941794 La.App. 1 Cir. 5/5/95, Billiot v. Estate of Richardson

• Decision Date: 05 May 1995
• Citation: 655 So.2d 443
• Parties: Cir
• Court: Court of Appeal of Louisiana — District of US

Page 443

655 So.2d 443

941794 La.App. 1 Cir. 5/5/95

Donna BILLIOT, Individually and as Natural Tutor for Brandi Marie Billiot, Sylvia Jean Billiot and Skylier Fay Billiot, Her Minor Children v. The ESTATE OF James RICHARDSON.

No. 94 CA 1794.

Court of Appeal of Louisiana, First Circuit.

May 5, 1995.

J. Rene Williams, Houma, for plaintiffs-appellants Donna Billiot, et al.

James Ryan, III, New Orleans, for defendant-appellee United Service Auto. Ass'n.

Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.

[941794 La.App. 1 Cir. 2] LOTTINGER, Chief Judge.

This is a suit for damages arising from an automobile accident in which Reed Billiot was killed. Donna Billiot, Reed's surviving spouse, filed this suit for damages, individually and on behalf of her three minor children, against the estate of James Richardson and his insurer, United Services Automobile Association (USAA). Following trial on the merits, the jury returned a verdict in favor of defendants. From this adverse verdict, plaintiff appeals.

FACTS

On the afternoon of November 20, 1992, Kenneth LeCompte was driving his pickup truck northbound on La. Highway 57 when he collided, head-on, with a Buick Riviera driven by James Richardson. Reed Billiot was a passenger in the truck and Donna Akers was a passenger in the Buick. There were no survivors of the fiery collision. There were no eyewitnesses to the collision or to the events immediately leading up to the collision.

The accident occurred near the homes of Mr. and Mrs. Larry Robichaux and Curtis Shultis. Although these individuals heard the impact and saw its results, they did not see the actual collision or hear the squeal of tires prior to the crash.

Following a four day trial, the jury found no negligence on the part of Richardson, thereby relieving USAA of liability. Plaintiff has appealed assigning four errors:

1. The trial court erred in its failure to instruct the jury that appellants were entitled to a presumption of negligence on the part of both drivers.

2. The jury erred in absolving James Richardson from any negligence whatsoever.

3. The jury erred in applying the sudden emergency doctrine to absolve James Richardson from negligence.

4. The trial court's instructions to the jury effectively and erroneously created a presumption of negligence on the part of Kenneth LeCompte while simultaneously creating a presumption of no negligence on the part of James Richardson.

ERRONEOUS JURY CHARGES

Plaintiff contends that the trial judge erred in refusing to instruct the jury [941794 La.App. 1 Cir. 3] that both drivers, being in the wrong lane, were presumed negligent. ¹

In brief, plaintiff specifically argues that the trial judge should have charged the jury concerning the Poche rule that an innocent third party injured as a result of a collision between two drivers is entitled to a presumption that each of the drivers is negligent and that the burden of proof falls upon each driver to exculpate himself from negligence. Poche v. Frazier, 256 La. 266, 232 So.2d 851, 856 (La.App. 4th Cir.), writ denied, 256 La. 266, 236 So.2d 36 (1970). However, at trial plaintiff did not object to the trial judge's failure to instruct the jury on the Poche rule. Plaintiff's only objection to the jury instructions was that the trial judge failed to include an instruction that would "charge the jury that both drivers being in the wrong lane would be presumed negligent."

To preserve the right to appeal the trial judge's refusal to give a requested instruction or the giving of an erroneous instruction, that party must not only make a timely objection, but must state the grounds of the objection. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545 (La.App. 1st Cir. 3/11/94); 634 So.2d 466, 489, writ denied, 94-0906 (La. 6/17/94); 638 So.2d 1094; Martin v. Francis, 600 So.2d 1382, 1387 (La.App. 1st Cir.), writ denied, 606 So.2d 541 (La.1992). Merely making a general objection without assigning any reasons is insufficient. Belle Pass Terminal, Inc., 634 So.2d at 489; Martin, 600 So.2d at 1387. A party's failure to object timely to an instruction, for the record and with specificity, constitutes a waiver of the objection. Berrera v. Hyundai Motor America Corporation, 620 So.2d 890, 892 (La.App. 4th Cir.1993).

