Dennis v. The Finish Line, Inc.

• Court: Court of Appeal of Louisiana
• Writing for the Court: Parro
• Citation: Dennis v. The Finish Line, Inc., 781 So.2d 12 (La. App. 2000)
• Decision Date: 22 December 2000
• Docket Number: No. 99 CA 1413.,No. 99 CA 1414.,99 CA 1413.,99 CA 1414.
• Parties: Celia R. Dennis, Wife of/and Gerald F. DENNIS, Jr. v. THE FINISH LINE, INC., et al. Julie A. Cassisa v. Celia Dennis, et al.

781 So.2d 12

Celia R. Dennis, Wife of/and Gerald F. DENNIS, Jr. v. THE FINISH LINE, INC., et al. Julie A. Cassisa v. Celia Dennis, et al.

No. 99 CA 1413.

No. 99 CA 1414.

Court of Appeal of Louisiana, First Circuit.

December 22, 2000.

Writ Denied March 16, 2001.

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Randolph C. Slone, Jane L. Triola, Slidell, for Plaintiff-Appellant/Appellee Celia Dennis.

Ronnie G. Penton, Bogalusa, for Plaintiff-Appellant/Appellee Julie A. Cassisa.

Rodney A. Ramsey, Stephen F. Babin, Attorney General's Office, Baton Rouge, for Defendant-Appellee/Appellant State of Louisiana through Department of Transportation and Development.

Before: CARTER, C.J., LeBLANC, PARRO, KUHN, and GUIDRY, JJ.

PARRO, J.

In these consolidated personal injury cases arising out of a two-car collision, the State of Louisiana, through the Department of Transportation and Development, appeals the trial court's judgments against it in favor of the plaintiffs, Celia R. Dennis and Julie A. Cassisa. Ms. Dennis and Ms. Cassisa also appeal the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Celia R. Dennis, a bartender at The Finish Line,¹ worked the afternoon and evening of Friday, October 5, 1990. During her shift, one of the customers, Felix D. Givens, caused a disturbance and then "passed out" at the bar. Several employees of The Finish Line removed Mr. Givens from the bar around 5 p.m. and placed him in his car in the parking lot. When Ms. Dennis finished her shift at 11:30 p.m., Mr. Givens was still asleep in the back seat of his car. About midnight, after she had picked up some groceries from a store in the strip mall where the bar was located, Ms. Dennis went back to Mr. Givens' car. She woke him and offered to drive him home with someone else following. Mr. Givens said he was fine, climbed into the front seat, and drove out of the parking lot. Because she was still concerned about him, Ms. Dennis followed a short distance behind him as he proceeded in a northerly direction on U.S. Highway 11. At some point, she noticed that Mr. Givens' vehicle crossed the center line of the two-lane highway into the southbound lane. Almost immediately thereafter, Ms. Dennis saw headlights coming toward her, and her car was struck head-on by a car driven by Julie A. Cassisa.

Ms. Cassisa and her two passengers had been traveling in a southerly direction on U.S. Highway 11 when Mr. Givens' vehicle encroached on her lane. To avoid being hit, she swerved entirely onto the shoulder of the road and almost immediately turned back toward the highway. When Ms. Cassisa's car re-entered the highway, it bumped over the edge of the pavement, angled across the southbound lane, and struck the car being driven by Ms. Dennis. Ms. Cassisa and Ms. Dennis were seriously injured as a result of the head-on collision.

In May 1991, Ms. Dennis and her husband, Gerald F. Dennis, Jr., filed a lawsuit for damages resulting from this accident² The named defendants were The Finish Line, Inc.³; Ms. Dennis's uninsured motorist insurer, Allstate Insurance Company; Julie A. Cassisa and her parents, Joanne L. and John J. Cassisa; the Cassisas' automobile liability insurer, Automotive Casualty Insurance Company; the State of Louisiana through the Department of Transportation and Development (DOTD); Felix D. Givens; and the unknown insurers of The Finish Line and Mr. Givens. Various third-party claims, cross-claims, and interventions were filed, but all claims of all parties were eventually settled and dismissed except for Ms. Dennis's claims against DOTD and Mr. Givens.

In June 1991, Ms. Cassisa filed suit against Ms. Dennis, Mr. Givens, Jefferson Downs Corporation, d/b/a The Finish Line, Allstate Insurance Company, and various other insurance companies; an amendment later added DOTD as a defendant. The Cassisa case was later consolidated with the Dennis case. Eventually, all claims of all parties in the Cassisa case were also settled and dismissed, leaving only her claims against DOTD and Mr. Givens.⁴

After a three-day trial, the court apportioned fault as follows: Mr. Givens—65%; DOTD—15%; The Finish Line—15%; Ms. Cassisa—5%; and Ms. Dennis—0%. In a judgment dated October 12, 1998, the court found in favor of Ms. Dennis and against Mr. Givens and DOTD, "solidarily up to 50%," for $624,364.41. The judgment reserved to DOTD "any and all rights of reduction, if any," due to the apportionment of fault to any other tortfeasor or settlement of any other tortfeasor. In a separate judgment rendered the same day, the court found in favor of Ms. Cassisa and against Mr. Givens and DOTD, "solidarily up to 50%," in the amount of $1,901,310.77. This judgment similarly reserved to DOTD whatever rights it might have to reduce its payments due to the apportionment of fault to the plaintiff or other settling tortfeasors.

