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Giudry v. Lafayette

Court of Appeal of Louisiana, Third Circuit
May 30, 2007
958 So. 2d 156 (La. Ct. App. 2007)

Opinion

No. CA 07 00151.

May 30, 2007.

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 2005-0605, HONORABLE KRISTIAN EARLES, DISTRICT JUDGE.

Rickey W. Miniex, Clyde R. Simien, Todd M. Swartzendruber, Simien Miniex, Lafayette, Louisiana, Counsel for Defendant/Appellant: Lafayette City Parish Consolidated Government.

L. Clayton Burgess, G. Shelly, Maturin, II, L. Clayton Burgess, A.P.L.C., Lafayette, Louisiana, Counsel for Plaintiff/Appellee: Peggy Guidry.

Court composed of Michael G. Sullivan, Billy Howard Ezell, and J. David Painter, Judges.


AFFIRMED.


The Lafayette City Parish Consolidated Government (Lafayette) appeals the trial court's judgment against it in favor of Peggy Guidry in this vehicular accident case. Ms. Guidry seeks an increase in the damages the trial court awarded to her. For the following reasons, we affirm.

Facts

On the evening of February 7, 2004, John Warren, the driver of a gray Cadillac, was involved in a hit-and-run accident on the north side of Lafayette. The accident and a description of Mr. Warren's vehicle were reported to the Lafayette Police Department (LPD). Mr. Warren continued driving and was spotted a short time later driving at a high rate of speed on Congress Street in the direction of Ambassador Caffery Parkway. As he proceeded on Congress Street, additional reports of his reckless driving, license plate, and location were received by LPD, and a "Be on the Look Out" (BOLO) was broadcast over the LPD radio.

When the BOLO was broadcast, Officer Thomas Veillon was in his police unit on Guilbeau Road near its intersection with Congress Street. He activated his light bar and siren to proceed through the intersection onto Congress Street, attempting to catch up to the speeding Cadillac. He radioed that he had the Cadillac in his sight and that it was traveling west on Congress Street toward Ambassador Caffery Parkway.

During this same time, Officer Thaddeus Sices and Officer Jared Hartwell were in their police units on or near Ambassador Caffery. Officer Sices was near the intersection of Ambassador Caffery Parkway and Ridge Road, and Officer Hartwell was near the intersection of Johnston Street and Westmark Boulevard.

Officer Veillon observed the Cadillac enter the turn lane on Congress Street to turn south onto Ambassador Caffery Parkway. He testified that he was at least one-quarter mile or two hundred yards behind the Cadillac when it made its turn. He broadcast the location and direction of travel of the Cadillac on the radio and continued to follow it. He testified that the Cadillac was traveling at a high rate of speed and weaving in and out of traffic.

Officer Sices was traveling in a northerly direction on Ambassador Caffery Parkway and responded to the broadcast. Officer Hartwell also responded, advising that he would travel from Johnston Street to Ambassador Caffery Parkway via Westmark Boulevard, then head north. Officer Hartwell had his light bar and siren activated as he traveled on Ambassador Caffery; Officer Sices did not.

Officer Sices testified that he decided to turn left off Ambassador Caffery Parkway onto Curran Lane and turn his unit around to face Ambassador Caffery Parkway, so he could watch for the Cadillac as it traveled south on Ambassador Caffery Parkway. In accordance with his plan, Officer Sices testified that he entered the left turn lane of Ambassador Caffery Parkway near its intersection with Curran Lane and stopped, waiting to turn left. He next testified that he saw the Cadillac approaching him as it traveled south on Ambassador Caffery Parkway and that it was swerving in and out of traffic at a high rate of speed. He observed that the back bumper of the Cadillac was dragging on the ground and sparks were flying from the vehicle.

According to Officer Sices, the Cadillac entered the center lane of Ambassador Caffery Parkway north of its intersection with Curran Lane, then suddenly swerved right, striking the vehicle occupying the inside, southbound lane of Ambassador Caffery Parkway; that vehicle then struck Ms. Guidry's vehicle. Officer Sices testified that he then activated his light bar and drove through the intersection to be closer to the accident.

Officer Hartwell and Officer Veillon arrived at the scene after the accident occurred; neither had witnessed the accident. Mr. Warren was apprehended at the scene and charged with multiple offenses related to the two automobile accidents, including fifth offense OWI.

