McCullough v. Regional Transit Authority
| Decision Date | 09 January 1992 |
| Docket Number | No. 90-CA-1720,90-CA-1720 |
| Citation | 593 So.2d 731 |
| Parties | Faith McCULLOUGH v. REGIONAL TRANSIT AUTHORITY, Jane Doe, City of New Orleans, Department of Police, Warren G. Woodfork, in His Official Capacity as Chief of Police. |
| Court | Court of Appeal of Louisiana — District of US |
Joseph W. Thomas, New Orleans, for plaintiff/appellant.
Frederick F. Olsen, Jr., Berrigan, Danielson, Litchfield, Olsen, Schonekas & Mann, New Orleans, for defendants/appellants, Regional Transit Authority, Transit Management of Southeast Louisiana, Inc. and Barbara E. Bell.
William J. Guste, Jr., Atty. Gen., Jesse J. Marks, Asst. Atty. Gen., Lois C. Davis, Asst. Atty. Gen., Louisiana Dept. of Justice, New Orleans, for defendant/appellee, State of La. Through the Dept. of Transp.
Philip C. Ciaccio, Jr., Deputy City Atty., Kathy L. Torregano, Chief Deputy City Atty., William D. Aaron, Jr., City Atty., New Orleans, for defendant/appellee, City of New Orleans.
Before BARRY, BYRNES and WARD, JJ.
This appeal is from a bifurcated personal injury trial. Plaintiff appeals the trial judge's dismissal of her claims against the Regional Transit Authority, the City and the State, and the reduction of her award. She argues that the jury's findings of fact are supported by the evidence. Defendants, Transit Management and Ms. Bell, the bus driver, answered the appeal and filed a separate appeal. They argue that the jury's verdict is contrary to the law and evidence and their motion for a judgment notwithstanding the verdict should have been granted. 1
On September 12, 1987 Faith McCullough exited an RTA bus at the corner of St. Claude and Poland Sts., fell and was injured. On September 9, 1988 McCullough sued the bus driver, the Regional Transit Authority (RTA), Police Chief Warren Woodfork and the New Orleans Police Department. She alleged that she "fell as she attempted to exit the bus" because the bus could not get into the bus stop since a police vehicle was parked there. On May 31, 1989 McCullough filed a supplemental petition which named Barbara Bell as the bus driver and added as defendants Neil Wagoner and the Louisiana State Department of Transportation and Development (DOTD). The supplemental petition alleged strict liability based on a hazardous condition, i.e., the "presence of an abandoned railroad track on St. Claude Ave. at this particular intersection and the potential danger to their fare-paying passengers exiting a bus in the middle of the street especially on a wet day." On February 5, 1990 McCullough filed a second supplemental petition which added Transit Management of Southeast Louisiana, Inc., Ms. Bell's employer.
RTA, Transit Management and Bell (all represented by the same counsel) cross claimed against Chief Woodfork and the City (NOPD) as well as Neil Wagoner and the State (DOTD). The City third partied RTA. The trial court granted defense motions to strike the jury as to Chief Woodfork, the City and State (DOTD), RTA, but not as to Wagoner. The Supreme Court struck the jury as to Wagoner because he was a nominal party against whom there was no allegation of personal fault. Chief Woodfork and Wagoner were dismissed on a directed verdict.
A jury heard the case against Bell and Transit Management and returned a verdict of $500,000 with fault apportioned as follows:
Bell and Transit Management: 10%
McCullough: 10%
City of New Orleans: 40%
State of Louisiana: 40%
Pursuant to La.R.S. 13:5105 the trial judge heard the case against RTA, the City and State and dismissed the matter as to those defendants. Based on the jury verdict holding Bell and Transit Management 10% liable, judgment was rendered in favor of Ms. McCullough for $50,000. Bell and RTA's motion for a judgment notwithstanding the verdict was denied.
STANDARD OF APPELLATE REVIEW
Generally, the findings of the judge or jury will not be disturbed unless they are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). That standard is inapplicable in this case because there was a bifurcated trial which resulted in inconsistent findings of fact by the trial judge and jury.
The jury interrogatories were answered as follows:
1. Were Barbara Bell and/or Transit Management of Southeast La., Inc. negligent
and was such negligence a cause in fact of harm to plaintiff
yes
-----------------
If # 1 is answered 'no' stop here; if 'yes' continue
2. Was Faith McCullough guilty of contributory negligence which was a cause in
fact of her own injuries
yes
-----------------
3. Assign a percentage of fault, if any, to each of the following
a. Transit Management and/or Barbara Bell: 10%
b. Faith McCullough: 10%
c. City of New Orleans: 40%
d. State of Louisiana: 40%
Added together, the percentages must total 100%. 2
5. What general damages (pain, suffering, etc., past and future) and special
damages (medical expenses, lost wages, diminished earning capacity, past and
future) did plaintiff suffer as a result of this accident?
$ 500,000
-----------------
The trial judge dismissed RTA, the City and State for the following reasons:
Plaintiff said in deposition that she alighted adjacent to the bus stop sign. She said she felt gravel under her foot. She told several witnesses her legs had given way. She fell on the sidewalk side of the street curb. She did not even discover the presence of the steel end guard until more than a year after her accident. I conclude plaintiff did not slip on the end guard. The RTA discharged her in a reasonably safe location. The faded stripping, [sic] the end guard, and the car parked in the bus stop did not cause her to fall. Plaintiff's action against the RTA, the City, and the State will be dismissed.
