Rodriguez v. Walters, 2012-CA-0959

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: JENKINS
• Docket Number: NO. 2012-CA-0959,2012-CA-0959
• Parties: MARY A. RODRIGUEZ, LISA M. RODRIGUEZ AND TAMI M. CABRERA v. MARK WALTERS, SR., PERRY ALEXCEE, JR., AUTO CLUB FAMILY INSURANCE COMPANY, AND XYZ INSURANCE COMPANY
• Decision Date: 01 February 2014

MARY A. RODRIGUEZ, LISA M. RODRIGUEZ AND TAMI M. CABRERA
v.
MARK WALTERS, SR., PERRY ALEXCEE, JR.,
AUTO CLUB FAMILY INSURANCE COMPANY, AND XYZ INSURANCE COMPANY

NO. 2012-CA-0959

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Dated: February 1, 2014

JENKINS, J., DISSENTING WITH REASONS.

I respectfully dissent from the majority's opinion affirming the trial court's judgment. Rather, I find that the law when applied to the facts reveals that the trial court manifestly erred in its application of the "Rules of the Road,"¹ and therefore no reasonable basis existed for the trial court's finding that the driver of the flatboat, Jerry Rodriguez, Jr., was 100% at fault for the collision. For the reasons discussed below, I would reverse the trial court's judgment and assign 70% of the fault to Mr. Rodriguez and 30% of the fault to the defendants, Mark Walters, Sr., Perry Alexcee, Jr., and Auto Club Family Insurance Company, in solido.

DISCUSSION

Although the majority was of the opinion that the record contained ample evidence to support the trial court's conclusion that Mr. Rodriguez was solely at fault for causing the accident which killed both him and his father, it is my opinion that this ruling is not supported by the plain language of the law. While the experts disagreed regarding the interpretation and application of the Rules, all of the experts agreed that the respective duties of the boaters in this case were governed

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by the Rules of the Road. However, I find that a plain reading of the rules renders the trial court's finding absolving the defendants of any responsibility for the accident so implausible, internally inconsistent, and in contrast to the plain language of the Rules that it should be reversed.

The manifest error or clearly wrong standard demands great deference for the trial court's findings; nevertheless it is this Court's duty on appeal to review the record in its entirety for errors of fact and errors of law. La. Const. Art. V. §§ 5(C) and 10(B); Theriot v. Lasseigne, 93-2661 (La. 7/5/94), 640 So.2d 1305. It has long been held that a "[a] finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed." U. S. v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed.2d 746, 766 (1948). See also, Stobart v. State, Through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La. 1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

Therefore, while it is true that questions of credibility - including that of experts - are for the factfinder and should not be disturbed upon review, that is not the case when an expert's opinions are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La. 1990). In certain situations, documents or objective evidence may so contradict a witness' story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness' story; in these cases we may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840, 845 (La. 1989).

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I therefore begin my examination by reviewing the evidence and the law in the context of the duty-risk negligence analysis to determine whether or not the trial court committed manifest error in finding the flatboat solely responsible for the collision. Under this analysis, four questions should be considered:

(1) Was the conduct in question a cause-in-fact of the resulting harm?
(2) What, if any, duties were owed by the respective parties?
(3) Were the requisite duties breached?
(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Lazard v. Foti, 02-2888, p. 3 (La.10/21/03), 859 So.2d 656, 659; Mart v. Hill, 505 So.2d 1120, 1122 (1987). If the answer to any of the elements of the duty-risk analysis is negative, then a party may be found free from fault. Williams ex rel. Williams v. Jones, 09-839, p.5 (La. App. 5 Cir. 2/23/10), 34 So.3d 926, 930 (citing Lazard, 859 So.2d at 659).

