Boutte v. Kelly

• Decision Date: 17 September 2003
• Docket Number: No. 2003-CA-0436., No. 2002-CA-2453, No. 2002-CA-2451, No. 2002-CA-2452
• Citation: 863 So.2d 530
• Parties: Giselle M. BOUTTE, Individually and on Behalf of Jasmine R. Boutte v. Brian KELLY, The City of New Orleans and the New Orleans Police Department. Brian Kelly v. The Estate of Warres Boutte; Gisille M. Bouttee, as Administratrix of the Estate of Warres Boutte, III; and Colonial Lloyds Insurance Company. Ivy Jean Williams, as Permanent Curator and Representative of Janet Williams; and Janet Williams, through her Permanent Curator and Representative, Ivy Jean Williams v. Bryan Kelly; The City of New Orleans; The New Orleans Police Department; Giselle M. Boutte, as Administratrix of the Succession of Warres J. Boutte, III; and Colonial Lloyds Insurance Company. Ivy Jean Williams, as Permanent Curator and Representative of Janet Williams; and Janet Williams, through her Permanent Curator and Representative, Ivy Jean Williams v. Bryan Kelly; The City of New Orleans; The New Orleans Police Department; Giselle M. Boutte, as Administratrix of the Succession of Warres J. Boutte, III; And Colonial Lloyds Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

863 So.2d 530

Giselle M. BOUTTE, Individually and on Behalf of Jasmine R. Boutte v. Brian KELLY, The City of New Orleans and the New Orleans Police Department.

Brian Kelly v. The Estate of Warres Boutte; Gisille M. Bouttee, as Administratrix of the Estate of Warres Boutte, III; and Colonial Lloyds Insurance Company.

Ivy Jean Williams, as Permanent Curator and Representative of Janet Williams; and Janet Williams, through her Permanent Curator and Representative, Ivy Jean Williams v. Bryan Kelly; The City of New Orleans; The New Orleans Police Department; Giselle M. Boutte, as Administratrix of the Succession of Warres J. Boutte, III; and Colonial Lloyds Insurance Company.

Ivy Jean Williams, as Permanent Curator and Representative of Janet Williams; and Janet Williams, through her Permanent Curator and Representative, Ivy Jean Williams v. Bryan Kelly; The City of New Orleans; The New Orleans Police Department; Giselle M. Boutte, as Administratrix of the Succession of Warres J. Boutte, III; And Colonial Lloyds Insurance Company.

Nos. 2002-CA-2451, 2002-CA-2452, 2002-CA-2453, 2003-CA-0436.

Court of Appeal of Louisiana, Fourth Circuit.

September 17, 2003.

Camilo K. Salas III, Jack M. Alltmont, Joy Goldberg Braun and Shirin E. Harrell, Sessions, Fishman & Nathan, L.L.P., New Orleans, LA, Counsel for Janet Williams; Edna Williams as Curatrix and Representative of Janet Williams; and Janet Williams, through her Curatrix and Representative, Edna Williams.

John D. Sileo, Allan Berger & Associates, P.L.C., New Orleans, LA, Counsel for Giselle M. Boutee, Individually and on Behalf of her Minor Child, Jasmine Boutee.

Carl J. Giffin, Jr., and Howard B. Kaplan, Bernard, Cassisa, Elliott & Davis, Metairie, LA, and Paul V. Cassisa, Jr., Bernard, Cassisa, Elliott & Davis, A PLC, Oxford, MS, Counsel for General Motors Corporation.

Charlene C. Larche, Assistant City Attorney, John E. Smith, Deputy City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Sherry S. Landry, Acting City Attorney, New Orleans, LA, Counsel for Bryan Kelly and the City of New Orleans.

(Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, and Judge MAX N. TOBIAS, JR.).

MAX N. TOBIAS, JR., Judge.

These consolidated appeals arise out of an automobile accident that occurred at the intersection of Elysian Fields Avenue and Gentilly Boulevard in New Orleans, Louisiana. After considering the record and the evidence contained therein, we affirm in part, reverse in part, amend the judgment, and render.

At approximately 4:00 a.m. on 18 May 1991, Warres Boutee and his fiancée, plaintiff Janet Williams, were riding in Mr. Boutee's 1982 Oldsmobile Cutlass Supreme, which he had purchased used approximately eighteen months earlier. They had gone out to a local club to dance and then to a Denny's Restaurant in eastern New Orleans for breakfast. At the time of the accident, Mr. Boutee was driving Ms. Williams home. They were traveling north on Elysian Fields Avenue, and as they traversed the eastbound lanes of Gentilly Boulevard, the Cutlass was struck at its right front corner by a New Orleans police tow truck driven by defendant Brian Kelly, which was heading westbound on Gentilly Boulevard.

As a result of the impact, the Cutlass rotated counterclockwise. Mr. Boutee struck the steering wheel with his chest, severing his aorta and killing him within one to two minutes. Ms. Williams sustained numerous injuries, the most serious of which being a closed head injury, known as "diffuse axonal injury" ("DAI"), as evidenced by a horizontal cut to the right side of her head just above the ear. As a result of the DAI, Ms. Williams has right side spasticity rendering her wheelchair bound and depriving her of almost all usage of her right arm, hand, and leg. She also suffers from serious and permanent cognitive deficits, blurred vision, and daily tremors. It is undisputed that her condition will never improve to her pre-accident state of mind and body.

