Opinion
NO. 2023-CA-0756
05-17-2024
Shaquana HARVEY, Individually and in Her Capacity as the Natural Tutrix of Jaden Harvey v. Eric Wayne HAMBY, Plaquemines Parish Sheriff’s Office, Through Gerald A. Turlich, Jr., Sheriff, and American Alternative Insurance Corporation
Michael G. Riehlmann, Brett J. Prendergast, Jacque R. Touzet, ATTORNEY AT LAW, 4603 S. Carrollton Ave., New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE Daniel R. Martiny, James B. Mullaly, Jeffrey D. Martiny, MARTINY & ASSOCIATES, LLC, 131 Airline Drive, Suite 201, Metairie, LA 70001, COUNSEL FOR DEFENDANT/APPELLANT
APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES, NO. 64-194, DIVISION "A", Honorable Kevin D. Conner, Judge
Michael G. Riehlmann, Brett J. Prendergast, Jacque R. Touzet, ATTORNEY AT LAW, 4603 S. Carrollton Ave., New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLEE
Daniel R. Martiny, James B. Mullaly, Jeffrey D. Martiny, MARTINY & ASSOCIATES, LLC, 131 Airline Drive, Suite 201, Metairie, LA 70001, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Dale N. Atkins)
Judge Roland L. Belsome
1This appeal arises from the trial court’s allocation of fault in an automobile accident involving Deputy Eric Wayne Hamby ("Hamby") and Jaden Harvey ("Jaden"). Jaden is represented by his mother, Shaquana Harvey ("Ms. Harvey"), in her capacity as his natural tutrix. The trial court found Hamby 65% at fault and Jaden 35% at fault in the cause of this crash. We affirm for the reasons below.
FACTUAL BACKGROUND
Hamby was traveling on Ferry Access Road in Point a la Hache in the afternoon of January 13, 2017. He was driving a Plaquemines Parish Sheriff’s Office vehicle. Eight-year-old Jaden was riding a small motorbike on the levee. At the point where Ferry Access Road intersects with the levee, the two collided. With his mother’s permission and encouragement, Jaden was riding his motorbike to meet friends to play basketball. The ride to the basketball court was three to four miles. He had driven this route before. Jaden testified that he was traveling at 20 miles per hour at the time of the collision. He also testified that his only training to drive his motorbike came from his brother, who taught him how to 2handle, break, and switch gears. He was taught that he had the right of way when driving past the ferry landing on the levee. That last instruction was incorrect.
2017 TTR 110 motorbike.
Jaden testified that his motor bike did not have a speedometer but gauged it based on the amount of wind he felt going by him.
Neither party contests the amount of damages found by the trial court. However, the injuries Jaden suffered provide some insight into the speed of the vehicles and the force of the impact. Jaden lost consciousness and suffered injury to his leg so severe that it required surgery to install a metal rod to repair it. He was hospitalized approximately three weeks and wore a hip-to-shin cast upon his release. Although he was wearing a helmet at the time of the wreck, it was not properly buckled. It came off at impact and Jaden suffered a significant laceration of his head. His injuries continued to give him pain through the time of trial.
PROCEDURAL HISTORY
After a bench trial on September 14, 2022, the court rendered judgment finding Hamby 65% at fault and Ms. Harvey 35% at fault. No fault was assigned to Jaden because of his youthful age but the trial court held Ms. Harvey liable for Jaden’s comparative fault. That judgment was appealed. On appeal, our Court held that the trial court erred when it determined that Jaden was not capable of negligence because of his young age. The case was remanded to the trial court so that Jaden’s comparative fault could be addressed.
Harvey v. Hamby, 2023-0084 (La. App. 4 Cir. 10/4/2023), 376 So.3d 225.
On remand, no additional evidence was offered. On the basis of the record at trial, the court issued an amended judgment on October 11, 2023, in which fault was apportioned 65% to Hamby and 35% to Jaden. Ms. Harvey was not held to be at fault. Hamby appealed the amended judgment contesting any liability on his 3part. Ms. Harvey answered the appeal arguing that Hamby should have been assigned a greater degree of fault.
