Opinion
2015 CA 0366
02-17-2016
CAROLYN DAIGLE AND LYNWOOD DAIGLE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, MATTHEW DAIGLE v. STELLA SCIONEAUX, USAGENCIES DIRECT INSURANCE COMPANY, MICHAEL HEBERT, IBERVILLE PARISH COUNCIL, ACE AMERICAN INSURANCE COMPANY, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Stephanie Possa Joseph C. Possa Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, Carolyn Daigle Nedi Morgan Plaquemine, Louisiana Attorney for Defendants/Appellants, Iberville Parish Council, Michael Hebert, and Ace American Insurance Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the 18th Judicial District Court In and for the Parish of Iberville State of Louisiana
No. 68129 , Div. A
The Honorable James J. Best, Judge Presiding
Stephanie Possa
Joseph C. Possa
Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee,
Carolyn Daigle Nedi Morgan
Plaquemine, Louisiana Attorney for Defendants/Appellants,
Iberville Parish Council, Michael
Hebert, and Ace American
Insurance Company BEFORE: WHIPPLE, C.J., WELCH, HIGGINBOTHAM, CRAIN, AND DRAKE, JJ.
WHIPPLE, C.J.
Defendants-appellants, Iberville Parish Council, Michael Hebert, and Ace American Insurance Company, appeal a judgment of the trial court in favor of plaintiff, Carolyn Daigle, challenging the trial court's allocation of fault and its award of damages. For the following reasons, we amend in part and affirm, as amended.
FACTS AND PROCEDURAL HISTORY
This matter arises out of a multi-vehicle, rear-end collision accident that occurred on August 19, 2008, around 4:30 p.m. on Highway 75 in Iberville Parish. Stella Scioneaux, the driver of the first vehicle, was observing the erratic driving activity of a white SUV (referred to at trial as the "phantom vehicle"), which had been traveling immediately in front of her vehicle. After the phantom vehicle stopped abruptly, Scioneaux came to a complete stop behind it. The vehicle traveling immediately behind Scioneaux was driven by Michael Hebert, who was, at the time of the accident, an employee of the Iberville Parish Council acting in the course and scope of his employment. The vehicle traveling immediately behind Hebert was driven by the plaintiff, Daigle. Although Scioneaux brought her vehicle to a complete stop, Hebert collided with the rear end of Scioneaux's vehicle, and Daigle then collided into the rear end of Hebert's vehicle.
Daigle instituted this suit for damages naming as defendants: Scioneaux; Scioneaux's automobile liability insurer, US Agencies Direct Insurance Company; Hebert; Hebert's employer, the Iberville Parish Council; the Iberville Parish Council's automobile liability insurer, Ace American Insurance Company; and Daigle's uninsured/underinsured motorist carrier, State Farm Automobile Insurance Company. The matter proceeded to a bench trial on liability and damages against the Iberville Parish Council and Ace American Insurance Company. The parties stipulated that Daigle's damages did not exceed $50,000.00, exclusive of interest and costs. Following trial, the trial court allocated one-third of the fault in causing the accident to Daigle and allocated two-thirds of the fault to Hebert, implicitly reasoning that Daigle was faced with a "sudden emergency" sufficient to overcome the legal presumption that she was at fault in causing the rear-end collision. The trial court ordered the parties to submit post-trial briefs on quantum. The trial court issued its reasons for judgment as to quantum on May 15, 2014. The trial court signed a judgment on July 22, 2014, in favor of Daigle and against the Iberville Parish Council and Ace American Insurance Company in the amount of $50,000.00, reduced by Daigle's one-third percentage of fault, for a total damage award of $33,335.00, plus interest, as well as court costs and expert witness fees, both of which were also reduced by Daigle's one-third percentage of fault.
Daigle's husband, Lynwood Daigle, and their minor child, Matthew Daigle, made claims for damages for loss of consortium, services, and society. Daigle testified that she and Lynwood divorced in December of 2011. While there was some indication at trial that the plaintiffs might no longer be pursuing those claims, the ultimate resolution of the consortium claims is not clear from the record. However, none of those claims were raised or addressed in this appeal, and, thus, are not before us for review.