In Thornton v. Moran, 343 So.2d 1065 and 1066 (La.1977), the Supreme Court made its only statement as to the applicable standard of review in bifurcated cases. The First Circuit had affirmed inconsistent conclusions of the judge and jury. The Supreme Court reversed the appellate court and remanded to the court of appeal "to resolve the differences in the factual findings between the jury and the judge in these consolidated cases and to render a single opinion based upon the record." Id. at 1065. 3 That language has been utilized by the First, Third and Fourth Circuits to formulate two different approaches to review a bifurcated trial.
The First Circuit in Thornton (on remand), 348 So.2d 79 (La.App. 1st Cir.), writs denied and refused 350 So.2d 897, 350 So.2d 898, 350 So.2d 900 (La.1977), 4 declared that the appellate court must reconcile any differences in factual findings by determining which trier of fact was more reasonable in its conclusions. The reviewing court must harmonize the judgment(s). The First Circuit stated its function was to ascertain which trier of fact "accorded a more reasonable measurement to the evidence in reaching a decision...." Id. at 82.
The Third Circuit has followed a similar approach, i.e., the appellate court should consider the entire record and decide whether the factual conclusions of the trial judge or those of the jury are more reasonable. Felice v. Valleylab, Inc., 520 So.2d 920 (La.App. 3rd Cir.1987), writs denied 522 So.2d 562 and 522 So.2d 563 (La.1988); Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3rd Cir.1978), writ denied 366 So.2d 564 (La.1979). See also Hatcher v. State, DOTD, 478 So.2d 774 (La.App. 3rd Cir.1985), writ denied 479 So.2d 923 (La.1985).
Utilizing the Supreme Court's mandate in Thornton, 343 So.2d at 1065, this Circuit has declared that the Supreme Court rejected any notion that the findings of the judge or jury are entitled to greater weight. The Fourth Circuit has held that an appellate court must make its "own independent factual findings based on the record, without according any weight to the factual findings of either the judge or the jury when those findings are inconsistent." Justin v. City of New Orleans Through Morial, 499 So.2d 629, 631 (La.App. 4th Cir.1986), writ denied 501 So.2d 232 (La.1987), quoting Aubert v. Charity Hospital of Louisiana, 363 So.2d 1223, 1227 (La.App. 4th Cir.1978), writ denied 365 So.2d 242 (La.1978). In Williams v. City of New Orleans, 433 So.2d 1129 (La.App. 4th Cir.), writ not considered 437 So.2d 1135 (La.1983), this Court noted the circuits' "divergence of views" as to the applicable standard of review. This Court declared that the Third Circuit's approach in Deville v. Town of Bunkie, 364 So.2d at 1378, was more in line with the First Circuit's "more reasonable measurement" standard of Thornton than that of this Circuit. This Court noted confusion in the Third Circuit because Deville cited Aubert (Fourth Circuit) and Thornton (First Circuit) as authority. Id.
This Circuit in Davis v. Visco's Inc., 380 So.2d 739 (La.App. 4th Cir.), writ denied 382 So.2d 167 (La.1980), generally cited Aubert, Deville and Thornton for authority to make its own independent findings based on the record, but quoted Aubert's language. In a concurrence in Smiley v. Sikes, 543 So.2d 1084 (La.App. 2d Cir.), writ denied 548 So.2d 326 (La.1989), Judge (now Justice) Hall stated there was little difference in the standards enumerated by the First, Third and Fourth Circuits because all circuits require an independent determination based on the record.
We disagree. Only the...
To continue reading
Request your trial
-
Stapleton v. Great Lakes Chemical Corp., 24386-CA
...court should decide whether the judge's decision or the jury's decision is the more reasonable); McCullough v. Regional Transit Authority, 593 So.2d 731 (La.App. 4th Cir.1992), writ denied, 595 So.2d 655 (La.1992) (the appellate court should make its own independent review of the evidence w......
-
97-1542 La.App. 3 Cir. 3/10/99, Edwards v. Daugherty
...We noted in Ourso, supra, at fn1, that the fourth circuit has criticized our reasoning, recommending in McCullough v. Regional Transit Authority, 593 So.2d 731 (La.App. 4 Cir.), writ denied, 595 So.2d 655 (La.1992) that appellate courts "make an independent evaluation of the record if the f......
-
Hebert v. Rapides Parish Police Jury
...01-1127 (La. App. 4 Cir. 12/4/02), 834 So.2d 578, writs denied, 03-28, 03-30 (La.6/20/03), 847 So.2d 1241; McCullough v. Reg'l Transit Auth., 593 So.2d 731 (La.App. 4 Cir.), writ denied, 595 So.2d 655 The fifth circuit has reconciled conflicting verdicts by examining the record and deciding......
-
Edwards v. Daugherty
...3. We noted in Ourso, supra, at FN1, that the fourth circuit has criticized our reasoning, recommending in McCullough v. Regional Transit Authority, 593 So.2d 731 (La.App. 4 Cir.), writ denied, 595 So.2d 655 (La.1992) that appellate courts "make an independent evaluation of the record if th......