95 2166 La.App. 1 Cir. 6/28/96, Hurts v. Woodis

• Decision Date: 28 June 1996
• Parties: 95 2166 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1166

676 So.2d 1166

95 2166 La.App. 1 Cir. 6/28/96

Rosa HURTS v. James WOODIS, Truax Truck Lines, Inc., and National Fire and Marine Insurance Company.

No. CA 95 2166.

Court of Appeal of Louisiana First Circuit.

June 28, 1996.

Gail N. McKay, Baton Rouge, for plaintiff/appellee.

Nancy J. Marshall, New Orleans, for defendants/appellants.

Before LeBLANC, WHIPPLE and FOGG, JJ.

[95 2166 La.App. 1 Cir. 2] WHIPPLE, Judge.

This case is before us on appeal from a judgment in favor of plaintiff, Rosa Hurts, and against defendants, James Woodis ¹, Truax Truck Lines, Inc., and National Fire and Marine Insurance Company. From this judgment, defendants appeal. We reverse in part, amend in part, and as amended, affirm in part.

FACTS AND PROCEDURAL HISTORY

This lawsuit arises out of an automobile accident which occurred on January 15, 1992, on North Lobdell in Baton Rouge, Louisiana. North Lobdell runs north to south, with two southbound lanes and two northbound lanes for travel.

The parties offered conflicting versions of how the accident occurred. Plaintiff was proceeding in a southerly direction on North Lobdell, travelling in the right hand lane. According to plaintiff, she was traveling slightly behind Woodis, who was operating an 18-wheeler freightliner and also traveling southbound but in the left hand lane. Plaintiff stated that the accident occurred when Woodis drove his vehicle from the left lane of travel into the right lane. Plaintiff testified that Woodis' vehicle first hit the left side of her vehicle while he was attempting to make a left turn from the outermost lane. She then ran into the rear of the Woodis vehicle.

According to Woodis, he was making a delivery to King Wholesale, located on the opposite side of North Lobdell which required a U-turn maneuver. In order to accomplish the turn, he positioned his vehicle in the outermost right hand lane. Woodis stated that he had come to a complete [95 2166 La.App. 1 Cir. 3] stop, partially in the right hand lane and partially off of the roadway and was preparing to make a U-turn to the left, with his flashers activated. He stated that he observed plaintiff, who appeared to be applying lipstick, approaching from the rear. Woodis testified that plaintiff apparently did not see his stopped vehicle and collided into the rear, striking the left rear tires of the rig.

On December 21, 1992, plaintiff filed suit against defendants seeking damages as a result of the automobile accident. The matter proceeded to trial by jury which was held over a four day period. Following trial, the jury returned a verdict in favor of plaintiff and against defendants, finding both drivers at fault and apportioning 80% fault to Woodis and 20% fault to plaintiff. Damages were awarded in the following amounts: $10,000.00 for physical injuries sustained; $20,000.00 for past and future physical pain and suffering; $6,500.00 for past and future mental anguish and grief; $5,000.00 for loss of earning capacity; and $20,000.00 for past and future medical and other expenses.

A judgment was signed in accordance with the jury's verdict, in favor of plaintiff, in the amount of $49,200.00. From this judgment, defendants appeal, setting forth their assignments of error as follows:

1. The Court committed errors and engaged in conduct that substantially prejudiced the defendants and interfered with their ability to properly defend the case such as to warrant a de novo review of the evidence, and alternatively, that the decision of the jury was manifestly erroneous and not supported by the record.

a. The Court erred when it overruled defense's Batson objections.

b. The Court erred in its charging of the jury.

[95 2166 La.App. 1 Cir. 4] c. Above and beyond the improperly included jury instructions, the Court committed other errors and engaged in conduct that substantially prejudiced the defendants and interfered with their ability to properly defend the case to the extend that the jury was not allowed to hear all the evidence which resulted in an improper jury verdict.

2. The jury erred when it found that defendant, James Woodis was 80% at fault and plaintiff was 20% at fault.

3. The jury erred when it awarded $5,000.00 for loss earning capacity as there was no evidence relating to plaintiff's diminished ability to earn.

4. The jury erred when it awarded damages for future medicals as the plaintiff failed to prove that it was more probable than not that she would need future care.

