Opinion
NO. 2017–CA–0221
10-18-2017
Joanne DITCHARO, et al v. STATE of Louisiana, et al
Leo J. Palazzo Jason J. Markey Mario A. Arteaga, Jr. PALAZZO LAW FIRM, APLC 732 Behrman Highway, Suites F & G Gretna, LA 70056 David L. Bateman Bateman Law Firm 6010 Perkins Road, Suite A Baton Rouge, LA 70808 COUNSEL FOR PLAINTIFF/APPELLEE Jeff Landry ATTORNEY GENERAL Kate Campbell Casanova WM. David Coffey ASSISTANT ATTORNEYS GENERAL 1450 Poydras Street, Suite 900 New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT
Leo J. Palazzo Jason J. Markey Mario A. Arteaga, Jr. PALAZZO LAW FIRM, APLC 732 Behrman Highway, Suites F & G Gretna, LA 70056
David L. Bateman Bateman Law Firm 6010 Perkins Road, Suite A Baton Rouge, LA 70808 COUNSEL FOR PLAINTIFF/APPELLEE
Jeff Landry ATTORNEY GENERAL Kate Campbell Casanova WM. David Coffey ASSISTANT ATTORNEYS GENERAL 1450 Poydras Street, Suite 900 New Orleans, LA 70130 COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge Paula A. Brown )
Judge Roland L. Belsome
This appeal arises from an August 13, 2003 vehicular accident that occurred on Louisiana Highway No. 23 in Plaquemines Parish. (Highway 23). Dominick Ditcharo, Jr. died from the injuries sustained in the accident. Mr. Ditcharo's widow and two sons (collectively the Appellees) filed a petition for wrongful death and survival damages against the State of Louisiana through the Department of Transportation and Development (DOTD), Citrus Land Company, LLC (Citrus Land), and Plaquemines Parish Government (PPG). After a jury trial on the merits, the Appellees were awarded $1,860,000.00 in damages. This appeal followed.
The survival action was brought by Mr. Ditcharo's estate.
Facts
On August 13, 2003, at approximately 4:10 p.m., Mr. Ditcharo was driving his 2003 Dodge Ram pick-up truck north bound on Highway 23 when his vehicle hit a puddle of standing water. He lost control of his vehicle as it hydroplaned and flipped over. As a result of the accident, Mr. Ditcharo suffered a laceration to his head which caused him to bleed to death.
Following Mr. Ditcharo's death, his widow, Joanne Ditcharo, and his sons, Dominick Ditcharo, III and Derek Ditcharo filed a wrongful death and survival action against DOTD, Citrus Land, and PPG. The allegation against DOTD was negligence in the design and maintenance of the roadway allowing a defective and unreasonably dangerous condition to exist. The Appellees further alleged that Citrus Land, as the adjacent landowner, was negligent in failing to keep its property free from defects. Lastly, the Appellees claimed that PPG failed to take corrective measures in the area to prevent the presence of standing water. Citrus Land settled prior to trial.
The case was presented to a jury and it was determined that DOTD was ninety-five percent (95%) at fault and Mr. Ditcharo five percent (5%) at fault for the accident. In so finding, the jury awarded $325,000.00 for Mr. Ditcharo's survival damages, Mrs. Ditcharo was awarded $1,000,000.00, and Dominick and Derek $750,000.00 each for wrongful death damages. After adjusting for Mr. Ditcharo's 5% fault and the limitations of La. R.S. 13:5106 , the trial court rendered judgment in favor of Mr. Ditcharo's estate for the sum of $342,000.00, and in favor of Mrs. Ditcharo, Dominick, and Derek in the sum of $500,000.00 each.
The jury did not apportion any percentage of fault to PPG.
La.R.S. 13:5106 provides in pertinent part: The total liability of the state and political subdivisions for all damages for wrongful death of any one person, including all claims and derivative claims, exclusive of property damages, medical care and related benefits and loss of earnings or loss of support, and loss of future support, as provided in this Section, shall not exceed five hundred thousand dollars...
La. R.S. 13:5106(B)(2).
Assignments of Error on Appeal
DOTD has offered seven enumerated assignments of error that it maintains either warrant a new trial, or a reapportionment of fault, and/or a reduction in the damage awards. For the purposes of this appeal, the assignments of error will be addressed in two categories: 1) errors associated with the trial court's evidentiary rulings; and 2) errors attributed to the jury's findings.
Trial Court's Evidentiary Rulings
We first address the evidentiary rulings raised on appeal. It is well settled that a trial court is afforded vast discretion with regard to evidentiary rulings, and the court's decision to admit or deny evidence will not be disturbed on appeal absent a clear abuse of that discretion.
