93-1896 La.App. 4 Cir. 11/16/95, Regional Transit Authority v. Lemoine

• Decision Date: 16 November 1995
• Citation: 664 So.2d 1303
• Parties: 93-1896 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1303

664 So.2d 1303

93-1896 La.App. 4 Cir. 11/16/95

REGIONAL TRANSIT AUTHORITY v. Donald LEMOINE and State Farm Insurance Company.

Donald LEMOINE v. Johnnie WARNER and Regional Transit Authority.

Nos. 93-CA-1896, 93-CA-1897.

Court of Appeal of Louisiana Fourth Circuit.

Nov. 16, 1995.

Rehearing Denied Jan. 17, 1996.

Writ Denied March 29, 1996.

Law Offices of Tonry & Ginart, Michael C. Ginart, Jr., Chalmette, for Appellant, Lemoine.

Berrigan, Litchfield, Schonekas, Mann & Clement, Charles F. Wartelle, New Orleans, for Appellees, RTA and Warner.

Before BARRY, BYRNES, and LANDRIEU, JJ.

[93-1896 La.App. 4 Cir. 1] BARRY, Judge.

Donald Lemoine's truck struck the rear of a Regional Transit Authority bus which was stopped partially in Lemoine's travel lane. RTA sued Lemoine and State Farm Insurance Company, his insurer, for damages. State Farm reconvened against the RTA bus driver, Johnnie Warner, for stopping illegally on a street and against RTA for improper supervision and instruction of Warner. In a separate suit Lemoine sued Warner, RTA, Transit Management of Southeast Louisiana, Inc. (TMSLI), Warner's employer, and Progressive Casualty Insurance Company, TMSLI's insurer. Lemoine alleged that the bus was halfway parked in a traffic lane without emergency lights during a rainstorm and he could not see the bus before the collision. RTA and Warner reconvened against Lemoine and third-partied State Farm. The cases were consolidated and the appeals have been consolidated.

After a bifurcated trial the jury concluded that Warner and TMSLI were not at fault. The trial judge ruled that RTA was not at fault. Judgment was rendered [93-1896 La.App. 4 Cir. 2] against Lemoine and State Farm and their claims were dismissed. RTA's settlement with State Farm was acknowledged.

Lemoine's appeal asserts:

1) the jury instruction to disregard the opinion testimony of a fact witness was erroneous;

2) it was improper to allow Kennedy Johnson to testify because Johnson's current address was not listed in a supplemental answer to an interrogatory;

3) the trial court should have instructed the jury as to the application of 828 M.C.S. § 38-242.01;

4) the trial court and the jury erred by not finding the bus driver, his employer and RTA at fault.

TESTIMONY

It was stipulated that Johnnie Warner was in the course and scope of his work as a bus driver employed by TMSLI at the time of the accident and the bus was owned by RTA. Outside of the jury's presence it was stipulated that State Farm settled with RTA for $2,270.03 for damages to the bus plus interest and paid Lemoine $8,660.75 under his collision coverage for damage to his truck. ¹ The jury interrogatories did not cover property damage and the jury was told only the stipulated amount of damage to the truck and the bus.

Donald Lemoine, an electrician, testified that October 13, 1989 was a payday and he stopped and consumed more than three beers before 6:00 p.m. when he picked up his son, Nicky. He was driving a Chevy S-10 and it was raining and getting dark. His dim lights and windshield wipers were on. Lemoine turned into the left lane of northbound traffic on General Meyer Ave. (a four lane-two way street) and was traveling at 30-35 m.p.h.. The car in front of him was [93-1896 La.App. 4 Cir. 3] traveling at 20-25 m.p.h. and caused a spray which obstructed his vision. He moved into the right lane to pass the car. Nicky hollered "Daddy" and Lemoine turned to look at his son. Thereafter, all Lemoine remembered was waking up in the hospital. He did not see the warning lights of the stopped bus or the construction barriers farther down General Meyer.

Nicky Lemoine (11 years old at the time of the accident) testified by videotaped deposition that it was raining and dark as his father changed from the left to the right lane. Nicky looked up, saw something black, and screamed. His father's truck hit the bus. Nicky did not notice prior to the accident whether the bus had lights and said: "[I]f the lights were on, we would have never hit it, because we would have seen it." Nicky testified that the bus was "kind of in the road and kind of not," but it was "mainly in the road." The bus driver returned to the bus and turned on the lights. Nicky also did not see the warning lights for the construction project which he knew was about two blocks ahead.

