Waters v. Roy Oliver, Reg'l Transit Auth., Transit Mgmt. of Se. La. & Veolia Transp. Servs., Inc.
| Decision Date | 22 June 2017 |
| Docket Number | NO. 2016–CA–1262,2016–CA–1262 |
| Citation | 223 So.3d 37 |
| Parties | Leon WATERS v. Roy OLIVER, Regional Transit Authority, Transit Management of Southeast Louisiana and Veolia Transportation Services, Inc. |
| Court | Court of Appeal of Louisiana — District of US |
Patrick G. Kehoe, Jr., PATRICK G. KEHOE, JR., APLC, 833 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLEE
David P. Salley, Kevin M. Frey, SALLEY, HITE, MERCER & RESOR, LLC, 365 Canal Street, Suite 1710, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Rosemary Ledet )
This is a personal injury case. The plaintiff, Leon Waters, filed suit for damages for injuries sustained on a Regional Transit Authority ("RTA") bus when the bus came to an abrupt stop to avoid hitting a preceding vehicle. Following a bench trial, the trial court awarded $695,544.27 in damages in favor of Mr. Waters and against RTA; Veolia Transportation Services, Inc. ("Veolia"); and its insurer, Old Republic Insurance Company ("Old Republic") (collectively the "Defendants"). The trial court also found the preceding vehicle thirty percent (30%) at fault and thus reduced the damages award to $486,881.00.1 Both Mr. Waters and Defendants appeal. For the reasons that follow, we affirm.
On Friday, October 22, 2010 at 10:02 p.m., Mr. Waters boarded a RTA bus in front of the Whole Foods Market on Magazine Street in New Orleans, Louisiana.2
After entering the bus, Mr. Waters proceeded to the priority seating section3 and sat down in a priority seat located behind the bus driver, Roy Oliver.4 The bus, which was headed towards the Downtown area of New Orleans, was traveling behind a black truck.
As the bus approached the intersection at Magazine Street and Bordeaux Street, the black truck applied its brakes and made a left turn onto Bordeaux Street. Mr. Oliver applied the brakes to avoid colliding with the truck. At that time, Mr. Waters was ejected from his seat and landed on his right side on the floor near the driver and the door of the bus. Mr. Oliver, as well as two other passengers, went to Mr. Waters' aid. Shortly thereafter, Mr. Waters complained of shoulder pain.
After checking on Mr. Waters, Mr. Oliver reported the accident and requested an ambulance. Shawn Barnes, a Veolia supervisor, came to the scene. Both Mr. Oliver and Mr. Barnes drafted reports of the accident. Although Defendants concede that RTA buses are equipped with video recording systems, Defendants admit that they cannot produce the video of the October 22, 2010 accident.
Thereafter, Mr. Waters was transported to Touro Hospital by ambulance and treated for his injuries, which are discussed in detail elsewhere in this opinion.
On October 18, 2011, Mr. Waters filed a petition for damages naming as defendants Mr. Oliver, RTA, TMSEL, and Veolia as defendants. In his first supplemental and amending petition for damages, Mr. Waters added Old Republic, Veolia's insurer, as a defendant.
On May 2, 2016, a bench trial commenced. On May 4, 2016, during the Defendants' case, the parties agreed to recess the trial until the parties had the opportunity to depose a defense witness, Marcia Kirch. On June 13, 2016, the trial resumed and concluded.
On August 29, 2016, the trial court rendered judgment in Mr. Waters' favor and against RTA. Pointing out that the judgment failed to cast Veolia and Old Republic as liable for the damages award, Mr. Waters filed a motion for new trial. On September 12, 2016, the trial court rendered an amended judgment in Mr. Waters' favor and against RTA, Veolia, and Old Republic.5 The trial court also dismissed Mr. Oliver with prejudice for the failure of Mr. Waters to effect service of process. The trial court, in both the original and amended judgments, awarded the following damages:
SPECIAL DAMAGES: $ 445,544.27
Past medical expenses $ 59,689.63
Future medical expenses $ 111,947.64
Past loss of earning capacity $ 112,256.00
Future loss of earning capacity $ 145,894.00
Los[s] of benefits $ 15,757.00
GENERAL DAMAGES: $ 250.000.00
TOTAL: $ 695,544.27*
*(Reduced by thirty percent (30%) for the fault of the preceding
driver for an adjusted total damage award of $486,880.989.)
