Summary
In Guitreau v. City of Gonzales, 2012-0794 (La. App. 1 Cir. 2/13/13), 2013 WL 557018, at *3 (unpublished), this court considered whether a trial court was correct in concluding that a police officer gave insufficient audible or visual signals to warn motorists of his approach.
Summary of this case from Inzinna v. GuitreauOpinion
2012 CA 0794
02-13-2013
ELIZABETH GUITREAU v. CITY OF GONZALES, ET AL.
Timothy J. Martinez Dennis A. Pennington Michael J. Harig Baton Rouge, Louisiana Counsel for Plaintiff- 1st Appellant/Appellee Elizabeth Guitreau Stephen P. Sheets Gonzales, Louisiana Karen Day White Baton Rouge, Louisiana Counsel for Defendant- 2nd Appellant/Appellee City of Gonzales, et al.
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
NUMBER 97,987, DIVISION E, PARISH OF ASCENSION
STATE OF LOUISIANA
HONORABLE ALVIN TURNER, JR., JUDGE
Timothy J. Martinez
Dennis A. Pennington
Michael J. Harig
Baton Rouge, Louisiana
Counsel for Plaintiff-
1st Appellant/Appellee
Elizabeth Guitreau
Stephen P. Sheets
Gonzales, Louisiana
Karen Day White
Baton Rouge, Louisiana
Counsel for Defendant-
2nd Appellant/Appellee
City of Gonzales, et al.
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART AND RENDERED.
KUHN, J.,
Both plaintiff and defendants appeal the trial court judgment rendered in this personal injury case. For the reasons assigned, we affirm in part, amend in part, reverse in part, and render.
FACTUAL AND PROCEDURAL BACKGROUND
During the afternoon of November 2, 2009, plaintiff, Elizabeth Guitreau, was driving westbound on East Cornerview Street in Gonzales, Louisiana, intending to turn left at its intersection with Alexander Avenue. Two cars behind Ms. Guitreau on the two-lane street, Officer Walter Taylor of the Gonzales Police Department, was pursuing an unidentified vehicle for a seatbelt violation. There was no indication the driver of that vehicle was aware of Officer Taylor's pursuit; the vehicle did not take any evasive action or attempt to flee.
Approaching the intersection with Alexander Avenue, Officer Taylor activated the patrol car's blue-flashing lights and pulled into the eastbound lane against the flow of traffic in an area clearly marked as a no-passing zone. The dash-cam video from Officer Taylor's patrol car indicates he also activated his "yelp" siren once, producing a single loud burst of sound. However, just before the intersection, Ms. Guitreau attempted to turn left onto Alexander Avenue and collided with the patrol car proceeding in the eastbound lane.
Ms. Guitreau had turned on her left turn signal shortly before attempting to turn, but she did not look into her rearview mirror to check for vehicles approaching from the rear. She did not see the blue flashing lights or hear the yelp siren activated by Officer Taylor. As a result of the accident, Ms. Guitreau began experiencing headaches, as well as pain in her neck, shoulder, back, and in several of her extremities.
The City of Gonzales (City) paid Ms. Guitreau for all property damages to her vehicle and for her rental car expenses. Subsequently, she filed a personal injury suit naming the City and Officer Taylor as defendants. Following a bench trial, judgment was rendered in favor of Ms. Guitreau and against defendants, assessing Officer Taylor with sixty-percent fault and Ms. Guitreau with forty-percent fault in causing the collision. The trial court assessed general damages of $126,144.06 and past medical expenses of $42,048.02, which after reduction for her comparative fault, entitled Ms. Guitreau to judgment against defendants for $75,686.44 in general damages and $25,228.81 in past medical expenses.
Ms. Guitreau and defendants each appealed the trial court judgment. Ms. Guitreau contends the trial court erred in assessing her with forty-percent fault and in failing to award her future medical expenses. The City and Officer Taylor contend that the trial court erred in failing to apply the gross negligence/reckless disregard standard of care provided by La. R.S. 32:24 in evaluating Officer Taylor's conduct, in assessing Ms. Guitreau with only forty-percent fault, and in awarding excessive general damages.
