Watson v. State Farm Fire and Cas. Ins. Co.

• Decision Date: 24 May 1985
• Docket Number: No. 84-C-2158,84-C-2158
• Citation: 469 So.2d 967
• Parties: Ora D. WATSON, et al. v. STATE FARM FIRE AND CASUALTY INSURANCE CO., et al. 469 So.2d 967
• Court: Louisiana Supreme Court

Page 967

469 So.2d 967

Ora D. WATSON, et al. v. STATE FARM FIRE AND CASUALTY INSURANCE CO., et al.

No. 84-C-2158.

469 So.2d 967

Supreme Court of Louisiana.

May 24, 1985.

Rehearing Denied June 27, 1985.

Ronald J. Brumfield, Knight & Brumfield, Franklington, for plaintiff-applicant.

Alton B. Lewis, Jr., Pittman, Mathen, Lewis & Moody, Hammond, for defendants-respondents.

CALOGERO, Justice.

A lawsuit was brought by Ora Watson, individually and as tutrix of her minor child, and six major Watson children, against Earl Creel and his insurer, State Farm Fire and Casualty Insurance Co., for the wrongful death of Ora's husband and the children's father, Doyle Watson. The claim arose out of a hunting accident in which Earl Creel's minor son, Shane, shot and killed the fifty-three year old Watson with a high-powered rifle. A trial jury rendered a verdict in favor of defendants, finding decedent Watson 100% at fault in connection with the accident. The First Circuit Court of Appeal, 459 So.2d 1235, affirmed.

We granted writs in this essentially factual dispute because we perceived the Court of Appeal to have applied an inappropriate standard of review. The Court of Appeal found that the jury's verdict was "based upon a reasonable evaluation of credibility," an applied review standard which seemed quite similar to the "reasonable basis for [a trial court's] finding" test which this Court found insufficient in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In fact the appropriate standard is that a finding of fact by the trial court should be upheld "unless it is clearly wrong," or manifestly erroneous. Furthermore, it just seemed so clearly wrong for the lower courts to have determined that the victim of this accidental shooting by a deer hunter was the only party at fault, especially inasmuch as comparative fault, rather than the bar of contributory negligence, prevailed in the law when the shooting took place.

The accident occurred on the Watson farm in Mt. Hermon, a community located in Washington Parish, in the early evening hours of December 29, 1981. ¹ The Creel family had been invited to hunt deer on the Watson property by the victim, Doyle Watson since deer had been decimating the vegetable garden on Watson's farm. ² (In fact, each hunter was later positioned on the edge of a field to cover as much of the farm as possible and each was instructed as to the most likely approaches of the deer as they prepared to feed.) After meeting at the farmhouse, the group of hunters traveled on a field road in Earl Creel's truck to the positions pointed out by Mr. Watson. Earl Creel's sixteen year old stepson was dropped off first, then Shane. Shane was placed on a tree stand at the edge of an oval field, which was surrounded by woods. Some bales of hay were located near the tree stand and Shane was offered this location as an alternative should he become too cold in the tree stand. He did move to the bales, and it was from this spot that he later fired the fatal shot. Earl Creel was also placed in a tree stand, out of sight of the boys. Willie Creel drove the truck another 150 yards from Earl and used the truck itself as a stand. Mr. Watson proceeded into the swamp on foot in search of a large buck. He planned to hunt until dark before walking home, and the position of his body on the road, as well as his footprints, indicated that he had in fact been returning home at the time of the accident.

Shane Creel, born October 5, 1969, was just twelve years old and in the seventh grade when he fatally shot Doyle Watson. Although he had owned a "child's model .22" caliber rifle since the age of ten, and had been allowed to shoot since he was nine, Shane had until then merely hunted small game. He had, however, admired his father's Marlin 30-30 rifle, ³ and the gun was presented to him on his twelfth birthday (just twelve weeks before the ill fated deer hunting trip), with the promise that he could now hunt deer with other family members. Because of the high cost of shells for the rifle, $6 to $8 for a box containing twenty shells according to Mr. Creel, Shane lacked experience in firing the rifle. Shane himself testified that he had only twice fired this weapon. ⁴ Perhaps more significantly, the boy lacked familiarity with the use of the scope attached to the rifle. Earl Creel himself stated, "There is no point in using a rifle if you can't use a scope," and there is no question but that Shane had never sighted a deer in the scope. In fact, Shane testified that he had never seen a live deer, although he had seen a picture of one. On his one deer hunting expedition in the Honey Island Swamp, shortly before this tragic outing, his party had failed to sight a single deer in several days of hunting. However, throughout that trip, Shane's father, Earl, had seated himself back to back with Shane, or was at least within sight of the boy at all times, to assist Shane in the use of the high-powered rifle. And, although Earl Creel had instructed his young son on gun safety, Shane had had no formal instruction of any kind in the use of firearms.

