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Hicks v. State12/7/2001
in question had an "accident history" sufficient to give DOTD actual or constructive notice of the problems with this portion of the highway and, thus, under an obligation to investigate and remedy its problems. Further, the presence of the gravel on the apron is readily apparent in the pictures taken on the night of the accident and in later photographs. Considering the regular maintenance inspections testified to by DOTD employees, the State should have been aware of this buildup of extraneous material on the margin of the highway and of the need for the removal of this material.
Additionally, we note that actual or constructive notice of the defect need not be shown to establish the liability of the state for a defective thing within its garde, because LSA-R.S. 9:2800 is not applicable to this 1991 accident.
The limitation of liability for public bodies is provided for in LSA-R.S. 9:2800, which provides in pertinent part:
A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
C. Constructive notice shall mean the existence of facts which infer actual knowledge.
In Jacobs v. City of Bunkie, 98-2510 (La. 5/18/99), 737 So.2d 14, the Louisiana Supreme Court held that LSA-R.S. 9:2800 was unconstitutional until November 23, 1995, when the legislature passed Acts 1995, No. 828. Because the accident in Jacobs occurred in 1991, the plaintiff did not have to show that the City of Bunkie actually or constructively knew about the defect and had a reasonable opportunity to remedy the defect. The defect was a sinkhole which developed in a street, into which the plaintiff drove her car and injured herself. The court held that Section 2800 was substantive, and thus not retroactively applicable to a 1991 accident. The instant accident occurred in 1991, prior to the passage of Act 828 of 1995.
Therefore, in the instant case, the plaintiffs had only to prove that: (1) the DOTD owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; and (3) the defect was a cause-in-fact of the accident.
Unreasonable Risk of Harm
DOTD has a legal duty to maintain the highways in a reasonably safe condition. Sinitiere v. Lavergne, 391 So.2d 821, 824 (La. 1980). This duty "extends to the protection of those people who may be foreseeably placed in danger by an unreasonably dangerous condition." Sinitiere, supra at 825. This duty extends not only to attentive drivers, but to those who may be momentarily inattentive. Trahan v. State, Department of Transportation & Development, 536 So.2d 1269 (La. App. 3rd Cir.1988), writ denied, 541 So.2d 854 (La. 1989). The Louisiana Supreme Court has held that in determining whether a defect presents an unreasonable risk of harm, the trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Reed v. Wal-Mart Stores, Inc., 97-1174 (La. 3/4/98), 708 So.2d 362.
Here, the lack of distinction between the
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