Davis v. Witt

• Decision Date: 13 November 2002
• Docket Number: No. 01-894.,01-894.
• Citation: 831 So.2d 1075
• Parties: Clifford DAVIS, Jr., et al. v. Charles WITT, et al.
• Court: Court of Appeal of Louisiana — District of US

831 So.2d 1075

Clifford DAVIS, Jr., et al. v. Charles WITT, et al.

No. 01-894.

Court of Appeal of Louisiana, Third Circuit.

November 13, 2002.

COPYRIGHT MATERIAL OMITTED

James L. Pate, Melissa L. Theriot, Laborde & Neuner, Lafayette, LA, for Defendant/Appellant, Sheriff Charles A. Fuselier, Jr.

Charles V. Musso, H. David Vaughan, II, Plauche, Smith & Nieset, Lake Charles LA, for Plaintiffs/Appellees, Clifford Davis, Jr., et al.

Laura Putnam Shell, Assistant Attorney General, Lafayette, LA, for Defendant/Appellant, Louisiana State Police.

Mark L. Ross, Leonard & Leonard, Lafayette, LA, for Defendants/Appellees, Clifford Davis, Jr., et al.

Court composed of NED E. DOUCET, C.J., HENRY L. YELVERTON, ULYSSES GENE THIBODEAUX, COLOMBARO WOODARD and MICHAEL G. SULLIVAN, Judges.

THIBODEAUX, Judge.

In this bifurcated wrongful death case, plaintiffs, the children of Mary and Clement Davis, the decedents, (Davis Children) appeal the trial court's judgment apportioning the St. Martin Parish Sheriffs Office and the Louisiana State Police with twenty percent fault each for causing the death of Mary and Clement. On the other hand, the Sheriffs Office and State Police appeal the trial court's judgment that they were at fault in any percentage for the deaths of Mary and Clement. The Davis Children answered the defendants' appeal requesting an increase in the wrongful death damages awarded at trial.

We reverse the trial court's grant of the Davis Children's Judgment Notwithstanding the Verdict (JNOV) with respect to the State Police. We conclude that the facts and inferences do not point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. We affirm the trial court's grant of the Davis Children's alternative motion for new trial against the State Police pursuant to La. Code Civ.P. art.1973. Further, we affirm the twenty percent assessment of fault against the Sheriffs Office. In response to the Davis Children's answer to the appeal for an increase in damages, we amend the trial court ruling regarding the amount of wrongful death damages and increase the damage amount to $200,000 per child for the death of each parent.

I.

PROCEDURAL HISTORY

Suit was filed by the Davis Children against Charles Witt, the driver of the eighteen-wheeler truck that collided with Mary and Clement's vehicle; Mr. and Mrs. Richard Ducote who tried to assist Witt in backing his truck from a parking lotig into the roadway; the City of Breaux Bridge Police Department; the Sheriffs Office; and the State Police. The suit against the Breaux Bridge Police was dismissed on summary judgment due to lack of evidence of fault. The suit against the Ducotes was dismissed on the morning of trial by a stipulation of the parties that the Ducotes were not at fault. Finally, with respect to Witt, the Davis Children settled their claims against him, his employer and his insurer prior to trial.

A bifurcated trial in this matter was held on September 11, 2000 through September 15, 2000, against the remaining defendants. The claims against the State Police were tried by jury, and the claims against the Sheriffs Office were tried by the judge.

The jury rendered a judgment in favor of both the State Police and the Sheriffs Office finding both free from negligence in causing the accident and that Witt was the sole cause of the accident and deaths of Mary and Clement. The jury awarded wrongful death damages in the amount of $100,000 to each of the surviving ten children of Mary Clement and $100,000 to each of the surviving ten children of Clement Davis, for a total of $2,000,000.00. The jury also awarded damages for funeral and medical expenses.

Finding comparative fault on the part of the Sheriff's Office, the trial judge assessed the Sheriff's Office fault at twenty percent. Further, the trial court dismissed the Davis Children's claims against the State Police. The Davis Children filed a motion for judgment notwithstanding the verdict (JNOV). The Davis Children's JNOV sought an increase in their wrongful death damage awards and a finding of fault in the amount of fifty percent assessed to the State Police. The trial judge granted the plaintiffs' JNOV and assigned twenty percent fault to the State Police. Further, the trial court granted plaintiffs' motion for a new trial should his ruling on the JNOV be reversed by this court on appeal. The trial court did not increase the damage amount awarded to the Davis Children. It is from the grant of the JNOV and, alternatively, a new trial that the State Police appeal. The Sheriffs Office appeals seeking a reversal of the trial court's judgment finding it twenty percent at fault. The Davis Children appeal the trial court's allocation of only twenty percent fault to the Sheriffs Office and the State Police. The Davis Children also claim that the trial court's wrongful death damage awards are abusively low.