Knoten v. Westbrook , 2014-0892 (La. App. 4 Cir. 5/18/16), 193 So.3d 380, 384–85, reh'g denied (5/31/16), writ denied, 2016-1260 (La. 10/28/16), 208 So.3d 890 (citing Guillot v. Daimlerchrysler Corp ., 2008-1485, p. 21 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 190 ).
On appeal, DOTD challenges several of the evidentiary rulings made by the trial court. First, DOTD maintains that the trial court erred in allowing William Nungesser to testify regarding an incident where his car hydroplaned on Highway 23. Next, DOTD contends that the trial court's granting of a motion in limine to limit the testimony of DOTD's toxicologist, Dr. William George was erroneous and prejudicial. Lastly, DOTD claims that the trial court erroneously failed to include DOTD's requested special jury charges when instructing the jury.
William Nungesser's Testimony
At trial, the deposition testimony of William Nungesser was read into the record. Prior to the introduction of the deposition testimony, DOTD filed a motion to exclude Mr. Nungesser's testimony. Mr. Nungesser's testimony included the fact that he had an experience on Highway 23 in which his vehicle hydroplaned due to standing water. DOTD sought to exclude the testimony on the grounds that the conditions and location where Mr. Nungesser hydroplaned were too dissimilar to the occurrences surrounding Mr. Ditcharo's accident. The trial court disagreed and denied DOTD's motion.
In this appeal, DOTD argues that Mr. Nungesser's testimony should have been excluded because his vehicular incident differed from Mr. Ditcharo's experience in 3 main ways: 1) the type of vehicles driven in each incident; 2) the location of the incidents; and 3) the conditions at the time of the incidents. Thus, the trial court erred when it deemed the testimony admissible.
Mr. Nungesser's testimony discussed his personal knowledge of flooding in the area of Mr. Ditcharo's accident. He stated that he lived off of Highway 23, traveled it daily, and was aware of the existence of standing water when it rained. He further stated that he shared that knowledge with numerous politicians and entities including DOTD.
In December of 2002, Mr. Nungesser wrote correspondence to as many as 19 local, state, and federal officials regarding the flooding along Highway 23.
Mr. Nungesser testified that while driving a 924 Porsche his vehicle hydroplaned after traveling through standing water that had accumulated due to rain. It was determined that the standing water he encountered was located approximately 500 feet from the exact area that Mr. Ditcharo encountered standing water. Mr. Nungesser estimated the amount of water that had accumulated on the side of the road at the time of his incident measured somewhere between 4 to 8 inches.
Louisiana courts have found that evidence of prior accidents is admissible for the limited purpose of showing that a thing or place was dangerous and the defendant knew of the dangerous condition. Yet, to be relevant, the other accident should occur at substantially the same place and under substantially the same conditions, and must be caused by the same or similar defect or danger.
Brodtmann v. Duke , 96-0257 (La. App. 4 Cir. 2/11/98), 708 So.2d 447
Id.
The similarities of location, rainy conditions, and standing water are substantial enough to support the trial court's decision to admit Mr. Nungesser's testimony into evidence. Therefore, we find no abuse of discretion on the part of the trial court.
Dr.William George's Testimony
Based on a toxicology report on bodily fluids gathered at the time of autopsy, the State presented Dr. William George to give his expert opinion on: 1) the significance of alcohol levels in the blood, 2) the known effects of alcohol, and 3) whether Mr. Ditcharo would have been impaired by alcohol based on the results of the toxicology report performed after the accident. The Appellees filed a Motion in Limine to limit Dr. George's testimony to those three topics as outlined in his report and deposition testimony. The trial court granted that motion.
In this assignment of error, DOTD complains that the trial court's decision to limit its toxicologist's testimony to the opinions in his report was erroneous and prejudicial to its defense.
The opinions expressed in Dr. George's report, deposition testimony, and trial testimony were based on an August 15, 2003 toxicology report from the Jefferson Parish Coroner's Forensic Laboratory. The report was the outcome of toxicology testing on blood and vitreous humor obtained at the time of Mr. Ditcharo's autopsy conducted on August 14, 2003. The results of the testing indicated that Mr. Ditcharo had a blood alcohol level of .33 and a vitreous humor alcohol level of .31.
Vitreous humor is the transparent jelly-like tissue filling the space between the lens and the retina of the eyeball.
Dr. George stated that according to the test results, Mr. Ditcharo's blood alcohol levels were extremely elevated. He further stated that the effects of levels in excess .20 of alcohol could cause a driver to be 40–50 times more likely than a non-drinking driver to be involved in a fatal automobile accident.
