Cormier v. ComeauxCormier v. Comeaux
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We granted a writ to determine if a highway constructed in 1931 contains unreasonably hazardous defects such that liability should be imposed on the State of Louisiana, through the DOTD (the “DOTD“), for injuries caused to the plaintiffs when their car left the highway and struck the back embankment of a roadside ditch. After reviewing the record and the applicable law, we reverse the ruling of the court of appeal and reinstate the ruling of the trial court, holding that the DOTD is not liable for plaintiffs’ injuries.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of December 25, 1991, Patricia Cormier and Patrick Kibodeaux left a bar in Midland, Louisiana, with Mickey Comeaux. Comeaux was driving his Dodge Colt and Kibodeaux was seated in the front bucket passenger seat, with Cormier seated on Kibodeaux‘s lap, as they proceeded to travel west on U.S. Highway 90 on their way to Jennings, Louisiana.
At approximately 3:30 a.m., one mile east of Mermentau, Louisiana, Comeaux, whose blood alcohol level was .14 % at the time of the accident, drove his vehicle off the road at a sharp angle, across the shoulder and an adjacent roadside ditch, and into the back embankment of the ditch. The car rolled over and came to rest in the ditch facing north, 74 feet from where it left the road, with its rear bumper 20 feet from the paved surface of the highway. Cormier and Comeaux were rendered quadriplegics as a result of the accident.
Highway 90 was built in 1931 in accordance with plans and specifications prepared by the Louisiana Department of Highways. It was originally constructed as a two-lane, hard-surface highway with nine-foot-wide travel lanes and six-foot-wide shoulders. Although the plans called for fore slopes of 3:1 in “typical” sections, the plans also show two box culverts, through which a 6 ½-foot deep ditch ran perpendicular to and under the highway, were placed there when the road was originally built. Comeaux‘s car left the road 10-12 feet past the box culverts, at a point where the roadside ditch was also 6 ½ feet deep, in order to connect with and drain the under road ditch.1
Between 1952 and 1954, the travel lanes of Highway 90 were widened to twelve feet, which had the effect of reducing the width of the shoulders to three feet, and the road was resurfaced. In 1969, asphalt was laid over the concrete travel lanes on Highway 90. On the plans and specifications for the work, the shoulder width and fore slope were described as “varies.”
Accordingly, at the scene of the accident, the shoulders were only three feet wide and a ditch was located parallel to the edge of the shoulder. The fore slope of the 6 ½-foot deep ditch was 3.8:1 for the first five feet, 2.4:1 for the next five feet and 1.2:1 for the next two feet. Then the side of the ditch dropped vertically 1.5 feet to the bottom of the ditch. The ditch bottom extended 5.7 feet to the beginning of the back slope, which extended 10.5 feet, with a slope of 0.7:1 for the first 2.5 feet, and 1.8:1 for the remainder. Neither the shoulder width nor the ditch slopes met the American Association of State Highway and Transportation Officials (“AASHTO“) standards in effect at the time of the accident.
Cormier sued Comeaux and the DOTD and Comeaux sued the DOTD, with both Cormier and Comeaux alleging that the narrow shoulder and steep fore slope and back slope of the ditch were unreasonably hazardous conditions which contributed to the severity of their injuries. After a
The trial court made the following relevant factual findings: (1) that the state was not negligent in Comeaux‘s leaving the traveled portion of the highway; (2) that Cormier was not negligent; (3) that the danger created by the conditions of the ditch contributed to the severity of the injuries received by plaintiffs; (4) that changing the contours of the shoulder and ditch or the addition of guard rails would have in all probability lessened the impact and trauma; and (5) the fore slope and back slope of the ditch involved are dangerous to a vehicle leaving the traveled portion of the highway for any reason. Finally, in denying plaintiffs’ motion for new trial, the trial judge added:
Now, here we have—he had been drinking, he was tired.2 I don‘t know if—My surmise was that he fell asleep.3 And look, when he left that paved portion, he went right— He wasn‘t one of these fellows that gets off this drop and he wants to come back on.4 I don‘t care what they say. At the speed he was traveling he never had reaction time at all to prevent going straight down. And, you see, these cases say a reasonably prudent driver.
