92 0858 La.App. 1 Cir. 3/11/94, Bozeman v. Reed
| Decision Date | 11 March 1994 |
| Citation | 633 So.2d 944 |
| Parties | 92 0858 La.App. 1 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Charles Duchein, III, William G. Davis, Baton Rouge, for plaintiff-appellee Carolyn Ferrill Bozeman.
John O. Brown, Baker, for defendant-appellee Estate of Carl F. Reed.
Normand Pizza, Stephanie B. Laborde, Baton Rouge, for defendant-appellant State of LA Dept. Public Safety & Correction.
Frederick Haygood, Baton Rouge, for defendant-appellee Old Hickory Cas. Ins. Co.
E.A. Robinson, III, Baton Rouge, for intervenor-appellee Rudy Troy.
C. John Caskey, Michael B. Cupit, Baton Rouge, for intervenors-appellees Deborah Key, Deidra Ferrill.
Before CARTER, LeBLANC, FOIL, PITCHER and PARRO, JJ.
[92 0858 La.App. 1 Cir. 1] PITCHER, Judge.
Defendant, the State of Louisiana, through the Department of Public Safety and Corrections (DPS), appeals from a judgment finding DPS liable for damages resulting from an automobile accident which took the lives of Carl Reed (Reed), and Wayne and Marjorie Ferrill, and injured Rudy Troy (Troy), a passenger in the Reed vehicle. The basis of the claim against DPS was that DPS had issued a driver's license to Reed with the knowledge that he may have multiple sclerosis (MS), without requiring a detailed medical report at the time of the issuance of the driver's license and again when Reed's driver's license was renewed.
PROCEDURAL HISTORY
Plaintiff, Carolyn Ferrill Bozeman (Bozeman), sought to recover damages for the wrongful death of her parents, the Ferrills. Bozeman also claimed her father's damages preceding his death. Bozeman named as defendants Reed and Inamarie Wroten (Wroten). Wroten was the driver of the vehicle that allegedly forced Reed off the road.
Deborah Ferrill Key (Key), individually and as tutrix for the estate of the minor, Deidra Ferrill Crowder (Crowder) 1, intervened in this suit. Key and Crowder were also children of the Ferrills. Named as defendants in intervention were: Donald Reed, the administrator of Reed's succession; Old Hickory Insurance Company, as Reed's insurer; Wroten; and Allstate Insurance Company, as the liability insurance carrier for Wroten, and as the underinsured and uninsured motorist protection carrier for the Ferrills.
[92 0858 La.App. 1 Cir. 2] Bozeman and Key subsequently amended their petitions to add DPS as a defendant.
This matter was consolidated with another suit filed by Troy. 2 Troy also intervened in the suit filed by Bozeman and named as defendant in intervention, DPS.
All claims against defendants were settled, defendants were released, and the matters were dismissed prior to trial except those against DPS and Old Hickory Casualty Insurance Company 3, who deposited into the Registry of the Court the remaining balance of its policy limits under the policy issued to Reed, as an unconditional tender for the benefit of plaintiffs in intervention, Key and Crowder. 4
Following a bench trial, the trial court found, as a matter of fact, that the medical report submitted by Reed in 1984, in order to obtain his driver's license, was not a "detailed medical report," as required by LSA-R.S. 32:403.2. The court further found that DPS was liable, stating that "but for the failure to follow the statute and getting the detailed medical report, I don't believe this accident would have happened."
The trial court did not find that Reed was negligent because "disabled people want to maintain their independence."
The trial court also found that Troy was not negligent, as a guest passenger in Reed's vehicle, because he did not know enough about Reed's medical condition to make him aware that driving with Reed could lead to severe injury or death.
The trial court awarded damages as follows:
(1) Wayne Ferrill's pain and suffering--$100,000.00
(2) Wayne Ferrill's medical expenses--$22,748.80
(3) Wayne Ferrill's wrongful death claim--$100,000.00
(4) Marjorie Ferrill's pain and suffering--$50,000.00
(5) Marjorie Ferrill's medical expenses--$9,277.50
(6) Deidra Crowder's wrongful death claim for
[92 0858 La.App. 1 Cir. 3] Wayne Ferrill--$275,000.00
Marjorie Ferrill--$275,000.00
(7) Deidra Crowder's loss of support--$10,000.00
(8) Carolyn Bozeman's wrongful death claim for
Wayne Ferrill--$225,000.00
Marjorie Ferrill--$225,000.00
(9) Deborah Key's wrongful death claim for
Wayne Ferrill--$225,000.00
Marjorie Ferrill--$225,000.00
(10) Wayne and Marjorie Ferrill's funeral expenses--$8,266.75
(11) Rudy Troy's loss of future earning capacity--$50,000.00
(12) Rudy Troy's past medical expenses--$73,586.00 5
(13) Rudy Troy's future medical expenses--$20,000.00
(14) Rudy Troy's pain and suffering--$375,000.00
(15) Rudy Troy's loss of past earning capacity--$4,500.00
From this judgment, DPS appeals, urging the following assignments of error:
1. The trial court erred in finding the State to be liable, since the plaintiffs' evidence failed to establish all of the required elements for such a finding.
