Vestal v. Kirkland
81 So. 3d 748
La. Ct. App.2011Background
- Kirkland, driving a Schneider Freightliner, overturned after encountering a drop-off from the roadway to the shoulder on LA Hwy 165 during DOTD shoulder construction.*751-754 The shoulder drop-off measured four to six inches and was argued as an unreasonable risk of harm.
- The State of Louisiana, DOTD, was sued for failure to maintain safe roadways/shoulders and to warn of dangerous conditions; Schneider and Liberty Mutual pursued workers’ compensation reimbursement.
- O’Hara, a plaintiff in a separate suit, claimed DOTD negligence as well; his claims against others were settled; his damage claims included future wages and earning capacity.
- Jury apportioned 80% fault to DOTD and 20% to Kirkland; Kirkland awarded general damages and future medicals, with reductions for her own fault.
- The trial court granted O’Hara a JNOV increasing his future wage loss and earning capacity to $300,000; Kirkland’s damages were not altered; post-trial, judgment consolidated the three suits against DOTD.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DOTD’s drop-off defect was the cause-in-fact of the injuries | Kirkland; Evans found a drop-off caused loss of control | DOTD; Blashke contested causation | Yes; defect was a cause-in-fact; jury’s damages supported by record. |
| Admissibility of maintenance records post-accident | DOTD failed to proffer; records show negligence | Evidence not properly challenged; records were prejudicial | Waived due to no contemporaneous objection; no reversible error. |
| Exclusion of State accident reconstruction expert testimony | Lyles’ testimony would aid in reconstruction | testimony would be speculative and cumulative | DOE; proper proffer required; error not preserved; exclusion affirmed. |
| Grant of JNOV increasing O’Hara’s future earnings and earning capacity | Evidence warranted greater loss; jury undervalued | JNOV improper if not clearly overwhelming | Properly granted; evidence supported higher award under manifest-error standard. |
| Kirkland’s damages for past and future wages and earning capacity | Wage losses supported by testimony; potential earnings shown | Awards were within reasonable range given credibility/consistency | No reversal; jury’s awards not manifestly erroneous. |
Key Cases Cited
- LeBlanc v. State of Louisiana, 419 So. 2d 853 (La. 1982) (drop-off four to six inches deemed dangerous; DOTD liable when unreasonably dangerous)
- Perez v. State of Louisiana, Through the Dept. of Transp. and Dev., 578 So. 2d 1199 (La. App. 4 Cir. 1991) (drop-off eight inches; state held partly liable)
- Roberts v. State, Through the Dept. of Transp. and Dev., 576 So. 2d 85 (La. App. 2 Cir. 1991) (three to five-inch drop-off as unreasonably dangerous)
- Hood v. State, Through the Dept. of Transp. and Dev., 587 So. 2d 755 (La. App. 2 Cir. 1991) (four-inch shoulder drop-off deemed unreasonably dangerous)
- Aday v. State, Through the Dept. of Transp. and Dev., 950 So. 2d 928 (La. App. 3 Cir. 2007) (shoulder drop-off of about four-and-one-half inches considered defect)
- Everhardt v. Louisiana Department of Transportation & Development, 978 So. 2d 1036 (La. App. 4 Cir. 2008) (acknowledges prospective hazard from drop-offs and attendant liability)