The trial court concluded that “the state owed no duty to plaintiffs to remedy or rectify the dangerous and hazardous conditions enumerated.”
The court of appeal reversed, crediting expert testimony that “the combination of defects basically guaranteed that a vehicle inadvertently leaving the travel lane of U.S. Highway 90, even at a safe speed, would not recover and would ultimately collide with the back slope of the adjacent ditch.” Cormier v. Comeaux, 97-645, 97-646 (La.App. 3 Cir. 7/1/98), 714 So.2d 943. The court of appeal found that the continuing reconstruction of Highway 90 over the years decreased the margin of safety to the public by narrowing the shoulders without compensating for the now-closer foreslope of the ditch. Id. The court held that DOTD had a duty to correct the problem, because all that was needed was a proper maintenance program and personnel trained to recognize when a slope needed to be made less severe. Id. We granted the DOTD‘s writ to consider whether the DOTD is liable in this case. Cormier v. Comeaux, 98-2378 (La.12/11/98), 729 So.2d 584.
DISCUSSION
In Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993), we 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). This court has announced 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. Id. 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 Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty 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, 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-in-fact of plaintiffs’ injuries. Brown v. Louisiana Indem. Co., 97-1344 (La.3/4/98), 707 So.2d 1240; Lee v. State Through Dept. of Transp. and Development, 97-0350 (La.10/21/97), 701 So.2d 676.
The DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. Brown, supra at 1242(citing
In our view, the prime issue in this case is whether the road was defective
Although the trial judge found that the ditch conditions were dangerous, then, apparently because he did not find them to be unreasonably dangerous, he found that the state had no duty to rectify these dangerous conditions. Whether a road condition is unreasonably dangerous is a question of fact. Ledoux v. State Through Dept. of Transp. and Development, 98-0024 (La.9/18/98), 719 So.2d 43 (trial court finding that the condition of the road and the presence of a tree stump near the shoulder did not present an unreasonably dangerous condition was a finding of fact). Thus, we will review the trial court‘s finding that the road conditions were dangerous and hazardous, not unreasonably dangerous, under the manifestly erroneous standard enunciated above.
“The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically.” Oster, supra at 1288. “Although courts, including this court, have described the unreasonable risk of harm criterion as requiring the court to balance the likelihood and magnitude of harm against the utility of the thing, the balancing test required by the unreasonable risk of harm criterion does not lend itself well to such neat, mathematical formulations.” Id. at 1289. “In addition to the likelihood and magnitude of the risk and utility of the thing, the interpreter should consider a broad range of social, economic, and moral factors including the cost to the defendant of avoiding the risk and the social utility of the plaintiffs conduct.” Id. “One cannot be protected from all risks.” Graves v. Page, 96-2201 (La.11/7/97), 703 So.2d 566, 573. “This
In Graves, we held that keeping the highway right of way clear of vegetation that creates site obstructions was not within the scope of the duty of the DOTD to maintain the roadway and the shoulders of the highway. There, the plaintiff‘s vehicle was struck by a drunk driver traveling at an excessive speed around a curve in the highway and the plaintiff claimed he did not see the drunk driver because of the existence of vegetation growing on the inside of the curve. We held that the vegetation did not pose an unreasonable risk of harm nor was it a substantial factor without which this accident would not have happened. In concluding that “[i]t is unreasonable to impose a rule of law that would require DOTD to maintain every tree and shrubbery within its control or face the prospect of tort liability,” we reasoned that “[t]he duty to maintain the roadway and shoulder does not encompass the risk that an intoxicated oncoming driver, traveling at a high rate of speed, will cross over into a motorist‘s lane of travel.” Id. at 574.
