Allemand v. Zip's Trucking Co., Inc.

• Citation: 552 So.2d 1023
• Decision Date: 14 November 1989
• Docket Number: No. CA,CA
• Parties: Mickey ALLEMAND v. ZIP'S TRUCKING CO., INC., John E. Proctor, Caro Produce & Institutional Foods, Inc., the Forum Insurance Company, the Terrebonne Parish Rescue Squad. 88 1631.
• Court: Court of Appeal of Louisiana (US)

Page 1023

552 So.2d 1023

Mickey ALLEMAND v. ZIP'S TRUCKING CO., INC., John E. Proctor, Caro Produce &amp Institutional Foods, Inc., the Forum Insurance Company, the Terrebonne Parish Rescue Squad.

No. CA 88 1631.

Court of Appeal of Louisiana First Circuit.

Nov. 14, 1989.

Rehearing Denied Dec. 13, 1989.

Grady C. Weeks, Houma, for plaintiff and appellee Mickey Allemand.

Kenneth V. Faherty, New Orleans, for defendants and appellants Forum Ins. Co.

James S. Thompson, New Orleans, for defendant Caro Produce, Inc.

Christopher V. Lawler, Metairie, for third party defendant Allstate Ins. Co.

F. Lee Butler and Donald Massey, New Orleans, for defendant-appellant Zip's Trucking Co. and John Proctor.

Before CARTER, SAVOIE and ALFORD, JJ.

ALFORD, Judge.

This case arose following a vehicular collision in Lafourche Parish. Plaintiff, Mickey Allemand, his wife, Cynthia Allemand, and a friend, Roy Kramer, had been to several bars during the course of the evening of September 22, 1983 and early morning of September 23, 1983 and were returning home at approximately 4:15 a.m.; Cynthia was driving. After turning onto La. 316, Mr. Kramer asked to be let out of the automobile at a point two to three miles from his home; he testified at trial that he wanted to walk the rest of the way home because Mr. and Mrs. Allemand were arguing. After Mr. Kramer exited the vehicle, Mrs. Allemand continued driving in a northerly direction on La. 316, until her car collided with an eighteen-wheel truck and trailer which was blocking both lanes of La. Hwy. 316. The eighteen-wheeler was driven by defendant, John E. Proctor, and owned by defendant, Zip's Trucking Co., Inc. (hereinafter referred to as "Zip's").

Mrs. Allemand died instantly. Mr. Allemand was extracted from the vehicle, which had became wedged beneath the trailer of the eighteen-wheeler, after approximately half an hour. Mr. Allemand was then taken to Terrebonne General Medical Center where he was treated for a severe closed head injury with possible cridriform platefracture and a right temple lobe hematoma; additionally, plaintiff suffered facial trauma and a corneal abrasion of the right eye.

Prior to the accident, Mr. Proctor had arrived at the La. Hwy. 316 plant entrance of defendant, Caro Produce & Institutional Foods, Inc. (hereinafter referred to as "Caro") to deliver a load of lettuce, shortly before it opened. Mr. Proctor parked his rig on the opposite side of the road from Caro to await its opening. Weston Winn, a Caro employee, opened the plant at approximately 4:00 a.m.; he then went across the street and asked Mr. Proctor to back his rig up to the shipping dock ¹ so the lettuce could be unloaded.

Mr. Proctor backed the eighteen-wheeler up to the shipping dock but realized the back doors of the trailer were not open. Mr. Proctor then pulled the eighteen-wheeler away from the dock and across La. Hwy. 316, where it remained for approximately three to five minutes before being struck by the vehicle in which plaintiff was a passenger.

Following trial on the merits, the trial judge rendered judgment in favor of plaintiff and against John E. Proctor, Zip's, and Zip's insurer, Forum Insurance Co. in the following amounts:

                Past Medical Expenses ............................................. $ 47,723.32
                Lost wages from date of accident to date of trial ................. $ 70,613.00
                Future lost wages from date of trial ............................. $ 486,325.00
                Damages for wrongful death of his wife ........................... $ 200,000.00
                Future supervisory care .......................................... $ 813,000.00
                General Damages for pain, suffering, permanent physical and
                  mental disability, exclusive of damages for the death of his
                  wife .......................................................... $2,200,000.00
                                                                                ---------------
                   TOTAL ........................................................ $3,817,661.32
                

John E. Proctor and Zip's seek on appeal ² the reversal of the trial court finding of no fault on the part of Cynthia Allemand, and Caro.

FAULT OF CYNTHIA ALLEMAND

John Proctor and Zip's argue on appeal that the trial court erred in failing to take into account proof that Cynthia Allemand was intoxicated at the time of the accident. Further, appellants argue that improper evidentiary rulings on photographic evidence and expert testimony resulted in an improper conclusion on the issue of causation.

