Scott v. Clark

• Decision Date: 27 June 1991
• Docket Number: No. CW,CW
• Citation: 583 So.2d 938
• Parties: Daisy P. SCOTT and Alton J. Scott v. Judy H. CLARK and State of Louisiana Through the Department of Transportation and Development. 91 0137.
• Court: Court of Appeal of Louisiana — District of US

Page 938

583 So.2d 938

Daisy P. SCOTT and Alton J. Scott v. Judy H. CLARK and State of Louisiana Through the Department of Transportation and Development.

No. CW 91 0137.

Court of Appeal of Louisiana, First Circuit.

June 27, 1991.

Gregg J. Graffagnino, St. Martin, Lirette & Shea, Houma, for plaintiffs Daisy P. Scott and Alton J. Scott.

Michael L. Martin, Windhorst, Gaudry, Talley & Ranson, Gretna, for defendants (Requesting Writ) Judy H. Clark and State of La.

Before COVINGTON, C.J., and LANIER and GONZALES, JJ.

LANIER, Judge.

This is a suit for damages in tort by Daisy P. Scott and Alton J. Scott (the Scotts) against the State of Louisiana through the Department of Transportation and Development (DOTD) and one of its employees, Judy H. Clark. The Scotts did not request a trial by jury. DOTD answered denying all allegations and did not request a trial by jury. Later, Clark answered and requested a trial by jury. On September 11, 1990, the trial court ordered a trial by jury contingent upon Clark posting a $5,000 bond. On November 27, 1990, during a pre-trial conference, the trial court advised that the jury order signed September 11, 1990, would be stricken. On December 10, 1990, DOTD and Clark filed a motion to reinstate the jury order. The trial court denied this motion on December 11, 1990. On application of DOTD and Clark, we granted a writ of certiorari to review this ruling.

FACTS

In their petition, the Scotts allege the following facts:

3.

On or about June 18, 1989, at approximately 10:25 a.m., petitioner Daisy P. Scott was operating a 1985 GMC Sierra Classic pickup truck in the southbound lane of Louisiana Highway 316 approaching Intracoastal Canal Pontoon Bridge No. 4120200381. Petitioner crossed through the north gates of the aforementioned pontoon bridge, and was over the south side apron of the pontoon bridge when defendant Judy H. Clark, suddenly and without warning, raised the bridge apron, causing petitioner's vehicle to suspend in mid air.

4.

At all times pertinent hereto, it is alleged that the defendant State of Louisiana, through the Department of Transportation and Development, was the owner of the Intracoastal Canal Pontoon Bridge No. 4120200381, located on Louisiana Highway 316, in the Parish of Lafourche, State of Louisiana, and was responsible for the actions of its employees, namely defendant Judy H. Clark.

5.

As a result of the above described incident, petitioner Daisy P. Scott suffered severe personal injuries including, but not limited to, injuries to her back, neck, left shoulder, right knee, and chest.

6.

That, as a further result of the above described injuries, petitioner Daisy P. Scott has suffered extreme physical and mental pain, suffering and discomfort which, on information and belief, will continue indefinitely into the future.

7.

Additionally, as a further result of the above described injuries, petitioner Daisy P. Scott has incurred medical and pharmaceutical expenses for the treatment of said injuries and, on information and belief, will incur additional medical and pharmaceutical expenses indefinitely into the future.

8.

The personal injuries and damages sustained by petitioner Daisy P. Scott were caused by the negligent conduct and/or fault of the defendants, State of Louisiana, through the Department of Transportation and Development and its employee, Judy H. Clark, whose conduct and negligence was the legal cause of petitioner's injuries and damages, for the following nonexclusive particulars:

a. Improperly controlled bridge;

b. Failure to adequately and/or reasonably operate bridge;

c. Failure to see traffic on the bridge;

d. Opening the bridge apron when it was unsafe to do so;

e. Any and all other acts of negligence and/or fault which may be proven at the trial of this matter or discovered prior thereto.

9.

By reason of the above described circumstances, petitioner Daisy P. Scott is entitled to recover such general and special damages as are reasonable in the premises.

10.

By reason of his wife's injuries, petitioner Alton J. Scott has sustained the loss of his wife's love, affection, comfort, society, and consortium. Therefore, petitioner Alton J. Scott is entitled to recover all damages as are reasonable in the premises.

