These Things Considered – Two Juries & Five Judges Later

Constructing Louisiana (LAGC) Spring 2002

In December, 1992 Weaver Road in Lake Charles was being resurfaced. A superintendent for Asphalt Associates, who was in charge of the resurfacing project, determined the “sub-base” being applied to Weaver Road required the road to be closed twenty-four hours a day to through traffic. Asphalt Associates accordingly cleared Weaver Road to through traffic.

Barricades and warning signs were placed to control traffic. According to Asphalt Associates, they experienced problems with people driving their vehicles around and through the barricades. Therefore, they positioned a large tractor with a front end loader and backer to block Weaver Road.

Ms. Melissa Trahan was driving south on Weaver Road on the night of December 18, 1992. It was a foggy night. She was driving in excess of the thirty-five mile per hour posted speed limit. Ms. Trahan was distracted by a flashlight to her left as she passed Barbe High School and when she turned back to the road she saw the parked tractor. She immediately slammed on her brakes, but could not avoid sliding into the tractor.

At trial, the evidence showed that Asphalt Associates had placed warning signs and barricades in the area at the conclusion of that day’s work. The investigating officer found barricades with the warning lights still flashing upside down in the adjacent ditches. The “Road Closed” signs were found lying face down on the roadway.

Asphalt Associates contended that unidentified vandals removed the signs and barricades. Ms. Trahan also testified that had the signs been in place, the accident would not have occurred.

At the conclusion of the trial, the jury allocated eighty (80%) of the fault to the unknown persons who removed the barricades and warning signs and ten percent each to Ms. Trahan and Asphalt Associates. The jury awarded Ms. Trahan $45,000.00 for her injuries.

The trial court on its own motion granted a new trial on the basis that “[t]he Court and the jury ‘missed the boat’ in regard to both instructions to the jury and amount of damages which should be awarded to the plaintiff.”

A second trial was held in June of 2000. After trial, the second jury apportioned thirty-nine (39%) percent fault to Ms. Trahan, thirty-one (31%) percent fault to the unidentified persons, and thirty (30%) percent fault to Asphalt. The jury awarded Ms. Trahan $90,000.00 for her injuries.

Ms Trahan appealed the jury verdict, asserting that fault should have been assessed 100% to Asphalt Associates.

On appeal, the court ruled that the record established that visibility was poor, Ms. Trahan knew she was traveling on a road that was undergoing construction, she was driving in excess of the posted speed limit and that she was distracted by something and took her eyes off the road.

Ms. Trahan argued that Asphalt Associates should not escape its responsibility by arguing some unknown third part removed the signs. She contended that Asphalt Associates was required to properly place warning signs in the area and maintain them even if it required hiring a night watchman.

The appellate court noted that there is generally no duty to protect others from the criminal activities of third persons. This duty, said the court, does arise under limited circumstances, as when the criminal act in question was reasonably foreseeable.

The appellate court held that the jury’s allocation of fault between the three participants was clearly wrong:

“Once the jury found the placing of the unlighted and unmarked tractor in the middle of the road was negligent and this negligence contributed to the harm, Asphalt’s assessment of fault should have been in relation to the injury sustained rather than the cause of the accident. The record evidence convinces us that Asphalt’s fault was substantially greater than either of the other two parties in causing Ms. Trahan’s injuries. The injuries she sustained would not have occurred or would have been reduced significantly if the tractor was not placed in the middle of the road.”

The appellate court amended the jury verdict to increase Asphalt Associates’ liability to 60%, reduce Ms. Trahan’s liability to 20% and reduce the liability of the unidentified third parties to 20%.

But since fault was assessed to the unknown third parties, who were acknowledged to be intentional tortfeasors, the court applied a ratio technique designed to make up for some of the “unfairness” caused by the quantification of the unknown third parties’ fault.

The appellate court reapportioned the 20% fault of the unknown intentional tortfeasors between Ms. Trahan and Asphalt Associates. Under the ratio approach, the fault of Asphalt Associates became 75%; the fault of Ms. Trahan became 25%. Trahan v. Asphalt Associates, Inc., 2001-0311 (La.App. 3 Cir. 10/17/01) 2001 WL 1241923 (La.App. 3 Cir.).

This article is a product of W.P. Wray, Jr., Russell W. Wray and Chris P. Pierce at Wray & Pierce, L.L.P.