Ms. Guidry testified that, immediately prior to the accident, she was stopped at the intersection of Ambassador Caffery Parkway and Curran Lane in the outside southbound lane of Ambassador Caffery for a red light. She was talking to her passenger and saw a blue flashing light south of the intersection. She testified that she was telling her passenger that someone must be getting a ticket. Ms. Guidry explained that, as she was turning her head from her passenger back to the road, she saw another police unit coming towards her. That police unit traveled from the northbound inside lane into the center turn lane then through the intersection before it stopped. She testified that the police unit blocked the intersection and was almost even with her vehicle. At that time, she saw the police unit's blue lights come on, and almost instantaneously, the collision occurred.

Kalyn Johnson was traveling in the southbound outside lane on Ambassador Caffery Parkway just before the accident occurred. She testified that as she traveled she noticed a police unit's lights flash on and off in the area of Ridge Road, then she noticed police lights behind her. She looked out her side window and saw Mr. Warren speeding past her; sparks were flying everywhere.

Believing there was a police chase in progress, Ms. Johnson testified that she slowed down and again noticed police lights flick on ahead of her near the intersection of Ambassador Caffery Parkway and Westmark Boulevard. It appeared to her that the police officer was trying to pass northbound traffic to the far right in the outside northbound lane, then the police lights went off again. Ms. Johnson next testified that Mr. Warren was traveling southbound in the center lane and that, as he approached the intersection, she noticed a police officer come from the east side of the northbound lanes, block the end of the center turn lane with the his car, and flip on his emergency lights. She indicated that Mr. Warren simultaneously swung his vehicle back into the inside southbound lane, hitting a vehicle stopped at the red light which then hit Ms. Guidry's vehicle stopped in the outside southbound lane. Ms. Johnson clarified that the police unit pulled in front of the center turn lane in the middle of the intersection, past the red light, and that within a matter of seconds of its stopping she saw the unit's emergency lights come on. On cross-examination, she testified that she saw only two police cars before the accident, one behind her and one ahead of her.

Ms. Guidry sued Lafayette to recover damages for injuries she claims she suffered in the accident. After a bench trial, the trial court ruled in her favor, finding that Mr. Warren was the primary cause of the accident; there was no pursuit by any officer; Officer Sices acted in a manner to block the turn lane in which Mr. Warren was traveling; Officer Sices actions are judged by the ordinary negligence standard because he did not have his emergency lights on; Officer Sices was negligent in blocking Mr. Warren's lane of travel and was 40% at fault in causing the accident. The trial court awarded Ms. Guidry $693,782.00 in damages, including $150,000.00 in general damage.

Lafayette appeals the trial court's judgment, assigning as error the assessment of liability to LPD and the amount of the taxed court costs. Ms. Guidry answered Lafayette's appeal, seeking an increase in general damages.

Assignments of Error

Lafayette assigns three errors with the trial court's judgment:

1) Officer Sices did not act in a manner to block the turn lane in which Mr. Warren was traveling.

2) Mr. Warren should have been assessed with 100% fault.

3) Court costs assessed against Lafayette were unreasonable and improper.
Standard of Review

A finding of fact by a trial court or a jury may not be set aside in the absence of manifest error or unless it is clearly wrong. Smith v. La. Dep't of Corrections, 93-1305 (La. 2/28/94), 633 So.2d 129. If there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Unless there are contradictions in documents or objective evidence which so contradict the witness's story or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, a trial court's decision to credit the testimony of one of two or more witnesses, can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La. 1989).

Fault of Police Officer

Lafayette urges that the trial court erred in concluding that Officer Sices acted in a manner to block the turn lane in which Mr. Warren was traveling and maintains that Mr. Warren should have been assessed with 100% fault. It argues that Ms. Guidry's testimony is not to be believed because she admitted that her trial testimony differed from her deposition testimony and that Ms. Johnson's testimony was "inaccurate and impossible."

