Pino v. Gauthier
| Decision Date | 29 December 1993 |
| Docket Number | Nos. 92,s. 92 |
| Citation | 633 So.2d 638 |
| Parties | Dennis PINO, Jr., et al. v. Ferman V. GAUTHIER, et al. Hazel E. McCLIN v. Ferman V. GAUTHIER, et al. Dennis M. PINO, Jr., et al. v. Ferman V. GAUTHIER, et al. CA 0783-92 CA 0785. |
| Court | Court of Appeal of Louisiana — District of US |
John Naquin, Jr. and Aub A. Ward, Baton Rouge, for plaintiff-appellee Dennis Pino, Jr., Mabel Pino and Sharon Pino.
C.F. Duchein, III, Baton Rouge, for plaintiff-appellee Hazel E. McClin.
Brent Kinchen, Kenneth Miller, and Michael Caldwell, Baton Rouge, for defendant-appellant Ferman V. Gauthier, RPM Engineering, Inc. and St. Paul Fire & Marine Ins.
Steve Adams and Russell Dornier, Baton Rouge, for defendant-appellant State of Louisiana, DOTD.
Charles Schutte, Jr., Baton Rouge, for defendant-appellee Barber Bros. Contracting Co. and Liberty Mut. Ins. Co.
Steve Wilson, Baton Rouge, for intervenor-appellee Allstate Ins. Co.
Before CARTER, LeBLANC and PITCHER, JJ.
This personal injury case comes before us on appeal from a judgment notwithstanding the verdict, signed on November 25, 1991, in favor of the plaintiffs, Dennis M. Pino, Jr., and Mabel Pino (the Pinos), individually and on behalf of their daughter, Sharon E. Pino, and Hazel E. McClin, and against defendants, Ferman V. Gauthier (Gauthier), R.P.M. Engineering, Inc. (R.P.M.), St. Paul Fire and Marine Insurance Company (St. Paul), and State of Louisiana, through the Department of Transportation and Development (DOTD). All claims against Barber Brothers Contracting Company, Inc. (Barber Bros.) and Liberty Mutual Insurance Company (Liberty Mutual) were dismissed by judgment signed September 23, 1991.
On August 19, 1988, the day of the accident involved in the instant case, Interstate-12 between the Drusilla overpass and the O'Neal Lane exit was under construction and repair. DOTD had contracted with Barber Bros. to perform the work. The extensive construction project, where additional lanes for travel were to be added for both the east and west-bound traffic, was designed so that all traffic, both east and west-bound, was temporarily detoured to the north side of the permanent concrete median. East and west-bound traffic was separated by a safety zone of approximately twelve feet. The temporary, outside west-bound lane through the detoured area was situated on the former west-bound shoulder, which had been widened and overlaid with fresh asphalt. The temporary, inside west-bound lane was the existing concrete lane. The temporary east-bound lanes were concrete. The center safety zone which separated the opposing lanes of traffic was concrete, approximately twelve feet wide, and was delineated by striping and channelizing devices (flexible posts).
Around 10:00 a.m., on the day of the accident, Gauthier was en route from R.P.M., his employer, to Exxon Chemical. He was assigned a company pickup truck to use. It was raining at the time, and Gauthier had turned on his windshield wipers. Gauthier was traveling west-bound in the outside, asphalt lane. He attempted to change lanes to the inside, concrete lane and lost control of his vehicle. He traveled across the safety zone and into the oncoming east-bound traffic. Gauthier collided with a vehicle driven by Donnie Green, in which Sharon Pino was a passenger. As a result of his injuries, Mr. Green died.
Sharon, 19 years old at the time, was seriously injured. She was in a coma, with swelling of the head, contusions to and tearing in the lungs, and fractured collar bones, ribs, and hands. Sharon was pregnant; however, the baby died. Sharon awoke from the coma, but the accident has left her with permanent brain injuries.
In multiple suits, the Pinos, Sharon, and Hazel McClin, Mr. Green's mother, sued Gauthier; R.P.M.; R.P.M.'s liability insurer; St. Paul; DOTD; Barber Bros.; and Barber Bros.'s liability insurer; Liberty Mutual. The cases were consolidated and tried in a bifurcated fashion, with the judge as trier-of-fact of DOTD and the jury as trier-of-fact of all non-governmental defendants.
After an eleven-day trial, special interrogatories and a jury verdict form were submitted to the jury. While the jury was deliberating, the trial judge ruled on the case against DOTD, assessing it with 25 percent fault. The judge took the issue of quantum under advisement, pending the jury's verdict and further consideration by the court.
Subsequent to the judge's ruling, the jury rendered its verdict, finding Gauthier, R.P.M., and DOTD negligent and assigning 1 percent fault to Gauthier, 34 percent to R.P.M., and 65 percent to DOTD. Damages were assessed as follows:
On September 3, 1991, the trial court issued Written Reasons for Judgment, finding the quantum reasonable and not excessive. A Judgment was signed September 23, 1991, pursuant to the jury verdict as to liability, percentage of fault and damages; however, the judgment stated, in part:
[I]n accordance with LSA-R.S. 13:5105, 'No suit against the state or state agency or political subdivision shall be tried by a jury,' and further that in accordance with that statute, this court has decided all issues as to the governmental defendant, State of Louisiana through the Department of Transportation and Development, and finds the State of Louisiana through the Department of Transportation and Development 25% at fault.
Upon motion by all defendants for judgment notwithstanding the verdict and/or for new trial, the trial judge rendered a judgment notwithstanding the verdict on November 25, 1991, in which fault was assessed as follows: Gauthier 33 1/3 percent, R.P.M. 33 1/3 percent, and DOTD 33 1/3 percent; the loss of consortium awards of Dennis Pino and Mabel Pino were reduced from $250,000.00 each to $150,000.00 each. The remaining aspects of the motion for judgment notwithstanding the verdict were denied, and all other remaining provisions of the September 23, 1991, judgment were affirmed. The motions for new trial by defendants were also denied. All remaining defendants appealed, and the Pinos answered.
The assignments of error raised by DOTD are that the trial court erred in:
1. holding DOTD had a duty to place a temporary concrete median barrier throughout the construction zone;
2. holding the failure of DOTD to provide a median barrier was the cause-in-fact of the accident;
3. allowing the use of the American Association of State Highway and Transportation Officials (AASHTO) Barrier Guide for the purpose of establishing a duty to provide a median barrier;
4. excluding testimony by DOTD and Federal Highway Administration engineers;
5. excluding statistical evidence;
6. granting a motion for judgment notwithstanding the verdict instead of granting a new trial;
7. utilizing the jury findings as to quantum;
8. exculpating Barber Bros.;
9. allowing plaintiffs' expert witnesses to give expert opinion testimony concerning reasonable engineering judgments.
Gauthier, R.P.M., and St. Paul assign as error the trial court:
1. granting of a judgment notwithstanding the verdict;
2. refusing to admit a videotaped computer simulation;
3. awarding excessive monetary damages for future medical care and loss of consortium.
The Pinos answered the appeal and assign as error the trial...
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