Nelson v. PowersNelson v. Powers
- Reporters:
- Before:
- Lottinger, Edwards, Ponder
This personal injury and wrongful death suit arises out of a 1977 rear-end collision on the elevated portion of Interstate 10 in the Atchafalaya Basin in Iberville Parish, Louisiana. From a jury judgment in favor of the plaintiff, Emily Deen Nelson, and against two of the defendants, the plaintiff brings this appeal. She contends principally that the jury should have held two of the other defendants liable for the $1.1 million award. Those two defendants took protective appeals to preserve their rights in the event the judgment in their favor is reversed.1
In the pre-dawn hours of August 22, 1977, Floy Lee Fudge, Jr. driving an 18-wheeler for Slaughter Transport Corporation, pulled his rig onto I-10 at Lafayette, Louisiana. As Fudge travelled eastbound 1-10 towards Baton Rouge, he received communications over his CB radio that an apparently drunken driver, Robert Powers, Jr., had managed to enter the eastbound lanes of 1-10 in the wrong direction. Fudge began radio communications with another 18-wheel driver, the identity of whom has never been discovered. This unidentified driver was called “Truck X” at trial and will be so identified herein.
As these actions were transpiring, a Greyhound bus driven by Christopher Watkins and heading eastbound on 1-10 pulled to a stop behind Fudge. Watkins testified that he also switched the bus’ emergency lights on before he stopped. Immediately behind the bus was the plaintiff‘s pickup truck, driven by Mrs. Nelson and occupied by her husband, Gilman Howard Nelson. The plaintiff stopped her truck behind the Greyhound bus. While this string of vehicles rippled to a stop on the highway, and while Fudge and the driver of Truck X were attempting to turn Powers around, another 18-wheeler driven by Willie J. Mouton for Affiliated Foods, Inc. smashed into the rear of the plaintiff‘s pickup at a speed of 45 to 68 miles per hour. The impact crumpled the plaintiff‘s pickup, sandwiching it between Mouton‘s 18-wheeler and the bus. Mr. Nelson was killed instantly and Mrs. Nelson was severely injured. Evidence at trial revealed that from the time Fudge and Truck X stopped until the time the accident occurred, anywhere from 1¾ to 5 minutes elapsed.
Mrs. Nelson brought this suit against Powers, who was imprisoned and impecunious at the time of trial; Mouton and Affiliated Foods, Inc.; United States Fidelity and Guaranty Company (USF&G), the insurer of the Affiliated Foods truck; Highlands Insurance Company, the excess insurer of the Affiliated Foods truck, Watkins and Greyhound Lines, Inc.; and Fudge and Slaughter Transport Company (Slaughter).
Fudge and Slaughter filed third party demands against the other defendants, and Greyhound filed an intervention seeking damages for repairs and loss of the use of the bus. A number of exceptions were also filed, none of which is pertinent on appeal.
Prior to trial, the plaintiff settled with all of the defendants except Powers, Fudge and Slaughter Transport.2
At the trial, which was held before a jury, the negligence vel non of all drivers was submitted to the jury on interrogatories. The jury concluded that Mouton and Powers were negligent but that Watkins and Fudge were not. For the wrongful death of Mrs. Nelson‘s husband, the jury awarded $300,000.00; for Mrs. Nelson‘s own injuries, the jury awarded $800,000.00. Because Mouton, who through his employer was the only pecunious defendant found negligent by the jury, had already settled with the plaintiff, the total of her award was the amount for which she settled. All other claims were dismissed by the court.
SPECIFICATIONS OF ERROR
The plaintiff contends on appeal that the jury erred in finding Fudge not negligent. Primarily, she claims Fudge was under a statutory duty to refrain from stopping and to warn other drivers under the provisions of
LA.R.S. 32:368
The key to the determination of the applicability of
In Badeaux, a thick blanket of smog which made the road impossible to see was held to be an “external phenomena” sufficient to disable a truck whose driver had stopped on the travelled portion of the highway. The court noted that even though the lights on the truck were on and functioning, “the conditions of the atmosphere... made it extremely difficult for other motorists to see the stopped truck.” Id. Other factors also obscured the visibility of the parked truck, and the testimony indicated that the driver had ample time to place warning devices.
