Opinion
2018 CA 0858 2018 CA 0859
01-10-2019
DOUGLAS BERNARD v. RODNEY J. STRAIN, JR., IN HIS CAPACITY AS SHERIFF FOR THE PARISH OF ST. TAMMANY CONSOLIDATED WITH RANDY LOUMIET v. DOUGLAS BERNARD AND ALLMERICA FINANCIAL BENEFIT INSURANCE COMPANY
John B. Perry Slidell, Louisiana Attorney for Plaintiff/Appellee Douglas Bernard Charles M. Hughes, Jr. Ryan G. Davis Mandeville, Louisiana Attorneys for Plaintiff/Appellee Randy Loumiet Chadwick W. Collings Andrew R. Capitelli Thomas S. Schneidau Mandeville, Louisiana Attorneys for Defendant/Appellant Sheriff Randy Smith successor to former Sheriff Rodney J. Strain, Jr.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana
No. 2016-11990 c/w 2015-15038, Div. "J" The Honorable William J. Knight, Judge Presiding John B. Perry
Slidell, Louisiana Attorney for Plaintiff/Appellee
Douglas Bernard Charles M. Hughes, Jr.
Ryan G. Davis
Mandeville, Louisiana Attorneys for Plaintiff/Appellee
Randy Loumiet Chadwick W. Collings
Andrew R. Capitelli
Thomas S. Schneidau
Mandeville, Louisiana Attorneys for Defendant/Appellant
Sheriff Randy Smith successor to
former Sheriff Rodney J. Strain, Jr. BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. HOLDRIDGE, J.
Sheriff Randy Smith in his official capacity as successor in interest for the former sheriff of St. Tammany Parish, Rodney J. Strain, Jr. ("Sheriff"), appeals from the trial court's judgment assigning Lieutenant Randy Loumiet, the Sheriff's employee, 60% of the fault in a motor vehicle accident involving Douglas Bernard, who was assigned 40% of the fault. Mr. Bernard answers the appeal, seeking a reduction in the assessment of his fault to 10%. For the reasons that follow, we affirm.
According to the record, at approximately 11:44 a.m. on June 15, 2015, in a private parking lot in Slidell, Louisiana, Mr. Bernard was backing his 2007 GMC Yukon out of a parking space and moving it to another space. His vehicle collided with a 2014 Ford Fusion, which was owned by the Sheriff and driven by Lieutenant Loumiet in the course and scope of his employment. Lieutenant Loumiet was proceeding down the center of a lane behind Mr. Bernard's vehicle in the parking lot.
Seeking compensation for the injuries he sustained, Lieutenant Loumiet filed suit against Mr. Bernard and his insurer, Allmerica Financial Benefit Insurance Company. Mr. Bernard filed a separate suit for damages against the Sheriff, and the two suits were consolidated. Lieutenant Loumiet's claims were compromised, and his suit was dismissed.
Mr. Bernard's action against the Sheriff proceeded to a bench trial. After the trial, the trial court signed a judgment on March 15, 2018 stating that Lieutenant Loumiet, for whom the Sheriff was legally responsible, was 60% at fault, and Mr. Bernard was 40% at fault in causing the accident. Based on the fault allocation and damages award, the final judgment awarded Mr. Bernard against the Sheriff was $30,000, together with legal interest from the date of judicial demand along with costs and the expert witness fee. From this judgment, the Sheriff has appealed, and Mr. Bernard has answered the appeal.
Mr. Bernard, Lieutenant Loumiet, and Deputy Jon Meyers, who responded to the accident, testified at trial. Mr. Bernard's wife and his chiropractor also testified at trial as to his damages.
The court awarded Mr. Bernard general damages for pain and suffering of $40,000 and medical expenses of $14,187. The damages award was reduced to $50,000 along with legal interest from the date of judicial demand pursuant to a stipulation filed in court that Mr. Bernard's cause of action did not exceed the sum of $50,000, exclusive of legal interest and costs. All costs and the expert witness fee of $500 for Dr. Gerard Jarvis' expert medical testimony for Mr. Bernard were taxed against the Sheriff.
On appeal, the Sheriff contends in his first assignment of error that the trial court committed legal error by holding that the duties imposed on a backing motorist by La. R.S. 32:281 of the Louisiana Highway Regulatory Act did not apply in a private parking lot, and by instead applying a heightened standard to the driver proceeding in the right-of-way. In his second assignment of error, the Sheriff contends that the trial court erred in finding Lieutenant Loumiet 60% at fault when Mr. Bernard backed into the side of Lieutenant Loumiet's vehicle. In his answer to the appeal, Mr. Bernard contends that the trial court erred in only assigning 60% of the fault to Lieutenant Loumiet, and he contends that Lieutenant Loumiet was 90% at fault.
