376 So.3d 225
La. Ct. App.2023Background
- On Jan. 13, 2017 an eight‑year‑old (Jaden) riding a dirt bike on a Pointe‑à‑la‑Hache levee was struck by a marked Plaquemines Parish Sheriff’s Office vehicle driven by Eric Hamby; Jaden sustained serious injuries and surgery.
- Plaintiff Shaquana Harvey sued individually and as Jaden’s natural tutrix; Defendants were Hamby, the Sheriff’s Office, and the insurer. Bench trial held Sept. 14, 2022.
- Trial court found both Hamby and Jaden negligent, apportioned 65% fault to Defendants and 35% to Harvey as tutrix, awarded Jaden medical and general damages, and awarded Harvey $10,000 under La. C.C. art. 2315.6 for emotional distress.
- Key disputed evidence: reconstruction expert (Wayne Winkler) placed Hamby’s speed at ~16 mph (GPS) and Jaden’s dirt‑bike at ~13 mph; Hamby testified he didn’t see Jaden until immediately before impact; levee use by ATVs/dirt bikes was common locally though illegal.
- Defendants appealed (challenging expert, Hamby’s liability, fault allocation, and the 2315.6 award). Court affirmed most of trial court’s findings but reversed the allocation to Harvey (tutrix) and reversed the 2315.6 award, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/weight of expert (Winkler) | Winkler’s reconstruction and opinions were reliable and admissible. | Methodology unreliable/Daubert challenge; testimony should be excluded or discounted. | No preserved Daubert motion; trial court’s admission was not an abuse of discretion; weight for factfinder. |
| Hamby’s liability (duty/breach/causation) | Hamby breached duties (excessive speed for levee approach; failed lookout) and caused harm. | No duty to illegal levee user; Hamby acted reasonably given hazards; Jaden’s illegal riding was the but‑for cause. | Hamby owed statutory and common law duties and breached them; his conduct was a substantial factor along with Jaden’s. |
| Allocation of fault to Harvey (as tutrix of Jaden) | Harvey (tutrix) should not bear any fault; trial court erred to assign fault to her. | Comparative fault of child/parent is appropriate; child’s conduct was a cause. | Reversed as to fault imposed on Harvey as tutrix because trial court never made an explicit factual finding that Jaden (age eight) was capable of and in fact contributorily negligent; remand to determine whether Jaden was above age‑of‑discernment and negligent. |
| Award under La. C.C. art. 2315.6 to Harvey (bystander damages) | Harvey witnessed traumatic injury and suffered severe emotional distress; award justified. | Harvey did not view the collision and arrived after Jaden was already in ambulance; lacks required temporal/physical proximity. | Reversed: Harvey lacked the temporal/physical proximity required by art. 2315.6 (she arrived after scene changes), so bystander damages were not recoverable. |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (trial court gatekeeping factors for expert admissibility)
- State v. Foret, 628 So.2d 1116 (La. 1993) (Louisiana adoption of Daubert standard)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (manifest error standard for appellate review of factual findings)
- Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006) (duty‑risk analysis elements in negligence cases)
- Perkins v. Entergy Corp., 782 So.2d 606 (La. 2001) (cause‑in‑fact/substantial factor test explanation)
- Faia v. Landry, 249 So.2d 317 (La. App. 4th Cir.) (parental liability requires a finding of child’s negligence; age‑of‑discernment analysis)
- Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990) (circumstances permitting recovery for bystander mental anguish)
- Trahan v. McManus, 728 So.2d 1273 (La. 1999) (temporal proximity requirement for bystander damages)
- Mart v. Hill, 505 So.2d 1120 (La. 1987) (motorist’s duty to observe what should be observed)