ALLOCATION OF COMPARATIVE FAULT
Ms. Guitreau complains the trial court erred in assessing her with forty-percent fault on the basis of the court's erroneous conclusion that she failed to activate her turn signal prior to the accident. She asserts that the dash-cam video establishes that she did, in fact, activate her turn signal prior to the collision. Due to this alleged manifest error, Ms. Guitreau argues this court should reallocate fault and find that she was guilty of no comparative fault or, alternatively, no greater than ten-percent fault.
Conversely, the City and Officer Taylor argue the trial court erred in evaluating Officer Taylor's conduct under an ordinary negligence standard of care. They maintain that, pursuant to La. R.S. 32:24, the trial court should have applied a gross negligence/reckless disregard standard of care. They further argue that Officer Taylor should not have been assessed with any fault since his conduct did not constitute gross negligence or reckless disregard. Alternatively, the City and Officer Taylor assert that the trial court should have assessed Ms. Guitreau with a greater percentage of comparative fault than forty-percent due to her failure to ascertain whether she could make a left turn safely and her total obliviousness to Officer Taylor's patrol car, despite its flashing blue lights and yelp siren.
Initially, we will consider defendants' argument that the trial court erred in not evaluating Officer Taylor's conduct under a gross negligence/reckless disregard standard of care pursuant to La. R.S. 32:24, which sets forth certain privileges and limited immunity for drivers of emergency vehicles. As explained by the Supreme Court in Lenard v. Dilley , 01-1522 (La. 1/15/02), 805 So.2d 175, 180-81, the driver of an emergency vehicle whose actions fall under La. R.S. 32:24 will be liable for damages only if his conduct constitutes reckless disregard for the safety of others and thus rises to the level of gross negligence. To fall under this standard, an emergency vehicle must be authorized and: (1) the driver must be responding to an emergency call, pursuing an actual or suspected violator of the law, or responding to a fire alarm; (2) the accident must arise out of one of the enumerated actions by the driver (including moving against the normal flow of traffic); and (3) the driver must make use of audible or visual signals sufficient to warn motorists of their approach. If these requirements are not met, the driver's conduct must be evaluated under a standard of ordinary negligence. See La. R.S. 32:24; Lenard , 805 So.2d at 180-81. Additionally, the determination of whether the driver's conduct is to be evaluated under the reckless disregard/gross negligence or ordinary negligence standard of care is a matter for the trier-of-fact. Lenard , 805 So.2dat 181.
This provision states, in pertinent part:
A. The driver or rider of an authorized emergency vehicle ... when in the pursuit of an actual or suspected violator of the law ... may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
* * *
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle ... is making use of audible or visual signals ... sufficient to warn motorists of their approach ....
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others. (Emphasis added.)
In the instant case, the trial court concluded that even though Officer Taylor was pursuing a suspected violator of the law, La. R.S. 32:24 was inapplicable because "the 'yelp' siren and blue lights Officer Taylor activated were insufficient to warn motorists of his approach given the particular circumstances of this incident." Consequently, the trial court applied an ordinary negligence standard to Officer Taylor's conduct.
Based on our review of the record, particularly the dash-cam video, which revealed the sequence of events, we find no manifest error in the trial court's factual determination that the visual and audible warnings given by Officer Taylor were insufficient under La. R.S. 32:24(C). It is undisputed that Officer Taylor was not responding to an emergency at the time of the collision, although he was pursuing a suspected seatbelt violator. Even though Officer Taylor activated his flashing blue lights when he pulled into the opposing lane of traffic, those lights obviously did not provide as much warning to a motorist being approached from the rear during the daytime as it would have to a motorist approaching the patrol car from the opposite direction or at nighttime. Furthermore, the dash-cam video reveals that Officer Taylor activated the yelp siren, emitting a short loud blast, only one time as he passed the vehicle behind Ms. Guitreau. He did not reactivate the yelp siren as he approached Ms. Guitreau's vehicle near the intersection where she attempted to turn.
