93 0194 La.App. 1 Cir. 12/1/94, Cornish v. State, Dept. of Transp. and Development

• Decision Date: 01 December 1994
• Citation: 93 0194 La.App. 1 Cir. 12/1/94, Cornish v. State, Dept. of Transp. and Development, 647 So.2d 1170 (La. App. 1994)
• Parties: 93 0194 La.App. 1 Cir
• Court: Court of Appeal of Louisiana

Page 1170

647 So.2d 1170

93 0194 La.App. 1 Cir. 12/1/94

Percy CORNISH and Shirley Mays Cornish v. STATE, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.

No. 93 CA 0194.

Court of Appeal of Louisiana First Circuit.

Dec. 1, 1994.

Rehearing Denied Feb. 2, 1995.

W. Hugh Sibley, Richard D. McShan, Sibley & McShan, Greensburg, for plaintiffs-appellees/appellants Percy Cornish & Shirley Mays Cornish.

Stacey Moak, Cicero & Moak, Baton Rouge, for defendant-appellant State, Through the Dept. of Transp. and Development.

Arthur R. Cooper, Bell, Cooper & Hyman, Baton Rouge, for defendant-appellant Ponchatoula Homestead & Sav. Ass'n.

Before FOIL, PITCHER and PARRO, JJ.

[93 0194 La.App. 1 Cir. 2] PARRO, Judge.

This personal injury action by Percy Cornish and Shirley Mays Cornish ("the Cornishs") against the State of Louisiana, through the Department of Transportation and Development ("DOTD") and Ponchatoula Homestead & Savings Association ("Ponchatoula") arises from a single car accident that occurred when the vehicle that Percy Cornish was driving ran off of the highway and into a cattle guard located on the state right-of-way. In a bifurcated trial, the trial judge decided the case as to DOTD, and the jury decided the case as to Ponchatoula. The factfinders' findings as to apportionment of fault and damages differed. Judgment was rendered according to the jury's verdict and the trial judge's decision. From this judgment, all parties appeal. For the following reasons, this court affirms in part, reverses in part, and vacates in part.

Facts and Procedural History

Percy Cornish ("Cornish") owned an eighteen wheeled truck ("work truck") and was self-employed as a trucker. When Cornish was not using his work truck, he was allowed to park it at a friend's (Ira Lee Johnson) house on Louisiana Highway 37 ("Hwy. 37") in Baywood, Louisiana.

On Friday, December 9, 1988, after spending the entire morning at home, Cornish departed in his 1979 GMC Larado pick-up truck between 1:00 p.m. and 2:00 p.m., ran a few errands, and drove to Johnson's house to perform repairs to his work truck. ¹ Cornish admits that he might have consumed a beer prior to his afternoon departure from his home.

While Cornish was working on his work truck at the Hwy. 37 location, his brother, David Cornish, stopped by for a brief visit (five to ten minutes) between 5:30 p.m. and 6:00 p.m. David filled Cornish's eight to ten ounce glass with homemade cherry-bounce wine during his visit. Cornish began to consume this drink prior to David's departure. He consumed the rest of the drink immediately after David left. Thereafter, Johnson, who had been aware of Cornish's presence but had only observed his actions from afar, [93 0194 La.App. 1 Cir. 3] invited Cornish in for dinner between 6:30 p.m. and 7:00 p.m. After eating black-eyed peas, cornbread, and collard greens at Johnson's home, Cornish went outside to pick up the items that had been used to repair his work truck. Immediately thereafter, he left for his brother's house in Greensburg, Louisiana to ask for his help in repairing the work truck on the next day.

While Cornish was traveling north on Hwy. 37 toward Greensburg at approximately 8:30 p.m., he crossed a bridge approximately 5 miles before Greensburg. At some point after crossing this bridge, Cornish steered his vehicle to the right causing him to get onto the shoulder, where he traveled for at least 200 feet. The surface of the roadway within 200 feet of the Hwy. 37 bridge was in good condition, i.e., no depressions or pot holes and there were no sudden drop-offs from the lane of travel to the shoulder. It was a clear night. The weather was not a factor. As Cornish attempted to reenter the road, he went into a ditch and crashed into a cattle guard approximately 11 1/2 feet from the traveled portion of roadway thereby injuring his hips, legs, knees, areas of the face, and lip. ²

Ronald Pierce, the investigating state trooper, went to the hospital after investigating the scene and requested that blood be drawn to determine Cornish's blood alcohol level. Cornish's blood sample revealed that Cornish's blood alcohol content was .07 percent approximately two to two-and-one-half hours after the accident.

