While the Department of Transportation and Development (“DOTD”) has a duty to maintain highways and shoulders, the standard of care required for a highway under construction is somewhat less than that of a highway not under construction. Courts have long recognized the necessity of highway construction work and that hazards will regularly exist during the course of construction. Rivers v. Broussard, 2006-1543 (La. App. 3 Cir. 6/27/07); 964 So.2d 411. Highway construction and maintenance necessitates the safety and care of those motorists who travel the roads alongside the construction areas, while also recognizing the safety and necessity of those performing the work. Whether the work is large or small, safety measures and protections are needed not only for the average motorists, but also for the men and women hard at work on the public roads.
The State has a duty to maintain public roads in a safe condition in order to prevent exposure of the public to unreasonable dangers. R.S. 48:35. Highway construction projects, in and of themselves, however, do not create an unreasonable risk of harm to which the principles of strict liability would be applied in the absence of very unusual circumstances. Alford v. Estate of Zanca, 552 So.2d 7 (5th Cir. 1989) citing Golden v. Madden Co., Inc., 469 So.2d 1039 (2nd Cir. 1985). In other words, unless certain circumstances are present, highway construction projects will not be considered as dangerous to public welfare as, say, ultra-hazardous activities such as pile driving or blasting with explosives (See Civil Code Art. 667).
While a highway is under construction, the DOTD has a duty to exercise reasonable care in warning motorists of dangerous conditions in the construction zone. Reasonable care requires that the DOTD erect barricades, signs, and adequate warnings to alert the motoring public to extremely dangerous, trap-like hazards, unusual obstructions, perilous conditions, and road defects. Woods v. State, DOTD, 37, 185 (La. App. 2 Cir. 8/14/03), 852 So.2d 1109. The State must provide proper safeguards or adequate warnings of dangerous conditions on the highway, including those from road repair. Cupit v. State, 37, 110 (La. App. 2 Cir. 5/14/03), 847 So.2d 36.
But what would be considered “adequate warnings” by a court? Courts have determined that warnings must be sufficient to alert an ordinary, reasonable motorist, having in view the probability of traffic, the character of the road and its reasonably anticipated use. The DOTD must warn of dangerous or potentially dangerous conditions in a construction zone and the adequacy and reasonableness of these warnings depends on the location of the danger, the nature of the road, and the general situation and circumstances. Woods v. State, DOTD, 37, 185 (La. App. 2 Cir. 8/14/03), 852 So.2d 1109. These factors aid the Court in determining whether the adequacy of the construction warnings was sufficient under the circumstances to alert the average motorist of the danger ahead on the road. For instance, a warning in the daytime may be adequate at the time, but wholly inadequate in the dead of night. As an example a flagman and barriers alone may be appropriate during the day, but the addition of a flare or other luminescence may be the proper warning signals at night.
In a similar situation, when a construction worker is busy working on a highway, under circumstances in which he or she is not watchful and is depending upon the protection of signage, barricades or flagmen, the driver of a motor vehicle owes a higher duty of care than the worker. Theriot v. Bergeron, 2005-1225 (La. App. 1 Cir. 6/21/06); 939 So.2d 379 (citations omitted). What this line of cases is trying to say is that, in the highway construction field, a construction worker is oftentimes in a vulnerable position while he or she is busy working away at the task at hand and not paying attention to the local traffic around the workspace. The construction worker is relying upon the barriers in place around him and, in that respect, the driver of the motor vehicle may be better positioned in taking due care in preventing an accident from occurring on or near the highway construction site.
Under these circumstances, the Courts view each individual or entity involved – the motorist, the highway construction worker, and the DOTD – as having some duty of care in ensuring that an accident does not happen on the roadway. The motorist owes a duty to be diligent and watchful while on the road. The highway construction worker has a duty to ensure his work does not cause harm to nearby motorists. The DOTD owes a duty to of reasonable care in warning motorists of dangerous conditions in or near the construction site.
The Courts, understanding that highway construction and maintenance is of vital importance to the future of the economy and the safety of the nation’s citizenry, has crafted a balanced approach to the standard of care required in highway construction zones. This balanced approach calls on the DOTD to exercise reasonable care in warning motorists of dangerous conditions in the construction zone, while the motorist must maintain a heightened duty of care in maintaining his or her vehicle, in keeping a proper, diligent look-out, and in keeping his or her attention on the roadway when alerted to a construction zone.
Highway construction accidents can foster debilitating consequences, both health and financial. Above all, your, or a loved one’s, health and well-being may be severely compromised. Whether soft-tissue injuries, disability, or even death, the consequences of a highway construction accident may haunt your physical well-being for the rest of your life. Secondarily, your financial future may take a drastic turn for the worse if you are forced to miss work or even if you suffer pain at your workplace in the exercise of your occupation.
If you or a loved one has suffered from an injury that is no fault of your own, learn about your legal rights from an experienced Louisiana personal injury attorney by filling out our free, no obligation case review form located on this website.