On this occasion, Shane had been alone either on the stand or near the bales for about two hours before he noticed a moving object which, in the light of dusk, he thought was a deer. In recalling its location in the field, the boy's testimony indicated uncertainty, perhaps because the scope altered his perspective. He stated:

It was out in the edge of the woods, I guess, or it could have been in the center of the field.

He also testified that the view was about the same from either on top of the four foot high bales of hay or from the twenty-five foot high tree stand. At any rate, he described an object moving back and forth in front of him and occasionally dropping its head from view, presumably to either eat or drink. He claimed to have followed visually the object's movements through the scope for several minutes, "to be sure what I was shooting at" before firing. In deposition, read at trial, Shane stated, "I kept on studying it for a little while and then I presumed that it was a deer and I fire at it." He proceeded to search for the fallen deer, but without success. He could not find any tracks, much less a deer.

A single shot had been fired, and 461 feet away Doyle Watson sustained a large wound in the right front portion of his head. His death was apparently immediate. Watson was wearing black work boots, a dark baseball cap with a white front displaying an advertisement of some kind, gray work pants, a green-colored camouflaged hunting jacket, and partially visible white insulated underclothing. Although the Creels all wore the "Hunter orange" vests and offered one to Mr. Watson, he declined the offer. ⁵ Furthermore, although Watson had, himself, placed Shane at the stand, and had directed the boy's attention for hunting to the very area in which he was later shot, he apparently made no effort to call to Shane or otherwise alert the boy to his presence in the same area shortly before the accident. Of course, it is possible that he assumed that the Creels had already left the farm. He had earlier told them not to wait for him, and apparently anticipated that their departure would precede his own.

Plaintiffs' attorney sought to establish the negligence of Earl Creel, Shane's father, ⁶ on several bases: (1) giving his son Shane a high-powered rifle on the child's twelfth birthday; (2) not properly instructing Shane in the use of that weapon; (3) not adequately supervising Shane at the time of the accident, particularly in failing to show him how to sight game with the rifle's scope. On the other hand, plaintiffs' counsel attempted in his opening statement to the jury to minimize Shane's fault, which he described as "very slight, if any." Counsel for the defense countered that the accident would not have occurred had Mr. Watson worn the "Hunter orange" vest, or signified his presence when he walked in the area which he had personally designated for hunting.

We agree with the lower courts to this extent. Watson was not without fault in this accidental shooting. However, the concept of comparative negligence, written into La.Civ.Code Ann. art. 2323, ⁷ permits a plaintiff such as Mr. Watson (or his wife and children) to recover damages, notwithstanding his own negligence.

A pure comparative fault system was adopted in Louisiana in 1979 by Act No. 431. That act became effective only on August 1, 1980. ⁸ It was specifically designed to ameliorate the harshness of the contributory negligence doctrine by apportioning losses between the plaintiff and defendant when both are negligent. ⁹ This allocation of shares of negligence, however, is not an easy task for the factfinder, and the Louisiana statute does not describe with particularity how it should be accomplished. ¹⁰

Clearly, however, the concept of comparative negligence is not applicable when the victim alone is the party at fault. In this case, the jury in response to interrogatories found that Earl Creel was not at fault in causing the accident, that Shane Creel was not at fault in causing the accident, ¹¹ and that Doyle Watson was at fault. Expressed in terms of a percent, the jury answered that Watson's degree of fault was "100%."

Upon appellate review Louisiana courts have jurisdiction with regard to both law and facts. La.Const. art. V, Sec. 10(B). However, we have held that

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the...