Hebert v. Rapides Parish Police Jury

• Decision Date: 12 July 2006
• Docket Number: No. 05-471.,05-471.
• Citation: Hebert v. Rapides Parish Police Jury, 934 So.2d 912 (La. App. 2006)
• Parties: John and Klea HEBERT v. RAPIDES PARISH POLICE JURY, et al.
• Court: Court of Appeal of Louisiana

934 So.2d 912

John and Klea HEBERT v. RAPIDES PARISH POLICE JURY, et al.

No. 05-471.

Court of Appeal of Louisiana, Third Circuit.

July 12, 2006.

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Ronald J. Fiorenza, John D. Ryland, Alexandria, LA, for Defendant/Appellant — State of Louisiana, Department of Transportation and Development.

Roy S. Halcomb, Jr., Alexandria, LA, for Plaintiffs/Appellees — John and Klea Hebert.

Robert L. Bussey, Assistant District Attorney — Parish of Rapides, Alexandria, LA, for Defendant/Appellee — Rapides Parish Police Jury.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.

THIBODEAUX, Chief Judge.

Plaintiffs, John and Klea Hebert (the Heberts), the parents of a teenager killed in a one-car accident, brought a wrongful death and survival action against the Rapides Parish Police Jury (RPPJ) and the State of Louisiana, through the Department of Transportation and Development (DOTD). The RPPJ requested a bench trial; therefore, the trial was bifurcated and the DOTD's fault was tried to a jury. The jury found that the DOTD and the RPPJ were both 50 percent at fault; however, the trial judge assessed no fault to the DOTD, attributed 60 percent of the fault to the deceased driver, and assessed the remaining 40 percent of fault to the RPPJ. The DOTD and the plaintiffs have appealed. We have undertaken a de novo review of the record in order to harmonize the verdicts. For the reasons set forth, the judgment of the trial court is amended and, as amended, is affirmed.

I. ISSUES

The DOTD's Issues

1. Did the trial judge err in admitting into evidence the DOTD inspection reports of the Haines Creek Bridge?

2. Did the trial judge err in failing to include on the verdict form the contractor/construction company that built the Haines Creek Bridge?

3. Did the trial judge err in finding that the DOTD was legally liable for the condition of the Haines Creek Bridge?

4. Did the trial judge err in the methodology used to incorporate its verdict and that of the jury into a single judgment?

The Heberts' Issue

5. Should the judgment be amended to reflect survival damages in the amount of $34,435.62 rather than $24,453.63?

II. FACTUAL BACKGROUND

Katie Hebert, the seventeen-year-old daughter of the plaintiffs, was killed in a one-car accident at approximately 9:00 p.m. on October 15, 1995. She was alone and driving east on Philadelphia Road in Rapides Parish. It is believed that as she entered a deep curve that approaches the Haines Creek Bridge, the right wheels of the vehicle she was driving left the roadway. There was a six-inch to eight-inch drop-off to the shoulder. Upon re-entering the roadway, she apparently lost control of the vehicle and collided with the Haines Creek Bridge railing. The bridge railing was constructed of three-inch pipes that were not bordered by guardrails. One of the pipes pierced Katie's door, killing her. Prior to the accident, there were no curve warning signs or reduction in speed signs posted in advance of the curve.

Philadelphia Road and the Haines Creek Bridge are part of an "off-system" roadway, owned and maintained by the RPPJ. The bridge was constructed in 1980. Shortly after the construction of the bridge, the DOTD began to perform bridge inspections every two years. In each of its inspection reports, it advised the RPPJ that the bridge was in substandard condition. Prior to Katie's accident, neither the DOTD nor the RPPJ took any action to remediate those conditions.

The plaintiffs sued for damages the RPPJ, the DOTD, and the contractor that built the bridge, Slocum Construction and/or Slocum Manufacturing (Slocum). Slocum was dismissed from the suit pursuant to La.R.S. 9:2772, because the suit was filed against it more than five years after the peremptive period allowed for doing so. The suit proceeded against the remaining defendants. The Heberts asserted that the absence of guardrails from the bridge was the primary cause of Katie's death and that both defendants were responsible for this condition. The RPPJ and the DOTD both alleged that Katie's excessive speed upon entering the curve was the cause of her injuries.