Prior to trial, Daigle voluntarily dismissed Scioneaux from the suit, with prejudice. State Farm was also dismissed from the suit, without prejudice.
In applying the sudden emergency doctrine, the trial court noted as follows:
What you're not really expected to see is a spaceship fall out of the sky, a tree unexpectedly slammed down in front of you, or the vehicle in front of you slamming into the vehicle in front of them, all because somebody put their blinkers on, hit their brakes, and they were gonna turn, and I agree; at this point in time, the phantom vehicle was not really at issue, but in the ordinary course of business, everybody slows down, you put your blinkers on, put your brakes on, if you have to, to turn.
You don't go down the road expecting that all of a sudden, I'm driving the speed limit; I'm being safe, and all of a sudden, (slamming hand on desk) bam. And, I mean, they don't go anywhere. I mean, I don't know how far the vehicle's pushed forward, but it was a - more of a sudden impact to [Daigle] than it was for - [Hebert].
The Iberville Parish Council and Ace American Insurance now appeal, urging the following five assignments of error:
(1) The Trial Court erred in finding that Carolyn Daigle was faced with a sudden emergency during this accident which was sufficient to overcome the legal presumption that she was at fault for rear ending Michael Hebert;
(2) Assuming arguendo that the Trial Court correctly found that Carolyn Daigle was faced with a sudden emergency, the Trial Court erred in finding the Plaintiff to be only 1/3rd at fault in causing this accident under a comparative/contributory fault analysis;
(3) The Trial Court erred in finding that the phantom vehicle did not contribute to or cause this accident;
(4) The Trial Court erred in its conclusion that the Plaintiff's testimony was honest, that she was not malingering and she was not trying to pad the record in this matter; and
(5) The Trial Court erred in awarding the Plaintiff damages of $50,000.00 for a soft tissue injury with annular fissure.
DISCUSSION
Assignments of Error Numbers One, Two, and Three
At trial, Daigle's theory of causation was that although she was a rear-ending motorist, Hebert's action of suddenly stopping and rear-ending Scioneaux created a sudden emergency in her lane of travel that caused Daigle to rear-end Hebert. In their first assignment of error on appeal, the defendants argue that the trial court erred in apparently accepting this argument and finding that Daigle was faced with a sudden emergency such that she could escape liability for her rear-end collision with Hebert. Alternatively, in their second assignment of error, the defendants argue that if this court finds that Daigle was faced with a sudden emergency, the trial court erred in only allocating one-third of the fault in causing the accident to her. In their third assignment of error, the defendants contend that the trial court erred in allocating no fault to the phantom vehicle.
In a personal injury suit, liability is determined under the duty-risk analysis, which requires that the plaintiff 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. Brewer v. J.B. Hunt Transport, Inc., 2009-1408 (La. 3/16/10), 35 So. 3d 230, 240.
Generally, cause-in-fact is the initial inquiry under the duty-risk analysis. The determination to be made is whether the harm would have occurred but for the defendant's alleged substandard conduct or, when concurrent causes are involved, whether the defendant's conduct was a substantial factor in bringing about the harm. Roberts v. Rudzis, 2013-0538 (La. App. 1st Cir. 5/28/14), 146 So. 3d 602, 609, writ denied, 2014-1369 (La. 10/3/14), 149 So. 3d 797.
A trial court's determination that a defendant's conduct was a cause-in-fact of the plaintiff's injuries is a factual determination subject to the manifest error standard of review. A reviewing court must not reverse a trial court's factual determination unless, after reviewing the entire record, it finds (1) that a reasonable factual basis does not exist for the finding, and (2) that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Roberts v. Rudzis, 146 So. 3d at 609. Additionally, the allocation of fault is a factual matter within the sound discretion of the trier of fact and generally will not be disturbed on appeal in the absence of manifest error. Great West Casualty Co. v. State through the Department of Transportation and Development, 2006-1776 (La. App. 1st Cir. 3/28/07), 960 So. 2d 973, 977-978, writ denied, 2007-1227 (La. 9/14/07), 963 So. 2d 1005.
