97-876 La.App. 3 Cir. 6/3/98, Bowens v. Patterson

• Decision Date: 03 June 1998
• Citation: 97-876 La.App. 3 Cir. 6/3/98, Bowens v. Patterson, 716 So.2d 69 (La. App. 1998)
• Parties: 97-876 La.App. 3 Cir
• Court: Court of Appeal of Louisiana

Page 69

716 So.2d 69

97-876 La.App. 3 Cir. 6/3/98

Tyrone Lemon BOWENS, et al., Plaintiffs--Appellees--Appellants, v. Howard PATTERSON, et al., Defendants--Appellants.

No. 97-876.

Court of Appeal of Louisiana Third Circuit.

June 3, 1998.

Order Vacating Decision In Part On

Grant of Rehearing Aug. 19, 1998.

Roy Seale Halcomb, Jr., Alexandria, for Tyron Lemon Bowens, et al.

Larry Alan Stewart, Bradley John Gadel, Alexandria, for Howard R. Patterson, et al.

Michael Thomas Johnson, Daniel G. Brenner, Alexandria, for State of Louisiana, DOTD.

Before YELVERTON, COOKS, WOODARD, AMY and SULLIVAN, JJ.

[97-876 La.App. 3 Cir. 1] WOODARD, Judge.

This is a tragic personal injury case. The plaintiff, Tyrone L. Bowens (Bowens), broke his neck while riding as a guest passenger in an automobile driven by a friend, Howard Patterson (Patterson). At the time of the accident, Bowens was asleep in the back seat of the car. Bowens was seventeen, a senior in Jena High School, and an athlete, who was being recruited for football scholarships for the University of Southwestern Louisiana, Mississippi State University, and Northwestern University. As a result of the accident, he was rendered a quadriplegic.

Bowens filed suit against Patterson, and Patterson's liability insurer, Colonial Insurance Company of California (Colonial), and the State of Louisiana, through the Department of Transportation and Development (DOTD). Colonial was Patterson's liability insurer as a permissive driver. Bowens' parents also filed claims against the defendants for loss of consortium and for past medical expenses.

Beginning March 19, 1996, the case was tried for three days before a judge. On December 10, 1996, extensive Written Reasons for Judgment were rendered, holding [97-876 La.App. 3 Cir. 2] that the accident was the combined fault of Patterson and DOTD. The trial court apportioned their fault at twenty-five percent to Patterson and seventy-five percent to DOTD. The judgment was signed on December 19, 1996. Bowens was awarded damages in the amount of $7,332,282.17. His parents were each awarded $150,000.00 for loss of consortium and $239,827.13 for past medical expenses. The judgment included the trial court's earlier grant of Colonial's Motion for Summary Judgment, denying the plaintiffs' claims for legal interest on the damages awarded. It awarded legal interest only on Colonial's policy limits, which had been tendered earlier.

On January 10, 1997, DOTD suspensively appealed the judgment. On February 5, 1997, plaintiffs devolutively appealed the judgment. Colonial answered the appeal. We affirm with amendments.

FACTS

On February 17, 1990, at approximately 5:30 a.m., Patterson was driving south on Louisiana Highway 127, which is a two-lane, undivided highway located in LaSalle Parish, Louisiana. It was dark. Patterson was driving a 1988 Ford Taurus owned by Ms. Jacqueline W. Lee. Colonial insured the automobile with a personal liability policy. Ms. Lee loaned the automobile to her brother-in-law, Joe Brown, who had given Patterson permission to drive the vehicle. In addition to Bowens were Joe Brown and Andre Jones. Earlier in the evening, Bowens had played in his high school's season ending basketball game.

The evidence established that during the evening of February 16-17, 1990, in the eight hours previous to the accident, Patterson drank two glasses of E.J. Brandy and Coke and approximately four beers. He had nothing to drink after 1:00 a.m. which was why he became the "designated driver." He testified that at the time of the accident, he was not intoxicated or asleep at the wheel.

In the early morning hours of February 17, 1990, the men were driving around Jena, Columbia, and Olla, Louisiana. After arriving in Columbia, Patterson decided to drive back to Jena. The accident occurred on this return trip to Jena on Louisiana Highway 127 between Olla and Jena, Louisiana, just south of the Mill Creek bridge.

Patterson admitted difficulty in remaining awake during the trip back from Columbia to Jena. Several times he woke up his friend, Andre Jones, to ask him to [97-876 La.App. 3 Cir. 3] help keep him awake. Patterson admitted that three or four miles prior to the accident, he had "dozed off" a couple of times.