Approximately nine weeks after the first toxicology test was done, a second blood alcohol test was conducted on the same samplings from Mr. Ditcharo's autopsy. The second test, like the first, was conducted by the Jefferson Parish Forensic Center. The results of the second test indicated a blood alcohol level of .21.
The Appellees' expert toxicologist, Dr. Ernest Lykissa, testified at trial, without the State's objection, as to what the deviation between the two tests results indicated. In his testimony, he opined that a deviation of blood alcohol levels from .33 to .21 over a two month period of time indicates a problem with the specimen and/or the equipment used for the testing. His conclusion was that neither of the test results was credible.
Dr. Lykissa further testified that to reach a .33 Mr. Ditcharo would have had to consume fourteen beers. Both Dr. George and Dr. Lykissa agreed that that level of alcohol in the blood would cause severe impairment. Yet, no other evidence supported Mr. Ditcharo being intoxicated. It was established that approximately thirty minutes prior to the accident Mr. Ditcharo had eaten lunch with two officers from the Plaquemines Parish Sheriff's Office. Officers Leon Cognevich and George Martinez testified to Mr. Ditcharo having two beers while eating with them and that he showed no signs of impairment or intoxication. Additionally, there was no documentation from the scene of the accident that indicated alcohol as a possible factor in the accident. Furthermore, Dr. George testified that the normal human reaction time under these circumstances would be 2 seconds. It was determined that Mr. Ditcharo's reaction time was 2 seconds, another indicator that he was not intoxicated or impaired at the time of the accident.
Based on the granting of the Appellees' Motion in Limine, the State was unable to offer expert testimony to dispute Dr. Lykissa's conclusions that the tests were unreliable due to the extreme deviation in test results. The trial court relied, in part, on Louisiana Civil Code of Procedure article 1425 for its ruling. The trial court's scheduling order states that the "disclosure of experts and information pertinent thereto shall be governed by the provisions of La. C.C.P. arts. 1425 and 1428 (depending on if the expert is expected to testify or not)." Article 1425 states in pertinent part:
Upon contradictory motion of any party or on the court's own motion, an order may be entered requiring that each party that has retained or specially employed a person to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony provide a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor and the data or other information considered by the witness in forming the opinions.
This Court addressed a similar circumstance in Radlein v. Holiday Inns, Inc. In Radlein , a party sought to introduce, at trial, an expert's opinion on issues that were not previously disclosed in the expert's deposition testimony. This Court affirmed the trial court's ruling limiting the expert's testimony to the topics and scope of his deposition testimony, noting that the expert failed to offer any updated opinions prior to trial. Given the trial court is afforded wide discretion in determining whether expert testimony should be admitted and the fact that the opinion sought was not addressed in Dr. George's report or deposition testimony, we find no abuse of that discretion.
2007-0322 (La.App. 4 Cir. 11/14/07), 971 So.2d 1200.
Radlein, 2007–0322, p. 8, 971 So.2d at 1205.
Jury Charges
We next address the assignments of error concerning the jury instructions given at trial. La. C.C.P. art. 1792(B) requires a district judge to instruct the jury on the law applicable to the cause submitted to them. The law relative to jury charges was discussed in Wooley v. Lucksinger . "The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate." The question here is whether the district judge adequately instructed the jury. Adequate jury instructions have been defined as "those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues." The trial court is under no obligation to give any specific jury instructions that may be submitted by either party; the court must, however, correctly charge the jury.
2009-0571 (La. 4/1/11), 61 So.3d 507.
Adams v. Rhodia, Inc., 2007-2110 p. 5-6 (La. 5/21/08), 983 So.2d 798, 804.
Knoten v. Westbrook , 2014-0892 (La. App. 4 Cir. 5/18/16), 193 So.3d 380, 386, reh'g denied (5/31/16), writ denied , 2016-1260 (La. 10/28/16), 208 So.3d 890 (citing Adams , 2007–2110 p. 6, 983 So.2d at 804 ).
DOTD maintains that the trial court erred in its failure to include special requested jury charges. DOTD contends that the failure to adopt these special jury charges led to the jury being incorrectly informed of the applicable law. The charges at issue pertained to Mr. Ditcharo's duty as a motorist given the weather conditions, and Mr. Ditcharo's duty to see the standing water and react accordingly. DOTD further wanted the jury charges to inform the jurors that DOTD is not the guarantor of the safety of travelers and is not an insurer against all injury or damage from travelers on a state highway.
A review of the jury charges established that the following pertinent language was included:
Our law requires that a motorist generally keep his vehicle under proper control and at a proper speed and to maintain a proper lookout for hazards which, by use of ordinary care and observation, one should be able to see.