Sudden Emergency Doctrine
As the following motorist in the rear-end collision, Daigle is presumed negligent for having breached the duty imposed by LSA-R.S. 32:81(A), i.e., that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. Mart v. Hill, 505 So. 2d 1120, 1123 (La. 1987); Eubanks v. Brasseal, 310 So. 2d 550, 553 (La. 1975); Ly v. State through the Department of Public Safety and Corrections, 633 So. 2d 197, 201 (La. App. 1st Cir. 1993), writ denied, 93-3134 (La. 2/25/94), 634 So. 2d 835; Roberts v. Rudzis, 146 So. 3d at 608. As noted by the defendants, in addition to the duty to follow at a reasonable and prudent distance, a motorist also has a duty to maintain a careful lookout, observe any obstructions present, and exercise care to avoid them. Ly v. State through the Department of Public Safety and Corrections, 633 So. 2d at 201. Thus, we agree that in this case, Daigle, as the following motorist that rear-ended Hebert, was subject to a presumption of negligence and had the burden of exculpating herself from her fault for the accident.
The record establishes that both Daigle and Hebert were following motorists. Pursuant to LSA-R.S. 32:81(A), Hebert also had a duty not to follow another vehicle more closely than was reasonably prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway. As the following motorist who rear-ended Scioneaux, Hebert was also subject to a presumption of negligence as to that collision, as he breached his duty set out in LSA-R.S. 32:81(A). However, the issues of liability and damages for the first collision, i.e., Hebert's rear-end collision with Scioneaux, were not on trial in the instant matter.
However, under the sudden emergency doctrine, there is an exception to the general rule that a following motorist is presumed negligent if he collides with the rear of a leading vehicle. Ly v. State through the Department of Public Safety and Corrections, 633 So. 2d at 201. The doctrine provides that a following motorist will be adjudged free from fault if the following motorist is suddenly confronted with an unanticipated hazard created by a forward vehicle, which could not reasonably be avoided, unless the emergency is brought about by his own negligence. Ly v. State through the Department of Public Safety and Corrections, 633 So. 2d at 201 (citing Fontenot v. Boehm, 512 So. 2d 1192, 1194 (La. App. 1st Cir. 1987)).
The sudden emergency doctrine does not apply to lower the standard of care required of motorists before the emergency occurs. See Anderson v. May, 2001-1031 (La. App. 5th Cir. 2/13/02), 812 So. 2d 81, 86. Moreover, as previously noted by this court, the sudden emergency doctrine is not limited to situations where the person claiming the benefit of the defense is the person in immediate peril. Rather, it is the unanticipated hazard which is the foundation for invoking the sudden emergency doctrine. Whiddon v. Hutchinson, 94-2000 (La. App. 1st Cir. 2/23/96), 668 So. 2d 1368, 1374, writ denied, 96-0731 (La. 5/10/96), 672 So. 2d 923 and writ denied, 96-0775 (La. 5/10/96), 672 So. 2d 923. The rationale for the doctrine is the principle that a person confronted with a sudden emergency, who does not have sufficient time to weigh and consider the best means to avoid an impending danger, should not be held to the same standard of control, care, and caution as someone who has ample opportunity to fully exercise judgment and reason. Whiddon v. Hutchinson, 668 So. 2d at 1374. This rationale applies equally, regardless of whether the person in imminent peril is the defendant claiming the defense or another person who the defendant recognizes to be in a position of imminent peril. Whiddon v. Hutchinson, 668 So. 2d at 1374.
Although the sudden emergency doctrine was developed when contributory negligence was a complete bar to recovery, our courts continue to apply the doctrine. Duzon v. Stallworth, 2001-1187 (La. App. 1st Cir. 12/11/02), 866 So. 2d 837, 858, writs denied, 2003-0589, 2003-0605 (La. 5/2/03), 842 So. 2d 1101, 1110; Jefferson v. Soileau, 2003-0541 (La. App. 1st Cir. 12/31/03), 864 So. 2d 250, 253; writ denied, 2004-0594 (La. 4/23/04), 870 So. 2d 306; Whiddon v. Hutchinson, 668 So. 2d at 1374-1377; Roberts v. Rudzis, 146 So. 3d at 612-13 (Welch, J., dissenting). We nonetheless note, however, that some courts have treated the defense of sudden emergency as one of the factual considerations used in assessing the degree of fault to be attributed to a party. See Manuel v. St. John the Baptist Parish School Board, 98-1265 (La. App. 5th Cir. 3/30/99), 734 So. 2d 766, 769, writ denied, 99-1193 (La. 6/4/99), 744 So. 2d 632; King v. State Farm Insurance Company, 47,368 (La. App. 2nd Cir. 8/8/12), 104 So. 3d 33, 38; Cf. Harbin v. Ward, 2013-1620 (La. App. 1st Cir. 5/29/14), 147 So. 3d 213, 218.
