Highway Defect

THE HAZARDS OF HIGHWAY DEFECT LAW IN LOUISIANA

By Michael C. Palmintier

12/08/11

Few experienced trial lawyers would deny that the law of Louisiana on

highway defects is one of the most challenging areas of practice for plaintiffs in the

state. This is true for several reasons. Both statutory law and jurisprudence have

established burdens of proof in highway defect cases which go beyond those

required in other areas of Louisiana tort law. Special statutes create caps on general

damages and significantly limit the use of crucial evidence. The majority of these

cases deal with substantial comparative fault challenges. They are very expertintensive

and therefore expensive and time consuming. They seek remuneration

from the public fisc – always a challenge, but especially now, in a time of severe

budget limitations.

And, they are brought against a single defendant which is, for the most part,

represented by a defense team with a body of experience which is unparalleled in

other areas of tort law – a team which is immune to the normal pressures of the

commercial marketplace when it comes to the adjustment of claims, expenses of

trial, frequency of appeal and even the obligation to honor the judgment of a Court

of Law. Yet, in the face of these unfavorable odds, plaintiffs do bring Highway

Defect cases and the books are filled with stories of success and failure resulting

from these efforts.

As with all areas of interest in the modern practice of tort law, plaintiffs’

counsel must carefully evaluate highway defect cases before undertaking them.

Such an analysis will avoid the creation of undue expectations on the part of the

client as well as exposure to substantial financial loss on the part of the attorney.

Included in this essential evaluation should be an understanding of the implications

of recent case law as it may effect the likelihood of recovery given the fact pattern

in a particular case.

In this presentation we will consider pronouncements by the Supreme Court

of Louisiana in the area of state liability for highway defect. We will focus on areas

of interest including cases in which the state has made modifications to the accident

site before the accident and the standards applicable to those modifications. We

will consider rules applicable to the discovery and use of accident reports within

congressionally mandated limitations on that use. We will review cases involving

the difficult situation in which it is alleged that alcohol played a role in the accident.

In so doing, we will look at recent developments in this area of Louisiana law with

an eye toward proper management of the highway defect case.