Plaintiff has attempted to expand her specific objection at trial to encompass an objection to the trial judge's failure to give the Poche instruction. However, plaintiff did not specifically object to the trial judge's failure to instruct the jury on the Poche rule and, therefore, plaintiff waives her right to further consideration of that issue on appeal. The only alleged error that plaintiff objected to and which we [941794 La.App. 1 Cir. 4] may consider is the trial judge's failure to include plaintiff's special charge that both drivers in the wrong lane are presumed negligent. See Autin's Cajun Joint Venture v. Kroger Company, 93-0320, p. 7-8 (La.App. 1st Cir. 2/16/94); 637 So.2d 538, 542-43, writ denied, 94-0674 (La. 4/29/94); 638 So.2d 224.

Upon review, we note that the trial judge need only give those jury instructions which fairly and reasonably point up issues, and which provide correct principles of law for the jury to apply to those issues. Rhodes v. Winn-Dixie Louisiana, Inc., 93-1848, p. 9 (La.App. 1st Cir. 6/24/94); 638 So.2d 1168, 1173. It is the judge's responsibility to reduce the possibility of confusing the jury, and he/she may exercise the right to decide what law is applicable. Daigle v. Legendre, 619 So.2d 836, 839 (La.App. 1st Cir.), writ denied, 625 So.2d 1040 (La.1993). Additionally, an appellate court must exercise great restraint before overturning a jury verdict on a suggestion that jury instructions were so erroneous as to be prejudicial. Id.

In the instant case, plaintiff requested that the trial judge give the following jury instruction:

SHIFTING BURDEN OF PROOF (VEHICLE COLLISION--WRONG LANE)

I have previously told you that the plaintiff has the burden of proving every essential element of his claim. However, there are certain exceptions to this rule.

Where a collision occurs between two motor vehicles and both vehicles are across the center line, there is a presumption that both drivers were negligent. The burden of proving that the collision was not caused by the negligence of either driver or that there was justifiable circumstances excusing their conduct, then shifts to that driver.

If both drivers are determined by you to be at fault, then you must assign a percentage of fault to each driver.

The record reveals that the trial judge instructed the jury, in part, as follows:

[I]t is a well established rule that when a collision occurs between two vehicles, one of which is in the wrong lane of traffic, there is a presumption that the driver in the wrong lane is negligent and that burden is on that driver or his representative to show that he was free from fault, however slight, that contributed to the accident.

[941794 La.App. 1 Cir. 5] The trial judge instructed the jury that a driver in the wrong lane is presumed negligent. It was not necessary to further instruct the jury that when both drivers are in the wrong lane, both drivers are presumed negligent. Such a conclusion was adequately covered within the trial judge's instruction.

After reviewing the jury instructions, we conclude that the trial judge gave instructions which fairly and reasonably pointed up the issues and which provided correct principles of law for the jury's application thereto. Therefore, we find that the trial judge did not err in refusing to give plaintiff's requested jury instruction.

NEGLIGENCE OF JAMES RICHARDSON

Plaintiff contends that the jury erred in absolving Richardson of all negligence. According to plaintiff, USAA did not meet its burden of proof with regard to Richardson's fault. Plaintiff cites Simon v. Ford Motor Company, 282 So.2d 126 (La.1973) (on rehearing), in support of her contention that USAA had to prove by clear and convincing evidence that Richardson was free of fault, however slight.

In Simon, the plaintiff was driving his vehicle in the proper lane when he was injured by the defendant who veered across the centerline and collided with his vehicle. Id. at 132. The supreme court applied the following principle:

When a driver on his wrong side of the road collides with another car which is in its correct lane of traffic, the driver is required to exculpate himself of any fault, however slight, contributing to the accident.

Id. at 133.

The court further stated that this principle applies to a "motorist who leaves his proper lane of the highway to injure a blameless person proceeding properly in the opposite lane". Id. Thus, the burden of proof shifts to the driver of the vehicle in the wrong lane only if the other vehicle is in its proper lane of travel. See Carter v. Travelers Insurance, Co., 535 So.2d 1001, 1004 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1202 (La.1989).

The principle articulated by the supreme court in Simon does not apply in the present case. Although Richardson did cross the centerline, he did not strike a [941794 La.App. 1 Cir. 6] person "proceeding properly" in the opposing lane. Richardson collided with LeCompte who was across the centerline, proceeding in the wrong lane and speeding. Because Richardson did not collide with a vehicle proceeding properly in the opposite lane, the burden of proof did not shift to USAA.

Having concluded that the Simon rule does not apply in the present case, we now review the jury's factual findings. At trial, plaintiff and defendants each presented expert witnesses who gave conflicting versions of how the accident occurred. Plaintiff's expert stated that the negligence of both drivers contributed to the accident. On the other hand, defense experts concluded that the accident was caused entirely by LeCompte's negligence. Because there were no survivors or eyewitnesses to the collision, the...