The Cornishs filed suit against DOTD alleging that the highway was defective due to DOTD's failure to place warning signs and that DOTD was negligent in placing a posted speed limit which was excessive for the roadway conditions, and in allowing a defective and dangerous condition to exist on the right-of-way. DOTD thereafter filed a third party demand against Ponchatoula as owners of the cattle guard. The Cornishs filed a supplemental and amending petition to add Ponchatoula as a party defendant in the main demand alleging that it created a hazardous obstacle in the highway right-of-way and failed to warn of the hazardous condition.

[93 0194 La.App. 1 Cir. 4] A bifurcated trial produced the following findings as to fault:

             Judge  Jury
                DOTD         50%    50%
                Ponchatoula  35%    25%
                Cornish      15%    25%
                

and the triers of fact awarded damages to the Cornishs as follows:

Judge           Jury
                past medicals              $   54,101.38  $   54,101.38
                future medicals                30,000.00      40,000.00
                past lost wages               103,000.00      65,000.00
                future lost wages             500,000.00     400,000.00
                past pain and suffering       200,000.00     100,000.00
                future pain and suffering      50,000.00     100,000.00
                permanent disability          250,000.00     175,000.00
                loss of enjoyment of life     250,000.00      50,000.00
                loss of consortium             50,000.00      50,000.00
                                           -------------  --------------
                total                      $1,487,101.38  $1,034,101.38
                

The trial judge signed a judgment which incorporated all of these findings.

Ponchatoula appeals, contending that both the trial judge's findings and the jury's verdict are clearly wrong; therefore, it urges this court to conduct a de novo review of the record to determine if the cattle guard presented an unreasonable risk of harm, if Ponchatoula had custody of the cattle guard, and if Ponchatoula was negligent. It also questions the manner in which fault was apportioned by both triers of fact. Ponchatoula also requests that this court review the awards for future medical expenses, past lost wages, future lost wages and general damages by both triers of fact to determine if they are excessive.

DOTD appeals, urging this court to conduct an independent review of the record, as argued by Ponchatoula, to determine if DOTD's negligence caused the accident, if Cornish's fault was the sole cause of the accident, and the amount of damages, if any are owed by DOTD. In the event that this court finds that DOTD's negligence was a cause of the accident, DOTD urges that it was less than 50% at fault in causing Cornish's injuries.

The Cornishs appeal, requesting this court to reconcile the discrepancies between the trial judge's findings and the jury's verdict and to modify the judgment accordingly.

[93 0194 La.App. 1 Cir. 5] Standards of Review

The general rule is that a court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). Where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. at 883. In other words, when findings are based on a credibility determination, a trial court's decision to credit the testimony of one of two or more witnesses can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989). Before an appellate court may reverse a factfinder's determinations, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Department of Transportation and Development, 617 So.2d at 882; see Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Jurisprudence establishes that the manifest error--clearly wrong standard is inapplicable to cases involving bifurcated trials which resulted in inconsistent reasonable findings of fact by the trial judge and the jury. Richard v. Teague, 92-17 (La.App. 3rd Cir. 5/4/94), 636 So.2d 1160, 1168; Carr v. City of New Orleans, 626 So.2d 374, 376 (La.App. 4th Cir.1993), writ denied, 634 So.2d 398 (La.1994); Haydel v. Commercial Union Insurance Company, 617 So.2d 137, 139 (La.App. 5th Cir.), writ denied, 619 So.2d 551 (La.1993); McCullough v. Regional Transit Authority, 593 So.2d 731, 734 (La.App. 4th Cir.), writ denied, 595 So.2d 655 (La.1992); Felice v. Valleylab, Inc., 520 So.2d 920, 924 (La.App. 3rd Cir.1987), writs denied, 522 So.2d 562, 563 (La.1988); Thornton v. Moran, 348 So.2d 79, 81-82 (La.App. 1st Cir.), writs denied, 350 So.2d 897, 898, 900 (La.1977). This line of jurisprudence originated with the first circuit case of Thornton v. Moran, 348 So.2d 79 (hereinafter referred to as "Thornton II ").

Regarding the development of this jurisprudential rule, in Thornton v. Moran, 341 So.2d 1136 (La.App. 1st Cir.1976), reversed, 343 So.2d 1065 (La.1977), a case involving two consolidated suits which were bifurcated for purposes of trial, this court [93 0194 La.App. 1 Cir. 6] discussed the issue of the standard of review to be applied to bifurcated trials resulting in conflicting findings of fact. This court concluded that it would apply the manifest error--clearly wrong standard to the findings of the jury and the trial judge independently to determine if either was manifestly wrong rather than reconciling the two determinations to produce a single judgment. Thornton v. Moran, 341 So.2d at 1142 (hereinafter referred to as "Thornton...