Apparently the parties were unable to agree on whether DOTD had any right to reduce its payments to Ms. Dennis and Ms. Cassisa as a result of their settlements with The Finish Line.⁵ Ms. Dennis and Ms. Cassisa argued that the court may have been legally correct in apportioning fault to The Finish Line, because Louisiana Civil Code article 2323 required the court to determine a percentage of fault for all persons causing or contributing to the injury, regardless of the party's statutory immunity.⁶ Nevertheless, they argued that because The Finish Line was statutorily immune from suit by virtue of Louisiana Revised Statute 9:2800.1, DOTD did not have a right to contribution from The Finish Line. Therefore, they contended DOTD should not be able to reduce its payments to Ms. Cassisa and Ms. Dennis by the 15% of fault attributed to the settling party. Because the parties could not agree whether the court's October 12, 1998 judgments allowed DOTD to reduce its payments under these circumstances, Ms. Cassisa and Ms. Dennis filed a motion to clarify the judgment. After considering briefs and arguments on this issue, the trial court clarified its October 12, 1998 judgments, stating in a judgment dated November 17, 1998, that The Finish Line was not an immune party. This clarifying judgment, like the initial one, did not expressly state whether DOTD could therefore reduce its payments to Ms. Cassisa and Ms. Dennis, nor did it indicate the dollar amount of any such reduction.

All parties except Mr. Givens appealed. DOTD appealed only the October 12, 1998 judgments, assigning as error the trial court's apportionment of fault to it, the court's failure to limit the state's liability for general damages to the statutory $500,000 general damage cap imposed in 1985, and the excessive awards to Ms. Cassisa and Ms. Dennis. Ms. Dennis and Ms. Cassisa appealed both the October 12, 1998 judgments and the November 17, 1998 clarifying judgment. They claim the trial court's October 12, 1998 judgments were not definitive, because the judgments did not specify whether DOTD was entitled to a credit for their pre-trial settlements with The Finish Line and did not specify the amount of any such credit. They contend DOTD is not entitled to reduce its judgments by the percentage of fault assessed to The Finish Line. They also assert that the court was incorrect in concluding The Finish Line was not immune from liability and in its apportionment of fault among the parties. Specifically, they urge that the court erred in assigning any fault to The Finish Line and should have assigned more fault to DOTD than to Mr. Givens.

APPORTIONMENT OF FAULT

All appellants have assigned as error the trial court's apportionment of fault among the parties. A determination of the allocation of fault by the trier of fact is a factual finding and cannot be overturned in the absence of manifest error. Barsavage v. State, Through Dep't of Transp. and Dev., 96-0688 (La.App. 1st Cir.12/20/96), 686 So.2d 957, 962, writs denied, 97-0595, 97-0634 (La.4/18/97), 692 So.2d 455 and 456. DOTD contends the trial court should not have assigned any fault to it. Ms. Dennis and Ms. Cassisa claim the court should have assigned 75% of the fault to DOTD, 20% to Mr. Givens, and none to The Finish Line.⁷

Liability of DOTD

DOTD's 15% liability was based on the condition of the shoulder of the road, which the trial court found was defective because its aggregate surface was not compacted and was not graded even with the level of the highway's paved surface. When these consolidated cases were filed, DOTD's liability to a plaintiff could arise under a theory of negligence, Louisiana Civil Code article 2315, or a theory of strict liability, Louisiana Civil Code article 2317.⁸ Hunter v. Dep't of Transp. and Dev., 620 So.2d 1149, 1150-51 (La.1993). Under either theory, the plaintiff must prove: (1) the thing that caused the damage was in the custody of the defendant; (2) the thing contained a defect, that is, a condition that created an unreasonable risk of harm to the plaintiff; and (3) the defective condition of the thing caused the plaintiff's injuries. In essence, the only difference between the negligence theory of recovery and the strict liability theory of recovery is that the plaintiff need not prove the defendant was aware of the existence of the defect under the strict liability theory. Under the negligence theory, it is the defendant's awareness of the dangerous condition of the property that gives rise to a duty to act. Under a strict liability theory, it is the defendant's legal relationship with the property containing a defect that gives rise to the duty. Oster v. Dep't of Transp. and Dev., 582 So.2d 1285, 1288 (La.1991). Under either a strict liability or a negligence theory of recovery, the liability of DOTD to an injured plaintiff hinges on whether it has breached a duty to the plaintiff. Gibson v. State, through Dep't of Transp. and Dev., 95-1418 (La. App. 1st Cir.4/4/96), 674 So.2d 996, 1001, writs denied, 96-1862,...