95-1439 La.App. 4 Cir. 5/8/96, Shephard on Behalf of Shephard v. Scheeler

• Decision Date: 08 May 1996
• Citation: 674 So.2d 1135
• Court: Court of Appeal of Louisiana — District of US
• Parties: 95-1439 La.App. 4 Cir

Page 1135

674 So.2d 1135

95-1439 La.App. 4 Cir. 5/8/96

Mr. & Mrs. Michael SHEPHARD on Behalf of Their Deceased Minor Child, Matthew E. SHEPHARD v. Alfred L. SCHEELER, et al.

Frank and Cinderella ROGERS, Individually and on Behalf of Their Minor Son, Henry Rogers v. Alfred SCHEELER, et al.

Wallace COUTURE and Roland Rossignol v. Alfred L. SCHEELER, et al.

Sharyn SCHEELER, Appearing Herein Individually and as Administratrix of the Estate of Her Minor Son, Alfred Scheeler v. Wallace C. COUTURE, Sr., et al.

CHAMPION INSURANCE COMPANY v. Wallace C. COUTURE, et al.

Nos. 95-CA-1439 to 95-CA-1443.

Court of Appeal of Louisiana Fourth Circuit.

May 8, 1996.

Rehearing Denied May 31, 1996.

Opinion by Judge Landrieu Dissenting,

on Denial of Rehearing

May 31, 1996.

Richard P. Ieyoub, Attorney General, John J. Cooper, Special Assistant Attorney General, Breazeale, Sachse & Wilson, L.L.P., New Orleans, for Defendant-Appellant.

Tobin J. Eason, Weiss & Eason, L.L.P., New Orleans, for Defendant-Appellant St. Bernard Parish Police Jury.

J. Wayne Mumphrey, Law Offices of J. Wayne Mumphrey, Chalmette, for Appellees Wallace Couture and Roland Rossignol.

Sidney D. Torres, III, Gregory J. Noto, Law Offices of Sidney D. Torres, III, Chalmette, for Appellees Mr. and Mrs. Michael Shephard.

Richard A. Tonry, Michael A. Ginart, Jr., Law Offices of Tonry & Ginart, Chalmette, for Appellee Alfred Scheeler.

Before BYRNES, WALTZER and LANDRIEU, JJ.

[95-1439 La.App. 4 Cir. 1] WALTZER, Judge.

This is an appeal from a judgment of the district court solely on the issue of liability, finding in favor of the plaintiffs Wallace Couture Roland Rossignol, Alfred Scheeler, and Mr. and Mrs. Michael Shephard, and in favor of intervenors, Louisiana Insurance Guaranty Association and St. Bernard Parish Police Jury, and against the defendants, St. Bernard Parish Police Jury and The State of Louisiana through the Department of Transportation and Development, apportioning the liability of those defendants as: State DOTD 66 2/3%; St. Bernard Parish Police Jury 33 1/3%. From that judgment, defendants appeal.

The trial court rendered exceptionally thoughtful and thorough written reasons for judgment as follows:

This case was tried before Honorable Thomas M. McBride, III, District Judge, now deceased, on the issue of liability alone. The parties have stipulated that after review of the transcript, exhibits and post-trial memoranda of the parties this case shall be decided upon the record made before my predecessor rather than to go through the expense of an additional trial. Having now completed that task, this Court has ruled in the manner and for the reasons hereinafter set forth.

The live testimony ¹ presented at the trial may be subdivided into two broad classifications: the parties and their respective expert witnesses. Earlier depositions and statements of witnesses who [95-1439 La.App. 4 Cir. 2] observed the movement of the vehicles prior to the collision were admitted in lieu of the witnesses' testimony at trial. Without attempting to cover every detail of each witness' testimony, this Court has perceived the following to be each witness' perception of the facts of this case. Where their testimony is not contradicted by the testimony of other witnesses or the other evidence in this case, this Court will accept their testimony as true. Where their testimony is contradicted, however, this Court will attempt to ascertain the truth and the credibility assessments respecting the particular testimony will be that which is implicit in the determination of fact made by this Court.

