Anderson v. New Orleans Public Service, Inc.

• Decision Date: 28 June 1991
• Docket Number: No. 91-C-0179,91-C-0179
• Citation: 583 So.2d 829
• Parties: Kim ANDERSON v. NEW ORLEANS PUBLIC SERVICE, INC. and Gerald Joseph. 583 So.2d 829
• Court: Louisiana Supreme Court

Page 829

583 So.2d 829

Kim ANDERSON v. NEW ORLEANS PUBLIC SERVICE, INC. and Gerald Joseph.

No. 91-C-0179.

583 So.2d 829

Supreme Court of Louisiana.

June 28, 1991.

Robert J. Caluda, Betsy J. Barnes, for plaintiff-applicant.

James Maher, III, for defendants-respondents.

HALL, Justice.

This suit resulted from the death of Dennis Anderson, a three-year-old boy who was hit by a New Orleans Public Service (NOPSI) truck. Dennis's mother, Kim Anderson, filed a wrongful death action against NOPSI and its employee, Gerald Joseph, the driver of the truck. After a jury award of $325,000 to the plaintiff and an assessment of 90% fault to NOPSI, the trial judge granted defendants' motion for a judgment notwithstanding the verdict (JNOV). The judge increased the percentage of fault attributed to plaintiff from 10% to 50% and reduced the jury general damage award from $325,000 to $150,000. The court of appeal affirmed, with one judge concurring. Anderson v. New Orleans Public Service, Inc., 572 So.2d 775 (La.App. 4th Cir.1990). Having granted plaintiff's writ application, 576 So.2d 21 (La.1991), we now reverse in part and affirm in part.

FACTS

On July 30, 1987, plaintiff, Kim Anderson, and her son, Dennis Anderson, were staying with Ms. Anderson's aunt, Gail Bailey, in the Calliope project in New Orleans. Dennis and Ms. Bailey's two children, 10-year-old Otis and eight-year-old Shantel Bailey, went swimming along with another of Dennis's cousins, nine-year-old Cornell Webb. The four children began walking back home after the pool closed at approximately 2:00 p.m. There were other children in the area who presumably had also just left the pool. The children had to cross South Dorgenois Street to get to the Calliope project from the pool. Cornell and Otis crossed the street, while Shantel and Dennis were picking berries from a vine on a fence near the street. Shantel, who had been holding Dennis's hand, let go of his hand and crossed the street at the same place Cornell and Otis had crossed. Dennis then went into the street and was hit and killed by the NOPSI truck that had just turned onto South Dorgenois from Clio Street.

There was conflicting eyewitness testimony concerning the speed of the truck and exactly which part of the truck hit Dennis. There was also conflicting testimony concerning whether or not Ms. Anderson gave Dennis permission to go to the swimming pool. She testified that she began to feel drowsy because of medication she had taken to alleviate menstrual pains. She asked Ms. Bailey to watch the children while she took a nap. Ms. Bailey was not made a party to this suit and was not called to testify at trial. Moses Pettis, the investigating officer, testified that he interviewed the three children who were with Dennis on the day of the accident. According to the officer, Cornell and Otis stated that Ms. Anderson gave Dennis permission to go swimming with them. However, at trial, both boys denied talking to the police about the accident, and Cornell testified that they did not tell either Ms. Anderson or Ms. Bailey that they were going.

After a trial on the merits, the jury awarded Ms. Anderson $325,000 and assessed her with 10% fault. NOPSI was found to be 90% at fault. The trial judge granted defendants' motion for JNOV. The judge increased the percentage of fault attributable to Ms. Anderson to 50% and reduced the general damage award to $150,000. In his reasons for judgment, the judge indicated that the negligence of Ms. Bailey must be imputed to Ms. Anderson since Ms. Bailey was the agent of Ms. Anderson. The trial judge also stated that "the court would quarrel with the present jurisprudential 'value' of a child's life; the more appropriate value is $250,000 rather than the $150,000 the court has fixed because it feels constrained to do so by the jurisprudence." We granted plaintiff's writ application to review the propriety of the JNOV as to the apportionment of fault and the reduction of the damages award.

JNOV

The article controlling the use of JNOV is LSA-C.C.P. Art. 1811. ¹ The article does not specify the grounds on which a trial judge may grant a JNOV. In Scott v. Hospital Service District No. 1, 496 So.2d 270 (La.1986), we set forth the criteria to be used in determining when a JNOV is proper. A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Scott, supra. In making this determination, the court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party.

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable men in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion and the jury verdict should be reinstated.

APPORTIONMENT OF FAULT

In assessing this case using the criteria set forth above, we hold that it was error to grant the defendants' motion for JNOV as to the apportionment of fault. The evidence presented to the jury was of such a conflicting nature that it is impossible to say that reasonable men could not reach different conclusions. The jury could have believed that Ms. Anderson asked Ms. Bailey to watch Dennis and that she did not give Dennis permission to go with the other children.

The trial judge stated that the negligence of Ms. Bailey as Ms. Anderson's agent must be imputed to Ms. Anderson. The court of appeal agreed with the trial court's assessment of 50% fault to the plaintiff for her negligence or "the negligence imputed to her through Gail Bailey." However, as this court stated in Blanchard v. Ogima, 215 So.2d 902, 906 (La.1968): "A master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a nonservant agent." Thus, only when the relationship of the parties is such that the principal has the power to control physical details of the actor as to the manner of his performance which is characteristic of the relation of master and servant does the principal become subject to liability for the physical tortious conduct of the actor. Liability for the negligent and tortious acts of another does not flow simply because of principal-agent or principal-mandatory relationship. Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748 (La.1987).

Ms. Anderson had no power to control the actions of Ms. Bailey or the manner in which Ms. Bailey carried out the request that she watch Dennis. Therefore, there was no master-servant relationship between them, and it was erroneous for the trial judge to impute Ms. Bailey's negligence to Ms. Anderson. On the evidence presented, reasonable jurors could have concluded that Ms. Anderson's negligence, if any, was relatively slight.

Because we have concluded that the trial judge erred in granting the JNOV on the issue of apportionment of fault, the jury's apportionment of 10% fault to the plaintiff is reinstated. Ms. Bailey was not made a party to this suit, and the percentage of fault attributable to her, if any, is not argued by the parties. The jury found NOPSI, through its servant/employee, Gerald Joseph, who was acting in the course and scope of his employment, to be 90% at fault in this accident. This accident occurred prior to the 1987 revision of LSA-C.C. Art. 2324, which deals with the liability of solidary obligors. Art. 2324, at the time of this accident, provided:

"He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.

"Persons whose concurring fault has caused injury, death or loss to another are also answerable, in solido; provided, however, when the amount of recovery has been reduced in accordance with the preceding article, a judgment debtor shall not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed, reserving to all parties their respective rights of indemnity and contribution."

Therefore, if any negligence on Ms. Bailey's part was a cause of the accident, then NOPSI is liable in solido with her, and as a result, is answerable for all of the damages caused by the in solido tortfeasors to the plaintiff, provided that plaintiff is not attributed with a greater degree of fault than is NOPSI. Additionally, plaintiff's recovery is reduced by the percentage of fault attributable to her. LSA-C.C. Art. 2323. ² The jury found that the percentage of fault attributable to NOPSI was 90%. NOPSI was clearly at fault to a degree greater than the 10% fault assessed to plaintiff. There was sufficient evidence for the jury to conclude that Mr. Joseph was traveling too fast under the circumstances and that he failed to keep a proper lookout. Therefore, NOPSI is liable for all of the damages sustained by plaintiff...