Cay v. State, Dep't of Transp. & Dev. - 614 So. 2d 1293 (La. Ct. App. 1993)

Rule:

The question of whether the state breached a duty under either under La. Civ. Code Ann. art. 2315 and strict liability under art. 2317 is determined by asking whether the plaintiffs proved that a condition existed which presented an unreasonable danger to those using the highway. While the duty is the same in both strict liability and negligence cases, the basis for determining the existence of the duty is different for each. To be successful under a strict liability theory, a plaintiff must prove that: (1) the thing causing the injury was in the custody of the defendant; (2) the thing causing the harm was defective, i.e., created an unreasonable risk of harm to others; and (3) the defective thing caused the plaintiff's injury. Under a negligence theory liability will be imposed when the plaintiff shows that the state actually or constructively is aware of an unreasonably dangerous condition, and fails to take corrective action within a reasonable time.

Facts:

After having a few drinks at a local bar while on his way home from work, decedent, Keith W. Cay, was found dead beneath a new state bridge. Plaintiff parents of the decedent instituted a suit against the State of Louisiana through the Department of Transportation and Development (DOTD). The district court found the Department liable for wrongful death, holding that it was negligent by creating a hazardous condition in failing to erect a bridge rail high enough to protect pedestrians who used the bridge. The district court also found that the decedent was contributorily negligent for being intoxicated. The court rendered judgment apportioning the fault for the accident 60% to the State and 40% to the decedent. The State appealed, questioning the correctness of the trial court's determination of liability on the part of the State and apportionment of fault. According to the State, the pedestrians were supposed to use the old bridge that had been closed to vehicular traffic and that its railings were sufficient to protect vehicular traffic. The plaintiffs answered the appeal questioning the finding that the decedent was comparatively negligent. The plaintiffs alleged that the damage award was insufficient. 

Issue:

1. Was the State, through the Department of Transportation and Development, negligent by creating a hazardous condition in failing to erect a bridge rail high enough to protect pedestrians who used the bridge? 
2. Was the award of damages in favor of the plaintiffs insufficient? 

Answer:

1) Yes. 2) No.

Conclusion:

The Court held that the State, through the DOTD, should have foreseen that pedestrians would have used the bridge and that failing to construct a sufficient railing created a hazardous condition. The Court reasoned that either under a negligence or strict liability theory, the Department had violated its duty to protect the public. The decedent's parents sought to increase the award. However, the court refused to change the award because the evidence supported a finding that the descendent was intoxicated and contributorily negligent and did not indicate a clear abuse of discretion by the district court in the size of the award.