Favre v. Boh Bros. Construction Co.
90 So. 3d 481
La. Ct. App.2012Background
- Montero crashed into the crash attenuator at Causeway Blvd/I-10 on-ramp, damaging the reflective diamond.
- Boh Bros. safety inspection later found the attenuator damaged; Boh Bros. sought replacement via subcontractor Jack Harper Construction.
- Farve later collided with the damaged attenuator in a dimly lit area, injuring himself.
- Troopers filled reports noting the damage and the attenuator’s condition; Farve reportedly drank two beers but was not impaired.
- Lower court granted summary judgments for Boh Bros., DOTD, DPSC, and Trooper Flynn; appellate court reversed and remanded.
- Key issue was whether DOTD, Boh Bros., and DPSC owed duties or were shielded by immunity, with genuine issues of material fact remaining.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DOTD's duty and summary judgment viability | DOTD inspection/lighting decisions created duty; genuine issues remain. | DOTD contract excludes traffic-control coordination; no duty breach. | Reversed summary judgment; issues of fact remain for trial. |
| Boh Bros.' duty to warn/repair | Boh Bros. failed to replace reflective diamond; created risk. | No hazard; blame lies with Farve; timely replacement occurred. | Reversed summary judgment; material factual disputes remain. |
| DPSC and Trooper Flynn immunity and duty | Flynn failed to warn/repair; discretionary immunity does not bar claim. | Discretionary immunity shields officials; adequate performance. | Reversed summary judgment; issues of duty/fault remain. |
| Farve's fault allocation | Comparative fault should be determined by a jury, not summary judgment. | Farve solely at fault due to gore area approach. | Moot due to pending issues with other parties. |
Key Cases Cited
- Vest al v. Kirkland, 81 So.3d 748 (La.App. 3 Cir. 2011) (highway maintenance duty to shoulder areas; safer shoulders standard)
- Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) (duty to maintain roads; unreasonably dangerous condition)
- Graves v. Page, 703 So.2d 566 (La.1997) (shoulder duty extended to safety hazards on shoulder)
- Petre v. State ex rel. Dept. of Transp. and Dev., 817 So.2d 1107 (La.2002) (foreseeable risk when highway shoulder or area is unsafe)
- Christy v. McCalla, 79 So.3d 293 (La.2011) (duty-risk analysis five elements for liability)
- Hutchins v. Liberty Mut. Ins., 844 So.2d 168 (La.App. 5 Cir. 2003) (officer’s duty to mitigate unreasonable risks when aware)
- Johnson v. Orleans Parish School Board, 975 So.2d 698 (La.App. 4 Cir. 2008) (discretionary acts immunity is a fact question)