The plaintiffs argue that the shoulder and slopes of the ditch were unreasonably hazardous because they did not meet current AASHTO standards. However, the DOTD clearly does not have a duty to bring old highways up to modern AASHTO standards. Aucoin v. State Through Dept. of Transp. and Development, 97-1938 (La.4/24/98), 97-1967 (La.4/24/98), 712 So.2d 62; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986); Holloway v. State Through Dept. of Transp. and Development, 555 So.2d 1341 (La.1990). We have held that this duty does not exist unless a new construction or a major reconstruction of the highway has taken place. Ledoux, supra. In this case, although the lanes were widened and resurfaced in 1954 and the road was resurfaced in 1969, no major reconstruction was undertaken, as recognized by the court of appeal. Thus, the DOTD had no duty to bring Highway 90 up to current AASHTO standards.
The plaintiffs also argue that liability should be imposed on the DOTD because their maintenance practices actually increased the back slope of the ditch. Although the DOTD‘s maintenance supervisor testified that generally, in order to clean out ditches, they dug out the ditches, this evidence does not establish that improper maintenance increased the back slope of the ditch at the scene of the accident. There was no evidence presented as to the original back slope of the ditch at this location. Although the original plans called for a 3:1 fore slope in “typical” sections, the point where Comeaux‘s vehicle crossed the ditch was not a “typical” section in that the topography mandated a deeper ditch because the ditch connected with and drained a 6 ½-foot deep ditch which ran perpendicular to and under the road from the time the road was built. The original plans did not indicate the desired slope of the back slopes. The record reflects that the depth of the ditch at the time of the accident was still 6 ½ feet deep.
Plaintiffs also argue that guardrails should have been installed over the box culverts. Beginning in 1939, AASTO introduced guidelines which required guard rails at certain points. However, as recognized by the court of appeal, Highway 90 did not undergo any major reconstruction and thus the AASHTO standards regarding guard rails do not apply to Highway 90. In addition, while a guard rail may have lessened the severity of the plaintiffs’ injuries, the DOTD‘s duty to provide a reasonably safe highway does not require the DOTD to take every conceivable measure to prevent injuries. In this case, the surface of the road and shoulder were in good condition, and the roadside ditch was clearly visible to a reasonably prudent driver.
Generally, in other cases such as this one, where no road defect caused the driver to leave the road and the driver hit an
The plaintiffs argue that this Court‘s recent decision in Aucoin, supra, requires a finding of liability against the DOTD. In Aucoin, the driver swerved off the road to avoid hitting a dog. When she swerved, her car‘s outer wheels ran outside the white fog line, onto a narrow shoulder approximately one foot wide, and down a steeply sloped ditch. In less than two
The circumstances in this case are easily distinguishable from those in Aucoin: namely, in this case there was no drop-off shoulder; the shoulder width was three feet, not one foot; the drunk driver ran off the road perhaps because he was asleep and he never tried to get back on the road, making the fore slope irrelevant; there were no DOTD standards applicable to Highway 90 that the DOTD was compelled to meet, such as the 3:1 sloping in Aucoin; and, the distance from the edge of the shoulder to the back slope was 17 feet, compared with the 8 ½-foot horizontal clearance in Aucoin.
As we stated in Graves, one cannot be protected from all risks. Undoubtedly, it would be desirable for the DOTD to design roads so that no accidents would ever occur, however, economic realities make such a goal impossible to reach. Thus, we as a society must determine the lengths we expect the DOTD to go to ensure that our roads are safe. We have expressed this as standard as “reasonably safe for persons exercising ordinary care and reasonable prudence.” Brown, supra. As we stated in Myers, “many Louisiana roads have narrow shoulders and steep roadside ditches and are lined with trees, culverts, fences, and other objects.” 493 So.2d at 1173. “[I]t would be physically and financially impossible to bring all of the state‘s roads up to modern standards.” Id. Although we as a society demand that old highways be reasonably safe, the DOTD‘s duty to maintain old highways does not include the risk that an intoxicated driver will fall asleep and drive off the road at a sharp angle, failing to see a clearly visible roadside obstacle 17 feet from the shoulder, in this case, the back slope of the ditch.
