942112 La.App. 1 Cir. 6/23/95, Richard v. St. Paul Fire and Marine Ins. Co.
| Decision Date | 23 June 1995 |
| Citation | 657 So.2d 1087 |
| Parties | Cir |
| Court | Court of Appeal of Louisiana — District of US |
John T. Bennett, Marksville, for plaintiffs-appellants.
John Swanner, Baton Rouge, for defendants-appellees.
Before LOTTINGER, C.J., and SHORTESS and CARTER, JJ.
[942112 La.App. 1 Cir. 2] SHORTESS, Judge.
This suit arises out of an accident which occurred when Robert Richard (Richard) was working as a laborer for Turner Industries (Turner) at a construction site in St. Gabriel, Louisiana. At the time of the accident, employees of Cajun Contractors, Inc., were attempting to pump water out of sump holes in a concrete slab adjacent to the construction site. The concrete slab was surrounded by a two-foot high retaining wall. Because of heavy rain the previous day, the concrete slab was covered with approximately eight inches to one foot of water. Richard was instructed by his supervisor to retrieve a ladder, which had been left on the other side of the slab. He proceeded across the muddy, water-covered slab, leaned over the retaining wall, and retrieved the ladder. Upon his return, he stepped in an uncovered, unmarked sump hole and injured his knee. He also experienced severe complications related to treatment of the knee. Richard and his wife, Tonya Richard, (plaintiffs) sued Cajun Contractors, Inc., and its insurer, St. Paul Fire and Marine Insurance Company (defendants) for negligence. 1
A jury found defendants 80% at fault and Richard 20% contributorily liable for his own injury and awarded damages as follows:
A. General damages, past and future pain and suffering
permanent injuries and disfigurement ........................ $125,000.00
B. Past medical bills ............................................ $ 72,850.00
C. Future medical bills .......................................... $200,000.00
D. Past wage loss ................................................ $ 28,000.00
E. Future loss of earnings and/or earning capacity ............... $325,000.00
TOTAL ......................................................... $750,850.00
[942112 La.App. 1 Cir. 3] The jury found Tonya Richard sustained no loss of consortium, and her demand was dismissed. Plaintiffs appealed.
Initially, we address plaintiffs' contention that the trial court erred in allowing defendants to use six peremptory challenges on blacks and that the explanation given by defendants was not sufficient to meet the guideline test set forth in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). 2
The record reflects that after three blacks were excused, plaintiffs objected that they had been improperly excluded. The trial court found a prima facie case of exclusion by reason of race had been made. Defense counsel offered the following explanations:
1. Stephanie R. Hammond: excluded because she was on probation for disturbing the peace and was unemployed at the time of the trial.
2. Lawrence L. Bosley: excluded because he had a medical malpractice case pending on behalf of his son at the time of trial, and defense counsel believed he might be sympathetic to an injured person.
3. Linda D. Beloney: excluded after she was observed turning around and looking at another juror who was giving a lengthy explanation of why she did not think an "extra large" award should be given. She appeared to disagree with what the other juror was saying. She also was unemployed.
After hearing the explanations, the court found the explanations were satisfactory, and the challenges were allowed to stand.
Defendants used their next three peremptory challenges against blacks, and plaintiffs' counsel objected again. After a second hearing, the following explanations were offered for exclusion of the jurors:
4. Annette Butler: excluded because her husband was employed by HCI Harmony, Inc., the company which employed [942112 La.App. 1 Cir. 4] Richard at the time of the accident, and also because she was a receptionist with a home health center. 3
5. Otis Royal: excluded because his wife worked for a plaintiff law firm in Plaquemine, Louisiana.
6. Tammy Green: excluded because she was a private duty nurse with a home health care agency, and counsel thought she might be overly sympathetic to an injured person.
