Determining fault is central to the resolution of every negligence case. Typically, the plaintiff alleges the defendant’s fault, and it is up to the court to determine whether the plaintiff has carried this burden. In the event that more than just one party was responsible for causing a particular accident, it is up to the court to “apportion” fault. That is, the court must decide how much each party contributed to the overall situation, and assign them responsibility for the appropriate percentage of the damages.
In Cashio v. Department of Transportation, 518 So.2d 1063 (La. Ct. App. 1st Cir. 1987), the court undertook this type of apportionment. Around noon on March 14, 1984, Jo-Louise Cashio was driving her 1984 Datsun 260-Z north on Louisiana Highway 77 in Iberville Parish. Passing the shop of a friend, Delores Nall, Cashio beeped her horn and waved. Seconds later, Nall saw Cashio’s car leave the paved portion of the highway in a cloud of dust. Upon re-entering the road, Cashio lost control of her car, crossed the center line, and ran into a ditch. Cashio’s car flipped and left her with severe injuries. Cashio filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD) alleging that the shoulder of the road was defective. Cashio claimed that the shoulder was below the minimum design standard because it was too narrow and was unsafe because of its deep downward slope toward the ditch.
At trial, the court heard testimony from a number of expert witnesses on the road’s design. Relying on well-settled law that “the DOTD is under a duty to maintain the highways and shoulders in a reasonably safe condition,” the trial judge determined that the DOTD was 100 percent at fault for Cashio’s accident and awarded her approximately $111,000 in damages.
On appeal, the Court of Appeals more closely examined Cashio’s role in the crash. The court noted that “motorists have a duty both to maintain control of their vehicles and to maintain a proper lookout,” and concluded that if Cashio had been “diligent in her duty to maintain a lookout, she would not have strayed from the roadway.” Further,
“there was a substantial relationship between Ms. Cashio’s negligently running off the highway and the resultant damages sustained by her. Because we find that the plaintiff’s negligence was a cause-in-fact and legal cause of the accident, we must conclude the trial court committed manifest error in concluding that Ms. Cashio was free from fault in this accident.”
The court then turned to the matter of fault apportionment under Louisiana law:
” In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed.” Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985).
The court also identified several other factors explained in the Watson case, including (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk the conduct created; (3) the significance of what was sought by the conduct; (4) the capacities of the actor; and (5) any extenuating circumstances which might require the actor to proceed in haste or without proper thought.
After weighing these factors, the court concluded that the DOTD’s fault in causing the accident was much less significant than Cashio’s own. In the words of the court: “Had Ms. Cashio kept her car on the highway, the accident would not have occurred.” The court assigned 25 percent of the fault to the State of Louisiana through the DOTD, and 75 percent of the fault to Cashio. This resulted in a reduction in Cashio’s award to only about $28,000.
The Cashio case demonstrates that apportioning fault can be a complicated task for the trial court in any negligence case. A plaintiff must expect to have their own fault, if any, taken into consideration by the court. For this reason, it is critical that a plaintiff obtain competent counsel who fully understands how courts apportion fault.