Hunter v. Benson Chevrolet Co., Inc.

• Decision Date: 12 December 1990
• Docket Number: No. 90-CA-426,90-CA-426
• Parties: Mary Jane HUNTER v. BENSON CHEVROLET CO., INC. and General Motors Corporation. 572 So.2d 672
• Court: Court of Appeal of Louisiana — District of US

Page 672

572 So.2d 672

Mary Jane HUNTER v. BENSON CHEVROLET CO., INC. and General Motors Corporation.

No. 90-CA-426.

572 So.2d 672

Court of Appeal of Louisiana,

Fifth Circuit.

Dec. 12, 1990.

Charles M. Stevenson, Chalmette, for plaintiff/appellant.

James J. Danna, New Orleans, for defendant/appellee Benson & Gold Chevrolet Co., Inc.

Paul V. Cassisa, Jr., Bernard, Cassisa, Saporito & Elliott, Metairie, for defendant/appellee General Motors Corp.

Before GAUDIN, WICKER and GOTHARD, JJ.

GOTHARD, Judge.

Mary Jane Hunter, plaintiff herein, filed this action against Benson & Gold Chevrolet Co., Inc. and General Motors Corporation seeking redress for physical injuries and property damage she sustained in a one car accident which occurred on November 15, 1985. Ms. Hunter asserted that the accident was caused by rehibitory vices and defects in her 1983 Chevrolet Citation which were within the knowledge of General Motors but not disclosed to the plaintiff. Plaintiff further asserts that she brought her vehicle to Benson & Gold Chevrolet on three occasions to have the defects repaired to no avail.

General Motors answered the suit denying the existence of any defects or vices in the car and asserting that the legal cause of the accident was plaintiff's intoxication.

A four day jury trial commenced on September 11, 1989. At the close of plaintiff's case, General Motors moved for a directed verdict which was granted in part and denied in part. The trial court granted the motion insofar as it pertained to the dangerous per se, the defective design and the failure to warn theory of products liability but denied the motion as to the defective construction or composition theory. A motion for directed verdict on behalf of Benson & Gold was denied. Those rulings were not appealed and the matter went to the jury, as to General Motors, solely on the issue of whether the defendant was liable under the theory that plaintiff's car was unreasonably dangerous in construction or composition at the time it left the manufacturer, making the car more dangerous than it was designed to be.

At the close of trial the jury found that the vehicle did not contain an unreasonably dangerous defect that existed at the time it left the custody and control of General Motors. Further, the jury found that, although negligence existed in the repair of plaintiff's vehicle by Benson & Gold, that negligence was not the legal cause of the accident. The negligence of the plaintiff herself was the sole legal cause of the accident, according to the jury's findings. A judgment reflecting the jury findings was signed by the trial court and is the basis for this appeal by plaintiff. We affirm.

Plaintiff assigns five errors for our review:

1. The trial Court erred by admitting into evidence the blood alcohol test of Mary Jane Hunter.

2. The trial Court erred by not admitting into evidence photographs of other vehicles to impeach an expert witness's direct testimony.

3. The verdict rendered by the jury was contrary to the law and evidence by not finding Benson and Gold the legal cause of the accident.

4. The verdict rendered by the jury was contrary to the law and evidence by not finding General Motors the legal cause of the accident.

5. The verdict rendered by the jury was contrary to the law and evidence by not considering the comparative fault or lack thereof by the plaintiff in arriving at its decision.

The first two assignments concern evidentiary rulings made by the trial court. In the first assignment the plaintiff objects to the admittance of a blood alcohol analysis taken at East Jefferson Hospital where plaintiff was taken after the accident. The analysis, which revealed that the plaintiff had a .28 blood alcohol level was part of a certified copy of plaintiff's medical records, signed by the hospital administrator and sent to the trial court in a sealed envelope in response to a subpoena duces tecum.

The document was admitted into evidence over plaintiff's objection by authority of LSA-R.S. 13:3714 which provides:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.

