Johnson v. State ex rel. Dotd

• Decision Date: 13 December 2006
• Docket Number: No. 06-898.,No. 06-899.,No. 06-900.,06-898.,06-899.,06-900.
• Citation: Johnson v. State ex rel. Dotd, 946 So.2d 682 (La. App. 2006)
• Parties: Kenneth JOHNSON, et al. v. STATE of Louisiana, Through DOTD, et al. Keith Baham, et al. v. H & S Construction Co., Inc., et al. Narcisse Thibodeaux, et al. v. State of Louisiana, Through DOTD, et al.
• Court: Court of Appeal of Louisiana

946 So.2d 682

Kenneth JOHNSON, et al. v.STATE of Louisiana, Through DOTD, et al.

Keith Baham, et al. v.H & S Construction Co., Inc., et al.

Narcisse Thibodeaux, et al. v.State of Louisiana, Through DOTD, et al.

No. 06-898.

No. 06-899.

No. 06-900.

Court of Appeal of Louisiana, Third Circuit.

December 13, 2006.

Rehearing Denied February 7, 2007.

W. Alan Lilley, Goforth & Lilley, Lafayette, LA, for Plaintiffs-Appellants: Keith Baham, Chad Baham, and Sherry Baham Cormier.

William H. Goforth, Goforth & Lilley, Lafayette, LA, for Secondary Plaintiffs-Appellants: Kenneth Johnson and Chrystal Johnson, Individually and on behalf of the minor children, Holden Johnson, Seth Johnson, and Chasity Ozenne.

Stacey A. Moak, Special Assistant Attorney General, Douglas M. Chapoton, Andrew W. Ralston, Special Assistant Attorney General, Baton Rouge, LA, for Secondary Defendant-Appellant: State of Louisiana, Through DOTD.

Scott M. Hawkins, Chris P. Villemarette, Hawkins & Villemarette, Lafayette, LA, for Defendants-Appellees: Narcisse Thibodeaux and Roma Thibodeaux.

Court composed of GLENN B. GREMILLION, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

Following a jury trial in three consolidated cases, the trial court entered judgment in favor of Plaintiffs.Plaintiffs in two of the cases appeal, seeking increases in the awards of damages.Defendant, State of Louisiana, Through DOTD, also appeals, seeking a reversal of the jury's finding that it was seventy percent at fault in causing the automobile accident at issue herein.For the following reasons, we amend the judgment to increase certain damage awards.In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

On April 4, 1998, at approximately 2:16 p.m., an automobile accident occurred at the intersection of LA Highway 1096 (also known as Toby Mouton Road) and LA Highway 95 in Duson, Louisiana, just south of the Duson exit from Interstate 10.Sharon Baham was driving a 1991Ford Ranger pickup truck east on LA Highway 1096.Her nephews, Seth and Holden Johnson, and her niece, Chasity Ozenne, were passengers in the truck.Seth and Holden were in the rear seats while Chasity was in the front passenger seat.On the date in question, a DOTD construction project was underway, and LA Highway 95 was closed north of the accident site with LA Highway 1096 being used to detour traffic around the construction site.Mrs. Baham did not stop at the stop sign at the intersection of LA Highway 1096 and LA Highway 95 and, instead, drove into the path of Narcisse Thibodeaux's 1996 Ford F-350 truck which was pulling a forty-foot-long flat-bed trailer and traveling south on LA Highway 95.Despite Mr. Thibodeaux leaving his lane of traffic in an attempt to avoid a collision, the two vehicles collided in the northbound lane of travel on LA Highway 95.

Mrs. Baham was fatally injured in the accident.Holden, who was rendered unconscious in the accident, suffered severe injuries to his head and face which have allegedly resulted in organic brain syndrome.Seth and Chasity suffered less severe injuries.Mr. Thibodeaux injured his low back in the accident.

Mrs. Baham's husband, Keith Baham, and her two major children, Chad Keith Baham and Sheri Baham Cormier(the Baham Plaintiffs), filed suit against DOTD, RCS Contractors, Inc., and RCS's insurer.Kenneth and Chrystal Johnson, individually and on behalf of Chasity, Seth, and Holden (the Johnson Plaintiffs), filed suit against DOTD, RCS, and its insurer.RCS in turn filed a third-party demand against WorkZone, Inc., who it had hired for the purpose of installing temporary construction signs near the accident site.Mr. Thibodeaux and his wife, Roma Thibodeaux(the Thibodeaux Plaintiffs), filed suit against DOTD, RCS, and its insurer, WorkZone and its insurer, and Lafayette Consolidated Government.All petitions alleged that the stop sign at the intersection in question was obscured from view by detour signs.