2. The trial court erred in failing to find any liability on the part of the driver of the errant car, Mr. Reed.
3. The trial court erred in failing to apply the State's statutory immunity from liability for damages resulting from the discretionary acts of its employees exercised in good faith.
4. The trial court erred in its application of the statutory limitation on state liability for general damages in this case.
5. The trial court erred in its determination that the eyewitnesses' testimony that differed at trial from their earlier testimony was credible, while finding that those eyewitnesses' whose testimony remained constant was found not credible.
6. The trial court erred in failing to find that Reed's passenger at the time of the accident, Rudy Troy, was not comparatively negligent.
7. The trial court erred in his unwarranted assessment of damages awarded to the Plaintiff-Intervenors/Appellees.
FACTS
THE ACCIDENT
The facts surrounding the accident are basically undisputed. Reed's vehicle was travelling south on Plank Road in the left lane. Plank Road is a four lane roadway, with a median dividing the lanes of traffic. Troy was a passenger in the Reed vehicle, but was [92 0858 La.App. 1 Cir. 4] asleep at the time of this accident. According to eyewitnesses, an unknown vehicle, later alleged to be the Wroten vehicle, was travelling in the right lane. The Wroten vehicle passed the Reed vehicle and immediately entered the left lane of traffic. At this point, there is conflicting testimony from the eyewitnesses as to whether Reed "got scared" when the Wroten vehicle passed him or whether the Wroten vehicle forced Reed off of the road. In any event, Reed's vehicle left the roadway, traversed the median and collided head on with the Ferrill vehicle, which was travelling north on Plank Road. The testimony and physical evidence indicated that Reed did not put on his brakes until immediately preceding the collision with the Ferrill vehicle.
There were conflicting opinions from the experts as to the cause of this accident. Dwayne Evans testified on behalf of plaintiffs and intervenors. He was asked the following question:
Do you have an expert opinion, sir, as to whether or not a reasonable, prudent driver who was not otherwise laboring under some kind of impaired driving ability could have taken evasive action and avoided entering into the northbound lane or precipitating a collision in this case?
Mr. Evans replied:
Yes. It is my opinion that a normal driver should have been able to take some evasive action. They could have steered to maintain a position in the median. The median is 40 feet wide at that location. It is what we would call a swell type ditch. It is low in the center for drainage purposes, but a vehicle can traverse it without a lot of trouble, particularly in dry weather or there could have been some braking applied which from the testimony I have heard there was no braking.
Ned Walton, a professional engineer, testified on behalf of DPS. It was his opinion that the cause of the accident was a vehicle that tried to make a passing maneuver and pulled back into the lane of traffic, forcing Reed from the roadway, across the median and into the opposing lane of traffic. Mr. Walton concluded that the actions of Reed were those of a reasonably prudent individual under the circumstances.
Reed was killed immediately. The Ferrills were transported to a hospital where Mrs. Ferrill died shortly thereafter. Wayne Ferrill died approximately ten days after the accident.
[92 0858 LA.APP. 1 CIR. 5] THE DRIVER'S LICENSE
Reed initially applied for a Louisiana driver's license in 1983. Carolyn Gonzales Innerarity, an assistant supervisor with DPS, handled Reed's application. Because Reed was physically handicapped (he was in a wheelchair), DPS requested a medical report from Reed. This medical report is a form distributed by DPS.
The medical report subsequently submitted by Reed was introduced into evidence. The report required a list of previous illnesses, and the year of occurrence. In Reed's report, multiple sclerosis was listed as a previous illness and the year of occurrence was 1959. There were several questions to be answered by the physician. Some of the more pertinent questions (and answers) are as follows:
Q. Are there any amputation or skeletal deficit that can interfere with safe driving ability? (give details)
Yes __ No __
A. Don't know--I haven't seen him drive
Q. Stiff or Frail Joints?
A. Yes
Q. Describe
A. MS
Q. Spastic or Paralyzed Muscles?
A. Yes
Q. Describe
A. MS
Q. List any Orthopaedic Appliances or Supports used and for how long?
A. Uses crutches to walk
Q. Does this device provide adequate compensation for safe driving? Yes __ No __
A. [U]nknown
* * * * * *
Q. Does the patient manifest side effects from prescribed medication that might affect driving ability? Yes __ No __ (give details)
A. No
Q. Does the patient have sufficient regard...
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