Rideau v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 29 August 2007
• Docket Number: No. 2006 CA 0894.,2006 CA 0894.
• Citation: 970 So.2d 564
• Parties: Judy RIDEAU and Kerry Bardell v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

970 So.2d 564

Judy RIDEAU and Kerry Bardell v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.

No. 2006 CA 0894.

Court of Appeal of Louisiana, First Circuit.

August 29, 2007.

Rehearing Denied October 22, 2007.

Walter Landry Smith, Baton Rouge, for Plaintiffs-Appellees/Appellants Judy Rideau and Kerry Bardell.

Matthew W. Pryor, Timothy E. Pujol, Brittany A. Keaton, Pujol & Pryor, Prairieville, for Defendants-Appellants/Appellees State Farm Mutual Automobile Ins. Co. and Ward's Trucking Service, Inc.

Before: PARRO, GUIDRY, and McCLENDON, JJ.

PARRO, J.

Both the plaintiffs and defendants in this case appeal a judgment based on a jury verdict arising out of an accident in which a child was killed when a truck hit her as she tried to cross a roadway. The plaintiffs and defendants challenge certain evidentiary rulings and the jury's allocation of fault; the defendants also appeal the assessment of court costs and the amount of damages. We amend in part and affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

Right at sunset on January 31, 2003, ten-year-old Bria Bardell tried to cross the two-lane road¹ in front of her house to get to the church parking lot across the road, where a group of children were preparing to board a school bus for a skating outing. Bria's mother was on her way to work and was running late. Before she left for work, she stopped and asked a church acquaintance, who was with his grandson in front of the church, to help Bria cross the road safely. He watched Bria as she ran down the long driveway from her house to the roadside, where she stopped and looked both ways. There was a long gap in traffic in both directions when Bria paused at the end of her driveway and looked. She then turned to her right and walked southbound about 20-25 feet on the shoulder of the road, apparently intending to line up directly opposite the church driveway before crossing. At that point, although she looked to her right again, she did not look to her left before stepping onto the roadway. The church acquaintance who was watching Bria saw a truck approaching, but even though he shouted and waved his arms, he was unable to get Bria's attention to warn her. When she stepped onto the roadway, she was hit by a southbound mail delivery truck; she died shortly afterward of her injuries. The truck was driven by Simuel Ward, owned by Ward's Trucking Service, Inc. (Ward's),² and insured by State Farm Mutual Automobile Insurance Company (State Farm).³

Bria's parents, Judy Rideau and Kerry Bardell (collectively, the plaintiffs), filed suit against Ward's and State Farm (collectively, the defendants), alleging that Mr. Ward was acting within the scope of his employment with Ward's when the accident occurred and that his negligence was the sole cause of Bria's injuries and death. The defendants answered, claiming the accident was caused exclusively by Bria's negligence or, in the alternative, by her comparative fault for failing to take proper precautions before entering the street. They also averred that the accident was caused and/or contributed to by the negligence and/or strict liability of other unnamed third parties.

After a trial, the jury found that Ward's was vicariously liable through its employee for 60 percent of the fault and that Bria and her mother, Ms. Rideau, were each 20 percent at fault. They awarded general damages in the amount of $840,000 to Ms. Rideau and $360,000 to Mr. Bardell, as well as medical expenses of $1,337.52 and funeral expenses in the amount of $10,804.55. The trial court had a separate hearing concerning special items of costs. After that hearing and after applying the allocations of fault, the judgment ordered the defendants to pay Ms. Rideau $504,000; to pay Mr. Bardell $216,000;⁴ to pay them, in solido, $7,285.24; to pay them, in solido, all court costs; and to pay them, in solido, special items of costs in the amount of $4,612.38, together with legal interest from date of judicial demand on all awards.

The plaintiffs filed a motion for judgment notwithstanding the verdict, asking the court to strike either the 20 percent of fault allocated to Bria or the 20 percent of fault allocated to her mother, and to proportionally re-allocate fault to either Bria or her mother. The defendants also filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, seeking a reversal of the jury verdict on both liability and damages. The trial court denied both sides' motions, and both plaintiffs and defendants then appealed.

The plaintiffs contend it was legal error to assign fault to Bria's mother, because she had no duty to accompany her child across the road, when the evidence showed Bria was an intelligent and mature child who had been instructed in how to cross and had crossed this road on her own countless times at this location. They also contend that if there were such a duty, Ms. Rideau satisfied it by asking a church acquaintance, John McCrory, to help Bria cross the road safely.⁵ They ask for a re-allocation of fault, striking either the fault attributed to Ms. Rideau or the fault attributed to Bria—or alternatively, a finding that neither of them were at fault. Finally, they contend the court erred in overruling objections to certain testimony provided by the investigating officer, who did not see the accident and had no training in accident reconstruction.

The defendants contend Mr. Ward could not and did not anticipate that Bria would turn suddenly and start across the road directly in his path. They argue that the law absolves a driver of liability when faced with sudden and unforeseeable actions by a pedestrian; therefore, it was error to assign any fault to Mr. Ward. In the alternative, should some degree of fault be assigned to him, they argue that it should be considerably less than 60 percent. They claim that since Bria was an exceptionally mature child, she should not be given the benefit of the diminished standard of behavior sometimes expected from a child and should bear a greater degree of fault. They also contend the jury could have found that both Bria and her mother were independently negligent—Bria, for failing to look to the left before stepping out onto the roadway, and Ms. Rideau, for failing to take the few extra minutes to ensure that her child crossed the road safely. The defendants also claim that the trial court erred in admitting certain evidence from the Louisiana Driver's Guide, that the jury abused its discretion in awarding over $1 million dollars to Bria's parents, and that the court abused its discretion in assessing all court costs to the defendants.

STANDARD OF REVIEW

The appellate court's review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. See Stobart v. State, through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. Picou v. Ferrara, 483 So.2d 915, 918 (La. 1986). If only one of the jury's factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court's de novo review is limited to the jury finding so affected. Id. at 918-20; see also Buckbee v. Aweco, Inc., 614 So.2d 1233, 1236 n. 7 (La.1993); Boudreaux v. Farmer, 604 So.2d 641, 649 n. 7 (La.App. 1st Cir.), writs denied, 605 So.2d 1373 and 1374 (La.1992).

ANALYSIS

Evidentiary Rulings

All relevant evidence is admissible, except as otherwise provided by law. LSA-C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. LSA-C.E. art. 401. Generally, a witness not testifying as an expert may not give testimony in the form of opinions or inferences. This rule is subject to the limited exception of Louisiana Code of Evidence article 701, which provides that a lay witness may provide testimony in the form of opinions or inferences where those opinions or inferences are: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1st Cir.9/27/96), 681 So.2d 63, 66, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212...