Gould v. State Through Louisiana Dept. of Corrections

• Decision Date: 28 June 1983
• Docket Number: No. 82,82
• Citation: 435 So.2d 540
• Parties: Victor GOULD v. STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF CORRECTIONS. CA 0899.
• Court: Court of Appeal of Louisiana — District of US

Page 540

435 So.2d 540

Victor GOULD v. STATE of Louisiana, Through the LOUISIANA DEPARTMENT OF CORRECTIONS.

No. 82 CA 0899.

Court of Appeal of Louisiana,

First Circuit.

June 28, 1983.

Gregory F. Gambel, New Orleans, for plaintiff-appellant, Victor Gould.

Joseph Erwin Kopsa, Louisiana Dept. of Justice, Baton Rouge, for defendant-appellee, State of La., Through the Louisiana Dept. of Corrections.

Before COVINGTON, LANIER and ALFORD, JJ.

LANIER, Judge.

This is a suit for damages in tort. The petitioner, Victor Gould, an inmate at the Louisiana State Penitentiary in Angola, sued the State of Louisiana, through the Louisiana Department of Corrections (State), to recover the sum of $750,000.00 for personal injuries suffered on September 17, 1976, when he sustained a severe laceration of his left hand from being struck with a cane knife, or machete, which was being used by a fellow inmate while they were cutting grass at the state prison. Gould alleged the negligence of the defendant in failing to properly supervise the work detail of which he was a member, in failing to provide safe and proper equipment to work with, in failing to provide adequate training for the particular work and in ordering inmates under threats of physical harm to work in dangerous proximity to each other.

The State responded to the suit, generally denying the allegations of negligence and also asserting affirmative defenses of contributory negligence, assumption of risk and last clear chance.

Subsequently, the petitioner took the depositions of three correctional officers, Warren Gregory Foster, N.W. Davis and L.B. Johnston, Jr., and of eight fellow inmates, Lazarus Smith, George Carter, Matthew Joseph, William Dean, Tommy Atwood, Victor Brumfield, Calvin Blackburn and Willy Green. The defendant took the deposition of the petitioner, Victor Gould.

The district court designated a commissioner to hear the proceedings and to report his findings and recommendations.

At the hearing before the commissioner only the petitioner testified, and the twelve depositions and the medical records of Gould were introduced in evidence. The hearing was held open so that the deposition of Dr. John Watermeier, the examining orthopedist, could later be put in evidence. When this was accomplished, the commissioner submitted his report and recommendations to the trial judge. The commissioner found that the inmates were working too close to each other; that the work detail had not received proper training in the use of the cane knives; that the defendant failed to provide adequate supervision over the work detail; that one of the correctional officers fired his gun as a threat to make the inmates work closer together; and that the work detail was sent to cut grass without being furnished gloves. Basically, the commissioner found that the State had breached its duty to provide a safe place to work and to provide proper supervision, and he recommended an award of $85,000.00 as damages.

The defendant opposed the commissioner's report, and the petitioner responded to the opposition. This led to a conference with the trial judge, in which both parties agreed that no further evidence would be presented to the court. The matter was then submitted to the trial court for decision.

The trial judge, upon a de novo review of the evidence, found that the petitioner had failed to prove by a preponderance of the evidence that defendant was negligent or that any alleged negligence of defendant caused injury to petitioner. Judgment was rendered in favor of the defendant. Petitioner's motion for a new trial was denied and this devolutive appeal followed.

FACTS

On the morning of September 17, 1976, Victor Gould was one of a group of new inmates cutting tall grass on the Louisiana State Penitentiary grounds. They were working in a formation, which was referred to as a "shoestring" formation, where one inmate would cut the grass close to the ground, making a path and then, after a pause, the next man in line would cut his path. To cut the grass the inmates were using cane knives, or machetes, which had sharp blades almost two feet in length.

Gould and the other inmates had not progressed very far with the grass-cutting when the inmate in front and to the right of Gould brought his knife down in such a motion and manner that he accidentally struck Gould's left hand causing a laceration of the fingers and hand. The injury was severe and painful and required hospitalization. According to Dr. John Watermeier, the examining orthopedist, Gould has a residual disability of 25% to the injured hand as a whole.

