94-705 La.App. 3 Cir. 2/15/95, Hasha v. Calcasieu Parish Police Jury

• Decision Date: 15 February 1995
• Citation: 94-705 La.App. 3 Cir. 2/15/95, Hasha v. Calcasieu Parish Police Jury, 651 So.2d 865 (La. App. 1995)
• Parties: 94-705 La.App. 3 Cir
• Court: Court of Appeal of Louisiana

Page 865

651 So.2d 865

94-705 La.App. 3 Cir. 2/15/95

Lester J. HASHA, et ux., Plaintiffs-Appellants-Appellees, v. CALCASIEU PARISH POLICE JURY, et al., Defendants-Appellees-Appellants.

No. 94-705.

Court of Appeal of Louisiana Third Circuit.

Feb. 15, 1995.

Writ Denied April 28, 1995.

Steven Broussard, Lake Charles, for Lester J. Hasha et ux.

Terry James Manuel, Lake Charles, for Calcasieu Parish Police Jury, et al.

Rick J. Norman, Lake Charles, for Dairyland Ins. Co., et al.

Adam L. Ortego Jr., Lake Charles, for Kathleen Bertrand, et al.

Before KNOLL, THIBODEAUX, and BERTRAND ^*, JJ.

[94-705 La.App. 3 Cir. 1] KNOLL, Judge.

This is an appeal from a bifurcated trial for a wrongful death, involving a one car accident. The jury and the trial judge agreed that the Calcasieu Parish Police Jury (Police Jury) and the decedent, James Hasha (James), the passenger of the vehicle, were liable and both found that James was 50% at fault in causing the accident. Nonetheless, they reached different conclusions about the percentages of fault attributable to the Police Jury; the jury assigned 50% fault to the Police Jury and the trial judge assigned 25% fault to it. The triers of fact also reached different conclusions about the liability of the driver, Sylvia Duke (Sylvia); the jury found her not liable, whereas the trial judge found her liable and assigned her 25% fault. Furthermore, the triers of fact made greatly divergent awards of damages; the jury awarded the Hashas, the parents of James, $728,238 and the trial court awarded them $353,238.90. The Hashas and the Police Jury appeal liability and the inconsistent verdicts.

On May 10, 1985, James Hasha, the 18 year old son of Lester and Josette Hasha, borrowed his mother's 1981 Fiat Spider, a two-door convertible, to take his 14 year old girl friend, Sylvia Duke, riding. At the time of the accident, Sylvia was two weeks shy of her fifteenth birthday. After James and Sylvia rode around for awhile, James asked Sylvia to drive the automobile. Sylvia was [94-705 La.App. 3 Cir. 2] initially reluctant because she was not a licensed driver, and she had never driven a vehicle with a manual shift. After James persisted, Sylvia agreed to drive with James doing the shifting. While driving, Sylvia would depress the clutch and James would shift the vehicle.

Shortly after taking the steering wheel, Sylvia proceeded onto Gauthier Road, a highly travelled, gravel road in the southern portion of Lake Charles. As Sylvia proceeded west of Nelson Road on Gauthier Road travelling near the 35 m.p.h. speed limit, she testified that she hit a bump, lost control of the vehicle, slid through loose gravel, and veered into a ditch. When the car hit the ditch, it turned over, pinned James underneath the car, and killed him.

The Hashas sued the Police Jury as the custodian of the gravel road, Kathleen Bertrand, the mother of Sylvia, a minor, and the Dukes' insurer, Dairyland Insurance Company. In supplemental petitions, the Hashas added the following defendants: Fiat Distributors, Inc., the manufacturer of the Spider; and Casualty Reciprocal Exchange Insurance Company, their uninsured motorist carrier.

Prior to trial, Dairyland deposited its policy limits into the registry of the trial court. Likewise, the Hashas either settled or dismissed their claims against Fiat and Casualty Reciprocal prior to trial. The bifurcated trial proceeded against the Police Jury, Kathleen Bertrand, and Sylvia, who was included as a defendant because she attained the age of majority prior to trial.

At the bifurcated trial, the jury decided Sylvia's liability as the driver of the vehicle, James' contributing fault, if any, and assessed the damages which the Hashas sustained. The trial judge decided the Police Jury's liability and independently determined the damages the Hashas suffered. By stipulation of the parties, the jury was allowed to assess a percentage of fault to the Police Jury, but agreed that the finding would not be binding since the trial judge had to decide that issue.

The Police Jury appeals, contending that the trial judge erred in: (1) finding that the Hashas proved by a preponderance of the evidence that a defect existed on Gauthier Road; (2) his conclusion that Gauthier Road was unreasonably dangerous; (3) finding that the condition of Gauthier Road caused the accident; and (4) finding that the Police Jury had either actual or constructive notice of a defect on Gauthier Road. The Police Jury further contends that the jury erred in finding Sylvia Duke free from fault and in awarding excessive damages.