Plaintiff's argument against the propriety of admission of the test is that no proper foundation connecting the specimen with its source was laid and, therefore, the test lacks integrity and reliability. ¹ This argument is unconvincing since R.S. 13:3714 is a legislative dispensation of the foundation requirement for properly certified medical records, and is an exception to the hearsay rule. Compliance with the statute eliminates the need for a showing of chain of custody. See Aites v. State through Dept. of Transp., 512 So.2d 865 (La.App. 3rd Cir.1987), writ denied 514 So.2d 133 (La.1987); Jones v. Liberty Mutual, 568 So.2d 1091 (La.App. 5th Cir.1990). However, the evidence must also meet the relevancy requirement for admission. Kenney v. Cooper 44 So.2d 211 (La.App. 1st Cir.1983). We find that the test is relevant to the material issue of legal causation and was properly admitted into evidence.

Plaintiff also avers the trial court erred in refusing to admit into evidence certain photographs offered by plaintiff. The photographs were of certain General Motors cars with a clamp on the vacuum assist hose.

Plaintiff elicited testimony from Michael Inden, an expert witness, that there was no clamp on the vacuum assist hose in plaintiff's car. Since one of his theories of causation of the accident was an air leak in the system, the indication of the testimony was that a clamp may have prevented such a leak.

In refuting that testimony, General Motors presented testimony from its own expert, Richard Maiers, that the fitting in question is a plastic serrated fitting which needs no clamp and, therefore, no clamp is put on the fitting.

In response, plaintiff used several photographs showing General Motors vehicles with clamps. Defense argues in brief that an objection to the use of the photos was made at the bench but withdrawn. That bench conference is not contained in the record. When plaintiff sought to introduce the photographs into evidence, defense re-urged the objection based on the fact that the photographs were unauthenticated, irrelevant and not included on the pre-trial order. The trial court sustained the objection.

There is no authentication of the photographs in the record. It is unknown when the photos were taken and whether the clamps were installed by the manufacturer or some other party. Since the photographs were not proffered, and they are not before us, it is impossible to conclude whether they fairly depict what the plaintiff maintains they depict.

Moreover, since the question of defect in design and manufacture was no longer at issue in the trial, we believe the photographs were of questionable relevancy. See LSA-C.E. Art. 402.

Even assuming arguendo that the photographs were admissible, their exclusion is not error since there is no showing that the exclusion affected a substantial right of the plaintiff. LSA-C.E. Art. 103 A.

The remaining three assignments of error question the jury's findings of legal causation and liability in the matter. The standard for review in such matters is clearly set out in Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) as follows:

It is well settled that a court of appeal may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

The plaintiff testified that she left the Winn Dixie on Williams Boulevard in Kenner where she was working as a display model at about 8:00 or 8:30 p.m. on November 15, 1985. She went to Bennigan's which is located on Veterans Highway to get a salad to take home for dinner. While she was waiting for the salad to be prepared she drank one glass of wine. ² She left Bennigan's with the salad and a second glass of wine, both in take out containers. Ms. Hunter turned on to Veterans Highway and proceeded in an easterly direction. She attempted to make a U-turn on Veterans to get back to Williams. Ms. Hunter testified that, at this point her car began to make noises and "just went out of control. It went crazy." The car jumped over the neutral ground and went across the eastbound lanes of Veterans, through a wooden fence on the side of the road and into the north wall of the Piccadilly Cafeteria.

Ms. Hunter testified that throughout the ordeal she alternated her foot from the accelerator to the brake in an effort to regain control of the car. She further testified that, when she went through the fence she realized she could not control her car and a collision with the brick wall of the cafeteria was imminent, she unhooked her seatbelt and laid across the front seats.

Ms. Hunter testified that she did not like the car from the time she purchased it. She said the car would "jump" when she shifted the transmission from park to reverse making it necessary for her to depress the brake. She also asserted that the shift indicator would occasionally go into neutral from the drive position. Shortly before the...