The RPPJ requested a bench trial. The case against the DOTD was tried to a jury. The judge completed the same jury verdict form that was completed by the jury. He found that the RPPJ was 40 percent at fault and that Katie was 60 percent at fault. He did not assess any liability to the DOTD. The jury, on the other hand, found the RPPJ and the DOTD to be equally at fault and assessed each of them with 50 percent liability for the accident. It assessed no fault to Katie. The jury's verdict form reflected an award for general damages to the Heberts in the amount of $750,000.00 each, a joint award of survival damages for Katie's pre-death pain and suffering in the amount of $25,000.00, special damages to the plaintiffs in the amount of $43,871.24, for a total damage award of $1,568,871.24. The trial judge's verdict form reflected an award of $500,000.00 to Mrs. Hebert in general damages, $700,000.00 in general damages to Mr. Hebert, total survival damages in the amount of $100,000.00, and special damages totaling, $80,066.00.

The trial judge rendered a single judgment. In accordance with the separate verdicts rendered by the court and the jury, the DOTD was to pay the Heberts $375,000.00 each in general damages and $24,435.63 jointly, with legal interest on all amounts awarded from the date of judicial demand until paid. The RPPJ was ordered to pay Mrs. Hebert, $200,000.00, to pay Mr. Hebert, $280,000.00, and to pay them, jointly, special damages in the amount of $53,591.50, with legal interest on all amounts awarded from the date of judicial demand until paid. All court costs were assessed equally to the DOTD and the RPPJ.

The DOTD suspensively appealed the judgment, and the Heberts answered the appeal. The RPPJ has not appealed.

III.

LAW AND DISCUSSION

Admissibility of the Bridge Inspection Reports

The admissibility of the bridge inspection reports prepared by the DOTD was initially the subject of a Motion to Strike filed by the DOTD in the trial court. The DOTD argued that the reports were inadmissible pursuant to 23 U.S.C. § 409.¹ The Heberts argued they were admissible because they were not being compiled for purposes contemplated in the statute. The trial court denied the DOTD's motion on November 24, 2003, and accepted the reports into evidence. The DOTD filed writs with this court and the supreme court, both of which were denied.² As the trial date approached, the DOTD filed a Motion for Protective Order, again seeking to exclude from evidence the bridge inspection reports. The trial court denied the motion on September 20, 2004, and again ruled that 23 U.S.C. § 409 did not apply to the bridge inspection reports, because the reports had been compiled and collected for purposes unrelated to the statute. Writs were applied for with this court and the supreme court and both were denied.³ The DOTD, now on appeal, asks this court to again review the propriety of the admissibility of these reports into evidence during the trial.

This court's denials of both supervisory writs, in which we expressly stated our findings of no error in the trial court's rulings, constitute the law of the case. The law of the case doctrine applies to prior rulings of appellate courts and, generally, provides that an appeal court will not reconsider its own rulings of law in the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916 So.2d 347. The application of this doctrine is discretionary and may be inapplicable in cases in which the prior decision "was palpably erroneous or its application would result in manifest injustice." Id. at 352 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622). In this case, we find no palpable error in the previous ruling of this court. The doctrine of law of the case is applicable; therefore, this assignment of error lacks merit.

Reconciling the Verdicts

Standard of Review

The seminal issue that must be addressed in this appeal is the determination of the appropriate standard of review to be applied to the findings and apportionments of fault rendered as a result of this bifurcated trial. In Thornton v. Moran, 343 So.2d 1065 (La.1977), the supreme court stated that in such cases, the appellate court is to resolve the differences in the factual findings made by the jury with those made by the trial court and render a single opinion based upon the record. Id. The supreme court has since acknowledged that this pronouncement has resulted in multiple approaches being instituted by the appellate courts to reconcile such conflicting verdicts, but it has yet to finally resolve the issue. See Davis v. Witt, 02-3102, 02-3110 (La.7/2/03), 851 So.2d 1119.

The first circuit advocates applying the manifest error standard of review initially to each of the fact finders' findings and apportionments of fault and, if both of the fact finders' results survive this review for error, then it undertakes a review of the record to determine the most reasonable of the findings in order to reconcile the verdicts. Hussey v. Russell, 04-2377, 04-2378 (La.App. 1 Cir. 3/29/06), 934 So.2d 766, 2006 WL 786538 (citing Cornish v. State, Dep't of Transp. & Development, 93-0194 (La.App. 1 Cir. 12/1/94), 647 So.2d 1170, writs denied, 95-0547, 95-0574 (La.12/1/94), 654 So.2d 324); see also, Thornton v. Moran, 348 So.2d 79 (La.App. 1 Cir.), writs denied, 350 So.2d 897, 350 So.2d 898, 350 So.2d 900 (La.1977). The first circuit has explained its approach as follows:

[W]e must ... determine whether the findings of fault and apportionment of fault by the trial judge and the jury are reasonable and not manifestly erroneous. In the event that this court...