Fudge and Slaughter contend that the existence of another vehicle on the highway is not such an “external phenomena” as to render the Fudge truck disabled under the Badeaux interpretation. Although the presence of a vehicle travelling the wrong way on a high speed highway is indeed unusual and is perhaps a phenomenon, we think the Third Circuit decision contemplates a condition or phenomenon of such duration and intensity that more than a temporary stop is required. The facts and circumstances of each case will, of course, be controlling as to whether a stop is temporary. If
In the case at bar, the Slaughter truck experienced no mechanical difficulties and the stop was only temporary in nature. The atmospheric conditions were clear and dry, and the night time visibility was good. Fudge activated his emergency flashers before stopping, and the flashers were easily observed by the Greyhound driver who also turned his flashers on to warn the plaintiff and others behind her. We hold, therefore, that the Slaughter truck was not “disabled” within the meaning of
Even if we assume, for the sake of argument, that Fudge‘s truck was “disabled” under the terms of
NEGLIGENCE: 32:141
Under
The peculiar circumstances confronting Fudge in the early morning hours of August 22, 1977 made it impossible for him to stop his truck off the travelled part of 1-10. His laudable purpose was to stop a drunken driver. The means which materialized for him to accomplish this purpose was the appearance of another 18-wheel driver who, together with Fudge, effectively blocked Powers’ path. Just as Fudge could not pull off the travelled part of the highway, he likewise could not leave an unobstructed width of the highway opposite his truck open to traffic because Truck X was in the opposite lane. The crystal clear vision of hindsight shows that Truck X, after seeing Powers stopped in front of Fudge, should probably have pulled his rig in front of the Powers’ vehicle so that one interstate lane would have remained opened. But he did not. And, in any event, such a maneuver could only have been done by Truck X. Fudge could not move his truck because Powers was in front of him. We hold, therefore, that Fudge did not violate
NEGLIGENCE GENERALLY
Finding no violation of either statute, we must address the issue of whether Fudge was negligent under any other standard of conduct. The jury found he was not. As a truck driver attempting to stop a drunken driver from endangering the lives of others, Fudge owed a duty to act reasonably under the circumstances. The evidence bears out the jury‘s finding that Fudge acted prudently under the facts and circumstances confronting him. He turned on his emergency flashers before stopping and tried to get Powers turned around. Unfortunately, this tragic accident marred what otherwise was a conscientious effort by two men to protect others from a very dangerous situation. Fudge‘s conduct was arguably a cause-in-fact of the accident, but Fudge breached no duty to the plaintiff in this case. He acted reasonably under the circumstances. He was not negligent. The breach of duty by Powers and Mouton caused this accident.
JURY INSTRUCTIONS
The plaintiff makes a number of complaints regarding the jury instructions either refused or given by the trial court. First, she contends that the trial court erred in failing to instruct the jury that a vehicle under
“Although the popular definition of a disabled vehicle involves mechanical failure, it need not be so limited and you may apply your common experience in determining whether any vehicle in this accident was disabled.”
We discussed the issue of disability earlier in this opinion and found that the Fudge vehicle was not disabled under the provisions of
Next, plaintiff contends that the trial court erred in failing to charge the jury that
The plaintiff next contends that the trial court erred in failing to charge the jury that the mere possibility that the accident would have occurred despite the presence of warning devices does not break the chain of causation and absolve Fudge from blame. Although this may be a correct statement of the law, we do not find that the trial court erred in failing to give this direct charge. The trial court‘s instructions to the jury, taken as a whole, properly conveyed all facets of the law involved that were material and relevant to the positions of the parties. Reeves v. Gulf State Utilities, 312 So.2d 118 (La.App. 1st Cir. 1975) vacated on other grounds, 320 So.2d 902 (La.1975); on remand, 327 So.2d 671 (La. App. 1st Cir. 1976); writ denied, 330 So.2d 309, 311 (La.1976).
Plaintiff also claims that the trial court erred in instructing the jury as follows:
“In determining whether the violation of the statute was a proximate cause in causing the accident, you may consider whether the accident would not have happened if the violation had not been committed. If the accident would have occurred irrespective of the violation, then the violation would not be the proximate cause in causing the accident.”