CONCLUSION
The State has no duty to bring old highways up to current safety standards, unless the highway has undergone major reconstruction. Nevertheless, the State has a duty to correct conditions existing on old highways that are unreasonably dangerous. In this case, the DOTD breached no duty owed to plaintiffs given the following factors: (1) the driver was drunk and possibly asleep when he ran off the road; (2) the driver ran off the road at a sharp angle for no apparent reason with no time to react and reenter the highway; (3) Highway 90 was an old highway which has not undergone a major reconstruction since it was built in the 1930s; (4) the roadway itself had no defects; (5) the ditch was 6.5 feet deep when the highway was built and was 6.5 feet deep at the time of the accident; (6) the narrow shoulder and roadside ditch were clearly visible; and (7) there was no evidence that the angle of the back slope was increased from the time of its original design. Thus, we affirm the trial court‘s finding that the DOTD is not liable in this case. The court of appeal erred in reversing the trial court‘s finding that the DOTD owed no duty to plaintiffs to improve the condition of the roadside shoulder and ditch.
DECREE
For the reasons stated herein, we reverse the holding of the court of appeal and reinstate the ruling of the trial court finding that the DOTD is not liable to plaintiffs in this case.
REVERSED.
JOHNSON and KNOLL, JJ., dissent and assign reasons.
ATTACHMENT
The purpose of regulating fore slopes of roadside ditches is to improve the chances of recovery by a motorist who leaves the highway for any reason and attempts to steer back onto the road or otherwise maintain control of the vehicle off the road. Although the driver in the present case may have left the highway at a sharp angle, he traveled seventy-four feet before striking the back slope, and the fore slope of the ditch could be relevant to his ability to control the vehicle during this brief time interval. I therefore would not limit our focus to the back slope of the ditch, especially since the trial judge found both the fore slope and back slope were dangerous.
The overall slope of the ditch at the relevant location is shown on the attached exhibit from the record. After the three-foot shoulder (which is seventeen feet from the beginning of the back slope), the slope of the first five-foot section of the ditch is almost 4:1, while the slope of the second five-foot section is 2.4:1. Because there was no extremely abrupt plunge in the first ten feet of the fore slope, there was no manifest error in the trial judge‘s conclusion that the fore slope, while below (arguably inapplicable) standards, was not unreasonably dangerous.1
This case may be distinguished from Aucoin v. State of Louisiana Through Dep‘t of Transp. and Dev., 97-1938 (La.4/24/98), 97-1967 (La.4/24/98); 712 So.2d 62. The most significant distinction is that the 1988 overlay project in the Aucoin case required grading of the drainage ditch, next to a one-foot shoulder, to achieve a slope of at least 3:1, and the fore slope of the ditch at the point of impact was more than twice as steep. The DOTD‘s construction and maintenance failure regarding the ditch, combined with the extremely narrow shoulder, made the roadside unreasonably dangerous in terms of recoverability, as found by the trial judge in that case.
JOHNSON, Justice, dissenting
In the case sub judice, this court has held that DOTD is not liable for Plaintiff‘s injuries. The majority reasons that DOTD owed no duty to Plaintiffs because the driver was intoxicated and possibly asleep when the car ran off the road.
The facts in Campbell are very similar to the instant case. In the instant case, the majority incorrectly relies on the fact that Comeaux was intoxicated and asleep in holding that DOTD did not breach its duty to Plaintiffs. This court should have allocated a percentage of fault to both DOTD and Comeaux rather than finding DOTD without fault.
DOTD was negligent in failing to maintain that portion of Highway 90 where the accident occurred in a reasonably safe condition. At the scene of the accident, the shoulder was too narrow, the foreslope of the ditch was too steep, the back slope of the ditch was too severe, and there was no clear recovery zone provided. In 1968, the Louisiana Department of Highways recommended ten foot wide shoulders, a 6:1 fore slope, and a 4:1 back slope along Highway 90. In April 1969, additional construction took place along Highway 90 at which time DOTD could have brought Highway 90 in compliance with the State Department of Highways’ recommendation. Nevertheless, Highway 90 had three foot wide shoulders, a 3.8:1 fore slope, and a 1.8:1 back slope at the scene of the accident.