In this state, courts have found sudden emergencies in cases where following motorists-whether in or not in positions of imminent peril-are faced with unanticipated hazards, provided that the motorists have not brought the hazard upon themselves by their own conduct and where the motorists have used due care to avoid the hazards.
See McMullan v. Allstate Insurance Company, 242 So. 2d 921 (La. App. 1st Cir. 1970), writ denied, 257 La. 990, 244 So. 2d 859 (1971) (where this court held that the evidence established that both drivers were faced with a sudden emergency, acted accordingly, and were not negligent where: the following automobile and lead automobile in which plaintiff was riding were traveling at a speed of from 40 to 45 miles per hour on a wet surface; the following automobile was from 125 feet to 150 feet behind lead automobile; a wave of water from a passing vehicle caused momentary blindness on the part of the lead driver, causing him to veer onto the shoulder, and, in attempting to get back onto roadway, his automobile spun around and was struck by the automobile of the following driver, who was unable to avoid the accident after applying brakes); Hickman v. South Pacific Transport Company, 262 La. 102, 262 So. 2d 385 (1972) (where the supreme court held that when a truck driver drove from a private driveway onto the favored highway in the path of oncoming motorcycles and blocked and obstructed free passage in both lanes of travel, the motorcyclist's action in swerving to left to avoid truck and striking rear of preceding motorcycle, instead of swerving to the right into the wide driveway from which truck had just emerged, did not constitute contributory negligence in the face of the sudden emergency with which he was confronted); Marigny v. Allstate Insurance Company, 95-0952 (La. App. 4th Cir. 1/31/96), 667 So. 2d 1229, writ denied, 96-0693 (La. 4/26/96), 672 So. 2d 910 (where under the sudden emergency doctrine, the driver in the left lane of a three-lane highway, who was confronted by a vehicle traveling in the wrong direction in her lane was not liable for the accident that occurred when she lost control of her vehicle while attempting to move into the right-hand lane and the vehicle that had been directly behind her in the left-hand lane was struck head-on by oncoming vehicle; the only reasonable inference to be drawn from the uncontested evidence was that the driver had only seconds in which to react to the situation of imminent peril, and there was no evidence that she should have been aware of oncoming vehicle until the vehicle that had been in front of her swerved to right; moreover, the fact that the driver lost control of her vehicle in attempting to change lanes did not preclude application of the doctrine); Whiddon v. Hutchinson, 94-2000 (La. App. 1st Cir. 2/23/96), 668 So. 2d 1368, writ denied, 96-0731 (La. 5/10/96), 672 So. 2d 923, and writ denied, 96-0775 (La. 5/10/96), 672 So. 2d 923 (where the sudden emergency doctrine exonerated defendant northbound trucker from any liability for striking plaintiff southbound motorist in her lane when southbound motorist preceding plaintiff turned left in front of defendant and he attempted, unsuccessfully, to steer between them; trucker was driving within speed limit and was maintaining proper lookout, trucker was approximately 100 feet from car that turned in front of him, trucker was faced with imminent prospect of hitting that car broadside, and the fact that the maneuver he attempted failed did not mean his actions were unreasonable); Dennison v. Incorporated WHC, 2004-304 (La. App. 5th Cir. 9/28/04), 885 So. 2d 16 (where it was not clearly wrong for the trial court to find that the motorist, who rear-ended a truck, met her burden of proving that the truck created an unanticipated hazard that relieved the motorist of at least some of the liability created by the presumption that a following vehicle who rear-ends a preceding vehicle is at fault; according to the motorist's uncontroverted testimony, her vehicle did not strike driver's truck directly from rear, but, rather, the impact occurred on the driver's side of the truck, photographs supported the motorist's version of accident, and the motorist testified that the driver improperly and suddenly attempted to make a left turn from right lane in front of her vehicle). See also Cowart v. Rice, 2011-0492 (La. App. 1st Cir. 11/9/11), 2011 WL 5410203 (unpublished) (where a tractor driver mowing grass on the side of interstate entered the driver's lane of travel on the interstate, and after swerving to avoid a collision with the tractor, the driver was rear-ended by a following motorist; the sudden emergency doctrine applied to relieve the following motorist of liability); Barrilleaux v. State, Department of Transportation & Development, 2012-0060 (La. App. 1st Cir. 5/9/13), 2013 WL 1943995 (unpublished), writ denied, 2013-1627 (La. 11/7/13), 125 So. 3d 439 (jury was not manifestly erroneous or clearly wrong in finding that the direct cause of the accident was the failure of the DOTD to provide warning signs, which rendered the roadway where the accident occurred defective; thus, without any warning of the condition ahead, plaintiff was absolved of any fault in the case under the sudden emergency doctrine).