EFFECT OF COMMISSIONER'S REPORT

The instant case was heard initially by a district court commissioner pursuant to La.R.S. 13:713. It is the function of the commissioner to hold an evidentiary hearing and to submit to his district judge "proposed findings of fact and recommendations for disposition" of the matter he has heard. After the commissioner conducts a hearing, as was done in the instant case, and submits proposed findings and recommendations for disposition, it is the fundamental responsibility of the district judge to make the final determination of all issues involved and to decide the case by rendering judgment. The district judge accomplishes his responsibility by making a de novo determination of disputed findings and recommendations; he does not merely "rubber-stamp" the report of the commissioner. The district judge may accept, reject or modify the commissioner's findings and/or recommendations, or require additional evidence, or recommit to the commissioner with instructions. All of the adjudicatory power remains in the judge. The commissioner is a hearing officer without adjudicatory authority who, after a hearing, reports his factual findings with recommendations to the district judge who then makes the final determination and the adjudication. Bordelon v. Louisiana Department of Corrections, 398 So.2d 1103 (La.1981).

In Bordelon, the court stated:

The fundamental responsibility of the judge to make the final determination, after the commissioner conducts a hearing and submits proposed findings and recommendations, is insured by the requirement of a de novo determination of disputed findings or recommendations. Id. at 1105.

In the case at bar, the trial judge, as shown by his "Written Reasons for Judgment" (which are attached as "Appendix A"), fully effectuated the "commissioner-hearings" legislation, La.R.S. 13:711 et seq. He made a "de novo determination" of disputed points and retained "the responsibility for making" and did make the ultimate decision in the case. There is no basis for the appellant's argument that the trial court erred in not accepting the recommendation of the commissioner.

STANDARD OF REVIEW

In the instant case, only Gould gave live testimony at the hearing held before the commissioner. All of the other testimony, that of three correctional officers at the State Penitentiary and of eight inmates at the State Penitentiary, was presented in the form of depositions. The deposition of the plaintiff was also introduced in evidence, along with the plaintiff's medical records and the deposition of the examining physician.

The trial court, by agreement of the parties, decided the case based on the record which was made up of the evidence presented at the commissioner's hearing. No new evidence was presented by either side. In view of the state of the record, this court is in as good a position as the trial court to evaluate the credibility of the witnesses and resolve conflicts in the testimony of the witnesses. F & S Offshore, Inc. v. Service Machine & Shipbuilding Corporation, 430 So.2d 1167 (La.App. 1st Cir.1983).

In this state, appellate review in civil cases extends constitutionally to both law and facts. La. Const. of 1974, art. V, § 10(B). As to law, this court has full intermediate appellate review. As to facts, Canter v. Koehring Company, 283 So.2d 716 (La.1973), as refined by Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), delineates our review of facts as first an ascertainment that there is in the record "a reasonable factual basis" for the trial court's factual findings and second a determination from the record that the trial court's factual findings are not "clearly wrong." Then, if we, as an intermediate appellate court, find a reasonable basis for the factual findings and such findings are not clearly wrong (or manifestly erroneous), we are admonished not to disturb such findings of fact.

The basis for the Canter-Arceneaux rule is that the trier of fact, actually hearing and observing the witnesses give live testimony, is in a better position to evaluate credibility than a reviewing court on the intermediate appellate level, which at best can only study the written words of a cold record. Stated another way, according to Canter-Arceneaux, where there is a credibility issue or conflict in the testimony and the trial judge (trier of fact) has had the opportunity to observe the demeanor of the witnesses as they testify and to listen to the nuances of their oral testimony, great weight must be given to the factual conclusions of the trier of fact and they should not be disturbed unless clearly wrong.

In the instant case, the record is made up entirely of depositions and a transcript taken out of the presence of the trial judge. Where, as here, the trial judge relies on the depositions of the witnesses and/or a transcript, the Canter-Arceneaux rule does not apply, because the trial judge is in no better position to evaluate credibility or resolve conflicts in testimony than the reviewing court. Schwarz v. Bourgeois, 422 So.2d 1176 (La.App. 4th Cir.1982), writs denied 429 So.2d 153 (La.1983); Farris v. Ducote, 293 So.2d 589 (La.App. 3rd Cir.1974), writ refused 295 So.2d 814 (La.1974); Abu Ali v. Guillory, 271 So.2d 882 (La.App. 4th Cir.1973). When evaluating depositions, rather than live testimony, we must...