The trial court found that defendants did not bear their burden of proving that Mrs. Allemand was intoxicated. During the trial, the results of a blood alcohol test on a sample of Mrs. Allemand's blood taken following her death, were excluded by the trial judge for failure of defendants to provide the report to plaintiff prior to trial pursuant to their continuing duty to supplement responses to a discovery request concerning trial exhibits.

Plaintiff maintains on appeal the correctness of the trial court's ruling excluding the blood test results for failure to comply with discovery requirements and additionally argues that the evidence was properly excluded for the failure of defendants to show the complete chain of possession of the blood sample and because the method used by the coroner in withdrawing the blood sample from the body of Mrs. Allemand, was defective.

The requirements for the introduction of a blood test analysis are very stringent; the party seeking to introduce such evidence must first lay a proper foundation for its admission. Pearce v. Gunter, 238 So.2d 534 (La.App. 3d Cir.), application not considered, 256 La. 888, 239 So.2d 543 (La.1970). This predicate must connect the specimen with its source, show that it was properly taken by an authorized person, properly labeled and preserved, properly transported for analysis and properly tested. Pearce v. Gunter, 238 So.2d at 537.

The evidence adduced at trial shows that on September 23, 1983, Dr. Philip Robichaux, Lafourche Parish coroner, withdrew the blood sample from the body of Cynthia Allemand at the funeral home where she was taken following the accident, and sealed it in a blood alcohol test kit. Louisiana State Trooper W.F. McDowell testified that he picked the sample up from the funeral home on September 23, 1983, however, Trooper McDowell could not recall who had given him the test kit at the funeral home. Trooper McDowell took the sealed kit to Troop C and placed it in the possession of Trooper Galliano to be forwarded for testing. Trooper Galliano did not testify at trial. Grace Johanson was the forensic scientist at the Louisiana State Police Crime Lab in Baton Rouge, who performed the alcohol test on the blood sample. Ms. Johanson testified that the blood sample had been mailed to the Crime Lab where it was received on October 5, 1983 by Libby Martin, who numbered the sample and gave it to Ms. Johanson. Libby Martin did not testify at trial. Ms. Johanson testified regarding the testing procedure she used and stated that she obtained a result which showed a blood alcohol level of 0.23 percent alcohol by weight.

Under these circumstances, we find that a proper foundation was not laid for the admission of the test results. The lapse in Trooper McDowell's memory together with the absence of testimony from Trooper Galliano and Libby Martin left three time periods during which the whereabouts and security of the blood sample were unaccounted for. We find it particularly disturbing that an unexplained lapse of thirteen days occurred between the time Troop C received the blood sample and the time the Crime Lab obtained its possession. Unless proof is made of the proper preservation of the blood sample between the time it is taken and its testing, the subsequent results are unreliable evidence and properly excluded. See Richardson v. Continental Ins. Co., 468 So.2d 675 (La.App. 3d Cir.), writ denied, 474 So.2d 1304 (La.1985); Holmes v. Christopher, 435 So.2d 1022 (La.App. 4th Cir.), writs denied, 440 So.2d 723, 724, 765 (La.1983); Lapoint v. Breaux, 395 So.2d 1377 (La.App. 1st Cir.), writ denied, 399 So.2d 611 (La.1981). Thus, the blood alcohol test results were properly excluded by the trial court. Having disposed of the issue on this basis, we find it unnecessary to address plaintiff's other contentions in support of this particular evidentiary ruling.

The only other testimony introduced at trial concerning Mrs. Allemand's alleged intoxication was that of Roy Kramer, Mr. and Mrs. Allemand's companion on the evening in question. Mr. Kramer testified that Cynthia and Mickey Allemand picked him up at his mother's house at approximately 6:30 p.m. and that they patronized three bars that evening, leaving the last one to return home at approximately 3:30 a.m. Mr. Kramer testified that during that nine hour time period, he only saw Cynthia Allemand drink between two to four beers. Mr. Kramer testified that Mrs. Allemand gave no indication that she was intoxicated. Consequently, we are unable to say that the trial court erred in finding that Cynthia Allemand was not intoxicated.

Appellant also argues on appeal that Cynthia Allemand should have been assessed some fault in the accident, claiming that she should have been able to see the obstruction across the highway in time to bring the vehicle to a safe stop. Several expert witnesses testified at trial on this issue: William C. Smith, a civil engineer; Francis H. Wyble, also a civil engineer; Colonel Joseph Andre, an accident reconstructionist; Olin K. Dart, Ph.D., a traffic engineer specializing in accident reconstruction; and, Leonard C. Adams, Ph.D., an electrical engineer. The trial court summarized and evaluated the testimony of these witnesses as follows:

Mrs. Allemand was driving her vehicle out of a curve just south of the accident site and the tangent point of the curve was calculated to be 96.44 feet from the place on the highway which was blocked by the...