Vestal v. Kirkland

• Decision Date: 11 January 2012
• Docket Number: 11–421.,Nos. 11–419,11–420,s. 11–419
• Citation: 81 So.3d 748
• Parties: Roger VESTAL, Emanuel Hammonds, and Johnnie O'Hara v. Cynthia D. KIRKLAND, Schneider National Carriers, Inc. and INS Insurance Compnay.
• Court: Court of Appeal of Louisiana — District of US

81 So.3d 748

Roger VESTAL, Emanuel Hammonds, and Johnnie O'Hara

v.Cynthia D. KIRKLAND, Schneider National Carriers, Inc. and INS Insurance Compnay.

Nos. 11–419

11–420

11–421.

Court of Appeal of Louisiana, Third Circuit.

Nov. 23, 2011.Rehearing Denied Jan. 11, 2012.

W. Jay Luneau, Alexandria, LA, for Plaintiff/Appellee, Cynthia D. Kirkland.

D. Randolph Street, Street & Street, Monroe, LA, for Plaintiff/Appellee, Johnnie O'Hara.

C. David Vasser, Jr., Vasser & Vasser, Baton Rouge, LA, for Plaintiffs/Appellees, Liberty Mutual Fire Ins. Co. and Schneider National Carriers, Inc.James D. “Buddy” Caldwell, Attorney General, Elizabeth B. Hollins, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, Lake Charles, LA, for Defendant/Appellant, State of Louisiana, DOTD.

Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.

COOKS, Judge.

[3 Cir. 1] On November 27, 2006, Cynthia Kirkland was driving a 2006 Freightliner eighteen-wheeler owned by her employer, Schneider National Carriers. She was returning from the Proctor & Gamble plant in Pineville, Louisiana, where she had picked up a trailer loaded with soap products. She was driving south on Louisiana Highway 165 in Allen Parish when she observed an accident ahead of her. At this point on Hwy. 165, the road was undergoing construction to change from two to four lanes. The north-bound construction was completed, but the south-bound construction was about to begin.

The accident in front of her involved another eighteen wheeler that had lost a load of lumber. Kirkland began slowing her vehicle. While doing so, her eighteen wheeler drifted onto the two-foot wide shoulder. There was a difference in elevation between the shoulder and roadway. When Kirkland's truck left the roadway, she attempted to reenter the roadway by decelerating the vehicle and attempting to steer back onto the paved portion of road. According to Kirkland, due to the elevation difference between the shoulder and roadway, she encountered difficulty. When her steering axle tires finally got back up on the roadway, the vehicle yawed, jack knifed, and overturned onto the passenger side. Kirkland's vehicle came to rest on top of a vehicle occupied by Johnnie O'Hara. Kirkland and O'Hara suffered injuries as a result of the accident.

Kirkland filed proceedings against the State of Louisiana, Department of Transportation and Development (hereafter DOTD), alleging failure to maintain a reasonably safe roadway, failure to properly maintain the shoulder, and failure to warn of an unreasonably dangerous condition. Specifically, Kirkland maintained the accident occurred because of a drop-off where the roadway meets the shoulder, which was composed of aggregate.

[3 Cir. 2] Suit was also filed against DOTD by Kirkland's employer, Schneider National Carriers, and its insurer, Liberty Mutual Fire Insurance Company, seeking reimbursement for workers' compensation benefits, both indemnity and medical, paid to Kirkland.

O'Hara also sued Kirkland, her employer and insurer, and DOTD. O'Hara's claims against all parties other than DOTD were settled prior to trial. O'Hara's claims against DOTD included the failure to maintain a reasonably safe roadway, failure to properly design, construct or maintain the shoulder, constructing or maintaining the shoulder with an excessive drop-off, and the failure to warn of an unreasonably dangerous condition.

The three separate lawsuits were consolidated for trial. After a trial, the jury returned judgment finding DOTD 80% at fault in causing the accident and Kirkland was cast with the remaining 20% of fault. Kirkland was awarded $235,440.00 in general damages and $1,600.00 in future medicals (which reflected the reduction of 20% for her fault). O'Hara was awarded $480,000.00 in general and special damages (which reflected the reduction of 20% for Kirkland's fault). O'Hara's award included $18,418.00 in loss of future wages and loss of future earning capacity.