However, as specifically recognized in Fontenot v. Boehm, 512 So. 2d 1192 (La. App. 1st Cir. 1987), the sudden emergency doctrine applies to unanticipated hazards and not those of the driver's making. In Fontenot, a motorist whose view of a stopped vehicle was allegedly obstructed by a third party could not invoke the sudden emergency doctrine to overcome the presumption of negligence after the motorist collided with the rear of a stopped vehicle, where the driver of the stopped vehicle was guilty of no fault. See also Hadley v. Doe, 626 So. 2d 747 (La. App. 5th Cir. 1993) (where the sudden emergency doctrine was not applicable to an accident in which the following motorist struck the preceding motorist in icy conditions; the following motorist knew of the hazardous road conditions, the conditions did not suddenly arise, and the following motorist should have reasonably anticipated stalling of preceding motorist under such conditions); Ly v. State Through Department of Public Safety and Corrections, 633 So. 2d 197 (La. App. 1st Cir. 1993), writ denied, 634 So. 2d 835 (La. 1994) (a following motorist, whose vehicle rear-ended a stalled vehicle on the interstate, was partially at fault for accident; while the following motorist's view of the stalled vehicle was obstructed by a third vehicle between them, the following motorist breached his duty to maintain a careful lookout by leaving only 100 feet or eight or nine car lengths between his vehicle and the third vehicle, and the following motorist was clearly exceeding the posted speed limit at the time of the accident such that the sudden emergency doctrine did not apply); Harbin v. Ward, 2013-1620 (La. App. 1st Cir. 5/29/14), 147 So. 3d 213 (the sudden emergency doctrine did not operate to completely absolve a motorist of fault for her rear-end collision with an abruptly-braking school bus that had, just moments earlier, struck another vehicle which had pulled out in front of the bus while attempting to cross a third lane and enter the fourth lane in which the bus was traveling, and thus, motorist was at least 25 percent at fault, whereas driver of the other vehicle was, at most, 75 percent at fault; motorist, who admitted that she was "[r]oughly around two car lengths" behind the bus and that she had sped up to a rate of speed between 30 and 35 miles per hour, simply could not rebut the presumption of negligence arising from her act of rear-ending the bus). In sum, the doctrine of unavoidable or inevitable accident relieves a person of liability so long as the person invoking the doctrine shows that he was in no way to blame for the happening. Carias v. Loren, 2014-0655 (La. App. 1st Cir. 3/9/15), 2015 WL 1019481 *3 (unpublished), writ denied, (La. 8/28/15), 176 So. 3d 402.
In the instant case, Scioneaux and Hebert testified that it had rained approximately thirty to forty minutes prior to the accident, and the roads were still wet and steamy from the rain. The phantom vehicle was driving erratically in the eastbound lane of Highway 75, turning its blinker on and off, hitting and letting off its brakes, accelerating and decelerating. Scioneaux testified that she had been monitoring the phantom's vehicle activity and pumping her brakes to avoid a collision with the phantom vehicle, in addition to adjusting her driving by slowing down due to the slick roadway. The phantom vehicle then turned on its left blinker and stopped abruptly, attempting to make a left turn. Notably, Scioneaux came to a complete stop behind the phantom vehicle and was able to avoid a rear-end collision.