Admittedly, DOTD has no duty to bring all highways in compliance with modern safety construction standards. However, whether or not the DOTD has conformed to those standards is a relevant factor in determining whether or not a roadway is unreasonably dangerous. Dill v. Department of Transp. & Dev., 545 So.2d 994, 996. In this case, the narrow shoulder, steep foreslope, and severe back slope created a dangerous condition whereby any vehicle leaving the roadway would be unable to make a safe recovery back onto the roadway. DOTD‘s duty to keep the highways in a reasonably safe condition encompasses the foreseeable risk that, for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on the shoulder. Begnaud v. Department of Transp. & Dev., 93-639 (La.App. 5 Cir. 1/12/94), 631 So.2d 467, 470. DOTD also has a duty to
If the shoulder meets the minimum safety standards, the driver who exits the travel lane ... has the benefit of the eight-foot wide shoulder on which to recover. Even when, as in this case, the shoulder does not meet minimum safety standards, a properly designed foreslope will give the driver additional protection. If the fore slope is 4:1 or flatter, the driver has a margin of safety in which to regain control of his (or her) vehicle.... A foreslope that does not meet minimum safety standards is made even more dangerous by a back slope which does not meet minimum safety standards. Even if the shoulder and the foreslope do not meet minimum standards and a vehicle is pulled into the ditch, if the back slope is properly designed, the vehicle may be able to exit on the far side of the ditch under control. However, a vehicle trapped into a downward spiral by a too-severe foreslope is destined to collide with an improperly-designed and too-steep back slope.
Cormier v. Comeaux, 97-645 (La.App. 3 Cir. 7/1/98), 714 So.2d 943, 949.
The combination of defects along Highway 90 basically guaranteed that any vehicle leaving the travel lane, for any reason, would ultimately collide with the back slope of the adjacent ditch. Therefore, I would hold DOTD liable because their negligence contributed to the severity of Plaintiffs’ injuries. This court should review the correctness of the apportionment of fault and consider the adequacy of the damages awarded.
KNOLL, Justice, dissenting.
The majority holds that the “DOTD‘s duty to maintain old highways does not include the risk that an intoxicated driver will fall asleep and drive off the road at a sharp angle, failing to see a clearly visible roadside obstacle 17 feet from the shoulder, in this case, the back slope of the ditch.” The majority also finds that the only issue in this case is whether the back slope of the ditch created an unreasonable risk of harm. I disagree with this conclusion as the evidence in the record does not support such a proposition. Further, I disagree that the back slope is the only issue in this case as in all cases of unrecoverable slopes, it is an improperly sloped foreslope that causes a driver to be unable to recover by pulling the driver into an improperly sloped back slope and ultimately causing the accident. The majority ignores the overwhelming evidence establishing that the DOTD created and allowed to accumulate a combination of dangerous conditions that rendered this off roadway area an unreasonable risk of harm to the motoring public leaving the traveled portion of the highway for any reason. Aucoin v. State Through Dep‘t of Transp. & Dev., 97-1938, 97-1967 (La.4/24/98), 712 So.2d 62.
