Jones v. Liberty Mut. Ins. Co.

• Decision Date: 13 September 1990
• Docket Number: No. 90-CA-205,90-CA-205
• Citation: 568 So.2d 1091
• Parties: Mr. and Mrs. Larry JONES v. LIBERTY MUTUAL INSURANCE COMPANY. 568 So.2d 1091
• Court: Court of Appeal of Louisiana — District of US

Page 1091

568 So.2d 1091

Mr. and Mrs. Larry JONES v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 90-CA-205.

568 So.2d 1091

Court of Appeal of Louisiana Fifth Circuit.

Sept. 13, 1990.

On Rehearing Oct. 17, 1990.

Writ Denied Jan. 4, 1991.

Edmond R. Eberle, New Orleans, for plaintiffs/appellants.

Madeleine Fischer, New Orleans, for defendants/appellees.

Before GRISBAUM and GOTHARD, JJ., and KOLLIN, J. Pro Tem.

WALTER E. KOLLIN, Judge Pro Tem.

This appeal arises from litigation involving a vehicular collision. Plaintiffs, Mr. and Mrs. Larry Jones, filed suit against United Parcel Service, Inc., its insurer, Liberty Mutual Insurance Company, and the driver of a UPS vehicle, Joan Daniels, for injuries allegedly sustained in the accident. The jury returned a verdict in favor of defendants, finding that Daniels was not negligent. The verdict was made judgment of the court on November 27, 1989. Plaintiffs thereafter perfected a devolutive appeal, specifying the following as errors:

1. The trial court erred in allowing, over plaintiffs' objection, admission of hospital records showing results of drug testing without requiring defendants to lay a proper foundation by connecting the specimen with its source.

2. The trial court erred in refusing to give the jury several of plaintiffs' requested jury charges.

3. The verdict of the jury in finding the UPS driver not negligent and the judgment of the trial court thereon are contrary to the law and evidence.

We find the plaintiffs' specifications of error to be without merit and hence affirm the judgment of the trial court.

The accident in question occurred on June 11, 1986, at approximately 12:15 p.m. in the 100 block of Colonial Club Drive in Jefferson Parish. Colonial Club Drive is an undivided two-lane street running, with no intersecting streets, between River Road and Jefferson Highway. A golf course borders the west side of the street and residential homes border the east side. The speed limit is twenty miles per hour. The accident site is located approximately three hundred feet from the Jefferson Highway intersection and approximately half a mile from the River Road intersection.

While proceeding along Colonial Club Drive in the direction of Jefferson Highway, plaintiff Larry Jones, in his 1985 Chrysler, struck a parked UPS delivery truck. Earlier, Joan Daniels, the driver of the UPS truck, had parked her truck opposite to the flow of traffic, in front of the house where she was to make a package delivery. Ms. Daniels had activated the hazard lights on the truck and had applied the vehicle's parking brake prior to leaving the truck to make the package delivery. Thereafter Ms. Daniels returned to the truck; and as she was preparing to depart, she noticed plaintiff's vehicle approaching at an estimated speed of forty miles per hour. While still parked, the UPS truck was struck head-on by plaintiff's vehicle.

We now consider each of plaintiffs' specifications of error.

ADMISSIBILITY OF DRUG TESTS

In the first alleged error, plaintiffs argue that the trial court erred in allowing the admission of hospital records showing results of drug testing performed on Mr. Jones without requiring defendants to establish a chain of custody for the test specimen.

Plaintiff Larry Jones was taken to Ochsner Foundation Hospital immediately following the accident but within a few hours was transferred to West Jefferson General Hospital. There, a urine sample was obtained from Mr. Jones and sent to Ochsner Foundation Hospital for analysis. The analysis results were reported to West Jefferson and recorded as part of the West Jefferson General Hospital record admitted into evidence as Exhibit D-13 and Exhibit Jones-2. Blow-ups of the pertinent pages were introduced into evidence at trial as defense exhibits. The drug test results reflected the presence in Mr. Jones' system of cocaine, as well as various other medications prescribed for Mr. Jones.

Plaintiffs contend that the defendants did not offer evidence to establish the chain of custody for the urine sample after it was obtained from Mr. Jones. The defendants, according to the plaintiffs, failed to lay a proper foundation for the admissibility of the results of the drug test.