5. The jury was manifestly erroneous in its award of $10,000.00 for physical injuries sustained; $20,000.00 for physical pain and suffering past and future; $6,500.00 for mental anguish and grief past and future as plaintiff failed to prove that it was more probable than not that the accident caused the injuries at issue.

BATSON CHALLENGE

(Assignment of Error Number 1a)

On appeal, defendants contend that the trial court erred in overruling their objection to the plaintiff's racially motivated use of challenges to strike all white males from the jury, citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Plaintiff, on the other hand, avers that this issue is not properly before us, citing Holmes v. Great Atlantic and Pacific Tea Company, 622 So.2d 748, 760 (La.App. 4th Cir.), writ denied, 629 So.2d 1178 (La.1993). In Holmes, the fourth circuit took the following position with regard to Batson challenges:

The reputed error committed is the result of an interlocutory ruling, not a final judgment. Accordingly the proper remedy in a civil trial is a writ, not an appeal after the judgment is final. Indeed, it is only common sense that if a writ is taken on a civil voir dire Batson challenge, then this court can review and determine at [95 2166 La.App. 1 Cir. 5] the time if an error has been made. To proceed to trial when there may be an error which can nullify the entire proceeding not only gives one party two bites at the apple, but also is a tremendous waste of judicial time and resources. Judicial economy, procedural due process, and equal protection all mandate that Batson challenges to civil trials must be reviewed on writ. We note that via emergency writ procedures and appellate court stay orders, a Batson challenge handled by writ need not cause the loss of a trial date.

Holmes, 622 So.2d at 760.

However, we first note that the above quoted language is dicta, in that the fourth circuit addressed the merits of the trial court's ruling on the Batson challenge. Moreover, we are not persuaded that a writ is the only acceptable method to seek review of a Batson ruling. We find no meaningful distinction between review of the trial court's ruling on jury challenges when based on a Batson claim and appellate review of the trial court's ruling when based on a party's challenge to a juror for cause, which are routinely reviewed on appeal. See In re Medical Review Panel, 94-1661, pp. 6-10 (La.App. 1st Cir. 6/23/95); 657 So.2d 713, 718-720. Additionally, we note that this court has previously reviewed a Batson ruling even where, as here, the issue was raised for the first time on appeal, rather than by way of a writ application. See Richard v. St. Paul Fire and Marine Insurance Company, 94-2112, p. 3 (La.App. 1st Cir. 6/23/95); 657 So.2d 1087, 1089.

Thus, to the extent that the fourth circuit in Holmes articulates that the only acceptable method of seeking review of a ruling on a Batson challenge is by application for writs, we decline to follow our colleagues on the fourth circuit on this issue and conclude that this issue is properly before us on appeal.

[95 2166 La.App. 1 Cir. 6] A private litigant in a civil case may not use peremptory challenges to exclude jurors on the account of race. To do so is a violation of the Equal Protection Clause. Richard, 94-2112, at p. 4; 657 So.2d at 1090 (citing Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)). First, the challenging party must make a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. The burden then shifts to the opposing party 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 96-98, 106 S.Ct. at 1723-1724. This second step of the process does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995).

In the final step of the analysis, the trial court must determine whether the party raising the Batson challenge 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 be found to be pretexts for purposeful discrimination. Purkett, 514 U.S. at ----, 115 S.Ct. at 1771.

The record reflects that counsel for defendants objected after plaintiff's counsel had exercised all six peremptory challenges to exclude white males. The trial court, apparently finding that a prima facie case of exclusion by reason of race had been established, then directed plaintiff's counsel to state for the record the race-neutral reasons for peremptorily challenging these six prospective jurors. Plaintiff's counsel responded with the following explanations:

[95 2166 La.App. 1 Cir. 7] 1) Prospective juror Wood: Mr. Wood had a previous back condition, and one of his good friends was the owner of a trucking company.

(2) Prospective juror Bartels: Mr. Bartels was an architect and would, thus, possibly focus on designs and dimensions, drawing the jury away from the facts presented.

(3) Prospective juror Boudreau: Mr. Boudreau was an insurance salesman, and he would have a problem with rendering a substantial verdict.

(4) Prospective juror Stogner: Mr. Stogner was an inspector, who performed some truck inspections for insurance...