The court at that time did not specifically find that plaintiffs made a prima facie showing; however, defendants offered race-neutral explanations. The court accepted the excuses as valid. The jury was sworn and seated, and then two alternates were selected. Plaintiffs' counsel at this time re-urged the Batson objection. The court minutes indicate the court thereafter replaced juror Anna Andrews Brown with alternate Brian Thomas, but the transcript does not indicate why. The case then proceeded.
The Supreme Court of the United States has held that a private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race and to do so is a violation of the Equal Protection Clause. Edmonson, 500 U.S. 614, 616-33, 111 S.Ct. 2077, 2081-89, 114 L.Ed.2d 660 (1991). Courts evaluate an objection to the use of peremptory challenges under a three-step analysis set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
First, a defendant must make a prima facie showing that a litigant exercised a peremptory challenge on the basis of race. The preliminary issue of whether plaintiffs made a prima facie showing of discrimination is not at issue in this case. 4
[942112 La.App. 1 Cir. 5] The burden then shifts to the challenged litigant to articulate a race-neutral explanation for striking the jurors in question which is related to the case to be tried. Batson, 476 U.S. at 98, 106 S.Ct. at 1724. The Supreme Court recently stated that the second step of this process does not demand an explanation that is persuasive, or even plausible. A legitimate explanation is not one which must make sense; it is one which does not deny equal protection. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The explanations offered by defendants were race-neutral and were related to this particular case.
In the final step in the analysis, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. At this stage, the trial court must consider the persuasiveness of the explanations. It is at this stage that "implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Elem 514 U.S. at ----, 115 S.Ct. at 1771.
After the first objection, the court found the defendants' explanations were valid. After the second objection, the court again found defendants' explanations were valid. Plaintiffs re-urged the Batson objection after the alternates were chosen. Although the trial court did not make explicit factual findings or elucidate its analysis, it is implicit in the fact that the jury was sworn and the case [942112 La.App. 1 Cir. 6] allowed to proceed that the court denied plaintiffs' Batson objection.
The trial court did not err in denying plaintiffs' objection to defendants' use of all six peremptory challenges on blacks. The reasons offered by defendants were valid and related to the case. In reviewing the transcript of the entire selection process, we see no indication that the reasons offered by defendants were pretextual, implausible, unreasonable, or unrelated to the case. Furthermore, although neither plaintiffs nor defendants provided this court with the complete racial composition of the jury, the transcript does show the composition of the first venire. Three of the members of the first venire who were blacks ultimately were seated on the jury.
The trial court did not err in denying plaintiffs' Batson objection, as plaintiffs did not carry the ultimate burden of proving purposeful discrimination.
The jury found Richard was 20% contributorily negligent, which plaintiffs contend was clearly erroneous. In determining apportionment of fault, the court should consider the conduct of each party at fault and the extent of the causal relation between the conduct and the damages. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985). The apportionment of fault is a factual finding which will not be disturbed on appeal unless it is clearly wrong. Cornish v. State, 93-0194, pp. 13-14 (La.App. 1st Cir. 12/1/94), 647 So.2d 1170, writs den., 95-0547, 95-0574 (La. 5/5/95), 654 So.2d 324.
In this case, Richard followed the orders of his supervisor to retrieve the ladder. The entire construction site was wet and muddy. Although he could have walked around the retaining wall rather than crossing over it, to do so [942112 La.App. 1 Cir. 7] would have required him to walk the length of two football fields. All of his co-workers who testified, including his foreman, stated that the route he chose was the most direct path to the ladder. Richard's co-workers watched him go across the slab to retrieve the ladder and bring it back without objection or concern. In light of the fact that the alternative route was wet, muddy, and a significantly longer distance, choosing to walk across the concrete slab to retrieve the ladder was not negligence. We find no evidence in the record to support the apportionment of 20% fault to plaintiff. Thus, the jury was clearly wrong in its apportionment of fault, and we must amend the judgment accordingly. 5
Plaintiffs also contend the trial judge erred in not instructing the jury regarding defendants' violation of certain national safety regulations.
The trial court is...
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