It is well-settled in Louisiana law that a trial court's findings of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). The reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. The manifest error standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Thus, where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id.
In the instant case, the trial court issued oral reasons for judgment. After stating that the court believed that both parties were telling the truth, the trial court stated that the accident occurred in a private parking lot, which is not subject to regulation by the Louisiana Highway Regulatory Act. See La. R.S. 32:1-399. The trial court then said:
In Plaintiff [Exhibit] 1, which is also [Defendant's Exhibit] D-2 basically, as to the point of impact on the [Mr. Bernard's] 2007 Yukon, the point of impact is clearly on the right [rear] corner. Something . . . that is obvious from several of the photographs, is the fact that a portion of the right rear brake lens was broken from that vehicle. . . . Why is that significant? Because [the location of the broken brake lens' fragments on the pavement and vehicle] tells you an awful lot about relative speeds.
The impact on Lieutenant Loumiet's car clearly occurred about the rear of the wheel well of the front right wheel. The damage that we see above the center of that wheel is not the actual point of impact in all likelihood, but instead is immediately behind the wheel well. It extends all the way past the right rear tire of Lieutenant Loumiet's Ford Fusion. What does that tell us? The Ford Fusion was traveling significantly faster than was the Yukon. Hence, both individuals are telling the truth. Mr. Bernard was probably backing out at a very slow speed; Lieutenant Loumiet was probably operating at a fairly reasonable speed, [ten] to [twelve] miles an hour, which is not unreasonable in that particular situation. However, Lieutenant Loumiet should have been able to see the vehicle backing out; likewise, Mr. Bernard should have been able to see the oncoming vehicle because both drivers have an obligation to maintain vigilance in that particular circumstance.
The fact that [Lieutenant Loumiet's] seatbelt was in the process of being buckled is not of [a] great deal of moment other than from the standpoint that the brain does have to engage to some degree. . . . So there was some small amount of distraction. Likewise, Mr.
Bernard was not sure if he was talking hands-free with the magnetic holder or if he was talking with the phone to his ear. Either one, studies have indicated cause[s] some amount of distraction.
So all of that to say that both drivers are partially at fault for this accident. Because the case law is fairly clear that the driver in the thruway has the better vantage point in a parking lot, unlike in a highway situation under Title 32, I'll assign 60 percent fault to Lieutenant Loumiet; 40 percent fault to Mr. Bernard.
Mr. Bernard testified that he initially parked in front of his RE/MAX real estate office, and then decided to move his vehicle to free up the space for customers. According to Mr. Bernard, before backing out, he fastened his seatbelt, started the vehicle, looked left, looked right, checked his outside mirrors, and looked in his rearview mirror. He saw no oncoming traffic, so he then backed up at an approximate speed of two to three miles per hour at a slight angle. Mr. Bernard testified that he proceeded slowly because there were a lot of pedestrians and children biking and skateboarding in the parking lot. He added that he "backed out slowly, as a defensive maneuver in case somebody is coming fast and hopefully [will] see me, if for whatever reason I'm not accounting for something." No cars were parked next to him on his passenger side when he was backing out. After he had moved out about one car length, he collided with Lieutenant Loumiet's vehicle, which he did not see prior to impact. At the time of the impact, Mr. Bernard testified he was looking in the rearview mirror.
Mr. Bernard admitted he was on his mobile phone when he began backing up, although he quit speaking while he was backing up, and he testified that the phone was not distracting him. He could not recall if he was holding his phone or if he was using the speaker phone with the phone attached to the magnet on the vehicle's air conditioning vent.
Lieutenant Loumiet testified that he was travelling through the parking lot in the middle of the lane to avoid accidents, such as drivers backing out, and to avoid pedestrians running between cars, especially children. Lieutenant Loumiet stated that he was travelling "maybe [ten], [twelve] miles an hour." Lieutenant Loumiet testified that at the point of impact, he was already past Mr. Bernard's vehicle. According to Lieutenant Loumiet, he never saw the brake lights on Mr. Bernard's vehicle illuminate and he did not see the vehicle move. He stated that if he had seen Mr. Bernard's brake lights, he would have tapped his horn and taken some evasive action, such as braking or swerving. Lieutenant Loumiet admitted that as the favored vehicle in the right-of-way lane in the parking lot, he had a better chance to see a vehicle backing out of a space.