DOTD moved to consolidate all three suits, and said motion was granted.Lafayette Consolidated Government was dismissed on its unopposed motion for summary judgment.Prior to trial, RCS and WorkZone settled with all Plaintiffs and were dismissed, leaving DOTD as the sole Defendant at trial.Following a two-week trial, the jury rendered a verdict finding that the site of the accident had defective signage which created an unreasonable risk of harm and that DOTD had actual or constructive notice thereof and time to correct it.The jury found no negligence on the part of RCS, WorkZone, or Mr. Thibodeaux.The jury, however, did find that Mrs. Baham was negligent in the operation of her vehicle at the time of the accident.The jury went on to apportion seventy percent of the fault to DOTD and thirty percent of the fault to Mrs. Baham.Damages were awarded as follows:

To Kenneth Johnson for the injuries to
                  Holden Johnson, Seth Johnson, and Chasity
                  Ozenne                                                     $ 25,000.00
                  To Chrystal Johnson for the injuries to
                  Holden Johnson and Seth Johnson                            $ 25,000.00
                  To Holden Johnson Past, present, and future
                  medical expenses                                           $700,000.00
                  Past, present, and future pain and
                  suffering                                                  $ 50,000.00
                  Past, present, and future mental anguish
                  and emotional distress                                     $ 50,000.00
                  Past, present, and future lost wages and
                  earnings capacity                                          $      0.00
                  Scarring and disfigurement                                 $ 50,000.00
                  Loss of enjoyment of life                                  $ 50,000.00
                  TOTAL TO HOLDEN JOHNSON                                    $900,000.00
                  To Seth Johnson Past medical expenses           $ 14,060.20
                  Past, present, and future pain and
                  suffering                                                  $  5,000.00
                  Past, present, and future mental anguish
                  and emotional distress                                     $  5,000.00
                  TOTAL TO SETH JOHNSON                                      $ 24,060.20
                  To Chasity Ozenne Past medical expenses         $  6,036.00
                  Past, present, and future pain and
                  suffering                                                  $  5,000.00
                  Past, present, and future mental anguish
                  and emotional distress                                     $  5,000.00
                  TOTAL TO CHASITY OZENNE                                    $ 16,036.00
                  To Sharon Baham for pain and suffering
                  before her death                                           $      0.00
                  To Keith Baham Loss of love and affection
                  loss of companionship and guidance
                  and grief and mental anguish                               $210,000.00
                  Loss of services and support                               $      0.00
                  Funeral expenses and medical expenses                      $  9,081.00
                  TOTAL TO KEITH BAHAM                                       $219,081.00
                  To Chad Baham                                   $ 50,000.00
                  To Sheri Baham Cormier                          $ 50,000.00
                  To Narcisse Thibodeaux Past, present, and
                  future medical expenses                                    $ 17,577.95
                  Past, present, and future pain and
                  suffering                                                  $ 50,000.00
                  Past, present, and future mental anguish
                  and emotional distress                                     $ 25,000.00
                  Past, present, and future lost wages                       $ 42,000.00
                  TOTAL TO NARCISSE THIBODEAUX                               $134,577.95
                  To Roma Thibodeaux                              $  5,000.00
                

The judgment, in accordance, with the jury's verdict, reduced all amounts by the thirty percent of fault attributable to Mrs. Baham.

The Baham Plaintiffs appeal, asserting that the damages awarded to Chad and Sheri for the loss of their mother were inadequate and that the jury erred in failing to award any amount to Mr. Baham for loss of services and support.The Johnson Plaintiffs also appeal, seeking an increase in all damages awarded.Finally, DOTD appeals, asserting errors in the jury instructions, evidentiary errors, and that the allocation of fault was manifestly erroneous.The Thibodeaux Plaintiffs did not appeal the jury's verdict.

DISCUSSION

Evidentiary Matters

We first consider DOTD's argument that the trial court committed an error of law by allowing Plaintiffs to introduce computer-generated photographs of the accident scene into evidence.Dean Tekell, an expert in the field of traffic engineering who testified on behalf of Plaintiffs, used the computer-generated photographs during his testimony, ostensibly to illustrate his opinion as to the proper placement of the detour sign.DOTD contends that these "photographs" were not relevant to the issue of whether the signage at the intersection in question created an unreasonably dangerous condition and that they misled the jury.

We note that Mr. Tekell testified that he used the actual photographs of the accident scene and had a copy service generate the "photographs" in question using dimensions of the detour sign and stop sign that he gave them.When Mr. Tekell began testifying concerning the "photographs," DOTD's counsel objected and was allowed to traverse the witness.The trial court then instructed the jury that: "this is clearly not an actual photograph, but it is an altered photograph for the purposes of testimony."When the computer-generated photographs were shown to the jury, they were placed side-by-side with the actual photographs.

We consider these computer-generated photographs to be more in the nature of a chart or diagram than of an actual photograph.The trial court has much discretion in determining the relevancy of evidence, and we"must place great weight on a trial court's ruling of relevancy of evidence and should not reverse such a ruling in the absence of...