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Long v. State6/29/2005
"factual information (as measurements or statistics) used as a basis for reasoning, discussion, or calculation." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 325 (7th ed. 1990).
In this case, the DOTD presented the testimony of Mr. William Shrewsberry, Jr., the supervisor of the DOTD's Maintenance Division Railroad Unit, which is in charge of administering the federal railroad safety program and upkeeping the data and information necessary for the administration of the program. According to Mr. Shrewsberry's testimony, the correspondence between the DOTD and the Mayor of the Village of Bonita was part of the process to secure funding for an off-system railroad crossing under the Federal Railroad Safety Program. Once the DOTD received the request for the signalization of the crossing, it forwarded the request to its maintenance division railroad unit for evaluation under the Federal Railroad Safety Program. Regarding the September 6, 1995 letter from Mr. Pistorius to Mayor Lytle, Mr. Shrewsberry testified that before committing to signalize a crossing, both the FHWA and the DOTD requires a commitment from the local governing body to be responsible for the advance warning signs and pavement markings. Mr. Shrewsberry stated:
The only way DOTD can do any work at a railroad crossing is through federal funding that's not on the State maintained system[,] and so it's the Federal Railroad Safety Program that we have is the only way allows us to do work on a parish or city street to enhance the crossing safety. So the [FHWA] authorization can only be done after everything is done by DOTD[,] . . . and then DOTD[,] if they can evaluate and justify the expenditures of funds[,] will request the FHWA to set aside federal money to do the job .
According to Mr. Shrewsberry, when the DOTD informs a local governing body that it plans to apply for federal funding to signalize a crossing, the process for upgrading the crossing is still in the developmental stages until the FHWA authorizes the funding.
There is nothing in this record that indicates that the letters at issue contained any factual information or were used as a basis for reasoning, discussion or calculation. Although it is clear that the letters were generated as part of the DOTD's effort to comply with the federal mandate to secure funding for the signalization of the Harp Street crossing, in my mind, the letters, alone, were not "data, compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancements of . . . railway-highway crossings . . ." within the meaning of § 409. As the court of appeal noted, the letters herein do not contain, nor do they refer to, any safety information which would be excluded under § 409. Therefore, I believe that, pursuant to the plain language of § 409, court of appeal did not err in concluding that the letters at issue are admissible in this case.
Furthermore, in my opinion, a remand of this matter is unnecessary, as the evidence was sufficient to establish that the DOTD breached its duty to upgrade the railroad crossing, and the breach of the duty was a cause-in-fact of plaintiffs' injuries.
It is undisputed that the DOTD agreed to upgrade the Harp Street crossing. In Mr. Pistorius' letter to Mayor Lytle, he expressly stated that the DOTD "plans to signalize the railroad crossing from funds available through a federal safety program." Therefore, pursuant existing jurisprudence, the DOTD assumed the duty to upgrade the crossing by selecting it for improvement.
In this case, Mayor Lytle wrote the DOTD requesting an upgrade to the Harp Street crossing on May 18, 1995. On September 6, 1995, Mr. Pistorius responded to the may
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