***
If you are convinced by defendant's evidence that the only reason plaintiff was injured was because of his own substandard conduct, you may return a verdict for the defendant...
***
In deciding the question of plaintiff's fault, as it is called in the law, you may ask yourselves this question: Should the plaintiff as an ordinarily prudent person, under all the circumstances surrounding his conduct, have reasonably foreseen some such injury as he suffered as a result of his conduct and did he fail to exercise reasonable care to avoid such injury to himself?
***
The duty of the State through the DOTD is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence...
This duty, however, does not render the State through the DOTD the guarantor for the safety of all of the motoring
public. The state through the DOTD is not the insurer for all injuries or damages resulting from any risk posed by obstructions on or defects in the roadway or its appurtenances.
The record simply does not support DOTD's contention that the jury was misinformed on the applicable law. Accordingly, we find no error on the part of the trial court.
Jury's Findings
DOTD further submits that the jury erred in several of its findings. More specifically, DOTD argues that the survival damage award was not supported by the evidence and the wrongful death awards to Dominick and Derek were excessive. Additionally, DOTD asserts that the jury erred in its apportionment of fault between DOTD (95%), Mr. Ditcharo (5%), and PPG (0%).
The long-standing standard for appellate review of jury determinations of fact was set forth in Mart v. Hill. In Mart , the court established a two-part test for the reversal of a factfinder's determinations:
505 So.2d 1120 (La. 1987).
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
Id. at 1127.
"The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Additionally, "the reviewing court must always keep in mind that ‘if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ "
Stobart v. State through Dep't of Transp. & Dev ., 617 So.2d 880, 882 (La. 1993)
Id. at 882–83.
Wrongful Death Damages
DOTD only challenges the wrongful death damages awarded to Mr. Ditcharo's sons. More specifically, DOTD objects to the damage award as excessive because the sons were adults at the time of Mr. Ditcharo's death. Again, each son was awarded $750,000.00. However, the cap provided for in Stat. Ann. § 13:5106 reduced the awards to $500,000.00 each.
In Wainwright v. Fontenot, the Louisiana Supreme Court clearly stated the following regarding the award of damages:
The assessment of "quantum," or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, "the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993).
2000-0492, p. 6 (La. 10/17/00), 774 So.2d 70, 74.
The Wainwright court further explained that ‘ "before a Court of Appeal can disturb an award made by a [fact finder,] the record must clearly reveal that the trier of fact abused its discretion in making its award." ’
Id. (quoting Coco v. Winston, Inc., 341 So.2d 332, 334 (La. 1977).
At trial, there was ample testimony describing Mr. Ditcharo's close relationship with his sons. Even though they were adults at the time of Mr. Ditcharo's death, Dominick and Derek were with their father daily running the family seafood business. Dominick also lived with his parents prior to and following the accident. Both sons testified about the suffering they have endured and how family events and holiday gatherings had changed for them since their father's death. Even though the trial in this case was 13 years after Mr. Ditcharo's death, the emotional testimony by Dominick and Derek demonstrated that the pain and suffering is still very evident.
Recently, the Third Circuit addressed the issue of wrongful death damages in favor of adult children. In Williams v. Placid Oil Co., four adult children were awarded $750,000.00 each in wrongful death damages. Just as in this case, the testimony elicited at trial described a very close family relationship and further illustrated the extreme loss experienced by each child due to the death of their mother. The court in that case acknowledged that, "the fact that the children in this case were adults does not negate the fact that this was an extremely close and loving family that was devastated by Myra's death."
Williams v. Placid Oil Co ., 2016-839 (La. App. 3 Cir. 8/2/17), 224 So.3d 1101.
Id.
Likewise, in this case, the jury was presented evidence of adult children that had an extraordinarily close and loving relationship with their father. After reviewing the record, we cannot find that the factfinder abused its vast discretion in awarding wrongful death damages in the amount of $500,000.00 each to Dominick and Derek. Accordingly, we will not disturb the awards.
Survival Damages
DOTD argues on appeal that the evidence produced at trial did not support the award of survival damages by the jury. The jury awarded $125,000 for physical pain and suffering, $200,000 for mental anguish and emotional distress and $20,000 for pre-impact fear. DOTD maintains that there was no evidence presented to establish that Mr. Ditcharo was conscious for any period of time following the accident and prior to death. Whether a plaintiff consciously suffered is a factual determination, subject to the manifest error standard.