Hebert, who had observed the erratic driving of the phantom vehicle as well as the operation of Scioneaux's vehicle, testified that he had pumped his brakes and began slowing down while his vehicle was approximately forty car lengths behind Scioneaux's vehicle. Hebert testified that he was not distracted by the erratic driving of the phantom vehicle. Hebert testified that after Scioneaux came to a complete stop, he observed Scioneaux release her brakes, so he proceeded to accelerate; however, although Scioneaux had released her brakes, she had not yet proceeded to accelerate as Hebert had anticipated and was still at a stop. When he realized Scioneaux was still at a stop, Hebert slammed on his brakes and rear-ended Scioneaux's vehicle. Hebert stated that immediately after he rear-ended Scioneaux, he was rear-ended by Daigle. Hebert testified that his vehicle did not skid or slide on the roadway.
Hebert testified that he used hand controls to operate his vehicle; however, no evidence or testimony was presented to establish how or why he operated the vehicle owned by the Iberville Parish Council with hand controls, nor did his operation of the vehicle by hand controls appear to be an issue at trial, although Hebert's "handicap" was noted by the trial court.
Daigle testified that although there was some steam coming off of the road due to the previous rainfall, her view was not obstructed in any way, and she could clearly see the roadway and everything in front of her vehicle, in addition to the other vehicles on the roadway. Daigle confirmed that the highway she was traversing was straight and that there were no unusual items in the roadway. Daigle was not operating her cell phone, playing with the car radio, or looking in any direction, except forward. Daigle admitted that although it had just rained, she did not adjust her driving in any way. Daigle could not recall how fast she was driving, nor could she recall how much distance was left between her vehicle and Hebert's vehicle; however, she stated that she was not following Hebert's vehicle too closely. Daigle testified that she disagreed with the police report to the extent that it stated she was following too closely to Hebert's vehicle. According to Daigle, the accident occurred when Hebert suddenly slammed on his brakes and came to a complete stop as he rear-ended Scioneaux. Daigle testified that she only saw Hebert brake once, immediately prior to the collision. She indicated that she had no idea what was going on in front of Hebert or why Hebert had stopped so abruptly. Daigle testified that as she slammed on her brakes to avoid the accident, her vehicle began sliding, and she "braced [her]self" for the impending collision by covering her chest with her hand. She then rear-ended Hebert. Daigle stated that she could not have veered off to the left or the right, otherwise she would have veered into on-coming traffic or into a ditch.
After reviewing the record in its entirety, we find that the trial court's ultimate determination that Daigle was one-third at fault and Hebert was two-thirds at fault in causing the accident was interdicted by error. Here, the trial court applied the sudden emergency doctrine and allocated two-thirds of the fault for causing the accident to Hebert, apparently based solely on the fact that Hebert's "sudden stop" created an unanticipated hazard that could not be reasonably avoided by Daigle. However, as the record demonstrates, although Daigle claimed she was not speeding or following too closely to Hebert's vehicle, she could not recall her distance from his vehicle, nor her speed at the time of the accident. As the record further shows, Daigle did not act as a reasonably prudent driver under the circumstances when she failed to take the wet roadway into account and to adjust her driving accordingly. Although Hebert's stop was abrupt, he testified that he braked several times prior to his rear-end collision with Scioneaux. Moreover, Daigle testified that she saw Hebert brake before his collision with Scioneaux. Thus, although Daigle argues that Hebert's stop was such an unanticipated hazard as to invoke the sudden emergency doctrine, she admittedly was able to "brace herself for the collision.
In sum, this is a classic rear-end collision situation where but-for Daigle's failure to follow Hebert at a reasonable and prudent distance, maintain a careful lookout, observe any obstructions present and exercise care to avoid them, her rear-end collision with Hebert would not have occurred. As the trial court stated, "I do find there is some fault on Ms. Daigle, because if she had been not quite as close as she would have, she would have been able to perhaps avoid this." Applying the jurisprudence set forth above to the facts set forth herein, we find the trial court erred in applying the sudden emergency doctrine.