For unknown reasons, the vehicle exited Highway 90 at a slight deviation (less than a seventeen-degree angle), traversed the highway‘s shoulder, entered the ditch, and was trapped. Clearly, a combination of factors, all within, the control of and caused by DOTD, created an unreasonable risk of harm in the area of the accident. The shoulder was not wide enough; the foreslope was too steep and nonrecoverable; the ditch was unsafe; and that the back slope was too severe. The record established that while the foreslope was originally designed at 3:1, the State through its maintenance programs increased the severity of the foreslope and back slope to unreasonably dangerous ratios. At the time of the accident, the highway, after two construction projects,1
The back slope at the accident site likewise presented an unreasonable risk of harm due to its severe slope. At impact, the ditch was 5.7 feet in width and 6.5 feet in depth. The measurements of the back slope accepted by the trial court revealed that in the first two and a half feet the slope was 0.7:1 and the next eight feet was 1.8:1. Thus, while the purpose of a back slope is to allow a motorist to safely traverse through the accident and exit on the far side of the ditch under control, the severity of the back slope in this case prevented the vehicle from safely traversing the ditch and instead, coupled with the severe and multiple slopes of the foreslope and the ditch‘s depth, width, and vertical drop off, worked as a horizontal obstacle creating an unreasonable risk of harm and increasing the severity of plaintiffs’ injuries.
Although the State has no duty to bring roads and highways up to current safety standards, Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1173 (La. 1986), it cannot increase the risk to the motoring public by decreasing the margin of safety to the motoring public by: (1) narrowing the shoulders and thereby bringing the motoring public closer to an unreasonably dangerous area; and (2) maintaining and failing to maintain the shoulder, foreslope, and back slope of a ditch such that the slopes substantially deviate from original design specifications. DOTD cannot create a nonrecoverable trap to the motoring public who for whatever reason leave the roadway and thereby create an unreasonable risk of harm, and then ask the courts to absolve it of liability without also compensating for the now-closer unreasonable conditions.
The likelihood and magnitude of harm to motorists inadvertently traveling out of their lane of travel, off a three-foot shoulder, and into the ditch is great, as shown by the severe injuries sustained in this accident. Conversely, the utility of a ditch with a foreslope and back slope substantially deviating from original design specifications is slight. Further, this unreasonably dangerous situation could have been remedied simply by increasing the
The majority correctly recognizes that this area along the travel portion of the roadway presented a dangerous and hazardous condition. The trial judge made this finding as well. In my view, a dangerous trap from the combination of serious defects caused by DOTD through the years, presented an unreasonable danger to the motoring public and substantially contributed to the cause of this tragic accident.
The majority emphasizes Comeaux‘s blood alcohol level while driving as though his drinking was the sole cause of this accident. I recognize Comeaux‘s negligence contributed to the cause of this accident, but had he inadvertently driven off the roadway totally sober, he still could not have recovered from this dangerous trap made by DOTD. The failure of Comeaux to “maintain control of the vehicle does not relieve DOTD of its duty to keep the highways safe.” Campbell v. Louisiana Dept. Of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898, 902. The issue is really apportionment of fault. The majority fails to take this aspect into consideration, which the court of appeal did, and instead the majority casts Comeaux totally at fault. This accident involved “one unfortunate event“—a vehicle inadvertently leaving its lane of travel and into a nonrecoverable slope that had no clear recovery zone and was a substantial cause of the harm. Id. “The fact that more than one party can contribute to the harm is the reason for our comparative fault system.” Id. Given the unreasonably dangerous conditions of this area off Highway 90 caused by DOTD, I would find it substantially at fault. The record clearly supports that DOTD was comparatively at fault as found by the court of appeal.
For these reasons, and those assigned by the court of appeal, I respectfully dissent.
ON REHEARING
CALOGERO, Chief Justice, concurring.
I concur in denial of the rehearing because I agree that the trial court did not commit manifest error in concluding that the road was not unreasonably dangerous. However, I write separately to express my disagreement with portions of the original opinion which imply that the driver‘s fault was a factor in determining that DOTD owed no duty to the plaintiffs in this case. I agree with the dissenters on original hearing that it is ill-advised for us to consider the motorist‘s fault when assessing DOTD‘s duty to reasonably maintain old highways. The majority‘s inference to this effect is particularly egregious in a case like this involving a guest passenger. A duty either exists or it does not, and the motorist‘s fault is not a factor in making this determination. Rather, our comparative fault system addresses the parties’ fault by appropriately apportioning liability among tortfeasors and/or reducing plaintiffs recovery. See Campbell v. Louisiana Dep‘t. of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898.