Given these facts, we cannot say the trial court's conclusion that Officer Taylor gave insufficient audible or visual signals to warn motorists of his approach in a no-passing zone was manifestly erroneous. Accordingly, the trial court properly evaluated Officer Taylor's conduct under an ordinary negligence standard of care. Accord Spears v. City of Scott , 05-230 (La. App. 3d Cir. 11/2/05), 915 So.2d 983, 991, writ denied. 05-2478 (La. 3/31/06), 925 So.2d 1259; Neloms v. Empire Fire & Marine Insurance Company , 37,786 (La. App. 2d Cir. 10/16/03), 859 So.2d 225, 231. There is no merit in the defendants' contention that the trial court applied the wrong standard of care herein.
However, we find merit in Ms. Guitreau's contention that the trial court committed manifest error in concluding she failed to activate her turn signal prior to the collision. Under the manifest error standard of review, in order to reverse a factual finding of the trial court, this court must find that a factual basis does not exist for the finding and the record demonstrates the finding is clearly wrong. Stobart v. State, Department of Transportation and Development , 617 So.2d 880, 882 (La. 1993). Contrary to the trial court's finding, the dash-cam video definitively establishes that Ms. Guitreau's left turn signal was activated before the collision. Moreover, as reflected in the written reasons for judgment, the trial court's manifestly erroneous finding clearly was a factor influencing its allocation of fault. Accordingly, the trial court's fault allocation was manifestly erroneous, since it was based on an incorrect factual finding, and we must reallocate the comparative fault of the parties.
In allocating percentages of comparative fault, a court must consider the nature of the conduct of all parties and the extent of the causal relationship between the conduct and the damages claimed. See Watson v. State Farm Fire and Casualty Insurance Company , 469 So.2d 967, 974 (La. 1985). In assessing the nature of the parties' conduct, various factors may influence the degree of fault, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Clement v. Frey , 95-1119 (La. 1/16/96), 666 So.2d 607, 611.
Under La. R.S. 32:104(B), a motorist is required to continuously signal an intent to make a turn for no less than one hundred feet before the turn. As previously noted, Ms. Guitreau activated her left-turn signal prior to the collision. However, it is unclear whether she did so one hundred feet prior to the collision. Additionally, a left-turning motorist has a strong duty of care that requires not only looking before turning, but also seeing what is observable. Barlow v. State Farm Mutual Automobile Insurance Company , 93-2385 (La. App. 1st Cir. 11/10/94), 645 So.2d 1256, 1259, writ denied, 94-2980 (La. 2/3/95), 649 So.2d 406. Ms. Guitreau admitted that she did not check her rearview mirror before attempting to turn. If she had, she should have seen the patrol car approaching with flashing blue lights. Her failure to check her mirror was a breach of her duty of care, although the fact that she was in a no-passing zone is a factor to be considered in weighing her degree of fault.
As to Officer Taylor's conduct, he admitted seeing Ms. Guitreau's brake lights applied, which occurred as she slowed down to turn, but denied seeing her activated turn signal. Officer Taylor mistakenly assumed that the brake lights were an indication that Ms. Guitreau was yielding to him. Instead, he should have anticipated the entirely foreseeable possibility that the brake lights indicated she was slowing down to make a left turn at the intersection they were both fast approaching. Officer Taylor's failure to see Ms. Guitreau's activated left turn signal indicates inattentiveness, especially when he should have been paying particular attention to her vehicle under the circumstances. Moreover, he failed to activate his siren as he approached Ms. Guitreau's vehicle. Officer Taylor clearly failed to exercise an appropriate degree of care. Further, the Chief of Police testified that Officer Taylor's conduct violated the police department's standard operating procedures and that he was disciplined as a result.
In considering the parties' respective percentages of fault, the greatness of the risk created by the conduct is a pertinent factor. Watson , 469 So.2d at 974. In this case, for the purpose of pursuing a suspected seatbelt violator (a nonemergency situation), Office Taylor deliberately chose to ignore a no-passing zone. He pulled into the opposing lane of traffic and attempted to pass two vehicles as the vehicles approached an intersection without giving sufficient warnings of his presence. Not only did Officer Taylor's conduct create a greater risk of harm than Ms. Guitreau's conduct, it also was intentional conduct, whereas hers was merely inattentive. Given these circumstances, the judgment of the trial court will be amended to assess Officer Taylor with seventy-five percent fault and Ms. Guitreau with twenty-five percent fault.
