Gotch v. Scooby's Asap Towing, LLC

Decision Date26 June 2019
Docket NumberNo. 2019-C-0030,2019-C-0030
Citation285 So.3d 459
Parties Terry GOTCH v. SCOOBY'S ASAP TOWING, LLC, et al.
CourtLouisiana Supreme Court

285 So.3d 459


No. 2019-C-0030

Supreme Court of Louisiana.

June 26, 2019



In this case, we are called upon to determine whether the district court erred in denying plaintiff's request for a mistrial based on evidence that the jurors violated their instructions by discussing the case prior to deliberations. For the reasons that follow, we conclude the district court did not abuse its discretion in denying plaintiff's motion for a mistrial. Accordingly, we reverse the judgment of the court of appeal and reinstate the district court's judgment.

285 So.3d 461


Plaintiff, Terry Gotch, filed this suit for damages against defendants, Joseph Derousselle and his employer, Scooby's ASAP Towing, LLC ("Scooby's"). Plaintiff alleged he was a guest passenger in a vehicle driven by Alydia Menard. According to plaintiff, Mr. Derousselle, an employee of Scooby's, backed his vehicle out of a private driveway, causing Ms. Menard to make an evasive maneuver to avoid a collision. Ms. Menard's vehicle subsequently left the roadway and struck a ditch, causing injury to plaintiff.

The suit was tried before a jury. Prior to trial, the district court instructed the jury, "[y]ou may only discuss the case with the other members of the jury when you begin deliberations on your verdict and all other members of the jury are present."1

At trial, the parties presented conflicting versions of the events. Ms. Menard testified that she swerved to avoid Mr. Derousselle's truck, which she noticed partially in the roadway as she rounded a turn. Ms. Menard also testified that fog obstructed her view of the roadway.

Mr. Derousselle testified that he had backed his vehicle from his driveway, but immediately pulled back into the driveway upon seeing Ms. Menard's vehicle coming around the curve. He noted that the fog, together with the excessive rate of speed at which Ms. Menard was traveling on the wet highway, likely contributed to her inability to slow down or stop, and caused her to instead veer off the road.

After the close of evidence and argument, the jury began deliberations. The alternate juror, who had been excused prior to deliberations, remained in the courtroom. In response to a question by plaintiff's counsel about her impression of the trial, the alternate juror suggested that the jurors may have discussed the case among themselves prior to deliberations.

Following deliberations,2 the jury returned its verdict. In a unanimous verdict, the jury found defendants were not negligent.

After receiving the verdict, the district court, with the consent of the parties and on the record, questioned the jurors. The district court asked the foreperson, Mr. McClelland, "were there any discussions during breaks, and after we recessed, or whatever amongst yourselves about the case?" Mr. McClelland replied, "yes, sir." He further stated:

I don't think any of us were under the impression that we were not allowed to speak about it inside the jury deliberation room. So, actually, I felt that that was our duty, is to speak about it and discuss it amongst each other to, I mean, come up with a verdict.

Another juror, Ms. Hennigan, testified that while some of the jurors had feelings about the case at the beginning, she did not believe any of the jurors made a decision until deliberations. She stated:

I will say some, from the beginning, did feel one way or the other. Nobody made - - I don't know that anyone made a hundred percent decision one way or the other until - - because we all have lots and lots of notes that we took. We
285 So.3d 462
took - - every - - I don't want that to look like we did not look at all the information. We looked at all the information, I mean, from percentages to how they backed out, drove in to - - and I know about - - I know a lot about spines and - - Anyway, so there was - - it was a good discussion, it was, and to the point of the benefit of the doubt and everything. But to be able to say that this was - - that any pain and suffering could be caused by the gentlemen backing out of his driveway on a foggy morning, we could not see that. And so - -

After hearing the jurors' testimony, the district court made the following remarks:

So the issue will be whether or not the discussions that you had - - I mean, you came to a verdict, you did it, obviously, with discussion amongst yourselves. No one swayed one person from doing it or the other. The issue is just that - - And the reason that we have that charge is so that starting from opening statement and then when you just hear the plaintiff's case that you all aren't affecting other jurors by your thoughts and whatever on - - from opening through close. Because the defendant - - in this case, the defendants only had one witness, but in many cases defendants may have a day and a half of witnesses, and if you all have been discussing about the case after just hearing what the plaintiff said, you may be forming an opinion during that time that may not be able to be rebuffed now because the defendants haven't put on their case yet. That's the purpose behind it. I don't know, in this case, that it was that effect or not, but - okay.

* * *

I know, but what I want to make clear is what I got from their discussion is that they didn't make a decision at opening statements, that they discussed the case throughout the time they were here and made their decision based on what they believed was good law. I can't fault their decision. And it sounds to me that they had a lot of discussion, it's just that they had the discussion before they were charged with the law.

Thereafter, plaintiff filed a motion for a mistrial. In support, he argued the jurors disregarded the district court's instruction to refrain from making any determinations until the end of the trial.

After hearing, the district court denied the motion for mistrial. In oral reasons for judgment, the court stated:

So, anyhow, I just don't see how this is manifest error, that this is, certainly, not something that they did that I think had an effect on their verdict ... I don't think there's grounds for a new trial based on what I heard in terms of other than this discussion. I think, clearly, reasonable minds on a jury could have decided the way they decided.

The district court then entered an amended judgment which denied plaintiff's motion for a mistrial and adopted the jury's verdict. Plaintiff appealed.

The court of appeal reversed, finding the district court erred in denying plaintiff's motion for mistrial. Gotch v. Scooby's ASAP Towing, LLC , 18-355 (La. App. 3 Cir. 12/6/18), 259 So.3d 1107.

Upon defendants' application, we granted certiorari to review the correctness of the judgments below. Gotch v. Scooby's ASAP Towing, LLC , 19-C-0030 (La. 3/6/19), 266 So.3d 905.


Prior to 1995, the Code of Civil Procedure did not expressly provide for mistrials in civil cases. However, our jurisprudence recognized that "this device is not precluded when no other remedy would

285 So.3d 463

afford relief." Spencer v. Children's Hosp. , 432 So.2d 823, 825 (La. 1983). In 1995, the legislature codified this jurisprudence in La. Code Civ. P. art. 1631(C), which provides, "[t]he court on its own motion, or on the motion of any party, after hearing, may grant a...

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