Mr. Wallace Couture was employed by the St. Bernard Parish Police Jury on July 6, 1987, as the driver of a trash truck which was owned by the defendant, St. Bernard Parish Police Jury. It had been raining extremely hard for the few minutes before he arrived at the location of Maintenance Area Yard No. 5, as it had been intermittently doing throughout the day until then. Area 5 Yard is situated at the end of a curve of Louisiana Highway 39, also known as East Judge Perez Drive, near the E.J. Gore Pumping Station. Both the pumping station and the Area 5 Yard are situated upon land within the State Department of Transportation and Development's right-of-way along East Judge Perez Drive. ² That yard was constructed by the St. Bernard Parish Police Jury using its own employees without the benefit of a contractor. The parish thus clearly had notice of the placement of its Yard, and it was not necessary that it also know that its placement there infringed upon the clear zone. ³

[95-1439 La.App. 4 Cir. 3] Mr. Couture had been generally instructed by his employer, defendant St. Bernard Parish Police Jury, to go to the Area 5 Yard and pick up employees who were being employed by the parish under the federally funded JTPA ⁴ who were assigned to assist him (Mr. Couture) in picking up trash. On the occasion in question, he was to pick up two men, only one of whom was a JTPA employee. Those men were Roland Rossignol, a fulltime parish employee who is a plaintiff in these consolidated suits, ⁵ and Henry Rogers, the JTPA worker with whom the record shows a settlement was made. Mr. Couture was to have picked up those two men at the Area 5 Yard after lunch. After completing his own lunch, Mr. Couture went to the Area 5 Yard, arriving there about 1:15 P.M., to pick up Rossignol and Rogers. Mr. Couture testified that he usually drives into the Area 5 Yard to pick up or discharge employees, but on this occasion, because of the severe weather conditions, the driveway entering the Area 5 Yard was blocked by an accumulation of parish vehicles that had been parked there by other employees who had sought refuge from the storm in the trailer at the Area 5 Yard. The area in front of the gate, however, was not blocked, as shown by photographs taken on the date of the accident showing vehicles parked along the fence but not in front of the gate. ⁶

A shell-paved area had been made by police jury employees between the shoulder of the highway and the fence surrounding the Area 5 Yard, which was also used for parking vehicles, stopping to pick up employees, and other things involving both parish and employees' personal vehicles. On this occasion, Mr. Couture stopped on the shells with his left wheels still touching the paved shoulder of the road. He used the trash truck horn to signal his arrival to Rossignol and Rogers, who were then standing on the porch of the trailer awaiting his arrival. Mr. Couture testified that he turned on the flasher lights of the trash truck and waited for about five minutes before the rain diminished sufficiently for Rossignol and Rogers to run to the trash truck. While waiting in front of the gate on the shells, Mr. Couture was looking forward and did not see the approach from his rear of a small pickup truck which was then being operated by Alfred Scheeler, then a minor. Following impact, the trash truck rolled approximately fifty feet before stopping. Mr. Couture brought the truck to a halt by applying the brakes. There was no evidence of his speed at the time he applied the brakes.

Mr. Couture was aware of the manner in which the rain affected the roadway in the immediate vicinity of the curve where the [95-1439 La.App. 4 Cir. 4] Area 5 Yard was located. He had traversed it only moments before. Despite his inability to recall the details concerning where the water was then puddling on the highway, he could recall on the basis of prior similar circumstances that the water would stand on the highway even though it was slightly banked in the curve. (See Tr. 24, particularly where Mr. Couture answered: "Even though it is inclined, they still have low spots in there.") Mr. Couture further testified that his stopping where he did was not an emergency situation and that he could have driven even farther off the roadway than he did. Mr. Couture stopped on the edge of the shoulder, rather than closer to the fence, pursuant to instructions of supervisory employees of the defendant Police Jury. The Police Jury did not call any employee to refute the testimony regarding its instructions to Mr. Couture. Based upon the above outlined evidence, this Court concludes that Mr. Couture could have driven the parish trash truck at least six more feet closer to the gate than he did while waiting for the rain to stop. He did not do so because he followed his employer's instructions.

Alfred Scheeler, the minor who operated the pickup truck, testified that he, Matthew Shephard and Brandon Lamarque left his home in Lexington Place and drove toward his old home in Plaquemines Parish, but they turned around when the pickup truck was run off the road by a truck during the heavy rain. Scheeler decided to return home rather than to continue to Plaquemines Parish in the rain storm. He decided to take the new extension of East Judge Perez Drive back to his home. That highway runs in front of Lexington Place Subdivision, but the new extension of East Judge Perez Drive intersects St. Bernard Highway (La.46) at a point more southerly than its intersection with the Braithwaite highway from which Scheeler and the other two boys were returning via the Judge Perez Drive extension. That was Scheeler's first occasion to drive on that segment of roadway in the rain. Scheeler was driving in the right lane of East Judge Perez Drive, proceeding in a westerly direction as he passed behind St. Bernard High School. He noticed water in the right lane of the highway at various points during his trip along that roadway, but none of that had been sufficient to cause him more than the usual concern for such driving conditions. The water accumulation had not caused him any loss of control of his vehicle. As he approached the Area 5 Maintenance Yard around a curve, he saw water in the right lane which did concern him. He estimated that water to be an inch or two deep. He contemplated changing lanes, but, before he...