Starr v. State

• Citation: 70 So.3d 128
• Decision Date: 04 August 2011
• Docket Number: Nos. 46,226–CA,46,227–CA.,s. 46,226–CA
• Parties: Jerry STARR, individually and on behalf of his minor daughter, Jamie Starr, Plaintiff–Appelleev.STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant–Appellant.John M. Byrd, Eugene Moore, Chris Navarro and Joseph Michael Williams, Plaintiffs–Appelleesv.State of Louisiana, through the Department of Transportation and Development, Defendant–Appellant.
• Court: Court of Appeal of Louisiana (US)

70 So.3d 128

Jerry STARR, individually and on behalf of his minor daughter, Jamie Starr, Plaintiff–Appellee

v.STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant–Appellant.John M. Byrd, Eugene Moore, Chris Navarro and Joseph Michael Williams, Plaintiffs–Appellees

v.State of Louisiana, through the Department of Transportation and Development, Defendant–Appellant.

Nos. 46,226–CA

46,227–CA.

Court of Appeal of Louisiana, Second Circuit.

June 17, 2011.Rehearing Denied Aug. 4, 2011.

Louisiana Department of Justice by Victoria R. Murry, Alexandria, LA, Leanne M. Broussard, for Appellant.Mixon and Carroll, PLC, Columbia, LA, by James L. Carroll, James E. Mixon, Brian E. Frazier, McKeithen, Ryland, Champagne & Domangue, Columbia, LA, by Louis V. Champagne, Dina F. Domangue, Ashley P. Thomas, for Appellees.Before BROWN, MOORE, and LOLLEY, JJ.BROWN, Chief Judge.

[2 Cir. 1] The State of Louisiana, Department of Transportation and Development (“DOTD”), appeals from a judgment entered in accordance with a jury verdict finding it to be at fault and 24% liable for damages sustained by consolidated plaintiffs, John Byrd, Eugene Moore, Chris Navarro, Joseph Williams, the Estate of Jamie Starr, and Jerry Starr. Plaintiffs answered, appealing the allocation of 76% of the fault to John Byrd. For the reasons stated herein, we affirm in part and reverse in part.

Facts and Procedural Background

This single automobile accident occurred on September 17, 2004, at approximately 12:09 a.m. John Byrd was driving southbound on Louisiana Highway 851 (hereinafter “Hwy. 851”) in rural Caldwell Parish when his 1996 Dodge Ram pickup truck was unable to negotiate a sharp left curve. The truck left the roadway and struck a number of trees before coming to a rest on its right passenger side and eventually bursting into flames.

Riding with Byrd at the time of the accident were Jamie Starr, Chris Navarro, Joseph Williams, and Eugene Moore. Ms. Starr and Navarro, her fiancé, were riding in the cab of the truck, while Williams and Moore were riding in the bed of the truck. Ms. Starr died at the scene of the accident. Navarro and Williams sustained serious injuries, and Moore suffered a catastrophic brain injury. Byrd reported no injuries at the scene, but was later treated for superficial facial lacerations at Citizens Rural Clinic in Columbia, Louisiana.

Trooper York, the state trooper investigating the accident, and his training officer, Trooper Cox, arrived at the scene at approximately 1:09 [2 Cir. 2] a.m. Upon their arrival, Trooper York smelled a moderate odor of alcohol about Byrd's person, so he conducted a field sobriety test. After he performed the test, Trooper York placed Byrd under arrest, handcuffed him, and placed him in his patrol car to await the arrival of Trooper Heard. Trooper Heard arrived at the scene, took custody of Byrd, and transported him to the Caldwell Parish Sheriff's Office for blood alcohol testing, as required by law for all fatality accidents. According to the printout slip of the Intoxilyzer 5000, at 2:45 a.m. Byrd had a blood alcohol content (“BAC”) level of .046g%.

The Estate of Jamie Starr and Jerry Starr filed suit against DOTD alleging, inter alia, that the lack of sufficient warning regarding the sharp left-curve on Hwy. 851 was the cause of the accident. At the time of the accident the signage for southbound travelers consisted of a single 90–degree left turn sign. Setting forth nearly the same allegations as Mr. Starr's petition, Byrd, Moore, Williams, and Navarro filed suit against DOTD shortly thereafter. DOTD answered the suits asserting, primarily, that Byrd's gross negligence was the cause of the accident. These actions were consolidated for trial.

A jury trial was held between November 2—November 10, 2009. Thereafter, the jury rendered a verdict assessing 24% liability to DOTD and 76% liability to Byrd, and a judgment in accordance therewith was signed on February 17, 2010. After the signing of the judgment, DOTD filed a motion for new trial and plaintiffs filed a JNOV. After a hearing on these matters, the trial court denied DOTD's motion for new trial and granted, in [2 Cir. 3] part, a JNOV increasing the past wages award to Moore. The amended judgment set total (general + special) damages in the following amounts, which have been reduced to reflect DOTD's 24% liability: Moore—$2,266,475.92; Navarro—$72,286.89; Byrd—$12,000.00; Williams—$18,618.95; Estate of Ms. Starr—$36,000.00; Mr. Starr—$6,000.00. Additionally, the judgment made the future medical expenses of Moore, which amounted to $1,392,000.00 and are to be paid out of the Future Medical Care Fund,¹ subject to a privilege and/or lien for his attorney's fees.

