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Degges v. State ex rel Dep't of Transportation and Development9/21/2005
y by maintaining it and exposing others to it?
Ms. Degges submits that this inquiry deals with the "essential similarity" between the strict liability and negligence standard by "removing from the equation the question of defendant's knowledge of the condition." She points out that Entrevia, supra, was discussed in T. Galligan, Jr., Strict Liability in Action: The Truncated Learned Hand Formula, 52 La. L. Rev. 323, which stated, in part:
Consequently, one might say that in strict liability cases, courts presume that the defendant has knowledge of the dangerous characteristic of its product or thing and then ask whether or not a defendant with knowledge of the dangerous characteristic of the thing or product would use, keep, or sell it in that condition. If the person who had knowledge would be negligent (or unreasonable) for using, keeping or selling a thing or product in its injury -causing condition, then the product or thing presents an unreasonable risk of harm and the defendant is liable--strictly liable.
Ms. Degges argues that the juryin the case sub judice was required to make two decisions: (1) what was the defect? and (2) did the defective condition present a risk of harm that was unreasonable under the circumstances? She asserts that, given the DOTD's paperwork error discussed, supra, the defect here was simple to identify (and was, she argues, the DOTD's responsibility). To satisfy the second inquiry, she points to Reed v. Wal-Mart Stores, Inc., 1997-1174 (La. 3/4/98), 708 So. 2d 362, which held:
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. Simply put: The trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others? [Citations omitted.]
She states that the gravity and risk of harm are evident here by virtue of the fact that Mr. Trippe lost his life and the Deggeses suffered severe injuries. Ms. Degges points out that, in Hutchins v. Liberty Mutual Ins. Co., 02-943 (La. App. 5th Cir. 3/25/03), 844 So. 2d 168, writs denied, 03-1166 (La. 6/20/03), 847 So. 2d 1237; 03-1089 (La. 6/20/03), 847 So. 2d 1240, the fifth circuit characterized a flashing traffic control as posing an unreasonable risk of harm to the motoring public when that condition continued for several hours at a busy intersection. Similarly, in Murray v. Ramada Inns, Inc., 521 So. 2d 1123 (La. 1988), the supreme court stated:
Thus, in any case where the defendant would otherwise be liable to the plaintiff under a negligence or strict liability theory, the fact that the plaintiff may have been aware of the risk created by the defendant's conduct should not operate as a total bar to recovery. Instead, comparative fault principles should apply, and the victim's awareness of the danger" is among the factors to be considered in assessing percentages of fault.
Similarly, in Toston v. Pardon, 03-1747 (La. 4/23/04), 874 So. 2d 791, a "T-intersection" (where an automobile accident had occurred) maintained by the DOTD presented an unreasonable risk of harm due to restricted sight distance.
Given the aforementioned jurisprudence and facts of this case, Ms. Degges argues that it is an "irrational" conclusion to find that the DOTD would go to the expense of conducting a detailed traffic study in 1991 (and implement said study's findings) and six years later, for no readily apparent reason, return the signal to a setting that its own study found unsafe. From this, Ms. Degges submits
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