Both Kirkland and O'Hara filed for Judgments Notwithstanding the Verdict (JNOV) to increase the amounts awarded. O'Hara contended the jury erred in only awarding him $18,418.00 in loss of future wages and earning capacity. Kirkland argued the jury erred in refusing to award amounts proven for past wage loss and future wage loss and earning capacity. The trial court granted O'Hara's JNOV and awarded an additional $300,000.00 for future wage loss and loss of earning capacity. Kirkland's award was not changed.

[3 Cir. 3] The judgment also provided the intervention filed by Kirkland's employer, Schneider National Carriers, and its insurer, Liberty Mutual, was granted with the amount to be established pursuant to a Rule to be filed at a later date.

On appeal, DOTD asserts the following assignments of error:

1. The trial court erred in finding DOTD eighty percent liable in this accident, when the alleged defect was not the cause-in-fact of the motorists' injuries.

2. The trial court erred in allowing the introduction of prejudicial evidence, maintenance records for the highway following the accident, which was not relevant or necessary to prove the plaintiffs' case.

3. The trial court erred in disallowing the testimony and evidence of the State's accident reconstruction expert without a valid or reasonable basis.

4. The trial court erred in granting O'Hara's JNOV and increasing the future wage loss and loss of earning capacity award as the jury's award was not manifest error considering the testimony.

5. The trial court properly awarded Kirkland damages for past lost wages when the testimony as a whole is considered.

Kirkland answered DOTD's appeal, and alleged as error the jury's failure to award the amounts proven for past and future wage loss, as well as loss of earning capacity.

I. Liability of DOTD.

The jury returned a verdict in which it found DOTD 80% at fault and Kirkland 20% at fault. DOTD argues it was Kirkland's driving, and not the defect presented by the shoulder, that was the cause-in-fact of the motorists' injuries. Conversely, the plaintiffs aver that the jury's verdict is well-supported by the evidence.

DOTD has a legal duty to maintain the public highways in a reasonably safe condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). This duty extends to the shoulders of the highways as well. Graves v. Page, 96–2201 (La.11/7/97), 703 So.2d 566; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986); [3 Cir. 4] Rue v. State, Dep't. of Highways, 372 So.2d 1197 (La.1979). DOTD's duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, “whether as a result of inattentiveness or negligence,” a motorist might find himself traveling on, or partially on, the shoulder. Petre v. State ex rel. Dep't. of Transp. and Dev., 01–876, p. 8 (La.4/3/02), 817 So.2d 1107, 1112. DOTD's duty to maintain the road and shoulder encompasses the risk that a motorist may travel onto or partially onto the shoulder. See Graves v. Page, 96–2201 (La.11/7/97), 703 So.2d 566. However, in recognizing the existence of this duty, this court has held that DOTD is not a guarantor of the safety of those who travel highways of this state. See Ryland v. Liberty Lloyds Ins. Co., 93–1712 (La.1/14/94), 630 So.2d 1289. DOTD's duty to the traveling public is breached only when the highway at the scene of the accident is found to create an unreasonably dangerous condition. Petre, 817 So.2d 1107. DOTD's duty to maintain reasonably safe roadways encompasses persons who are foreseeably placed in danger by unreasonably dangerous conditions. Under our comparative negligence system, even motorists who are slightly exceeding the speed limit, momentarily inattentive, or otherwise negligent may recover from DOTD. Petre v. State ex rel. Dep't of Transp. and Dev., 00–00545 (La.App. 3 Cir. 12/29/00), 775 So.2d 1252, 1259–60, citing Lamaire v. Motor Convoy, Inc., 625 So.2d 638 (La.App. 3 Cir.1993), writ denied, 93–2778 (La.1/7/94), 632 So.2d 754.

Whether a defect presents an unreasonable risk of harm must be decided on the particular facts and circumstances of each case. See Hunter v. Dep't. of Transp. and Dev., 620 So.2d 1149 (La.1993). The jury's determination in this regard is factual in nature. We evaluate findings of the trier of fact under the manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, a factual finding cannot be set aside unless the appellate court finds that the trier of fact's determination is manifestly erroneous or clearly wrong. [3 Cir. 5] Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and find that a reasonable factual basis does not exist for the finding and that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id.

The appellate court is not to re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. See Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01–2217 (La.4/3/02), 816 So.2d 270. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong, even if the reviewing court would have decided the case differently. Stobart, 617 So.2d 880. Louisiana courts have consistently held that causation is a factual finding, which should not be reversed on appeal absent manifest error. Id. The issue to be resolved is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Cosse v. Allen–Bradley Co., 601 So.2d 1349 (La.1992). Thus, even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and...