Plaintiff claims this charge confused the jury because the charge failed to state that Fudge was not to be relieved of liability even though the accident might possibly have occurred had Fudge displayed proper warning devices. This argument is similar to the previous argument made by plaintiff. While the use of the terminology “proximate cause” may not be technically correct from a legal standpoint, in the context of the entirety of the charges to the jury we find the charge was adequate. If there was any error, it did not affect the result, and it certainly did not confuse the jury or direct the jury to absolve Fudge of liability.
The plaintiff also complains that although the court charged the jury that if the defendant violated a provision of a statute, he may be negligent, the court failed to charge the jury that the Good Samaritan defense might not be available to Mr. Fudge if the jury found that Fudge had sufficient time to display warning signals between the time he stopped and the time of the accident. As regards statute violation and the Good Samaritan defense, the trial court charged as follows:
“If you find that Mr. Fudge ... was negligent by violation of a statute or otherwise, he may nonetheless be excused from liability for this negligence under what has been referred to as the rescue or Good Samaritan doctrine in Louisiana. And that is, one who acts in an emergency in an effort to prevent damage or injury to others and thereby causes injury or damages to himself or to others may be excused from his negligence in not making the wisest choice in his actions as a rescuer. There is a limit [,] however [,]... and the test to be applied is that of a reasonable man acting under similar circumstances.
In other words, a reasonable rescuer. One who has acted unreasonably as a rescuer may not have the benefit of the rescue doctrine whereas one who has acted in the same manner as a reasonable man would act under the same circumstances may be accorded the benefit of the doctrine. However, whether Mr. Fudge was acting in an emergency to prevent injury or damage to others, and if so, whether he acted reasonably under the circumstances shown to have existed at this time are questions of fact entirely up to you the jury to determine.”
We find again that the trial court did not err in failing to give the charge and that the court adequately explained the law of negligence as it relates to rescuers.
Finally, the plaintiff complains about the court‘s charge relative to virile shares and solidary liability. The plaintiff requested, and the court refused to give, the following charge:
“It is well settled jurisprudence of the State of Louisiana that where negligence of two or more parties combine to produce injuries to other individuals, the parties who are at fault are jointly liable in solido to the injured parties and each of the solidary obligors or debtors are liable only for each of its virile portion of the obligation.
“Accordingly, I hereby instruct you that if you find any of the defendants liable, you are to return a judgment in the full amount of any damages you find that the plaintiff has sustained as a result of the accident in question. This court will subsequently reduce your judgment according to the number of parties you find liable to the plaintiff for damages.”
Instead of giving the requested charge, the trial court charged the jury as follows:
“It is well settled jurisprudence of the State of Louisiana that where negligence of two or more parties combine to produce injuries to other individuals, the parties who are at fault are jointly liable in solido that means altogether and each for the whole amount to the injured parties. Accordingly, I hereby instruct you that if you find any of the defendants liable you are to return a judgment in the full amount of any damages that you find that the plaintiff has sustained as a result of this accident.”
The plaintiff contends that the charge given by the court was “very confusing and did not allow the jury to properly consider which parties would ultimately be responsible to the plaintiff in damages.” Because the jury was told at the outset of the trial that the plaintiff had settled her differences with certain parties to the litigation, the plaintiff claims the jury may have been confused by not being instructed that each party was responsible only for its virile share. We are not capable of determining whether the jury would have been more or less confused by either one of the charges. If the truth be known, the law of solidarity and of virile portions is confusing to some members of the legal profession. The court‘s refusal to charge the jury as to virile shares, although such a charge may have been material and relevant to the position of the plaintiff, was not such a severe omission in the context of all the charges as to result in error.
The plaintiff also complains that the use of the terminology “proximate cause” rather than “duty risk” constitutes error because duty risk is clearly the law of this state. Duty risk has certainly become the preferred method of analysis in tort cases in the Louisiana appellate courts since Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), was decided. See Pierre v. All State Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). However, failure to distinguish these two types of analyses to a jury and failure to instruct one over the other does not constitute error when, from the totality of the charges, it is clear that the court conveyed the correct legal principles to the jury.
Even had we found that the trial court incorrectly charged the jury, such a finding would not warrant a remand but would necessitate a review of the full record before
Therefore, for the above and foregoing reasons, the decision of the jury is affirmed at plaintiff‘s costs.
AFFIRMED.