DOTD now appeals, setting forth seven assignments of error: 1) the trial court erred in failing to grant DOTD's motion for mistrial; 2) the jury erred in allocating 24% of the liability to DOTD; 3) the trial court erred in allowing Dr. Joseph Citron to testify as an expert in the field of toxicology; 4) the jury erred in awarding damages to Moore for past and future wage benefits; 5) the trial court erred in granting plaintiffs' JNOV, increasing the amount awarded to Moore in past wages; 6) the trial court erred in ruling that the Future Medical Care Fund could be made subject to a privilege and/or lien for Moore's attorney's fees; and 7) the trial court erred in casting DOTD with 100% of the costs of court when it was only cast with 24% of the liability.

Plaintiffs answered the appeal asserting that the jury erred in allocating 76% of the liability to Byrd.

[2 Cir. 4] Discussion

Assignment of Error No. 1

An inordinate amount of DOTD's appellate argument is centered on the trial court's denial of its motion for mistrial. After a review of the very lengthy and extensive facts and/or allegations set forth in the appellate briefs and in the record, the following are the relevant facts: counsel for DOTD informed the trial court and counsel for plaintiffs that they were going to be calling Ronald Lafferty as a witness; counsel for the Estate of Jamie Starr sent its private investigator to the Laffertys' residence to interview Mr. Lafferty; due to allegations regarding the possible intimidation and/or stalking of the Laffertys, the trial court sent the Caldwell Parish Sheriff, Sheriff Steven May, to the Laffertys' home to investigate the matter; later that evening Mr. Lafferty had to be checked into the hospital, leaving him unavailable to testify the next day.

On the final day of the trial, DOTD moved for a mistrial on the grounds of interference with a witness and improper communication with a sequestered witness. DOTD alleged during the hearing and on appeal that Mr. Lafferty's unavailability was the result of plaintiffs' investigator's interference. Further, DOTD contended that Mr. Lafferty's testimony was a crucial component to its case since he was the first witness on the scene, and his testimony would have directly impeached the testimony of Byrd regarding his alleged actions in the aftermath of the accident. Thus, DOTD argued, a mistrial was the only remedy that would afford it relief.

[2 Cir. 5] The trial court heard testimony from counsel representing DOTD and plaintiffs, as well as from Sheriff May. Relying on the testimony of Sheriff May, that his investigation led him to believe that the Laffertys were not intimidated, and the well-known reluctance of Mr. Lafferty to testify, the trial court ruled that DOTD's case was not prejudiced by the actions of plaintiffs' investigator.

We note that DOTD was well aware of Mr. Lafferty's fragile mental state, and that the accident at issue and the subsequent, unrelated suicide of his son were the causes of his vulnerable state. Nonetheless, at no point during the six intervening years from the time of the accident until the trial did DOTD depose Mr. Lafferty. Had it done so, DOTD could have sought to present the deposition testimony when Mr. Lafferty became unavailable.

Because a mistrial results in the discharge of one jury and the empaneling of another to try the case anew, it is a drastic remedy. Spencer v. Children's Hosp., 432 So.2d 823 (La.1983). Broad discretion is vested in a trial court to grant a mistrial where no other remedy would afford relief, or where circumstances indicate that justice may not be done if the trial continues. Burks v. McKean, 559 So.2d 921 (La.App. 2d Cir.1990), writ denied, 566 So.2d 398 (La.1990).

Out of an abundance of caution, the trial court had the intimidation and stalking allegations of DOTD investigated. After holding a hearing in which Sheriff May testified that the Laffertys were not intimidated or threatened by plaintiffs' investigator, the trial court denied DOTD's motion [2 Cir. 6] for mistrial. We do not find this to be an abuse of the trial court's broad discretion.

Assignment of Error No. 2

Louisiana law allows a plaintiff to proceed against a public entity, such as the State through DOTD, under a theory of negligence based on La. R.S. 9:2800. Plaintiff must prove that: (1) the thing that caused her damages was in DOTD's custody; (2) the thing was defective due to a condition that created an unreasonable risk of harm; (3) DOTD possessed actual or constructive notice of the defect, and failed to take corrective measures to remedy the defect within a reasonable period of time; and (4) the defect was a cause-in-fact of plaintiff's injuries. Critton v. State, Dept. of Transp. and Development, 43,328 (La.App.2d Cir.06/04/08), 986 So.2d 207, writ denied, 08–1493 (La.10/03/08), 992 So.2d 1019.

An appellate court can only reverse a factfinder's determinations when it finds from the record that there is not a reasonable factual basis for the finding, and it further determines that the record establishes that the finding is manifestly erroneous. Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

The issues set forth in...