Through her court-appointed curator, Ms. Williams sued the city of New Orleans ("the City") for the alleged negligence of the tow-truck driver, Mr. Kelly.¹ She also sued General Motors Corporation ("GM") for the particular design of its seatbelt restraint system, which she alleged could inadvertently become dangerously slack and, therefore, ineffective. As a result of the seatbelt design and lack of appropriate warning, Ms. Williams alleged that her body was permitted to move freely during the crash and caused her to strike her head inside the vehicle, causing the brain injury.

A bifurcated trial was held with the judge determining the liability of the City and the jury determining the fault of the private parties.² While the judge found the City free from fault, the jury allocated forty percent of the fault to the City's tow truck driver as part of its duty to apportion damages. It also assigned forty percent fault to Mr. Boutee. In addition, the jury found that Ms. Williams sustained enhanced injuries as a result of the restraint system that was unreasonably dangerous due to an inadequate warning, thereby assigning GM twenty percent of the fault.³

The trial court entered judgment in favor of the City and judgment in favor of Ms. Williams and against GM for fifty percent of the jury's award on 16 July 2002.⁴ Both GM and Ms. Williams have appealed from the judgment and have assigned numerous errors for the court's consideration.

GM has assigned nine specifications of error:

1. Ms. Williams' damages were not caused by an inadequate warning;

2. Ms. Williams was not wearing a seat belt at the time of the crash;

3. The jury was improperly charged with incorrect law that reduced the plaintiffs' burden of proof on crucial issues and shifted the burden of proof to GM on other issues;

4. The trial court improperly excluded evidence that tainted the jury verdict;

5. The trial court should have granted a mistrial or new trial due to an extremely prejudicial statement by the plaintiffs' lawyer;

6. The $1,000,000.00 award for future medical expenses was not supported by the evidence;

7. The trial court committed legal error when it increased the amount of the plaintiffs' damages by signing an amended judgment after the court signed an order for suspensive appeal and lost jurisdiction; and

8. The trial court committed legal error when it ordered GM to pay 50% of the damages.

The plaintiffs have assigned the following specifications of error:

1. The trial court erred in failing to find that the City was partially at fault in causing the accident 2. The jury erred in failing to find that the GM belt system was unreasonably dangerous in design;

3. The jury erred in not assessing GM at least 75% fault in causing Ms. Williams' injuries; and

4. The award of general damages in the amount of $2,000,000.00 was abusively low given the undisputed severity and permanence of Ms. Williams' injuries.

Before addressing the assignments of error, we first resolve the issue of the appropriate standard of review to be applied by the court. GM maintains that the court should perform a de novo review with respect to all issues presented, not only because of the inconsistent verdicts, but also because of other errors made by the trial court. On the other hand, the plaintiffs contend that de novo review applies only to the issue(s) addressed in the inconsistent verdict, i.e., the liability of the City versus Mr. Boutee, but that the rest of the factual matters should be review under the manifest error/clearly wrong standard.

Generally, the findings of the judge or jury will not be disturbed unless they are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). That standard is arguably inapplicable in this case because a bifurcated trial was held, which resulted in inconsistent findings of fact by the trial judge and jury.

However, the proper standard of appellate review in bifurcated trials with inconsistent verdicts is not a settled question. A split exists in the circuits regarding the proper standard. This court has held that the proper standard is a de novo review of the record, without according any weight or deference to the factual findings of the judge or jury. McCullough v. Regional Transit Authority, 593 So.2d 731 (La.App. 4 Cir.1992), writ denied 595 So.2d 655 (La.1992). However, the first, second, and third circuits have adopted a different standard which accords deference to the factual findings of the judge and jury and attempts to harmonize inconsistent results. Thornton v. Moran, 348 So.2d 79 (La.App. 1 Cir.), writ denied, 350 So.2d 897 (La. 1977); Eppinette v. City of Monroe, 29,366 (La.App. 2 Cir. 6/20/97), 698 So.2d 658; Davis v. Witt, 2001-894 (La.App. 3 Cir. 11/13/02), 831 So.2d 1075; Felice v. Valleylab, Inc., 520 So.2d 920 (La.App. 3 Cir. 1987), writs denied 522 So.2d 562, 563 (La.1988).

Thus, only this circuit has required an independent review without according any weight to the factual findings of the judge or jury; therefore a result different than the decision by the judge or the jury is possible. The other circuits merely decide whether the judge or jury made a more reasonable finding. Writs from First, Third and Fourth Circuit cases have been denied by the Supreme Court and the divergent opinions continue. McCullough, 593 So.2d at 735.

Shortly before the case was heard in this court, counsel for Ms. Williams brought the case of Picou v. Ferrara, 483 So.2d 915 (La.1986) to the court's attention. There, the Supreme Court found that an erroneous jury instruction probably contributed to a finding of the plaintiffs' negligence and, therefore, that finding was not entitled to review under the manifest error rule.

We therefore proceed to determine plaintiff's contributory negligence, without regard to that finding by the jury which was tainted by the erroneous instruction on the issue, but with due regard to the untainted finding by the jury that defend

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