Lafayette contends that Ms. Guidry's description of the accident is incorrect because she admitted that her deposition testimony varied from her trial testimony. At trial, Ms. Guidry testified that Officer Sices' police unit proceeded through the intersection in the turn lane and stopped almost even with her vehicle; however, she admitted that she testified in her deposition that Officer Sices' police unit stopped south of the intersection in the left turn lane. During her deposition, Ms. Guidry had drawn a diagram, depicting the police unit prior to and after the accident. The diagram depicts the police unit traveling north in the left turn lane from south of the intersection, continuing through the intersection, and stopping in the center turn lane north of the intersection. Accordingly, while her deposition testimony may not have been clear on this issue, her deposition diagram is consistent with and supports her trial testimony. There is no contradiction which renders Ms. Guidry's testimony insupportable or establishes reversible error by the trial court.

Lafayette argues that Ms. Johnson's testimony is "inaccurate and impossible" and is contradicted by the recording of radio transmissions between the police dispatcher and Officers Veillon, Sices, and Hartwell. At the outset, we observe that most important to our review of Ms. Johnson's testimony is its similarity to Ms. Guidry's testimony that Officer Sices' police unit blocked the intersection.

We agree that Ms. Johnson's testimony may not be completely accurate because it indicates she perceived only one police unit traveling north on Ambassador Caffery Parkway toward Curran Lane when there were actually two. However, we are mindful that her perception of exactly how things occurred may have been affected by the speed with which they happened and by Officer Sices' failure to activate his emergency lights, which probably contributed to her misperception. We also recognize that she may have speculated concerning Mr. Warren's intentions and/or responses as he traveled toward the intersection at Curran Lane; however, we believe the trial court recognized this and considered it in light of her position in relation to the accident. Lastly, we have reviewed the transcript and audio CD of the radio transmissions and found nothing which contradicts Ms. Johnson's testimony.

The trial court apparently accepted the testimony of Ms. Guidry and Ms. Johnson regarding how the accident occurred. Nothing in the record, other than Officer Sices' testimony, contradicts or renders their testimony implausible. Therefore, we cannot say that the trial court's determination that Officer Sices blocked the intersection and was negligent in doing so is manifestly erroneous.

Lafayette also urges that the trial court erred in assessing it with 40% fault. The apportionment of fault is a finding of fact subject to the manifest error standard of review. Gregor v. Argenot Great Cent. Ins. Co., 02-1138 (La. 5/20/03), 851 So.2d 959. In personal injury actions, "the degree or percentage of fault of all persons causing or contributing to the injury" must be determined. La.Civ. Code art. 2323. In allocating fault, the trier of fact must consider the nature of the conduct of all parties and the extent of the causal relationship between the conduct and the damages claimed. Watson v. State Farm Fire Cas. Ins. Co., 469 So.2d 967 (La. 1985). Various factors may affect the degree of fault assigned:

(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.

Id. at 974.

Application of the Watson factors to the facts of this case establishes that the trial court's assessment of fault was not manifestly erroneous. As a trained police officer, Officer Sices was aware of the danger and risk that could result from his blocking Mr. Warren's path of travel. Furthermore, such a maneuver is prohibited by LPD. Officer Sices' knowledge and ability to act in that situation was superior to all of the citizens involved in the situation, including Mr. Warren. While it was important to stop Mr. Warren's drunken and dangerous driving, Officer Sices did not properly consider what could result when his path of travel was blocked.

Lafayette cites Freeman v. Tate, 02-1361 (La.App. 3 Cir. 6/4/03), 847 So.2d 800, and Dorty v. City of Pineville, 01-1470 (La.App. 3 Cir. 4/03/02), 815 So.2d 393, writ denied, 02-1271 (La. 8/30/02), 823 So.2d 950, in support of its argument that Officer Sices' actions were not negligent. In both of these cases, the police officers had their emergency lights activated at the time the accident occurred, warning approaching motorists of a dangerous condition on or adjacent to the roadway. Officer Sices did not have his emergency lights activated as he traveled north on Ambassador Caffery; therefore, these cases do not support Lafayette's claims.

In its brief, Lafayette also cites La.R.S. 32:24 in support of its position that Officer Sices was not at fault. This provision grants drivers of authorized emergency vehicles certain privileges when they are responding to emergencies, if certain conditions set forth therein are met. By his own testimony, Officer Sices did not meet the conditions of this provision because he did not have his audible or visual signals activated. La.R.S. 32:24(C). Therefore, the trial court correctly judged his actions by the ordinary standard of due care. Lenard v. Dilley, 01-1522 (La. 1/15/02), 805 So.2d 175. For these reasons, we find no error with the trial court's determination that Officer Sices was at fault or its assessment of 40% fault to him.