RIGHT TO CIVIL JURY TRIAL

DOTD and Clark contend the trial court erred in denying their motion to reinstate the jury order because they have waived their immunity from trial by jury provided for in La.R.S. 13:5105. The Scotts reply that La.R.S. 13:5105 is clear and a suit against an entity described in that statute cannot be tried before a jury.

There is no United States or Louisiana constitutional right to a trial by jury in a civil case in a Louisiana court. This right is provided for by statute. La.C.C.P. art. 1731(A) recognizes the right to a trial by jury in a civil case, except as limited by La.C.C.P. art. 1732. %17 La.C.C.P. art. 1732 provides that "[a] trial by jury shall not be available in ... (7) All cases where a jury trial is specifically denied by law." (Emphasis added) La.R.S. 13:5105 provides that "[n]o suit against the state or a state agency or political subdivision shall be tried by jury." (Emphasis added). When used in the Revised Statutes or Code of Civil Procedure, the word "shall" is mandatory. La.R.S. 1:3; La.C.C.P. art. 5053; Succession of Holloway, 531 So.2d 431 (La.1988); Lindner v. Lindner, 569 So.2d 173 (La.App. 1st Cir.1990); In the Matter of Marine Shale Processors, Inc., 566 So.2d 994 (La.App. 1st Cir.), writ denied, 568 So.2d 1055 (La.1990). Cf. La.C.Cr.P. art. 5; La.C.J.P. art. 4.

The issue in this writ is a question of statutory interpretation. The following rules found in Bunch v. Town of St. Francisville, 446 So.2d 1357, 1360 (La.App. 1st Cir.1984) are applicable:

When a law or ordinance is clear and free from all ambiguity, it must be given effect as written....

When interpreting a law (ordinance), the court should give it the meaning the lawmaker intended. It is presumed that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. Conversely, it will not be presumed that the lawmaker inserted idle, meaningless or superfluous language in the law or that it intended for any part or provision of the law to be meaningless, redundant or useless. The lawmaker is presumed to have enacted each law with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. A construction of a law which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the law and will carry out the intention of the law maker....

When the expressions of a law are "dubious", the most effectual way of discovering the true meaning of the law is to consider the reason and spirit of it, or the cause which induced the lawmaker to enact it.... When a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is to be preferred over one which renders part thereof ridiculous or nugatory.... If there is an irreconcilable conflict between the provisions of a law, only one provision can prevail.

(Emphasis added; citations omitted)

See also Achee v. Louisiana State Employees' Retirement Board, 527 So.2d 1116, 1118-1119 (La.App. 1st Cir.1988); Notoriano v. Anthony, 527 So.2d 1120, 1121-1122 (La.App. 1st Cir.1988).

La.R.S. 13:5105 prohibits a trial by jury against the state or a state agency. It was enacted pursuant to La.Const. of 1974, art. XII, Sec. 10(C) which declares that the legislature shall provide the procedure for suits against the state and its subdivisions. McCoy v. Ouachita Parish Police Jury 564 So.2d 747 (La.App. 2nd Cir.1990). In enacting this statute, the legislature had a legitimate interest in preserving the state's financial resources and in minimizing the delays and greater court costs which generally attend jury trials. Rudolph v. Massachusetts Bay Insurance Company, 472 So.2d 901 (La.1985).

La.R.S. 13:5105 is clear and unambiguous in its application to DOTD. It states that no suit against a state agency shall be tried by jury. DOTD is not entitled to a trial by jury. When a statute is clear and free from all ambiguity, it must be given effect as written. Crescionne v. Louisiana State Police Retirement Board, 455 So.2d 1362 (La.1984); Wong v. East Baton Rouge Parish Sheriff's Office, 522 So.2d 1134 (La.App. 1st Cir.), writ denied, 523 So.2d 863 (La.1988); Bunch v. Town of St. Francisville, 446 So.2d at 1360. Cf. La.C.C. art. 9. The state, a state agency or a political subdivision may not circumvent this statutory prohibition by requesting a trial by jury. To hold otherwise, would defeat the purpose of this statute.

Our interpretation is supported by the Louisiana Supreme Court's decision in Descant v. Rapides Parish Police Jury, 409 So.2d 1226 (La.1982). In Descant, the Rapides Parish Police Jury (political subdivision) requested a trial by jury in connection with a suit for damages filed against it by Descant. The trial court granted the political subdivision's request. Descant filed a motion to strike the jury order citing La.R.S. 13:5105. The trial court granted the motion to strike and ordered a judge trial in the case. The political subdivision sought a...