GENERAL DAMAGES
Defendants contend the $126,144.06 award for general damages was excessive since Ms. Guitreau's complaints of pain were not well supported by objective medical evidence or diagnostic studies. They suggest that Ms. Guitreau's pain may be psychosomatic, noting she has been on social security disability since 2006 due to a bipolar disorder. In support of this argument, they also point to the testimony of Dr. Sandra Weitz, a pain management specialist, indicating that Ms. Guitreau has significant psychological issues. Defendants further allege that Ms. Guitreau has a drug dependency that should be factored into a determination of her general damages.
Because the discretion vested in the trial court is great and even vast, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corporation , 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct 1059, 127 L.Ed.2d 379 (1994). Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier-of-fact could assess for the effects of the particular injury to the particular plaintiff that the appellate court should increase or reduce the award. Youn , 623 So.2d at 1261.
Ms. Guitreau testified she did not suffer chronic pain or regularly take pain medications prior to the accident. However, since the accident, she claims to have experienced chronic pain in her neck, left shoulder, arm, and hand, as well as pain in her lower back radiating into her right leg. Additionally, she claims she has had headaches, which last most of the day, three to five times a week. As a result, she has received treatment from several physicians and a chiropractor, as well as physical therapy, which she testified aggravated her symptoms. Since surgical intervention was not indicated, she was referred for pain management treatment to Dr. Weitz approximately four months after the accident. In an attempt to alleviate the pain, Dr. Weitz administrated separate epidural steroid injections to Ms. Guitreau's cervical and lumbar spines, but she obtained no relief. Additionally, she prescribed various pain medications. As of the time of trial, Ms. Guitreau remained under Dr. Weitz's care.
There was medical evidence that Ms. Guitreau's radiological studies and physical examinations were essentially normal. However, Dr. Weitz opined that the EMG conducted in February 2010 was suggestive of radiculopathy at C-7 or C-8 consistent with Ms. Guitreau's complaints of neck pain radiating into her arm. Moreover, even if there was a lack of objective medical evidence, Dr. Jason Smith, one of the orthopedists who treated Ms. Guitreau, acknowledged that the lack of objective findings does not mean a patient is not in pain. In this case, there was no suggestion that any of Ms. Guitreau's physicians questioned the genuineness of her pain. Dr. Smith specifically testified that he did not believe she was a malinger. Additionally, Dr. Weitz testified that she "absolutely" believed that Ms. Guitreau perceived pain.
With regard to Ms. Guitreau's psychological issues, Dr. Weitz explained that pain causes additional stress to Ms. Guitreau because of her poor coping skills, and that the stress, in turn, worsens her pain. Nevertheless, it is well-settled that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. American Motorist Insurance Company v. American Rent-All, Inc. , 579 So.2d 429, 433 (La. 1991).
Beginning almost immediately after the accident, Ms. Guitreau began experiencing frequent headaches and pain in her neck, back, left shoulder, left arm, hands, and legs. On the date of trial, over two years after the accident, she was still experiencing chronic pain, and she remained under pain management treatment. After hearing the witnesses, including Ms. Guitreau's testimony as to the extent and duration of her pain, the trial court rendered judgment awarding her $126,144.06 in general damages. The written reasons for judgment reflect that the trial court methodically examined the entirety of the medical evidence, which included evidence as to her psychological issues and use of pain medications in making the award. Since the evidence establishing Ms. Guitreau's pain was primarily based on her subjective complaints, the trial court obviously accepted her testimony regarding her pain in assessing general damages. Such credibility determinations must be accorded great deference by appellate courts. Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989).
Accordingly, considering the great and even vast discretion vested in the trial court in awarding general damages, after a thorough review of the record, we find that the award of $126,144.06 in general damages, although high, does not constitute an unreasonable abuse of discretion under the circumstances.