Damages

Ms. Guidry seeks an increase in the trial court's general damage award of $150,000.00. The trier of fact is accorded much discretion in awarding damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994). An appellate court's role in reviewing an award of general damages is not to decide what it considers to be an appropriate award but to review the exercise of discretion by the trier of fact. Id. The adequacy of the award should be determined by facts or circumstances particular to the case being reviewed and should rarely be disturbed. Id.

Ms. Guidry was forty-nine years old and working as a licensed practical nurse when the accident occurred. She had injured her back previously but had recovered from the injury long before this accident occurred. She testified that immediately after the accident occurred, she felt pain in her neck and back which she reported to the ambulance attendants at the scene of the accident. She further testified that she continued to have constant pain in her neck and left lower back and that she also had headaches and numbness in both hands. Due to her pain, she could not return to work, perform her normal household duties, play with her grandchildren, go fishing, or work in her flower beds. Initially, she sought treatment from her family physician, who prescribed various medications for her pain and the depression which she testified developed after the accident. Because her complaints of pain persisted, her family physician referred her to an orthopedic surgeon.

Ms. Guidry's first visit with her orthopedic surgeon was March 1, 2004. She complained of neck pain and pain in her right arm at that time. On June 18, 2004, an anterior cervical diskectomy and fusion was performed at C5-6 and C6-7 levels because of herniations at those levels. The surgery included a bone graft and installation of a plate to stabilize her neck. The surgery relieved Ms. Guidry's arm and neck pain, and she testified that she felt much better after the surgery. She needed assistance from her daughters for approximately two and one-half months after the surgery.

At her August 31, 2004 appointment, Ms. Guidry asked to be released to return to work, and she returned to work the first week of September. She was able to return to full duty but could not perform any lifting or transferring of patients. She testified that her arm pain had completely resolved, but she continued to experience pain in her neck and also experienced pain in her back; she rated her neck pain as a five to a six.

Ms. Guidry returned to her orthopedic surgeon on March 1, 2005, complaining of back pain and some shoulder pain. An MRI performed on March 3, 2005, revealed a broad-based disc bulge at L5-S1 with some annular fissure. Two steroid injections were administered in an attempt to relieve the pain without success. A decompression and fusion at L5-S1 were performed on June 15, 2005. After surgery, Ms. Guidry's back pain was markedly diminished, but she developed a burning sensation on the plantar surface of her feet. Neurontin was prescribed for the burning sensation, which Ms. Guidry testified helped tremendously. In September 2005, she was doing well and requested to return to work; she was released to light duty.

Ms. Guidry testified that she did not return for additional visits with her orthopedic surgeon due to financial constraints. As a result, her surgeon could not testify as to whether she had achieved maximum medical improvement at the time of trial. He did assign her an anatomical disability rating of 21% to 25% of the whole body but explained that the assessment was not definite because he had not recently examined her.

Ms. Guidry testified that she continues to take Hydrocodone and SOMA for pain and that without these medications her pain is excruciating. She stated that these medications relieve her pain but that she is never without some pain. She also continues to take Neurontin, and her orthopedist testified that she might have to take this medication for the rest of her life.

Ms. Guidry has been unable to return to activities that she enjoyed before the accident, like gardening, camping, and physically interacting with her grandchildren. She testified that she is anxious over her future and concerned that she will never be able to return to her work in nursing.

We have reviewed the medical evidence and Ms. Guidry's testimony concerning her injuries and how she has been affected by them. While we might consider the trial court's award of general damages modest, we do not find the award to be inadequate or an abuse of its great discretion.

Court Costs

Lafayette complains that the trial court's assessment of court costs was error. Trial courts have been granted much discretion to assess court costs equitably, La. Code Civ.P. art. 1920, and a trial court's assessment of court costs will not be reversed unless there is an abuse of discretion. Adams v. Canal Indem. Co., 99-1190 (La.App. 3 Cir. 5/10/00), 760 So.2d 1197, writs denied, 00-1636, 00-1637, 00-1640 (La. 9/22/00), 769 So.2d 1212, 1213.