A jury may award damages for pain and suffering in a survival action where there is the smallest amount of evidence of pain, however brief, on the part of the deceased, based on his actions or otherwise. Courts have restated that standard by claiming that even a scintilla of evidence of pain and suffering is enough to award survival damages to a decedent.
Thompson v. Crawford , 2015-1957 (La. App. 1 Cir. 7/12/17), 223 So.3d 1163, 1171.
Maldonado v. Kiewit Louisiana Co ., 2012-1868 (La. App. 1 Cir. 5/30/14), 152 So.3d 909, 936, writ denied , 2014-2246 (La. 1/16/15), 157 So.3d 1129 (quoting Leary v. State Farm Mut. Auto. Ins. Co., 2007111184 (La. App. 3d Cir. 8/11/99), 806 So.2d 826, 840).
In this case, the coroner, Dr. Fraser McKenzie, concluded after the autopsy, that Mr. Ditcharo died from exsanguination, which is the severe loss of blood, within fifteen to twenty minutes after the accident. However, there was no one at the scene to be an eyewitness to his state of consciousness, and Dr. McKenzie was unable to conclude with medical certainty if Mr. Ditcharo was conscious upon impact and prior to his death.
DOTD focuses on the lack of certainty of Mr. Ditcharo's conscious suffering; yet, that is not the test. On appeal, this Court must review the evidence that is in the record to determine if a reasonable juror could have concluded that there was a scintilla of evidence in support of Mr. Ditcharo's conscious suffering.
The evidence that the jurors did have was the testimony of Dr. McKenzie explaining that Mr. Ditcharo's death was due to him bleeding out of a laceration on his scalp. He described the wound as just a few inches in length and further informed the jurors that the impact that caused the laceration did not cause the skull or brain to be injured. Dr. McKenzie also described the manner in which the body reacts to exsanguination. In his testimony, he explained that as the body loses blood it struggles to stay alive while the organs begin to shut down and ultimately the brain shuts down resulting in death.
Additionally, based on the investigating officer and two accident reconstruction experts, Mr. Ditcharo was conscious when his vehicle encountered the standing water and began hydroplaning. There is also nothing in the record that would indicate he was unconscious after impact when his vehicle began to flip end over end eventually ejecting Mr. Dicharo before coming to a rest. It was several minutes before anyone was on the scene. Mr. Ditcharo was not pronounced dead on the scene but at the hospital.
Given the record's account of the accident and that Mr. Ditcharo's injuries were not caused by trauma significant enough to injure his skull or brain, this Court cannot find that the jury was unreasonable in determining that post-impact Mr. Ditcharo suffered conscious mental anguish and anxiety together with physical pain and suffering for some period of time. Accordingly, we will not disturb the damages.
Apportionment of Fault
The jury found that DOTD was 95% at fault and Mr. Ditcharo was 5% at fault for the accident. In respect to the fault allocation, DOTD argues that Mr. Ditcharo should have been allotted a greater percent of fault and PPG should have found at least partially responsible for the excessive water pooling in the road during and after rain events.
In reviewing comparative fault determinations, the trier of fact is owed some deference in allocating fault because the finding of percentages of fault is also a factual determination. Accordingly, the trier of fact's allocation of fault should only be disturbed on appeal when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion. The allocation of fault is neither an exact science nor a search for one precise ratio, but rather it is an acceptable range and any allocation by the jury within that range cannot be clearly wrong.
Clement v. Frey , 95-1119, p. 6-7 (La. 1/16/96), 666 So.2d 607, 609–610 (citations omitted).
Id.
Id.
PPG
DOTD challenges the jury's failure to find fault on the part of PPG. However, the only evidence that DOTD identifies in the record to create fault on the part of PPG is the layman testimony of Mr. Nungesser. In his testimony, he acknowledged his familiarity with Highway 23 flooding. He further stated that around the time of his hydroplaning incident, he noticed PPG removing mud from ditches along the side of Highway 23. Mr. Nungesser stated that he observed that the mud had been placed behind the ditch. He surmised that those actions may have caused more water to accumulate on the highway.
Given that Mr. Nungesser's testimony was no more than speculation on his part, we cannot find that the jury erred by not apportioning any fault to PPG.
Mr. Ditcharo
DOTD argues that Mr. Ditcharo should have received a higher degree of fault because he should have been driving slower than the posted speed limit because of the rain. The evidence adduced at trial indicated that Mr. Ditcharo was traveling at or near the posted speed limit. Additionally, there was no evidence presented that cited speed as a contributing factor for the accident.
Accordingly, we find the jury was not clearly wrong in its apportionment of 5% of fault to Mr. Ditcharo.
Conclusion
For the reasons discussed, this Court affirms the entirety of the judgment rendered by the trial court.