ANALYSIS
[1, 2] Hamby seeks relief on this appeal solely on the apportionment of fault. The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, (La. 10/30/00), 773 So.2d 670, 680, held that the trier of fact is granted "much discretion" and is owed "some deference in allocating fault." It follows, according to the court, that the standard of review on appeal is manifest error.
Hamby argues that Jaden was negligent in 1) illegally operating his motorbike on an unpaved levee; 2) operating his motorbike at an unreasonable speed; and 3) ap- proaching an intersection without exercising heightened observation. The record gives some factual support to Hamby’s argument. On cross examination, Jaden agreed that he had tried to beat Hamby’s car through the intersection. However, the transcript shows that moments later, Jaden contradicted himself, saying that Hamby’s car approached so quickly that he could not do anything to avoid it.
[3] Hamby also argues that even if the trial court did not err in finding Ms. Harvey was capable of fault, the allocation of 65% is excessive. An appellate court’s determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire & Casualty Insurance Co., 469 So.2d 967, 974 (La.1985). In Watson, the court wrote that when assigning fault the trier of fact must consider whether the conduct in question resulted from inadvertence, how great a risk the conduct created, the significance of the object of the conduct, the capacities of the actors, and any extenuating circumstances.
4In the October 2023 judgment, the trial court did not make an extensive analysis of the respective fault of the parties. In reasons for judgment issued with the October 2022 judgment the court laid out the considerations for its apportionment. As we noted above, no new evidence was adduced on remand. Therefore, our court may rely on the methodology in the earlier judgment. The court wrote that:
Hamby was traveling at a rate of approximately 16 miles per hour when approaching the Pointe-a-la-Hache Ferry dock. For an area that is heavily trafficked in the afternoon, 16 miles per hour is not a reasonable speed since drivers are not able to see over the levee until they have reached the top. During the trial, plaintiffs examined accident reconstructionist, Wayne Winkler, who opined that 16 miles per hour was an unreasonable speed considering the environment. Mr. Winkler further explained that, with consideration of perception and reaction time, Mr. Hamby was able to see Jaden Harvey on his motorbike when his vehicle was 38-44 feet from the point of impact; however, because Mr. Hamby was driving at a rate unreasonable for the environment, he was unable to stop before the collision occurred.
The trial court agreed with Hamby that Jaden’s use of the levee as a roadway was contrary to law. However, the court also noted that it is customary for people to ride on the levee. Under the circumstances, the trial court ruled that Hamby should have foreseen the possibility that someone may have been approaching the intersection of the levee and the ferry ramp. It is also worth noting that a significant number of government vehicles are legally permitted to drive on the levee. This heightens the likelihood of intersectional collisions if drivers fail to account for vehicles in both directions approaching the levee.
The trial court properly took into account the Watson rule that a court must consider the capacity of the actors. In keeping with that instruction, the trial court 5held that Jaden’s conduct must be judged according to his age. Hamby, as an adult, should not be judged by the same standard.
It appears from the judge’s written reasons for judgment in the judgment and the amended judgment that the trial court adequately considered the factors enumerated in Watson. We do not find that the apportionment is clearly wrong or manifestly erroneous. Based on the standard of review by which we are bound, we must affirm the trial court’s apportionment of fault. As we have found the trial court correctly apportioned fault, we find no merit to Ms. Harvey’s claims raised by her Answer. Therefore, no award of costs is warranted.
AFFIRMED
ATKINS, J., CONCURS IN THE RESULT.
