## Facts

- Keith Cay, age 27, returned home from offshore work and traveled to a nearby town to buy a hunting license and ammunition.
- Late that night, he left a bar on foot, declined a ride, and walked away carrying an opened beer.
- Five days later, his body was found on a rock bank about thirty-five feet below a state-constructed bridge; physical evidence indicated he fell from the bridge, with no evidence of suicide or foul play.
- Evidence indicated Cay was intoxicated, wore dark clothing, and walked on the wrong side of the road for pedestrian traffic.
- The bridge (built in 1978) had vehicular lanes and shoulders but no sidewalk, curb, or separate pedestrian railing; its side railings were 32 inches high, the minimum for vehicular-traffic bridges.
- Pedestrian use of the crossing was known based on community practice on the prior bridge and expected continued use.
- Cay’s parents sued DOTD for wrongful death, alleging negligent design and construction for pedestrian safety, including inadequate railing height and failure to account for foreseeable pedestrian use.

## Issues

1. Whether plaintiffs proved by a preponderance of the evidence that DOTD’s 32-inch railing was a cause-in-fact of Cay’s fall.
2. Whether the risk of a pedestrian’s accidental fall over the low railing fell within the scope of DOTD’s duty (legal cause) given foreseeable pedestrian use.
3. How comparative fault should be allocated between Cay and DOTD if DOTD bore any responsibility.

## Decision

- The Louisiana Supreme Court affirmed liability against DOTD, concluding the low railing was a cause-in-fact of the fatal fall.
- The Court held the risk of an accidental pedestrian fall was within the scope of DOTD’s duty because pedestrian use of the bridge was foreseeable.
- The Court amended the allocation of fault, assigning 90% to Cay and 10% to DOTD, and affirmed the judgment as amended.

## Legal Principles

- Cause-in-fact in negligence may be established by circumstantial and expert evidence when it is more probable than not that the defendant’s conduct contributed to the harm.
- A public entity responsible for highway infrastructure must consider foreseeable uses of a bridge, including pedestrian use, and design or take protective measures consistent with that foreseeability.
- In duty-risk analysis, factual causation does not end the inquiry; liability also requires that the injury be among the risks the breached duty was intended to prevent.
- Comparative fault can substantially reduce a plaintiff’s recovery where the injured party’s own conduct (e.g., intoxication and unsafe roadway behavior) materially contributed to the accident.

## Conclusion

The court held DOTD’s failure to account for foreseeable pedestrian use by providing adequate railing protection was both a factual and legal cause of Cay’s death, but it placed primary responsibility on Cay’s own unsafe conduct and reduced DOTD’s share of fault to 10%.


Cay v. State, Dep’t of Transp. & Dev., 631 So. 2d 393 (La. 1994)