Johnnie Warner, an RTA bus driver for four years, testified that he relieved another driver on the outbound route and started the inbound route about 7:35 p.m. The bus lights were on. There were two passengers on the bus when he stopped at about 7:40 p.m. on General Meyer near the corner of Roselyn Park Place to use the comfort station on that route, a Chevron Service Station across the street. He pulled the bus off the roadway as far as possible without bogging down because of a down slope to a drainage ditch. Warner put on the hand brake, placed the bus in neutral, and turned on the hazard lights. According to Warner, the bus was eight or nine inches in the right lane of traffic. Warner stated that the pictures at trial (dated January 19, 1993) showed the shoulder of the road after it had been upgraded, not as it looked on the night of the accident. He explained [93-1896 La.App. 4 Cir. 4] that he could not drive across the double yellow lines to go over to the service station. He could not park farther down the street because of time constraints. He was away from the bus three to four minutes. Warner testified that he left the bus running pursuant to instructions in pamphlets or drivers' alerts circulated daily with more current information than the manual (which stated that the bus should have been shut down). Warner walked across General Meyer to the restroom. While he was in the bathroom, he heard a crash. He went outside and saw a truck that had crashed into the bus' left rear bumper.

Theresa Savoie, who lived on the corner of General Meyer and Roselyn Park Place, testified that she and her grandson went outside after the crash and saw that a truck hit a bus which was partly in the right lane of General Meyer. She said that the RTA bus had no lights until the driver returned; however, on cross-examination she did not know whether lights were on inside the bus. Ms. Savoie said that one-fourth or more of the bus was in the street. She had seen buses stopping there because the drivers used the Chevron restroom. She said that some drivers pulled off the street completely and used flashers and some did not. Ms. Savoie stated that buses continue to park there because of the comfort station. She has complained to the RTA about the practice to no avail. Ms. Savoie said that there were construction barricades extending into a lane of traffic during the resurfacing of Huntley Dr. (the next cross street and traffic light) at the time of the accident. Ms. Savoie noted that General Meyer was re-surfaced in 1990 or 1991 after the accident.

Mrs. Gloria Lemoine, Donald Lemoine's girlfriend at the time of the accident and wife at the time of trial, testified that Nicky called her immediately after the accident from a nearby house. She went to the scene and did not see [93-1896 La.App. 4 Cir. 5] lights on the bus. She said that one-third of the bus was on the street. After Lemoine left in the ambulance, she saw red lights flashing on the back of the bus.

Kennedy Johnson, a bus passenger, stated that he was on the bus when the accident happened. The driver drove the bus onto the shoulder and left for about five minutes. The engine was running and the lights were on when the bus was struck. He saw the emergency lights flashing. Johnson also saw flashing lights ahead because of the construction work about 1 1/2 blocks away. Johnson said that there was enough room for the S-10 truck to pass the bus which extended 13 or 14 inches into the right lane of traffic.

Julius Sasso was driving in the right lane on General Meyer and testified that he saw the accident. Sasso was traveling 25-30 m.p.h. (the speed limit was 35 m.p.h.) and Lemoine passed him in the left lane. Lemoine moved back into the right lane to go around a slower moving vehicle in the left lane when he struck the bus. Sasso watched Lemoine accelerate, hit the brakes, and skid into the bus. Sasso stopped to help. He stated that the bus was in the right lane and a vehicle had to move into the left lane to pass the bus and the construction work. From two to three blocks away Sasso could see the bus' lights as well as the construction barricades located in the right lane.

Officer Paul Schubert, accident reconstruction expert, testified that he reviewed the police accident report, went to the scene at the end of July, 1992, took measurements, obtained manufacturers' dimensions on the bus and the truck, and observed RTA buses pull onto the shoulder at the accident location. He was not aware that General Meyer had been re-surfaced. Officer Schubert referenced RTA's photo exhibits of the accident scene taken on January 19, 1993. Based on his measurements the right northbound lane of General Meyer was nine feet, nine [93-1896 La.App. 4 Cir. 6] inches wide, the left lane was nine feet, ten inches wide, and the shoulder was seven feet, seven inches wide. Lemoine's Chevy S-10 truck was five feet, two inches wide and the RTA bus was eight feet, six inches wide. Therefore, there was a slightly over eight feet open in the right street lane if Lemoine drove to the edge of the shoulder. Officer Schubert concluded that Lemoine's truck had sufficient room to pass the bus in the right lane.

Dr. Culicchia, Lemoine's neurosurgeon, testified that he was called by an emergency room physician at JoEllen Smith Hospital where Lemoine was brought from the accident scene. He had Lemoine transferred to Meadowcrest Hospital where Lemoine was admitted at 3:45 a.m. on July 14, 1989. Lemoine was combative and had a .12 blood alcohol level. Dr. Culicchia stated that Lemoine had a drinking problem. On February 25,...