Percentage of Court Costs Assessed

Lafayette first argues that it should not have been cast with 100% of the court costs because it was assessed with only 40% fault. Ms. Guidry did not name Mr. Warren as a defendant in this litigation, but Lafayette asserted a third-party demand against him and his insurer. Lafayette voluntarily dismissed Mr. Warren and his insurer early in the litigation with each party to pay their own court costs. In Gauthier v. Wilson, 04-2527, 04-2528, 04-2529, 04-2530, 04-2531, 04-2532, 04-2533, 04-2534 (La.App. 1 Cir. 11/4/05), 927 So.2d 383, writ denied, 05-2402 (La. 3/31/06), 925 So.2d 1258, the court held that La. Code Civ.P. art. 1920 allows, but does not require, the trial court to assess costs pursuant to the percentage of negligence attributable to each party. Under the circumstances presented herein, we find no error with the trial court's assessment of 100% costs to Lafayette.

Certified Copies of Medical Records

Lafayette asserts two complaints with regard to costs for certified medical records which were assessed as court costs by the trial court. At the hearing on Ms. Guidry's Rule to Tax Costs, counsel for Lafayette stated that he opposed only the expert witness fees. Accordingly, Lafayette waived any objections it had to these expenses being assessed as court costs, and this assignment is without merit.

Cost of Officer Hartwell's Deposition

Lafayette next complains that the trial court erred in assessing the cost of Officer Hartwell's deposition as court costs because only one page of the deposition was introduced into evidence. For the reasons stated in the preceding discussion, this argument is without merit.

Expert Witness Fees

Lafayette opposed the following expert witness fees Ms. Guidry sought to have taxed as court costs:

Dr. George Williams, Ms. Guidry's treating surgeon $ 1,166.65 Melvin Tucker, police procedure expert $ 6,039.01 Glenn Hebert, rehabilitation expert $ 2,362.50 Douglass Womack, Ph.D., economist $ 1,600.00

The trial court reduced Dr. Williams' fee to $750.00 and Mr. Tucker's fee to $4,500.00 but refused to reduce Mr. Hebert's or Dr. Womack's fees. On appeal, Lafayette complains that the trial court did not reduce Mr. Tucker's fee enough and that Mr. Hebert's and Dr. Womack's fees are excessive.

Expert witnesses are entitled to be compensated for their services in an amount determined by the trial court, their fees are to be taxed as costs and paid by the party cast in judgment. La.R.S. 13:3666. Trial courts have discretion in fixing expert witness fees, and such fees cannot be reversed in the absence of an abuse of discretion. McDaniel v. Carencro Lions Club, 05-1013 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, writ denied, 06-1998 (La. 11/3/06), 940 So.2d 671. As with damages, the peculiar facts and circumstances of each case must be considered in determining whether an abuse of discretion occurred. Facts to be considered include the amount of time spent in preparing for trial; time actually spent in court; the extent and nature of the work performed; and the knowledge, attainments, and skill of the expert.

Massie v. Deloach, 04-1425 (La.App. 3 Cir. 3/2/05), 896 So.2d 1246, writ denied, 05-786 (La. 5/6/05), 901 So.2d 1107.

The trial court did not state its reasons for not reducing Mr. Hebert's and Dr. Womack's fees; however, the nature of the work performed by these experts is generally well known to trial courts. We find no error with the trial court's assessment of these two experts' fees at $2,362.50 and $1,600.00, respectively.

The trial court reduced Mr. Tucker's fee, leading this court to the conclusion that it considered the above factors without specifically stating it did, and we find no error with its assessment of his fee at $4,500.00.

Disposition

The judgment of the trial court is affirmed. All costs of this appeal are assessed to Lafayette City Parish Consolidated Government.

AFFIRMED. This opinion is NOT DESIGNATED FOR PUBLICATION.

Uniform Rules — Courts of Appeal. Rule 2-16.3.


Summaries of

Giudry v. Lafayette

Court of Appeal of Louisiana, Third Circuit
May 30, 2007
958 So. 2d 156 (La. Ct. App. 2007)
Case details for

Giudry v. Lafayette

Case Details

Full title:Guidry v. Lafayette City Parish Consol. Government

Court:Court of Appeal of Louisiana, Third Circuit

Date published: May 30, 2007

Citations

958 So. 2d 156 (La. Ct. App. 2007)