The Hashas also appeal, contending that we should assess the issue of liability de novo since the jury's and the trial judge's findings of fault do not total 100% and are irreconcilable. They urge [94-705 La.App. 3 Cir. 3] us to assign 100% of the fault to the Police Jury and to consider the 13 accident reports of other one-car accidents on Gauthier Road, erroneously excluded by the trial judge, as evidence of the Police Jury's notice of the road defect. They also urge us to adopt the jury's assessment of damages, since its award was not excessive, and unlike the trial judge's, contained all of the elements of damages proven by the evidence.

STANDARD OF REVIEW

Initially, the litigants disagree about the standard of review which we should use in our analysis of the lower court's verdicts. The Hashas contend that we must conduct a de novo review; the Dukes urge us to adopt the judgment which is more reasonable; and the Police Jury hypothesizes that we should prorate the 25% fault left unaccounted since the judgments of the two factfinders only apportioned 75% fault, 50% to James and 25% to the Police Jury.

In a bifurcated trial where the jury and the trial judge reach conflicting findings of fact and there is an appeal, the court of appeal should resolve these differences and render a single harmonized decision based on the record as a whole. Bishop v. Shelter Ins. Co., 461 So.2d 1170 (La.App. 3rd Cir.1984), writ denied, 465 So.2d 737 (La.1985). In such a situation the manifest error rule is inapplicable and the court of appeal must decide which decision is more reasonable after a careful examination of the record. Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3rd Cir.1978), writ denied, 366 So.2d 564 (La.1979).

As succinctly stated in Bishop, supra, an appellate court is called upon to harmonize jury and trial court conflicts in bifurcated trials only when the jury and the judge reach conflicting findings of fact.

In the case sub judice, it is important that we first recall that the parties whose fault was before the jury for adjudication were only James Hasha and Sylvia Duke. As exhibited in the litigants' stipulation at trial, the jury's allocation of 50% fault to the Police Jury, a method approved by the Louisiana Supreme Court in Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308 (La.1984), was not binding on the trial judge. Commenting on a similar situation in Bishop, supra, we stated:

"[R]egardless of the jury's intention, it did not, as a matter of law, have the right or the duty to determine whether the [public entity] ... was at fault and, if so, the percentage thereof. LSA-R.S. 13:5105 clearly provides that, 'No suit against the state or a state agency or a [94-705 La.App. 3 Cir. 4] political subdivision shall be tried by jury.' Thus, as a matter of law, the jury verdict has no weight on the issue of the State's fault. Under this view, there is no conflict between the finding of fact by the jury and that by the judge on the issue of the State's fault."

Bishop, supra at 1174. Carrying this reasoning one step farther in the present case, the trial judge's consideration of the fault of Hasha and Duke, though sanctioned by Lemire, supra, was not binding on the jury and cannot conflict with the jury's adjudication of the fault of those parties. Thus,

"It follows that since there is no conflict between the triers of fact, there is no need for the Court of Appeal to harmonize in accordance with the jurisprudence discussed above. It also follows that in our appellate review of the facts found by the jury and the facts found by the trial judge the applicable rule will be the well established test of whether the trier of fact was clearly wrong."

Bishop, supra at 1174. Accordingly, we will use the manifest error standard in our review of the jury's finding of liability as to Hasha and its exculpation of Sylvia. Likewise, we will apply the manifest error standard in our analysis of the judge's conclusion that the Police Jury was also liable to the Hashas.

Nevertheless, we find that the assessment of damages by the jury and the trial judge are in conflict and must be harmonized. Hatcher v. State, Department of Transportation and Development, 478 So.2d 774 (La.App. 3rd Cir.), writ denied, 479 So.2d 923 (La.1985). Accordingly, we will examine the record to inquire which damage award is the more reasonable.

James Hasha's fault

The jury found James liable and allocated 50% fault to him. The Hashas contend that James was a guest passenger in the vehicle and that there was no evidence upon which the jury could have found James liable.

Although the passenger of an automobile ordinarily has no duty to supervise a driver, fault may be imposed where there is a joint venture, an independent negligent act by the passenger, or a showing that the rider had actual or constructive knowledge of a driver's incompetence or impaired ability to operate the vehicle. Sledge v. Continental Cas. Co., No. 25,770 (La.App. 2nd Cir. 6/24/94), 639 So.2d 805. Moreover, a passenger can be held liable for allowing an unlicensed driver to drive if it is proven that such conduct is a cause in fact of the accident. Faulk v. Champagne, 590 So.2d 683 (La.App. 3rd Cir.1991). Negligent conduct is a cause in fact of harm if it was a substantial factor in bringing about that harm. Socorro v. City of New...