Layssard v. State, Depart. of Public Safety

• Decision Date: 08 August 2007
• Docket Number: No. CA 2007-78.,CA 2007-78.
• Citation: 963 So.2d 1053
• Parties: Charles LAYSSARD v. STATE of LA., DEPT. OF PUBLIC SAFETY AND CORRECTIONS.
• Court: Court of Appeal of Louisiana — District of US

963 So.2d 1053

Charles LAYSSARD v. STATE of LA., DEPT. OF PUBLIC SAFETY AND CORRECTIONS.

No. CA 2007-78.

Court of Appeal of Louisiana, Third Circuit.

August 8, 2007.

Otis Edwin Dunahoe, Jr., Dunahoe Law Firm, Natchitoches, LA for Plaintiff/Appellee, Charles Layssard.

Victoria R. Murry, Louisiana Department of Justice, Alexandria, LA, for Defendant/Appellant, State of Louisiana, Dept. of Public Safety and Corrections.

Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.

SAUNDERS, Judge.

This is a case involving an automobile accident. A Department of Public Safety and Corrections Officer, who was within his course and scope of employment, collided with a left turning vehicle driven by Plaintiff. Plaintiff had slowed down and was beginning a left turning maneuver. Plaintiff filed suit against the officer, and his employer, the State of Louisiana through the Louisiana Department of Public Safety and Corrections (hereinafter "Defendants"). After a jury trial on the matter, the jury allocated 100% of the fault to the Defendants and awarded Plaintiff $222,192.00 in damages. Defendants now appeal said judgment.

We affirm in part, and reverse in part.

FACTS AND PROCEDURAL HISTORY

The instant litigation arises out of an automobile accident that occurred on June 18, 2001, in Rapides Parish on Highway 8, approximately 600 feet east of its intersection with Highway 119. Plaintiff, Charles Layssard, was driving a two-ton pick-up truck and was towing a thirty-foot trailer loaded with a backhoe. Plaintiff was being followed by an escort vehicle. Plaintiff was attempting to make a left turn from the right eastbound lane of travel, across the westbound lane of travel, into a private drive located across the westbound lane. While Plaintiff was attempting to make this left turn, defendant driver, Department of Public Safety and Corrections Officer Harold Stanley Cook, came over a hill behind Plaintiff and attempted to pass the escort vehicle and Plaintiff's vehicle. Defendant driver collided with Plaintiff's pick-up truck.

Plaintiff filed suit against Officer Harold S. Cook, and his employer, the State of Louisiana, through the Louisiana Department of Public Safety and Corrections (hereinafter "DPSC"), on June 3, 2002. In his petition, Plaintiff alleged that as a result of Officer Cook's negligence in causing the accident, he incurred injuries to his right wrist, left ring finger, and left hip, which eventually led to the need for total a hip replacement, which was performed in June 2003.

The matter came to a jury trial on September 25, 2006. Upon the close of evidence, the jury deliberated and rendered a verdict in favor of Plaintiff and against Defendants, in solido, for the sum of $222,192.00. The jury found that Officer Cook's actions constituted negligence, and that his negligence was the sole cause of the accident. The jury further found that Plaintiff suffered damages as a result of the collision and awarded him $87,000.00 for physical pain and suffering (past and future), $37,000.00 for mental pain and suffering (past and future), $37,000.00 for disfigurement and disability and loss of enjoyment of life, $53,768.00 for past medical expenses, $5,000.00 for future medical expenses, and $2,424.00 for property damage. A judgment pursuant to the jury verdict was signed on October 11, 2006. Defendants timely filed a motion and order for a suspensive appeal from said judgment on November 13, 2006. Plaintiff subsequently filed an answer to Defendants' appeal, on February 2, 2007, seeking an increase in the amount of general damages awarded by the jury, alleging that the damages awarded were inadequate.

ASSIGNMENTS OF ERROR:

1. Was the jury in error in finding DPSC Officer Harold S. Cook 100% at fault in causing the accident at issue?

2. Was the jury manifestly erroneous in awarding damages to Plaintiff for a total left hip replacement?

3. Was the jury manifestly erroneous in awarding future medical treatment to Plaintiff?

ASSIGNMENT OF ERROR # 1:

Defendants argue that the jury erred in finding that Officer Cook was 100% at fault in causing the accident. We disagree.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded "the trier of fact is owed some deference in allocating fault" since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.

Therefore, a trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. A trial judge's findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep't of Transp. & Dev., 617 So.2d 880 (La.1993). "Absent `manifest error' or unless it is `clearly wrong,' the jury or trial court's findings of fact may not be disturbed on appeal." Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106 1111 (La.1990). "If the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 1112.

The Louisiana Supreme Court addressed what factors to consider when attempting to review an allocation of fault in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

[V]arious factors may influence the degree of fault assigned, including: (1)[W]hether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

Id at 974.

These factors also guide an appellate court's determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. Clement, 666 So.2d at 611. Thus, the Clement court directs that the allocation of fault is not an exact science, nor is it the search for a precise ratio. Rather, much like that of quantum assessment, allocation of fault is the finding of an acceptable range and any allocation by the trier of fact within that range cannot violate the manifest error standard of review. When we look to the applicable laws and standard of review, this court is to make a determination of whether any reasonable person could have made the allocation of fault that the jury made under the facts of this case.

Louisiana Revised Statutes 32:104 states:

A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.

B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.

C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.

D. The signals provided for in R.S. 32:105(B) shall be used to indicate an intention to turn, change lanes or start from a parked position and shall not be flashed on one side only on a parked car or disabled vehicle, or flashed as a courtesy or "do pass" signal to operators of other vehicles approaching from the rear.

Defendants general argument in this assignment is that pursuant to La.R.S. 32:104 and Thomas v. Champion Insurance Co., 603 So.2d 765 (La.App. 3 Cir. 1992), because Plaintiff was in the process of making a left hand turn at the time of the accident at issue, he is presumed negligent. Defendants argue that Plaintiff did not overcome this presumption of liability and prove that he was free from negligence.

Defendants first assert that Plaintiff should be found to have had some fault as he did not fulfill his duty to look to the rear and check for overtaking vehicles. We do not agree.

This court clarified the application of La.R.S. 32:104, in Thomas, when it stated, "[a] left-turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety (Citations omitted.) A left-turning motorist involved in an accident is burdened with a presumption of liability and the motorist must show that he is free from negligence. (Emphasis added.) Id. at 767.

In the case before us, Plaintiff testified that he checked the rear of his vehicle and the road twice before he began making his turn. When discussing what he saw the first time he checked the rear of the vehicle, Plaintiff testified, "I checked the mirrors, it was clear, the road was...