Could Louisiana's transportation department agree to pay bridge damage claims regardless of which government caused them?

Plain-English summary

Louisiana's Department of Transportation and Development (DOTD) and New Orleans' Public Belt Railroad Commission were considering an interim bridge-maintenance agreement during reconstruction. The proposed arrangement would have each side pay a fixed share of damage claims without allocating fault. In 2005, the Attorney General concluded that DOTD could not agree to pay for negligence by anyone other than itself, its employees, or its agents. La. R.S. 48:251.7 specifically barred that assumption of liability for roads and bridges.

The AG explained that a cooperative agreement still had to satisfy the constitutional prohibition on donating public funds. Because DOTD lacked authority to pay another party's damage liability, the first required element of a valid cooperative endeavor failed. The opinion addressed the proposed fault-blind claims provision; it did not disapprove every form of joint bridge maintenance.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could DOTD and the railroad split claims by a fixed percentage regardless of fault?

The AG said no for the proposed agreement. DOTD could not take on damages caused by another party's negligence merely by assigning itself a fixed payment share.

Did the cooperative-endeavor clause permit that liability sharing?

No. The AG said cooperation was authorized only when the public entity was allowed to spend the funds, the arrangement served a public purpose, and the cost matched the benefit. The proposed clause failed because DOTD was not authorized to pay another party's damages.

Did the opinion distinguish ordinary public contracts from road-and-bridge agreements?

Yes. It noted a possible exception in the general public-contract statute, then applied the separate, more specific La. R.S. 48:251.7 rule governing roads and bridges, which supplied no applicable exception.

Background and statutory framework

The entities had maintained a combined highway and railroad bridge under older agreements. For a reconstruction period, they considered new terms for maintenance and damage claims. The AG compared La. R.S. 38:2195's general provision with La. R.S. 48:251.7's specific ban on DOTD assuming liability for another's negligence, then applied the public-funds restriction in Article 7, Section 14 of the Louisiana Constitution.

Citations

• La. R.S. 38:2195 (general public-contract liability rule).
• La. R.S. 48:251.7 (DOTD's road-and-bridge liability restriction).
• City of Port Allen v. Louisiana Municipal Risk Agency, 439 So.2d 399 (La. 1983) (public-funds discussion).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/05-0134

Original opinion text

June 10, 2005
Opinion Number 05-0134

90-A-2 Public Funds – Loan, Pledge or Grants
Mr. Jerry Luke LeBlanc
Article 7, Section 14 of the Louisiana Constitution
La. R.S. 38:2195
Commissioner
La. R.S. 48:251.7
Office of the Commissioner
Division of Administration
DOTD may not assume liability for damages caused by
anyone other than itself, its employees or agents.
P.O. Box 94095
Baton Rouge, LA 70804-9095

Dear Commissioner LeBlanc:

You question whether or not the Louisiana Department of Transportation and Development (DOTD) and the City of New Orleans, through the Public Belt Railroad Commission (Railroad) may agree to share liability of claims for damages. The proposed agreement does not include an allocation of fault. The parties will simply pay a specified amount with absolutely no regard to their fault. In short, we believe that the proposed agreement is in conflict with the Louisiana Constitution.

DOTD and the Railroad entered into an agreement in 1932. This original agreement provided that the state and the Railroad would construct, maintain and operate a combination highway and double track railroad bridge in Jefferson Parish. Pursuant to the agreement, the entire bridge and approaches are owned by the Railroad but DOTD has possession of the highway section of the bridge and approaches in perpetuity.

In 1936 DOTD and the Railroad entered into a joint maintenance agreement. DOTD agreed to pay forty percent (40%) of the maintenance costs and the Railroad agreed to pay sixty percent (60%) of the maintenance costs. In 1954 the parties revised the joint maintenance agreement and this agreement has continued on a year-to-year basis.

DOTD and the Railroad, in light of proposed reconstruction and expansion of the highway and bridge, are considering entering into an interim joint maintenance agreement to provide for maintenance and liability costs associated with the management and repair of the bridge during this reconstruction and expansion period.

Although the Louisiana Constitution allows the state and its political subdivisions to enter into cooperative endeavor agreements with each other, there are three

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Opinion Number 05-0134
Mr. Jerry Luke LeBlanc
Commissioner
Office of the Commissioner
Division of Administration
Page -2-

requirements that must be met in order to have a constitutionally sound agreement. The three requirements are: (1) the state or political subdivision must be authorized to spend the funds at issue; (2) the agreement must benefit the public; and (3) the costs must be proportionate to the benefit. All three of these requirements must be met.

Article 7, Section 14 of the Louisiana Constitution prohibits the state or one of its political subdivisions from donating, loaning or pledging public funds. This Article is violated when the state gives up something of value when it is under no obligation to do so.1 It is important to recognize that a cooperative endeavor agreement, although listed as a separate subsection of Article 7, Section 14, is not an exception to the general prohibition against donating public funds. The state must still be authorized to spend the funds of issue, i.e., the first requirement for a valid cooperative endeavor agreement.

We must first decide if the state is authorized to pay damages in a claim when it is not responsible for the damages or if the state is authorized to pay more than its allocated portion of fault. Generally, a public entity may not assume liability for damages arising out of injuries or property damage caused by the negligence of anyone other than the public entity, its employees, or agents. Such an agreement is contrary to the public policy of the state of Louisiana.2 Although at first glance this general prohibition appears not to apply to this proposed agreement because of an exception with respect to intrastate intergovernmental contracts, there is a separate statute dealing specifically with roads, bridges and ferries that dictates otherwise. 3 La. R.S. 48:251.7 specifically provides that DOTD may not assume liability for damages arising out of injuries or property damage to contracting parties or third parties that are caused by the negligence of anyone other than DOTD, its employees or agents. Again the law provides that such an agreement is contrary to the public policy of the state of Louisiana. There is no exception that applies to this proposed agreement in the statute.4 Accordingly the first requirement for a constitutionally sound cooperative endeavor agreement cannot be met. DOTD is not authorized to assume liability for damages caused by the negligence of another party. In fact, the law specifically prohibits DOTD from doing so. To do otherwise violates La. R.S. 48:251.7 and is tantamount to a donation of public funds which is expressly prohibited by the constitution. DOTD is not authorized to assume liability for those damages caused by anyone other than itself, its employees or agents.

1
City of Port Allen v. Louisiana Municipal Risk Agency, 439 So.2d 399 (La. 1983). 2 La. R.S. 38:2195. 3 La. R.S. 38:2195C. 4 La. R.S. 48:251.7.

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Opinion Number 05-0134
Mr. Jerry Luke LeBlanc
Commissioner
Office of the Commissioner
Division of Administration
Page -3-

We trust that this responds to your request. If you have any additional questions, please contact our office.

With kindest regards,

Yours very truly,

CHARLES C. FOTI, JR.
Attorney General

BY: _________
TINA VICARI GRANT
Assistant Attorney General

CCF, jr./TVG/dam

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Opinion Number 05-0134

90-A-2 Public Funds – Loan, Pledge or Grants
Article 7, Section 14 of the Louisiana Constitution
La. R.S. 38:2195
La. R.S. 48:251.7

DOTD may not assume liability for damages caused by anyone other than itself, its employees or agents.

Mr. Jerry Luke LeBlanc
Commissioner
Office of the Commissioner
Division of Administration
P.O. Box 94095
Baton Rouge, LA 70804-9095

Date Received:

Date Released: June 10. 2005

Tina Vicari Grant
Assistant Attorney General