A. Cause-in-Fact Analysis

The cause-in-fact element is generally a key determination in the duty-risk analysis. Vargas v. Continental Cuisine, Inc., 04-1029, p. 5 (La. App. 4 Cir. 3/30/05), 900 So.2d 208, 211; Boykin v. Louisiana Transit Co., Inc., 96-1932, p. 8 (La.3/4/98) 707 So.2d 1225, 1230. It tests whether the accident would or would not have happened "but for" the defendant's substandard conduct. Boykin, 707 So.2d at 1230. However, in cases involving "concurrent causes" of an injury, "the proper inquiry is whether the conduct in question was a substantial factor in bringing about" the accident or injury. Perkins v. Entergy Corp., 00-1372, 00-1387, 001440, p. 8 (La. 3/23/01), 782 So.2d 606, 611. The Louisiana Supreme Court has applied the test by determining that "each of the multiple causes played so

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important a role in producing the result that responsibility should be imposed upon each item of conduct, even if it cannot be said definitively that the harm would not have occurred 'but for' each individual cause." Id., at pp. 8-9, 782 So.2d at 612 (quoting Graves v. Page, 96-2201, p. 9 (La.11/7/97), 703 So.2d 566, 570). A factor used in determining whether a cause is a substantial factor includes "whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm." LeJeune v. Allstate Ins. Co., 365 So.2d 471, 475 (La. 1978) (quoting Restatement of Torts, 2d, Section 433(b)).

I agree with the majority that the accident was caused, at least in part, by the decision of Mr. Rodriguez to turn left into the Petain Lagoon. But for the flatboat's turn left, the collision would not have occurred. Nevertheless, the duty-risk analysis requires Mr. Alexcee's conduct to also be examined to determine whether or not his conduct, too, was a legal cause of the accident. I find that it was.

A careful review of the evidence leads to the inevitable conclusion that the decision of Mr. Alexcee to veer the BayStealth to the right of the lagoon set in motion a series of continuous forces which could and did result in the plaintiffs' harm in this case. The preponderance of the testimony was that the BayStealth was located approximately 40 to 50 feet from the shoreline of the lagoon when Mr. Alexcee first spotted the flatboat turning left out of the cut. It was undisputed that the flatboat was closer to the shoreline than the BayStealth upon initial sighting. Based on Mr. Alexcee's initial assumption that the flatboat would head straight across the lagoon and turn left to pass port-to-port, Mr. Alexcee throttled down two or three times while steering closer to the right, his starboard side of the lagoon.

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This action brought him in closer proximity to the flatboat and placed the two vessels on a collision course. This fact is corroborated by the testimony of all three passengers who each testified that they first noticed the flatboat ahead after Mr. Alexcee began throttling down and hugging the shoreline. Accordingly, Mr. Alexcee's decision to veer from his initial course of travel, and instead steer closer to the shoreline was a substantial factor that led to the collision.

In addition, to the extent that Mr. Alexcee claims that the accident occurred because Mr. Rodriguez turned left into the port side of the BayStealth, this testimony conflicts with Mr. Alexcee's prior testimony as well as the testimony of other witnesses because from all other accounts, the flatboat maintained its general left-turning course at all times prior to the collision. Rather, the overwhelming majority of the evidence suggested that it was Mr. Alexcee's decision to steer right and hug the shoreline that would have caused the flatboat to collide with the port side of the BayStealth.

Therefore, the actions of each vessel were a cause-in-fact of the collision.

B. Duty Analysis

The next inquiry involves the question of duty and asks whether the plaintiffs have any law - statutory, jurisprudential, or arising from general principles of fault - to support their claim. Faucheaux v. Terrebone Consolidated Govt., 92-0930 (La. 2/22/93), 615 So.2d 289, 292. Whether or not a duty exists is a question of law for the court to decide based upon the facts and circumstances of the case as established in the evidence of record. Lemann v. Essen Lane Daiquiries, Inc., 05-1095, p. 7 (La. 3/10/06), 923 So.2d 627, 633. Mathieu v.

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Imperial Toy Corp., 94-0952 (La.11/30/97), 646 So.2d 318, 322. As previously stated, the parties agree that the respective duties of the boaters were governed by the Rules of the Road. Generally speaking, the Rules of the Road are applicable to "all vessels upon the inland waters of the United States."²

I will begin by examining the duties which plaintiffs claim the BayStealth breached. I will then examine the duties the defendants claim the flatboat breached. Lastly, I will examine the relationship, if any, between the duties invoked under the Rules of the Road.

(1) Duty to Determine Risk

The plaintiffs argue that the defendants are liable for their damages because Mr. Alexcee failed to properly...