Approximately five miles north of Jena, Louisiana, Highway 127 curves to the left. Before reaching that curve, there is an abrupt change in the highway. The width of the travel lanes changes from twelve feet to ten feet, and the width of the shoulders changes from eight feet to two feet. The fore slope of the embankment adjacent to the shoulder changed from a shallow, gradual slope of six to one, to a steep, non-recoverable slope of two to one or three to one, with an elevation of approximately four to five feet. The construction of the shoulder and fore slope changes from improved, firm, and well-compacted aggregate to a loose, eroded, unstable material that appeared to be pit run. Further, there was no white edge striping beyond where the highway and its shoulders suddenly narrowed, whereas there was white edge striping along the highway up to that point. The combination of highway conditions existing at this accident site were unique to that one LaSalle Parish location.

Patterson testified that, as he entered the curve, the right tires of the automobile drifted off the pavement. He reacted immediately, and began to fight the steering wheel. He steered left as hard as he could but was not able to control the automobile and steer it back onto the highway. Instead, the automobile failed to respond to the steering and continued around the curve half-on and half-off the pavement. When the automobile reached the point where the highway straightened out, Patterson was still trying to steer to the left to get the automobile back on the pavement. At that point, the tires caught traction and the automobile reentered the highway abruptly, shooting across both lanes of travel and finally colliding with a large pine tree.

Everyone in the car was injured in the accident. Bowens and the others were taken to LaSalle General Hospital in Jena, Louisiana. Following an evaluation that identified quadriplegia, Bowens was transferred to St. Francis Cabrini Hospital in Alexandria, Louisiana. There, his evaluation revealed a loss of motor function below the neck, flaccidity with hypoactive reflexes, and a superficial avulsion injury to the right ankle. His cervical spine series x-rays showed a fracture at the C4-C5 levels with probable jumped facets bilaterally. The impression was of C4-C5 quadriplegia and spinal shock.

On February 22, 1990, he was taken for spinal fusion surgery and exploration. An open reduction of the C4-C5 and C6 was completed with clamp placement, and [97-876 La.App. 3 Cir. 4] autogenous bone grafting from his left hip was accomplished. The operative findings included the transection of the spinal cord and a dural laceration.

On February 28, 1990, he was transferred to the North Louisiana Rehabilitation Hospital in Ruston, Louisiana for spinal cord rehabilitation. When he was discharged on August 30, 1990, he returned to his parents' home, where he remains dependant on them for his care. From December 17, 1990 to December 27, 1990, he was hospitalized again for problems of decubitus ulceration to the posterior leg, which required debridement and close management and hyperbaric oxygen treatments. By February 13, 1991, he had reached maximal potential from outpatient therapies.

State Trooper Willard E. Jordan investigated the accident scene. He testified that there is an abrupt change in the highway just before reaching the curve where the accident happened. Trooper Jordan testified that the shoulder at the accident site appeared to be made of loose dirt and rock combination that he called pit run. He testified that the fore slope of the shoulder was quite steep and approximately three to four feet high. According to Trooper Jordan, the right tire of the Patterson vehicle drifted off the pavement where the highway first starts to curve to the left. He substantiated that the physical facts at the accident scene were consistent with Patterson's testimony about how the accident happened. He opined that Patterson reacted very quickly, as soon as the right tires of the automobile drifted off of the pavement, which indicated to him that Patterson was alert and not asleep when the right tires of the automobile first left the pavement. According to Trooper Jordan, as the shoulder was only two feet wide, the right tires of the automobile were off the shoulder and down on the fore slope as the automobile continued around the curve, half-on and half-off the pavement. Trooper Jordan testified that the tree, which the vehicle collided with, was located within the highway right-of-way.

On February 23, 1990, Mr. Lester Mallette, a certified legal investigator, visited the accident scene. He testified concerning the sudden abrupt change in the highway just before reaching the curve where the accident happened. He said that the shoulder and fore slope were constructed of a loose pit run material that was so loose it was difficult to keep one's footing while walking on it. He testified the fore slope was very steep and estimated its height to be approximately five to six feet. He was certain that he identified the correct track of the Patterson vehicle as the automobile traversed the curve, half-on and half-off the pavement. His testimony was that the right tires did go [97-876 La.App. 3 Cir. 5] beyond the shoulder and onto the fore slope, that there was "virtually no shoulder" at the accident site, and that the tree that the automobile collided with was located within the highway right-of-way, twenty-five feet six inches from the edge of the pavement.

Mallette returned to the accident site on May 9, 1990 and discovered that DOTD was at work reconstructing the highway. On January 29, 1991, he again returned to the accident site, this...