We find that the test results were properly admitted pursuant to L.S.A.-R.S. 13:3714, which provides as follows:

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.

In Brown v. Collins, 223 So.2d 453 (La.App. 3rd Cir.1969), the trial court permitted the defendants to file into evidence certified copies of the records of two hospitals showing the percentage of alcohol found in plaintiff's blood shortly after the accident involved in that case. The Third Circuit affirmed the admission of the medical records pursuant to the hospital exception of LSA-R.S. 13:3714. In response to plaintiff's argument that the proper foundation was not presented for the introduction of the hospital records, a panel of the Third Circuit stated:

Such foundation witnesses were not required. The statute quoted above clearly states that a certified copy of the record of any hospital "shall be received in evidence by such court as prima facie proof of its contents". No foundation is required for the admission of these certified records. See 26 T.L.R. 371 at 375. The very purpose of the statute is to eliminate the requirement, under prior rules of evidence, that everyone who wrote any part of the record or had anything to do with the specimens, laboratory tests, treatments, etc. shown in the records, must be produced as a witness in court to verify the record. These witnesses no longer need be produced. The rights of the party against whom the record is sought to be used are protected by the provisions of the statute that he may summon and examine those making the record as witnesses under cross-examination. We find no merit in the objection that the proper foundation for the introduction of the hospital records was not laid.

See also Aites v. State Through Dept. of Transp., 512 So.2d 865 (La.App. 3rd Cir.1987) and 512 So.2d 866 (La.App. 3rd Cir.1987), writ denied, 514 So.2d 133 (La.1987).

Based on the foregoing authorities, we find that the test results were properly admitted as part of the West Jefferson General Hospital records and accordingly find this alleged error to be without merit.

JURY INSTRUCTIONS

Plaintiffs also complain that the trial judge erred in refusing to give several of their requested jury instructions. More specifically, plaintiffs contend the following as errors:

1. The trial court erred in failing to instruct the jury that the UPS truck was illegally parked.

2. The trial court erred in failing to instruct the jury that, if it found that the UPS driver parked in a lane of traffic when she could readily have left the road and not obstructed the roadway, creating a hazard for other motorists, then it must find her negligent.

3. The trial court erred in failing to instruct the jury that the intentional or criminally negligent placing of anything on any road is a crime, wherein it is foreseeable that human life might be endangered or which will render movement more difficult.

4. The court erred in failing to instruct the jury that a violation of a traffic regulation is actionable in tort when it is the legal cause of a collision. The risk of a motorist colliding with an automobile parked on the travelled portion of the highway is within the scope of protection of the duty on UPS not to park there.

It is well established that adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. In making his charges to a jury, a trial judge is not required to give the precise instructions submitted by either party, but must give instructions which properly reflect the law applicable in light of the facts of the particular case. Cuccia v. Cabrejo, 429 So.2d 232 (La.App. 5th Cir.1983), writ denied, 434 So.2d 1097 (La.1983); Arnouville v. Joiner Enterprises, Inc., 423 So.2d 1246 (La.App. 5th Cir.1982), writ denied, 430 So.2d 76 (La.1983).

The adequacy of the jury instructions given by a trial court must be determined in the light of jury instructions as a whole. Furthermore, the manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Thus, on appellate review of a jury trial the mere discovery of an error in the judge's instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Simmons v. Hope Contractors, Inc., 517 So.2d 333 (La.App. 1st Cir.1987), writ denied, 518 So.2d 510 (La.1988); Mitchell v. Fire and Cas. Ins. Co., 540 So.2d 352 (La.App. 1st Cir.1989), writ denied, 541 So.2d 1390 (La.1989).

The pertinent question involved in deciding whether reversible error has occurred is whether the jury was misled to such an extent as to prevent it from doing justice. Cuccia v. Cabrejo, supra. In the instant case, the jury was given ample instructions to decide that the defendants were not negligent and were not a cause-in-fact of Jones' accident and subsequent injuries. Moreover, the charges refused by the trial judge were either not applicable to the facts of the case, not supported by the evidence or were included within the...