Appellate review of a question of law is simply to determine whether the trial court was legally correct. If the trial court's decision is based on its erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court. Pruitt v. Brinker, Inc., 2004-0152 (La. App. 1st Cir. 2/11/05), 899 So. 2d 46, 49, writ denied, 2005-1261 (La. 12/12/05), 917 So. 2d 1084. Thus, where one or more legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court conducts its own independent de novo review of the record. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 735. Legal error occurs when a trial court incorrectly applies a principle of law and such errors are prejudicial. Evans v. Lungrin, 708 So. 2d at 735. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Evans v. Lungrin, 708 So. 2d at 735.
In this case, we find the trial court erred as a matter of law in applying the sudden emergency doctrine to limit Daigle's liability, and this legal error interdicted the fact-finding process to the prejudice of the defendants by ignoring the legal presumption of LSA-R.S. 32:81(A) when allocating fault for the accident. See Roberts v. Rudzis, 146 So. 3d at 614 (Welch, J. dissenting).
We further conclude that to affirm the trial court's application of the sudden emergency doctrine under these facts would set a dangerous precedent for future litigation, as any following motorist who rear-ends a vehicle could argue that any and every vehicle that comes to a sudden stop constitutes an "unanticipated hazard" in order to invoke the sudden emergency doctrine and escape liability. Rear-end collisions are common occurrences on the roadways of this state, and an abruptly stopped vehicle is not an unanticipated occurrence by any means.
Accordingly, because we find merit to the defendants' first assignment of error, we must now reallocate the comparative fault of the parties to a percentage that was reasonably within the trial court's discretion. In assessing liability, the trier of fact is required to compare the relative fault of the parties. In allocating fault, the trial court must consider both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, 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. Watson v. State Farm Fire and Casualty Insurance Company, 469 So. 2d 967, 974 (La. 1985).
Considering these factors and the circumstances in this case, we are convinced that the accident at issue resulted from concurrent fault. However, we find that the concurrent fault of three parties caused this accident: the phantom driver, Hebert, and Daigle. The testimony shows that the phantom driver was driving erratically, by stopping suddenly, turning its blinker on and off, hitting and letting off its brakes, and accelerating and decelerating. Although Scioneaux was able to stop by pumping her brakes to avoid colliding into the phantom vehicle, the following motorists, Hebert and Daigle failed to do so and must bear some fault for their failure to exercise due care and comply with LSA-R.S. 32:81(A). Accordingly, we find that the proper allocation of fault under these facts is one-third to the phantom driver, one-third to Hebert, and one-third to Daigle. Thus, the judgment of the trial court will be amended to reflect that the phantom driver, Hebert, and Daigle each bear one-third of the fault in causing the accident herein.
To the extent that the phantom driver is not a party to these proceedings, we note that in an action for damages, fault may be allotted to all persons causing or contributing to the injury regardless of whether the person is a party to the action or a nonparty, or whether the person's identity is not known or reasonably ascertainable. See LSA-C.C. art. 2323(A).
Having determined that the trial court erred in applying the sudden emergency doctrine to limit Daigle's liability and in failing to properly allocate fault to the phantom vehicle, we pretermit discussion of the defendants' second assignment of error as moot. Moreover, by our allocation of comparative fault to the phantom vehicle under our de novo review, we implicitly find merit to the defendants' third assignment of error.
Assignments of Error Numbers Four and Five
In their fourth assignment of error, the defendants contend that the trial court erred in finding that Daigle was credible and in concluding that she was not malingering. As support, the defendants contend that her testimony was self-serving and contained inconsistencies relative to her pre-accident and post-accident medical treatment. In their final assignment of error, the defendants contend that the trial court erred in awarding her $50,000.00 in general and special damages for her injuries.
Daigle described the impact with Hebert's vehicle as a "hard hit," which twisted the frame of her vehicle and caused her airbags to deploy and trunk to fly open, ultimately rendering her vehicle "totaled." In the face of the impending impact with Hebert's vehicle, Daigle, who had undergone breast augmentation surgery approximately a week before the accident, covered her breasts before the airbags deployed; however, the airbags hit her in the breasts and on her leg, causing her knee to hit the dashboard and her head to be thrown back and forth against the seat. After the accident, Daigle was shaken up, crying, and hurting. Her sister picked her up from the accident site and drove her home, where she was bed-ridden and applied ice packs and heating pads for a while. Shortly thereafter, she presented at the emergency room at Baton Rouge General Hospital with complaints of pain in her head, back, leg, arm, and complaints that her breasts were "burning." The next day, she sought treatment with a chiropractor, Dr. Michael Goff. At trial, Daigle testified that she continues to experience back pain every day.
