, Briney & Foret, Lafayette, LA, for Defendant/Appellee, State of Louisiana, DOTD.

49 So.3d 1043

Carl W. Robicheaux, Stephens & Robicheaux, Lafayette, LA, for Defendant/Appellee, Diamond B. Construction Co.

Court composed of SYLVIA R. COOKS, JAMES DAVID PAINTER, and DAVID E. CHATELAIN,1 Judges.

COOKS, J.

FACTS AND PROCEDURAL HISTORY

**1 Tonya L. Boudreaux (Plaintiff) was involved in a two-car accident on February 17, 2004, in Vermilion Parish, Louisiana south of Abbeville on State Highway 82. Prior to the accident, this stretch of roadway had been cold planed by Diamond B. Construction Company (Diamond B.) in preparation for re-surfacing. Plaintiff's vehicle was stopped in the roadway waiting to make a left-hand turn. Thomas E. Sanders' (Sanders) vehicle was approaching Plaintiff's vehicle from behind. Sanders failed to stop and collided with Plaintiff's vehicle. The State Trooper who investigated the scene of the accident did not note any hazardous condition of the roadway and testified that neither weather condition nor road condition were a factor in causing the accident. According to the State Trooper, Sanders' inattention and failure to maintain control of his vehicle caused the accident.

Plaintiff did not file suit against Sanders, and he did not testify at trial. Plaintiff originally sued R.E. Heidt Construction Co., Inc. (Heidt), Diamond B., State of Louisiana, Department of Transportation and Development (DOTD), Vermilion Parish, and the City of Abbeville. Plaintiff dismissed her suit against the City of Abbeville, Vermilion Parish, and Heidt. Plaintiff proceeded to trial against DOTD and Diamond B. alleging the state and its contractor, Diamond B., failed to maintain the section of Highway 82 where the accident occurred and failed to post warning signs in a road construction zone, which Plaintiff alleged were contributing causes of the accident. DOTD and Diamond B. filed pre-trial motions which included a motion in limine seeking to exclude any reference to Section 509.03 of the "Louisiana Standard Specifications For Roads and Bridges" known as the "Red Book." This **2 section sets forth a maximum time frame for which a state roadway should be left in a cold planed condition prior to re-surfacing. Cold planing refers to the scraping away of layers of asphalt to prepare a roadway for re-surfacing

The then presiding judge, Honorable Byron Hebert, now retired, granted DOTD and Diamond B.'s motion in limine excluding any reference to Section 509.03 of the Red Book. On writ of review this court reversed the trial court's ruling, but the Louisiana Supreme Court granted DOTD's writ application and reinstated the trial court judgment finding the trial court did not abuse its discretion in granting the motion. Section 509.03 of the Red Book states "the cold planing operations shall not precede the subsequent paving operation by more than 15 calendar days." It is undisputed that the section of Highway 82 where this accident occurred remained in a cold planed condition for approximately 133 days prior to the date of this collision.

Plaintiff made new attempts during trial to enter the Red Book guideline into evidence but the trial court refused believing it was bound by the previous judge's ruling on the motion in limine and the Louisiana

49 So.3d 1044
Supreme Court's ruling on the matter. The jury returned an eleven-to-one verdict finding DOTD and Diamond B. were not at fault. Plaintiff filed a motion for new trial arguing the trial court improperly excluded evidence of Section 509.03 of the Louisiana Standard Specifications for Roads and Bridges. The trial court denied the motion for new trial. In its reasons for judgment, the trial court stated it thought it was mistaken in not allowing Plaintiff to introduce the Red Book into evidence and to mention Section 509.03 to the jury. However, the trial court found that such evidence would not have altered the verdict, and it was, therefore, harmless error to prohibit the book's introduction. Plaintiff appeals the judgment asserting two assignments of error: (1) the trial court erred in excluding evidence of Section 509.03 of the Red Book and (2) **3 the trial court erred in denying Plaintiff's motion for new trial. Plaintiff did not set forth an assignment of error alleging the jury manifestly erred in its factual findings. Plaintiff did not brief its assignment of error regarding denial of its motion for new trial and cites no authority for its assertion that the motion for new trial was improperly denied.

LEGAL ANALYSIS

Plaintiff asserts the trial court erred in refusing to allow her to present the provisions of Section 509.03 of the Louisiana Standard Specifications For Roads and Bridges to the jury as evidence of DOTD's negligence. The version of this publication relevant to this action is commonly referred to as the "Red Book." Plaintiff maintains that the construction guidelines contained in the Red Book, which require that the maximum period in which a roadway may be left in a cold planed condition is fifteen days, were not complied with on the roadway in question and that this non-compliance is ipso facto evidence of DOTD and its contractor's contributing negligence in this case. Although Plaintiff acknowledges that the doctrine of negligence per se is no longer Louisiana law, she asserts the concept provides guidance and, in this case, helps to establish defendants' negligence.

The failure of DOTD and its contractor, Diamond B., to comply with the Red Book guideline does not equate to negligence. This court has long ago held that the failure of DOTD to comply with requirements in its manuals "is not negligence per se." Harkins v. State Through Dept. Of Highways, 247 So.2d 644, 648 (La.App. 3 Cir.), writ denied 259 La. 741, 252 So.2d 449 (La.1971). In Manasco v. Poplus, 530 So.2d 548, 549 (La.1988) the Louisiana Supreme Court set forth DOTD's duty to travelers on the state's highways as follows:

Plaintiff contends DOTD's negligence in failing to properly maintain the roadway caused the accident and therefore DOTD is liable under **4 La.Civ.Code art. 2315. He also contends DOTD is strictly liable for his injuries under La.Civ.Code art. 2317. Under both articles, liability hinges on whether the defendant has breached his duty to the plaintiff. While the basis for determining the existence of the duty is different in art. 2317 strict liability cases and in ordinary negligence cases, the duty that arises is the same. Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). DOTD's duty to travelers is to keep the state's highways and their shoulders in a reasonably safe condition. LeBlanc v. State, 419 So.2d 853 (La.1982); Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). Whether DOTD breached this duty, that is, whether the roadway and shoulders at the scene of the accident were in an unreasonably dangerous condition, will depend upon the particular facts and
49 So.3d 1045
circumstances of each
...

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2 cases
  • Union Pac. R.R. Co. v. Taylor Truck Line, Inc.
    • United States
    • U.S. District Court — Western District of Louisiana
    • September 29, 2017
    ...negligence, 440 So.2d at 928,but that is no longer the law. See Snyder, 501 So.2d at 294-95; see also Boudreaux v. State, DOTD, 2010-189 (La. App. 3 Cir. 11/3/10), 49 So. 3d 1041, 1044 (The "doctrine of negligence per se is no longer Louisiana law."). 16. Union Pacific may file a Daubert mo......
  • State v. Smith
    • United States
    • Court of Appeal of Louisiana — District of US
    • November 3, 2010

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