1I concur in the result from the standpoint that I agree with the decision to affirm the trial court’s October 11, 2023 judgment, wherein the trial court found that Jaden Harvey was "above the age of discernment" at the time of the subject accident; concluded that Jaden Harvey was "contributorily negligent" for the subject accident; apportioned 65% fault for the subject accident to Deputy Eric Wayne Hamby; and apportioned 35% fault for the subject accident to Jaden Harvey. I further agree with the determination that there is no merit to the arguments asserted in the Answer to Appeal ("Answer") filed by Jaden Harvey’s mother, Shaquana Harvey ("Ms. Harvey"). However, for the following reasons, I write separately to expound on the arguments asserted by Ms. Harvey in her Answer.
According to La. C.C.P. art. 2133(A), "[a]n appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant." Louisiana Code of Civil Procedure Article 2133(A) further provides that "[t]he answer filed by the appellee shall be equivalent to an appeal on his [or her] part from any portion of the judgment rendered against him [or her] in favor of the appellant and 2of which he [or she] complains in his answer." As this Court has held, if "a party files an answer to an appeal," then the appellate court’s "scope of review is limited to the claims expressly stated in the answer." FIE, LLC v. New Jax Condo Ass’n, 2016-0843, 2017-0423, p. 41 (La. App. 4 Cir. 2/21/18), 241 So.3d 372, 400 (first citing La. C.C.P. art. 2133; and then citing Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll. v. 1732 Canal St., L.L.C., 2013-0976, p. 32 (La. App. 4 Cir. 1/15/14), 133 So.3d 109, 130). Nonetheless, as the Louisiana First Circuit Court of Appeal has explained, "[t]he substantive and procedural effect of an answer to an appeal is the same as an appeal." Succession of Poole, 2015-1317, p. 12 (La. App. 1 Cir. 10/28/16), 213 So.3d 18, 26 (citing Vining v. Bardwell, 482 So.2d 685, 694 (La. App. 1st Cir. 1985)). That is, "[t]he only distinction between" an appeal and an answer to an appeal "is that La. C.C.P. art. 2133 requires that an answer to an appeal state the relief demanded." Id. When a party answers an appeal, that "party … is an appellant for purposes of the appellate relief he [or she] seeks." Id.
Considering the language of La. C.C.P. art. 2133 and the foregoing jurisprudence, I write separately because I find that this Court should expand its summary and resolution of Ms. Harvey’s Answer. Ms. Harvey’s Answer operates substantively and procedurally as an appeal; and via her Answer Ms. Harvey appears before this Court as an appellant for the purpose of the relief she seeks. Succession of Poole, 2015-1317, p. 12, 213 So.3d at 26. In her Answer, Ms. Harvey points out that in its October 11, 2023 judgment, "the trial court found that Jaden Harvey was above the age of discernment and thus capable of contributory negligence in the accident at issues [sic]. The trial court then assessed 35% fault to Jaden Harvey." Ms. Harvey contends that "[b]oth of these findings constitute error by the trial court." Accordingly, in her Answer, Ms. Harvey asserts that this Court should reverse the trial court’s October 11, 2023 judgment "to the extent that it found Jaden Harvey was above the age of discernment and thus capable of 3contributory negligence as well as to the extent that it assessed fault to Jaden Harvey." Ms. Harvey also requests that this Court order Appellants to pay her legal costs from the trial court and for this appeal.
Nevertheless, although I would choose to provide further summary of Ms. Harvey’s Answer, I am concurring in the result reached by the Majority because I find no merit to Ms. Harvey’s Answer. That is, as stated previously, I agree with upholding the trial court’s October 11, 2023 judgment, which found Jaden Harvey was "above the age of discernment" and "contributorily negligent" for the subject accident; apportioned 65% fault for the accident to Deputy Eric Wayne Hamby; and apportioned 35% fault for the accident to Jaden Harvey. These are precisely the findings that form the basis of Ms. Harvey’s Answer and for which she seeks reversal. Moreover, finding no merit to her contention that these findings should be reversed, I also find no merit to Ms. Harvey’s request in her Answer that this Court order Appellants to pay her legal costs from the trial court and for this appeal. Accordingly, as the Opinion does, I would deny Ms. Harvey’s answer. For these reasons, I concur in the result.