FUTURE MEDICAL EXPENSES
Ms. Guitreau contends the trial court's refusal to award future medical expenses was manifestly erroneous and an abuse of discretion in view of the uncontroverted medical evidence that she will incur such expenses in the future.
Future medical expenses will not be awarded in the absence of medical testimony establishing by a preponderance of the evidence that they are indicated and setting out their probable cost. See Menard v. Lafayette Insurance Company , 09-1869 (La. 3/16/10), 31 So.3d 996, 1006; Jenkins v. State ex ret. Department of Transportation and Development , 06-1804 (La. App. 1st Cir. 8/19/08), 993 So.2d 749, 776, writ denied, 08-2471 (La. 12/19/08), 996 So.2d 1133. Nevertheless, when the record establishes that future medical expenses will be necessary and inevitable, courts should not reject the award because the record does not provide the exact value, if the court can determine from the record, past medical expenses, and other evidence a minimum amount that reasonable minds could not disagree would be required. In such cases, the court should award all future medical expenses that the medical evidence establishes the plaintiff, more probable than not, will be required to incur. Goza v. Parish of West Baton Rouge , 08-0086 (La. App. 1st Cir. 5/5/09), 21 So.3d 320, 337, writ denied. 09-2146 (La. 12/11/09), 23 So.3d 919, cert. denied, ___ U.S. ___, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010).
It appears the trial court denied future medical expenses on the ground that Ms. Guitreau failed to prove with a sufficient degree of certainty her need for future medical treatment for any specific period of time. The trial court specifically noted that Dr. Smith testified it was not advisable for anyone, other than a dying cancer patient, to remain for the rest of their life on the types of pain medications Ms. Guitreau was taking. The trial court further noted that Dr. Weitz did not indicate a specific time period for which Ms. Guitreau would require pain medications and expressed a hope that she could be weaned off of them.
However, based on our review of the record, we conclude the trial court manifestly erred and abused its discretion in refusing to award future medical expenses. At the time of trial, Ms. Guitreau remained under Dr. Weitz's care and was being prescribed various pain medications. While she hoped Ms. Guitreau could be weaned off some medications over time, Dr. Weitz testified it was more likely than not that Ms. Guitreau would need pain medications for the foreseeable future. Dr. Weitz was unable to specify a definite period that such mediations would be necessary, but acknowledged that periods of five, ten, twenty, or thirty years were within the range of possibilities. Additionally, Dr. Weitz anticipated continuing to see Ms. Guitreau approximately six times a year for pain management, at a cost of $125.00 per visit.
Thus, the record clearly establishes that Ms. Guitreau will need medications and medical treatment for some period of time in the future. The trial court erred in totally denying an award for such expenses due to the indefiniteness of the future period, rather than awarding the minimum amount that reasonable minds could not disagree will be required for future medical expenses. See Goza , 21 So.3d at 337. Based on the past medical expenses and other evidence presented, we find that the minimum amount of future medical expenses Ms. Guitreau, more probable than not, will be required to incur is $5,000.00. Accordingly, that portion of the trial court judgment denying Ms. Guitreau's claim for future medical expenses must be reversed and judgment rendered in her favor awarding such damages, subject to reduction for her comparative fault.
CONCLUSION
For the above reasons, the trial court judgment is amended to decrease the allocation of fault to plaintiff, Elizabeth Guitreau, from forty percent to twenty-five percent and to increase the allocation of fault to defendant, Walter Taylor, from sixty percent to seventy-five percent fault. Accordingly, the trial court judgment is amended to provide that, after reduction for Ms. Guitreau's twenty-five percent comparative fault, she is entitled to judgment against the City of Gonzales and Walter Taylor for $94,608.05 in general damages and $31,536.03 in past medical expenses. Further, that portion of the trial court judgment denying the claim for future medical expenses is reversed, and judgment is hereby rendered against the City of Gonzales and Walter Taylor awarding plaintiff, Elizabeth Guitreau, after reduction for her twenty-five percent comparative fault, $3,750.00 in future medical expenses. The judgment of the trial court is affirmed in all other respects. The appeal costs in the amount of $2,199.50 are assessed to defendants, the City of Gonzales and Walter Taylor.
AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND RENDERED.