From the trial court's ruling, both Defendants and Mr. Waters appeal.
For ease of discussion, we divide our analysis of the issues presented into the following four categories: (i) liability; (ii) comparative fault; (iii) general damages; and (iv) special damages.6 We separately address each category.
Defendants contend that the trial court erred in finding them liable for Mr. Waters' injuries. Citing Jacobs v. Reg'l Transit Auth. , 03-2158 (La. App. 4 Cir. 4/14/04), 872 So.2d 571, Defendants argue that the trial court erroneously applied the stricter "common carrier" standard of negligence;7 rather, Defendants maintain that the general negligence standard applies here. Under general negligence, Defendants contend that Mr. Waters failed to prove Mr. Oliver engaged in conduct that fell below the reasonable person standard of care. Defendants further contend that Mr. Waters failed to prove that his continuing shoulder and neck injuries were caused by the accident.
This court in Jacobs , supra , explained the proper standard to be applied in RTA cases as follows:
03–2158 at p. 3, 872 So.2d at 573 (emphasis supplied). Furthermore, any entity contracted to manage or operate the RTA shall not be considered a common carrier in a suit for personal injury or property damage. La. R.S. 48:1656(23) ; La. R.S. 48:1653(1). Accordingly, this court has held, as Defendants contend, that absent the stricter standard of proof for common carriers, the proper standard is general negligence. Jacobs , 03–2158 at p. 3, 872 So.2d at 573 ; see also Manuel v. Reg'l Transit Auth ., 09-1256, p. 5 (La. App. 4 Cir. 5/12/10), 36 So.3d 1131, 1133.
The applicable standard of care in this case is thus the general negligence standard. See La. C.C. art. 2315(A) (). In a personal injury suit, a well-settled principle is that liability is determined under the duty-risk analysis.8 Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 14 (La. 3/16/10), 35 So.3d 230, 240.
Under the manifest error standard, a trial court's factual determinations will not be reversed unless the appellate court finds a reasonable factual basis does not exist for the trial court's finding and that the record establishes that the finding is clearly wrong.
Holden v. Zurich Am. Ins. Co. , 44,242, p. 4 (La. App. 2 Cir. 5/13/09), 13 So.3d 221, 224. "When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings." Holden , 44,242 at pp. 4–5, 13 So.3d at 224 (citing Hanger One MLU, Inc. v. Unopened Succession of Rogers , 43,120, p. 6 (La. App. 2 Cir. 4/16/08), 981 So.2d 175, 179 ; Green v. Nunley , 42,343, pp. 2-3 (La. App. 2 Cir. 8/15/07), 963 So.2d 486, 489 ).
At trial, the parties submitted conflicting evidence regarding the speed of the bus and the proximity of the bus to the black truck. Mr. Waters testified that he frequently caught the bus at the same location in front of the Whole Foods on Magazine Street to get to his place of employment. He explained that he was employed as a room service attendant and a banquet server at the Sheraton New Orleans Hotel (the "Sheraton") on Canal Street. According to Mr. Waters, "Mr. Jewel" was the bus operator who normally drove the Magazine Street bus route that he rode; however, Mr. Jewel was off work on the day of the accident. Mr. Waters further testified that he typically boarded the bus at 9:50 p.m. and arrived at the Sheraton around 10:10 p.m. On the day of the accident, the bus was running late; Mr. Waters boarded the bus at 10:02 p.m. After boarding the bus, Mr. Waters felt the bus moving at a speed faster than normal to catch up.
Mr. Oliver, the bus operator on the date of the accident, testified that he has been a bus driver for about nine years. He admitted that he was "behind schedule maybe four or five minutes," on that day; however, he denied hurrying to make up time. Instead, he testified that he was traveling at approximately 15 miles per hour ("mph") at the time of the accident. Mr. Barnes, Mr. Oliver's supervisor, also reported that the bus was traveling at approximately 15 mph. Inconsistently, Mr. Oliver's post-accident report, which he drafted about three hours after the accident, stated that Mr. Oliver was traveling at 20 mph.
Marcia Kirch, a defense witness, testified that she was a passenger on the bus at the time of the accident. She testified that the bus may have been traveling between 15 to 25 mph before it came...
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