FACTS

On May 11, 1997, Mother's Day, Mary and Clement Davis were killed when they collided with a truck loaded with creosote poles that extended seventeen feet past the end of the its trailer. The truck was driven by Witt, a truck driver from Mississippi. The collision occurred when Witt attempted to back across the eastbound lane of Louisiana Highway 94 at 9:12 p.m. The parties stipulated that the sun set at 7:51 p.m. on May 11, 1997. The defendants' actions leading up to the time of the collision form the basis of this wrongful death case.

Witt traveled from Mississippi down Louisiana Interstate 10 and exited in St. Martinville, Louisiana. Witt continued into Breaux Bridge. In Breaux Bridge, Witt stopped his truck at a business, the "Fruit Stand." Witt's intended destination was a business located in Cade, Louisiana known as "Gulf Coast Creosote Corporation." At the "Fruit Stand," Witt's truck was parked entirely off the road. Witt was concerned about continuing on his way after sunset because the creosote poles extended quite a bit past the end of the truck. Therefore, at 8:17 p.m. Witt contacted the Sheriffs Office to seek guidance on the need for an escort. The 8:17 p.m. call to the Sheriffs Office was the first of three such calls. With the exception Witt's first call to the State Police, all of the calls were recorded and later transcribed for introduction into evidence at trial.

In his first call to the Sheriffs office Witt spoke with Sergeant Lorrie Breaux,¹ and acknowledged that he should not be on the road at sunset with the creosote poles protruding from the end of his trailer. Witt told Sgt. Breaux that he was located "just past Wal-Mart" and wondered if he needed an escort through town due to his load. At that point, Sergeant Breaux realized that Witt was within the city limits of Breaux Bridge. She transferred Witt to the city police department. Witt relayed his situation to Michelle Mullin of the Breaux Bridge City Police Department. Witt asked whether he could get an escort through town or whether he would have to stay parked until morning. Witt also told Ms. Mullin that it would be no problem for him to stay parked where he was until morning. Ms. Mullin informed Witt that he would have to contact the State Police because she did not know anything about providing an escort.

Witt contacted the State Police. Apparently Witt was told by the State Police that they could not help him because he was within the Breaux Bridge city limits; therefore, he again called the Sheriff's office seeking assistance. Sergeant Breaux told Witt that the city police had to take care of his situation. According to the transcript of his second conversation with Sergeant Breaux of the Sheriff's Office, Witt was told by Sergeant Breaux, with respect to the duties of the city police: "Yes, they sure can. You need to call, I'm going to call over there for you. Want you to stay on the line." She then asked Witt why he needed an escort. Witt explained as follows:

Well, here is the problem, I want to make sure that I'm not in a spot where I can get off the highway. I'm about 10 foot or maybe 8 foot off the highway right now, but with a 30 foot over hanger, 25 foot over hanger, I don't want to get hit.

Witt told Sergeant Breaux that he needed someone to block the traffic while he got on the road or direct him to a place where he could "pull into and get off the road." Witt explained to Sergeant Breaux that he only had twelve hours to get to his destination. Witt further explained that he needed someone to tell him of a place where he could pull his truck off the road because he did not have to leave until 8:00 a.m. Witt expressed concern about someone hitting the poles on his truck because the portion of the poles hanging past the trailer was not visible.

Although Sergeant Breaux told Witt that he could park his truck in the Wal— Mart parking lot, Witt informed Sergeant Breaux that he had already passed the Wal—Mart and that he could not turn around because he was hauling the seventy-foot poles. Sergeant Breaux told Witt that he could turn his truck around at the Sheriff Office substation. Sergeant Breaux gave Witt directions to the Sheriff's Office substation located on Mills Highway. Sergeant Breaux also told Witt that the substation had a big parking lot, and that she would let the substation personnel know that he was headed there to turn his rig around. Sergeant Breaux contacted Deputy Richard at the Sheriff's Office substation, and told him about Witt using the parking lot to turn his rig around.

Witt called the main Sheriff's Office back and again talked to Sergeant Breaux. He told Sergeant Breaux that he did not see the substation. Witt told Sergeant Breaux his location, and she determined that he passed the substation. Witt told Sergeant Breaux that he was in the parking lot of "Guidry Specialty Meats." Witt further explained that he could pull out of the parking lot but that he was afraid where would be an accident. Witt told Sergeant Breaux...