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Long v. State6/29/2005
than the actual traffic count, an erroneous hazard index rating was computed by the DOTD for the crossing. Id. Despite the low hazard index, the DOTD nonetheless selected the crossing for upgrade twenty-two months before Mrs. Rick's fatal accident. Id.
The Rick court noted that the DOTD erroneously calculated the hazard index of the crossing and stated "had it used the proper formula, the crossing would have been a greater priority for upgrade." Id., 93-1776 p. 4, 630 So.2d at 1274. Then, without further analysis, the court concluded:
Here, it is unnecessary to decide whether the DOTD had an affirmative duty because the DOTD assumed a duty to upgrade this crossing by selecting it for improvement on September 10, 1986. Once a duty is assumed, negligent breach of that duty may create liability. Harris v. Pizza Hut of La., Inc., 455 So.2d 1364 (La.1984).
Rick, 93-1776 p. 7, 630 So.2d at 1275. Thus in Rick, this court held that the DOTD assumed a duty of an off-system railroad crossing by virtue of its selection of the crossing for improvement. Id. Moreover, because the Rick court did not separately address the issue of the breach of that duty, it effectively merged these two concepts of the duty-risk analysis. This was erroneously done. See Boykin, 96-1932 p. 9, 707 So.2d at 1230 ("Many cases presenting a duty-risk analysis do not adequately distinguish the duty element and the breach of duty element.").
Chief Justice Calogero and Justice Marcus dissented from the majority opinion in Rick. The Chief Justice issued written reasons in dissent, stating:
I do not agree that the Department of Transportation and Development assumed a duty to upgrade the off-system railroad crossing where the fatal accident occurred, which, according to the majority, made it unnecessary to consider whether an affirmative duty existed. In merely selecting for upgrading this railroad crossing, which did not involve roads or highways owned and maintained by the State of Louisiana, the DOTD did not assume a duty to assure that the Illinois Central Railroad Company, the owner of the site, would install active warning devices before injury occurred. The selection of the railroad crossing for upgrading was only the first step in an involved process to access federal funding for upgrade projects. That step in no way provided the victim or any other commuter with an increased impression of security from the known hazard. Furthermore, I do not believe that the allocation of federal funding to the state to make railroad grade crossing improvements at approximately 35 of a possible 4000 crossings yearly imposes on the state a duty to provide protective devices at railroad crossings for off-system roads.
Rick, 93-1776 p. 1 [dissent], 630 So.2d at 1278.
After Rick, this Court's analysis of the DOTD's assumption of the duty to maintain a roadway/railroad crossing became further muddled in Archon v. Union Pac. R.R., 94-2728, 94-2743 (La. 7/2/96), 675 So.2d 1055. In Archon, a fatal injury occurred at an off-system crossing on a parish road in 1989. The DOTD selected the crossing for improvement and had even accepted federal money to do so in the early 1980s. The Court initially found the DOTD liable for the accident not only because the DOTD selected the crossing for improvement, but also on the basis of contractual agreements DOTD made with the railroad in 1964 and 1976 wherein the DOTD agreed to provide warning devices at the crossing at issue. Because the Court found DOTD had contractually assumed a duty to provide warning devices, the Court pretermitted arguments that the DOTD assumed a duty merely because it accepted federal funds to up-grade the off-system crossing
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