Lieutenant Loumiet did admit, as the trial court noted, that he was buckling his seatbelt while driving, but he also stated that "[i]t had no impact on the accident at all." He testified that he was not on his phone or the police radio while driving in the parking lot. Lieutenant Loumiet also acknowledged that he had an unobstructed view of Mr. Bernard's vehicle because there was nothing parked on Mr. Bernard's right side.
Lieutenant Loumiet also admitted that he was not wearing corrective lenses at the time of the accident despite a restriction on his driver's license for them. He stated that he only wore his glasses at night or during low light conditions.
Deputy Jon Meyers, a St. Tammany Parish Sheriff's Office employee, responded to the accident. He testified that he completed an accident report, but he did not give any tickets because the Louisiana Highway and Safety Act set forth in Title 32 is not enforced in a private parking lot.
In brief, the Sheriff refers to Deputy Meyer's accident report; however, while the report is in the record, it was not admitted into evidence at trial and will not be considered.
In his first assignment of error, the Sheriff contends that the trial court erred in failing to apply La. R.S. 32:281(A), which states, "[t]he driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic." We find no error in the trial court's failure to apply this statutory provision from the Louisiana Highway Regulatory Act, which governs standards of care in public highway driving. See La. R.S. 32:2(A). This court has previously held that the standard of care required of drivers involved in vehicular accidents in private parking lots is not necessarily established by the Highway Regulatory Act. Chaney v. Brumfield, 333 So.2d 256, 258 (La. App. 1 Cir. 1976); Bizette v. Lastilla, 238 So.2d 767, 769 (La. App. 1 Cir. 1970). Liability is to be determined under general tort law. See Chaney, 333 So.2d at 258. Liability under the particular facts of a case is determined by the duty-risk analysis, which requires the plaintiff to prove (1) the defendant had a duty to conform his conduct to a specific standard of care, (2) the defendant failed to conform his conduct to the appropriate standard of care, (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries, (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries, and (5) actual damages. Roberts v. Rudzis, 2013-0538 (La. App. 1 Cir. 5/28/14), 146 So.3d 602, 608-09, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797; see also Chaney, 333 So.2d at 258. The Sheriff's first assignment of error has no merit.
We find the cases cited by the Sheriff in brief factually distinguishable from the instant case. Moreover, those cases are from the Third and Fifth Circuits. We are not bound by the decision of another circuit, but by the decisions of this court. See Strachan v. Eichin, 2015-1431 (La. App. 1 Cir. 4/15/16), 195 So.3d 61, 66. --------
In the Sheriff's second assignment of error and in Mr. Bernard's answer to the appeal, they contend that the trial court erred in its allocation of fault. A determination of fault or negligence is a factual determination. McDowell v. Diggs, 2017-0755, 2017-0595 (La. App. 1 Cir. 10/3/18), ___ So.3d ___, ___. Moreover, the allocation of comparative fault is also a factual determination. Id. In determining percentages of fault, the trier of fact must consider both the nature of the conduct of each party at fault and the causal relation between the conduct and the damages claimed. Id. In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, 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. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). These same factors guide the appellate court's evaluation of the respective fault allocations. See Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607, 611; Washington v. OneBeacon Am. Ins. Co., 2018-0248 (La. App. 1 Cir. 11/2/18), ___ So.3d ___, ___.
After thoroughly reviewing the record, we find that the trial court's conclusions as to the allocation of fault are reasonable and that its findings are not manifestly erroneous. Mr. Bernard's testimony was that he checked to see if his travel pathway was clear before backing up and he was proceeding slowly. Lieutenant Loumiet testified that he was driving at a reasonable speed in the center of the travel lane prior to the collision. However, both drivers were slightly distracted at the time of the accident; Mr. Bernard's phone was on and Lieutenant Loumiet was buckling his seatbelt. We cannot say that the trial court, after hearing the testimony, reviewing the evidence, and evaluating the credibility of the witnesses, was manifestly erroneous in its conclusion that Lieutenant Loumiet had a better opportunity to view and avoid other vehicles in the parking lot, such that he was more at fault. After our review of the testimony and evidence, we cannot say that the trial court was clearly wrong in its weighing the reciprocal duties owed by the backing motorist and the motorist in the travel lane in a private parking lot. While we may have decided this case differently than the trial court, it is well- settled that if a trial court's findings are reasonable in light of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Therefore, the Sheriff's second assignment of error and Mr. Bernard's answer to the appeal have no merit.
For the above and foregoing reasons, we affirm the March 15, 2018 judgment of the trial court. All costs associated with this appeal are to be paid equally by defendant-appellant, Sheriff Randy Smith in his official capacity as successor in interest for the former sheriff of St. Tammany Parish, Rodney J. Strain, Jr., and plaintiff-appellee, Douglas Bernard.
AFFIRMED.