Opinion
2018 CA 1144
02-25-2019
JOHN LEE THOMAS, JR. v. WILLIE CAGE AND GEICO GENERAL INSURANCE COMPANY
Brian L. McCullough Baton Rouge, Louisiana Counsel for Plaintiff-Appellant John Lee Thomas Chase Tettleton Baton Rouge, Louisiana Counsel for Defendant-Appellee Willie Cage and GoAuto Insurance Company
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 655370, SECTION 24, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE R. MICHAEL CALDWELL, JUDGE Brian L. McCullough
Baton Rouge, Louisiana Counsel for Plaintiff-Appellant
John Lee Thomas Chase Tettleton
Baton Rouge, Louisiana Counsel for Defendant-Appellee
Willie Cage and GoAuto
Insurance Company BEFORE: WELCH, CHUTZ, AND LANIER, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
Plaintiff-appellant, John Lee Thomas, Jr., appeals the trial court's judgment, apportioning him with 50% of the fault for the damages he sustained when, as a pedestrian, he was impacted by a vehicle driven by defendant-appellee, Willie Cage. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 13, 2016, as Thomas crossed Lobdell Avenue near its intersection with Renoir Avenue in Baton Rouge, Cage was maneuvering a left turn from Renoir to Lobdell when his left bumper impacted Thomas as he reached the median. The parties' recall of events after the accident varied widely. Thomas remembered that he was knocked to the ground and that he had bumped his head on the vehicle's hood. According to Cage, whose testimony was in conformity with his wife, Laura's, Thomas was never knocked to the ground. Instead, Thomas was standing and walking. Cage testified that Thomas advised him that he was not hurt. Laura contacted 911, and thereafter the fire department, emergency medical services, and the police arrived. Thomas was taken by ambulance to Our Lady of the Lake Regional Medical Center (OLOL).
Laura was not present at the time of the accident but, because she resided about one-quarter of a mile from the accident site, arrived prior to any of the emergency services.
According to Cage, while he was attempting to call 911, Thomas took the phone from him and hung it up, stating that he did not want any emergency services contacted.
Thomas subsequently filed this lawsuit, naming Cage and his insurer, GoAuto Insurance Company, as defendants. After a bench trial, the trial court rendered judgment finding that Cage was 50% at fault and Thomas was 50% at fault. The trial court awarded all of Thomas's medicals and $2,000 in general damages. A judgment in conformity with the trial court's determinations was subsequently signed on May 2, 2018. Thomas appeals, averring the trial court erred in its apportionment of fault and in the quantum of general damages.
Although the initial petition named GEICO General Insurance Company (GEICO) as Cage's motor vehicle liability insurer, by amended petition, GoAuto Insurance Company was added as a defendant. Thomas's claims against GEICO were later dismissed without prejudice.
Thomas's medical expenses totaled $6,933.60. Although the trial court questioned whether all the treatment that Thomas had received was necessary, as between Thomas and the medical providers, the trial court concluded any overtreatment was not to be "held against [Thomas] absent proof of fraud ... and there's been no proof of that." Defendants have not challenged this award by the trial court. --------
Apportionment of Fault:
A trier of fact's apportionment of fault is subject to the manifestly erroneous or clearly wrong standard of review. Hebert v. Rapides Parish Police Jury , 2006-2001 (La. 4/11/07), 974 So.2d 635, 654. In order to reverse a fact finder's determinations, the appellate court must find that no reasonable factual basis exists in the record to support the trial court's finding and that the finding is clearly wrong. Stobart v. State through Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). The issue to be resolved is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. If the fact finder's findings are reasonable in light of the record viewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Id., 617 So.2d at 882-83.
Thomas suggests that La. R.S. 32:122, providing that a driver within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard, was the applicable authority regulating Cage's conduct at the time of the accident. Mindful that the plain language of La. R.S. 32:122 is directed to the relative duties between drivers of vehicles, we focus our inquiry instead on a motorist's obligation to pedestrians. La. R.S. 32:214 requires a motorist to exercise due care to avoid colliding with any pedestrians upon the roadway. The operator of a motor vehicle has a constant duty to watch out for the possible negligent acts of pedestrians and avoid injuring them. Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400, 406 (La. 1978). Thus, a higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety. Id.
Among the duties of a pedestrian is that set forth in La. R.S. 32:213. See Rideau v. State Farm Mut. Auto. Ins. Co., 2006-0894 (La. App. 1st Cir. 8/29/07), 970 So.2d 564, 573, writ denied, 2007-2228 (La.1/11/08), 972 So.2d 1168. La. R.S. 32:213 requires every pedestrian crossing a roadway at a point not within a marked crosswalk or within an unmarked crosswalk at an intersection to yield the right of way to all vehicles on the roadway.
