Degges v. State ex rel Dep't of Transportation and Development9/21/2005
that the only explanation for this change was the negligence of the DOTD; and, accordingly, it "is easy to see that the jury's [finding in this case] was manifestly erroneous."
In response, the DOTD initially points to the standard of review for this case. It states that the question of whether or not an intersection posed an unreasonable risk of harm is one of fact. Gray v. State ex rel. DOTD, 00-7 (La. App. 5th Cir. 5/17/2000), 761 So. 2d 760, writ denied, 00-2369 (La. 11/3/00), 773 So. 2d 146. Courts have consistently held that whether or not an intersection poses a threat of unreasonable risk is a question of fact. Ledoux v. State, through DOTD, 98-0024 (La. 9/18/98), 719 So. 2d 43; Cormier v. Comeaux, 98-2378 (La. 7/7/99), 748 So. 2d 1123. Accordingly, the DOTD states that the manifestly erroneous/clearly wrong standard of review applies to this case, under Rosell v. ESCO, 89-067 (La. 10/12/1989), 549 So. 2d 840 (La. 1989) and Stobart v. State through DOTD, 92-1328 (La. 1993), 617 So. 2d 880. Further, this court may not reverse, even if convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Reider v. State ex rel. Louisiana Board of Trustees, 04-1403 (La. App. 3d Cir. 3/9/05), 897 So. 2d 893, writ denied, 05-0938 (La. 2005), 902 So. 2d 1056.
The DOTD argues that this court should affirm the trial court's ruling for two reasons: one, the record contains an adequate and substantial basis for the jury's findings (that no unreasonably dangerous condition existed); and two, even if Ms. Degges had been able to prove negligence by the DOTD, she would not have proven causation because Mr. Trippe was himself "grossly negligent" in his operation of the car when the accident occurred.
The DOTD cites a bevy of statutes for the proposition that a driver is bound to obey the sequence of a traffic control signal, unless a police officer is directing traffic. In Thomas v. Petrolane Gas Servs. Ltd. Part., 22,774 (La. App. 2d Cir. 1991), 588 So. 2d 711, writ denied, 590 So. 2d 1201 (La. 1992), this court stated that " vehicle ... intending to turn left within an intersection shall yield to oncoming traffic that is within the intersection or so close thereto as to constitute an immediate hazard." (Emphasis added.) Similarly, "the left turn has been held to be the most dangerous maneuver a motorist may execute, and great caution should always be taken." Thomas, supra. "Many things can distract a motorist. A motorist has a duty, however, to keep his attention focused on the roadway. Paul v. Louisiana State Employees' Group Ben. Program, 99-0897 (La. App. 1st Cir. 5/12/00), 762 So. 2d 136.
While the DOTD has an affirmative duty to construct and maintain the state's highways in a reasonably safe condition, it is not responsible for every accident which occurs on state highways, nor is it a guarantor of the safety of travelers or an insurer against all injury which may result from obstructions or defects in the highway. Melder v. State, DOTD, 86-678 (La. App. 3d Cir. 6/27/1987), 512 So. 2d 546, citing U.S. Fidelty & Guar. Co. v. State through DOTD, 339 So. 2d 780 (La. 1976). The DOTD also cites Hessifer v. So. Equip., Inc., 416 So. 2d 368, writ denied, 420 So. 2d 982 (La. App. 4th Cir. 1982), wherein the court held that the duty owed by the DOTD does not include the obligation to protect a plaintiff against harm which would have occurred but for the grossly negligent operation of an automobile by a plaintiff. In summation, the DOTD submits that Mr. Trippe was inattentive and disobeyed the flashing traffic signal and, as a result, pulled directly in the path of the 18-wheeler, leading to the collision. It poignantly states " he accident
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