Dangerous conditions on the highways.

Have you ever wondered who would be responsible if you were injured in a one-car accident because of a defective traffic light, soft shoulder or a fallen tree?

Sometimes the State of Louisiana, through the Department of Transportation & Development, is liable for accidents caused by unsafe conditions in and around our highways.  This department is usually referred to as the DOTD.  This, of course, would apply only to State highways.  The City and the Parish are responsible for their own roads.

If you are injured because of a road defect, you will have to prove four categories of facts to win a negligence suit against the DOTD:  (1) the property that caused the damage was in the custody of the DOTD; (2) the property was defective because it had a condition that created an unreasonable risk of harm; (3) the DOTD knew or should have known of the risk; and (4) the DOTD failed to take corrective action within a reasonable period of time.

In the custody of the DOTD

Custody usually simply means that the State owns the highway.  But it can also include a "right-of-way" (known as a servitude under the law) the State has on the property immediately adjacent to the highway.  This is common in cases in which a rotting tree or tree limbs next to a highway injure someone by falling onto the road or a vehicle.  The tree is usually on the State's right-of-way, and the State is responsible for maintaining a safe right-of-way.

Unreasonable risk of harm

Under Louisiana law, the DOTD has a duty to maintain the public roads in a condition that is reasonably safe for people exercising ordinary care and reasonable prudence and to fix the defects that make the road unsafe.  However, this does not mean that the DOTD is completely off the hook if the driver shares some of the fault for an accident also caused by a defect in or near the road. 

For example, the DOTD has a duty to safely maintain the shoulders and area off of the shoulders within its right-of-way.  This includes a duty to remove trees in the right-of-way that are in danger of falling onto the road.  This also includes a duty to protect a motorist who inadvertently drives onto the shoulder of the highway.  Louisiana courts have consistently held that an abrupt drop off between a roadway and a shoulder or an abrupt elevation change between lanes of travel constitute defects.  However, the DOTD does not have a duty to widen the shoulder of an existing road because it doesn't have to bring old roads up to modern standards unless a new construction or major reconstruction of the road has taken place.

Sometimes ongoing road construction causes hazards similar to a soft shoulder such as holes or abrupt elevation changes between lanes of travel or while entering or leaving a construction zone.  The law requires the DOTD to exercise reasonable care to warn motorists of any dangerous conditions in a construction zone.  This means the DOTD must erect barricades, signs and adequate warnings to warn motorists of dangerous conditions or road defects.  This duty also requires the DOTD to warn of potentially dangerous conditions in a construction zone.

Knew or should have known

It's always difficult to prove that someone "knew" about a dangerous highway condition unless they admit it or unless there is letter or other document showing they were notified of the problem. For example, if a maintenance crew makes a record of a road defect but fails to fix it, that would be enough to prove this fact.  But the law requires only that you prove that the DOTD should have known of the dangerous condition (known as "constructive" notice under the law).  Constructive notice exists when the defect or dangerous condition has existed for such a period of time that it would have been discovered and remedied had the DOTD exercised reasonable care. 

Failing to take corrective action

This is one of the easiest facts to prove.  You simply have to show that the dangerous condition was never repaired.