Lemire v. New Orleans Public Service, Inc.
| Decision Date | 01 August 1980 |
| Docket Number | No. 84-CC-1031,84-CC-1031 |
| Citation | 458 So.2d 1308 |
| Parties | Myriam Guidroz LEMIRE v. NEW ORLEANS PUBLIC SERVICE, INC. and Sewerage and Water Board of New Orleans. . Nov. 26, 198 Thomas Keasler Foutz, Law Offices of John R. Martzell, New Orleans, for relator. John D. Lambert, Jr., Special Counsel, Jacob Taranto, III, Gerard M. Victor, General Counsel, Mary Elizabeth Paltron, Senior Counsel, New Orleans, for respondent. CALOGERO, Justice. The chief issue presented in this case concerns the application of a procedural statute (La.C.C.P. art. 1812 C(2)) in a lawsuit by an injured plaintiff against both a private corporation (New Orleans Public Service Incorporated, hereinafter N.O.P.S.I) and a public agency (Sewerage and Water Board of New Orleans, hereinafter S & W B). Plaintiff is entitled to a jury trial against the private corporation (La.C.C.P. art. 1731) but not the public agency (R.S. 13:5105). With the adoption of comparative fault (C.C. art. 2323, 1 effective |
| Court | Louisiana Supreme Court |
Thomas Keasler Foutz, Law Offices of John R. Martzell, New Orleans, for relator.
John D. Lambert, Jr., Special Counsel, Jacob Taranto, III, Gerard M. Victor, General Counsel, Mary Elizabeth Paltron, Senior Counsel, New Orleans, for respondent.
The chief issue presented in this case concerns the application of a procedural statute (La.C.C.P. art. 1812 C(2)) in a lawsuit by an injured plaintiff against both a private corporation (New Orleans Public Service Incorporated, hereinafter N.O.P.S.I) and a public agency (Sewerage and Water Board of New Orleans, hereinafter S & W B).
Plaintiff is entitled to a jury trial against the private corporation (La.C.C.P. art. 1731) but not the public agency (R.S. 13:5105). With the adoption of comparative fault (C.C. art. 2323, 1 effective August 1, 1980), the fault or non-fault, and the percentage of fault attributable to each person whether party to the lawsuit or not, has become relevant in the determination of damages to which an injured plaintiff is entitled. To facilitate these resolutions La.C.C. art. 1812, as amended in 1983 provides in part that:
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C. In cases to recover damages for injury, death, or loss the court may submit to the jury, unless waived by all parties, special written questions inquiring as to:
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(2) If appropriate, whether another person, whether party or not, other than the person suffering injury, death, or loss, was at fault, and, if so:
(a) Whether such fault was the legal cause of the damages, and, if so:
(b) The degree of such fault, expressed in percentage.
While La.C.C.P. art 1812 C provides that the court may (unless waived by all parties) submit special written questions to the jury, the apparent intent is that the court in such circumstances is required to submit the questions. See 1983 Revision Comments, Section (b). 2
In this lawsuit both N.O.P.S.I and S & W B are parties defendant. The suit is to be tried simultaneously to the jury (Lemire v. N.O.P.S.I) and to the judge (Lemire v. S & W B ).
Plaintiff wants the judge to submit to the jury special written questions inquiring as to whether S & W B was at fault, and if so whether such fault was a legal cause of the damages, and if so, the degree of such fault expressed in percentage. 3
The trial judge granted plaintiff's motion, but the Court of Appeal summarily reversed, being of the view that "using a jury to suggest an appropriate finding concerning the liability of the Sewerage and Water Board is in essence a trial by jury" which is prohibited, by R.S. 13:5105, in a lawsuit against public entities like the Sewerage and Water Board.
We granted writs sought by plaintiff to review these conflicting rulings of the district court and the Court of Appeal. 450 So.2d 1319.
The judgment of the Court of Appeal will be reversed and the ruling of the district court, insofar as it would include the Sewerage and Water Board in the written questions to be posed to the jury concerning fault and the percentage of fault, is reinstated.
La.C.C.P. art. 1812 C(2) does not offend R.S. 13:5105's prohibition of jury trial against public agencies. It is a procedural statute which implements Louisiana's comparative fault scheme (C.C. 2323) and which the legislature determined was necessary to the appropriate determination of damages to which plaintiff is entitled against the private defendant, (in this case N.O.P.S.I.).
It is not an advisory opinion in that it is not designed to advise, counsel, or compel the trial judge in his independent judicial obligation as regards plaintiff's claim against the public agency. Rather La.C.C.P. art. 1812 merely facilitates the court's confecting a judgment consistent with the jury determination relative to plaintiff's entitlement in his claim against the private defendant.
At best it might be argued that the jury's answers concerning Sewerage and Water Board's fault and percentage of contributing fault might influence the trial judge in his determination in plaintiff's suit against the public agency.
That problem, however, is present in every case where simultaneous trials are conducted, one to the jury and one to the judge, where a private party and a public agency are defendants in a case arising out of a single incident. That has not been deemed an insurmountable obstacle by this Court.
In Champagne v. American Southern Ins. Co., 295 So.2d 437 (La.1974), we said:
The possibility of different decisions on the same point by judge and jury should not affect the decision in this case. The judge already has the power to set aside a jury decision with which he is not in accord, C.C.P. Arts. 1812, 1813; and appellate courts have the right to review findings of fact of both judge and jury, La. Const. Art. 7, Sec. 29.
While one may speculate as to the practical difficulties in cases where judge and jury disagree, these difficulties would be no more severe than those which might arise in separate actions against the State and individual defendants. Nor are these difficulties of such magnitude as to defeat the right to trial by jury.
This same reasoning was followed in Jones v. City of Kenner, 338 So.2d 606 (La.1976), rehearing denied.
If the jury result in plaintiff v. N.O.P.S.I and the judge result in plaintiff v. S & W B differ, the disparity can be accommodated by a judgment notwithstanding the verdict and/or motion for new trial. Through the use of these, the trial court can restructure the jury decision so that it best reflects the law and the facts.
For these reasons we conclude that the trial judge ruled properly when, essentially, he responded to plaintiff's motion by determining that he would follow La.C.C.P. art. 1812 C(2) in the plaintiff v. N.O.P.S.I. trial and submit to the jury special written questions inquiring as to whether Sewerage and Water Board was at fault, whether such vault was a legal cause of the damages, and, if so, the degree of such fault expressed in percentage. 4
The only assertions initially made by plaintiff in his response to the S & W B's application in the Court of Appeal and in his assignment of...
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