Dr. Michael Goff, who was accepted by the court as an expert in the field of chiropractics, was Daigle's treating physician for the injuries she sustained in the accident. Daigle was seen by him on August 20, 2008, the day following the accident, with complaints of pain in her lower back, neck, head, leg, arm, and breasts. After examination and testing, Dr. Goff determined that, as a result of the accident, Daigle sustained a cervical sprain/strain, compression of the cervical brachial plexus, brachial neuritis/radiculitis, cervicalgia, lumbalgia, TMJ dysfunction, thoracic sprain, lumbar sprain/strain, compression of the lumbo-sacral plexus, and sciatica. After initial testing, he subsequently ordered further testing, which lumbar MRI showed bilateral neuroforaminal stenosis as a consequence of defuse bulge of the annulus fibrosis. Dr. Goff opined that Daigle had stenosis on both sides bilaterally resulting from the disc bulge on those three levels. Although Dr. Goff treated Daigle for these injuries, he opined that because of these injuries, Daigle was more susceptible to further injury. Further, he assigned her a permanent impairment rating of 15% for her entire body. After acknowledging that he was familiar with Daigle's medical history, Dr. Goff opined "with medical certainty" that the trauma causing Daigle's injuries resulted from a result of this accident. Dr. Goff further testified that he believed that Daigle was a "very honest and sincere person" and "definitely [felt] like she wasn't a malingerer."
In its oral reasons for judgment, the trial court noted as follows: CRAIN, J., dissenting.
I believe that Daigle failed to prove that Hebert's conduct was a cause-in-fact of her injuries, and without proof of this essential element of Daigle's claim, cannot be found liable. See Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La. 3/16/10), 35 So. 3d 230, 237-38. The majority recognizes Daigle was an inattentive driver - she failed to follow Hebert at a reasonable and prudent distance, maintain a careful lookout, observe any obstructions present, and exercise care to avoid them. With no forensic evidence to prove that but for Hebert's collision with Scioneaux, Daigle would not have rear-ended Hebert, I would find that the sole proven cause of Daigle's injuries in this classic rear-end collision case was his own inattentiveness. Concluding otherwise from the absence of evidence was manifest error. Accordingly, I would reverse the trial court's judgment insofar as it holds Hebert liable.
Additionally, I do not agree with the majority's conclusion that "the trial court erred as a matter of law in applying the sudden emergency doctrine to limit Daigle's liability." Under the law of this circuit, the sudden emergency doctrine operates to absolve a following rear-ending motorist of any liability. E.g. Barrilleaux v. State Dept. of Transp. and Development, 12-0060, 2013 WL 1943995, p.11 (La. App. 1 Cir. 5/9/13); Cowart v. Rice, 11-0492, 2011 WL 5410203, p.2 (La. App. 1 Cir. 11/9/11); Saylor v. Viguet, 09-1686, 2010 WL 1170381, p.2 (La. App. 1 Cir. 3/26/10); Wiley v. Allstate Ins. Co., 09-0706, 2009 WL 3453929, p.2 (La. App. 1 Cir. 10/23/09); Bourgeois v. Leonard, 07-1487, 2008 WL 426279, p.2 (La. App. 1 Cir. 2/8/08). See also Harbin v. Ward, 13-1620 (La. App. 1 Cir. 5/29/14), 147 So. 3d 213, 218 (where this court acknowledged that courts other than the First Circuit have considered the sudden emergency doctrine as a factual consideration used in assessing the degree of fault to be attributed to a party, but did not purport to change the way the doctrine is treated by this court). Therefore, the trial court's allocation of fault to Daigle is consistent with the trial court's rejection of the sudden emergency doctrine. This is further reflected in the trial court's oral reasons where it stated, "It can't be said, just because there's an accident in front of you that I have no fault." I respectfully suggest that the majority's application of de novo review is in error.