142 So. 3d 1063
La. Ct. App.2014Background
- Collision at intersection of Carmel Dr. and Louisiana Ave., Lafayette, LA between Guidrys (white Ford truck; Livingston driver, Phena passenger) and Kysha Bernard (red Toyota). Both parties sued/counter-sued for injuries.
- Central factual dispute: whether the accident occurred in the intersection and which driver had the green signal when they entered.
- Trial court found the accident occurred in the intersection, both drivers credible, but their accounts were diametrically opposed and there was no corroborating evidence of the light color; court ruled the evidence was in equipoise and denied recovery to both sides.
- Bernard attempted to introduce an affidavit from an independent witness (Daniel Davis) who was subpoenaed but failed to appear; court refused to admit the affidavit after Bernard declined the court’s offer to secure Davis’s presence by writ of attachment.
- Bernard appealed, arguing the trial court erred in excluding Davis’s affidavit and in finding liability evidence balanced; the appellate court affirmed.
Issues
| Issue | Bernard's Argument | Guidrys' Argument | Held |
|---|---|---|---|
| Admissibility of Daniel Davis’s affidavit | Davis was subpoenaed but refused to appear, so his previously executed affidavit should be admissible as the declarant was "unavailable" | Affidavit inadmissible because Bernard did not make diligent effort to secure witness; court offered attachment which Bernard refused | Affidavit excluded; trial court did not err—Bernard failed to demonstrate unavailability or exercise reasonable means to secure Davis’s live testimony |
| Liability when witnesses offer conflicting accounts of traffic signal | Evidence favors Bernard: physical damage and testimony show Guidry turned into Bernard’s green signal; Davis’s affidavit would corroborate Bernard | Guidrys maintain Guidry had green, dispute location/timing; inconsistencies concern collision location, but Guidry credible | Trial court’s finding that evidence was in equipoise and neither party met burden of proof affirmed; appellate court found no manifest error |
Key Cases Cited
- Folse v. Folse, 738 So.2d 1040 (La. 1999) (appellate review of trial court evidentiary rulings for clear error)
- Stobart v. State, through DOTD, 617 So.2d 880 (La. 1993) (standard for manifest error and deference to trial court credibility findings)
- Miller v. Leonard, 588 So.2d 79 (La. 1991) (when evidence is truly in equipoise neither plaintiff may prevail; trial court should not decide by "flip of a coin")
- Fridge v. Talbert, 158 So. 209 (La. 1934) (assessing probabilities, corroboration, and witness opportunity to observe conflicting testimony)
- Driscoll v. Stucker, 893 So.2d 32 (La. 2005) (witness unavailable only after diligent and good-faith efforts to obtain presence)
- Trascher v. Territo, 89 So.3d 357 (La. 2012) (requirements for hearsay "catchall" exception: trustworthiness and necessity)