The fact that an accident occurs does not create a presumption of negligence in favor of either the pedestrian or the motorist. Guidry v. City of Rayne Police Dep't , 2009-0664 (La. App. 3d Cir. 12/9/09), 26 So.3d 900, 903. Rather, accidents occurring between a pedestrian and a motorist are governed by the principles of comparative fault. La. C.C. art. 2323; Turner v. New Orleans Pub. Serv. Inc., 476 So.2d 800, 803-05 (La. 1985). Therefore, a determination of negligence in motorist/pedestrian accidents rests upon the particular facts and circumstances of each case. Guidry , 26 So.3d at 903. Moreover, although a motorist commands a greater instrumentality of harm, a pedestrian still bears the burden of proving that the motorist was negligent before he can recover damages. Puearry v. State Through Dep't of Pub. Safety , 496 So.2d 1372, 1374 (La. App. 3d Cir. 1986).
In Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985), the Louisiana Supreme Court addressed the factors to consider when reviewing an apportionment of fault. Various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Id. These factors also guide an appellate court's determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. Clement v. Frey , 95-1119 (La. 1/16/96), 666 So.2d 607, 611. The apportionment of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and any apportionment by the fact finder within that range cannot be "clearly wrong." Hebert , 974 So.2d at 655.
In its oral reasons for judgment, the trial court stated:
This [matter] involved a vehicle and a pedestrian, but thankfully for everyone involved, it was a minor impact.... [I]t's incumbent on the court to apportion fault between the parties.... Cage was making a left turn. As we're all aware, the law imposes a very high duty on a left-turning motorist to proceed with utmost caution to see what they should have seen. I'm sure at that time of morning in that location, [Cage] didn't expect to see a pedestrian in the median.... [B]ut that doesn't relieve him of the duty to see what he should have seen. It's clear that ... Thomas was walking across that median at the time that this occurred.... There were a number of places [Thomas] could have chosen to cross Lobdell. He could've gone past the median and not had been involved with any vehicles turning left from Renoir. He could have crossed before the median and so forth, but he chose to walk right through the median. And in response to my testimony, he said he did see ... Cage at the stop sign.... Cage's lights were on. [Thomas] saw [Cage] there.... Thomas obviously had a duty to protect himself.
Based on our review of the record, a reasonable factual basis exists to support the trial court's apportionment of fault. Specifically, Thomas's acknowledgement that he saw Cage at the stop sign prior to the time Cage commenced the left turn establishes that Thomas had an actual awareness of the danger he undertook by crossing the roadway at the point that he chose. Additionally, other road-crossing options that could have eliminated the very risk that resulted in Thomas's injuries were available; Thomas offered no insight as to why he chose the option that was more dangerous. Moreover, by placing 50% fault on Cage, it is clear that the trial court factored into its apportionment of fault that as a left-turning motorist Cage was held to a higher standard of care. Accordingly, the trial court apportionment of fault was not manifestly erroneous.
Damages:
It is well settled that a trial court is given great discretion in its assessment of quantum, both for general and special damages. La. C.C. art. 2324.1; Guillory v. Lee , 2009-0075 (La. 6/26/09), 16 So.3d 1104, 1116. Furthermore, the assessment of quantum, or the appropriate amount of damages, by a trial judge is a determination of fact which is entitled to great deference on review. Wainwright v. Fontenot , 2000-0492 (La. 10/17/00), 774 So.2d 70, 74.
The standard for appellate review of general damages is set forth in Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed. 2d 379 (1994), wherein the Louisiana Supreme Court stated that "the discretion vested in the trier of fact is 'great,' and even vast, so that an appellate court should rarely disturb an award of general damages." The appellate court's first inquiry should be "whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the 'much discretion' of the trier of fact." Id., 623 So.2d at 1260. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Graham v. Offshore Specialty Fabricators , Inc., 2009-0117 (La. App. 1st Cir. 1/8/10), 37 So.3d 1002, 1018.
In making its general damage award, the trial court stated:
The records from EMS and [OLOL] Emergency Room indicated that [Thomas] had no swelling, no evidence of abrasions, so forth. So,
thankfully, [it was] a relatively minor accident, but an accident nonetheless....While Thomas asserts other trial courts have awarded greater amounts for injuries similar to his, it is only after a reviewing court determines an abuse of discretion that a survey of other injuries is appropriate. The trial court emphasized the short duration of Thomas's treatment, noted the minimal nature of both the impact of the collision and Thomas's injury, and questioned the necessity of some of the medical treatment administered to Thomas. We cannot say the trial court's award for the particular injuries that Thomas sustained and the effects of those injuries on Thomas under these circumstances was erroneous. Accordingly, the trial court did not abuse its vast discretion in awarding $2,000 in general damages to Thomas.
With regard to [Thomas's] bodily injury, he treated for one month. It was only palliative or comforting care. There was no real treatment of any kind other than electrical stimulation, heat and cold.... But [his injury] lasted for only one month. There was no evidence of any extreme impact, [i.e.,] any type of visible injury to ... Thomas. He did complain of his ankle. He says his chest hurt. He had some headaches.... But it's a minimal injury.
DECREE
For these reasons, we affirm the trial court's judgment. Appeal costs are assessed against plaintiff-appellant, John Lee Thomas, Jr.
AFFIRMED.