Temple v. STATE EX REL. DOTDTemple v. STATE EX REL. DOTD
Wayne Richard TEMPLE
v.
STATE оf Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
Court of Appeal of Louisiana, First Circuit.
*572 Leonard Cardenas, III, Baton Rouge, Counsel for Plaintiff/1st Appellant Wayne Richard Temple.
Richard P. Ieyoub, Attorney General, William E. Crawford, Jr., Assistant Attorney General, Baton Rouge, Counsel for Defendant/2nd Appellant State of Louisiana, Through the Department of Transportation and Development.
Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
FITZSIMMONS, J.
Plaintiff, Wayne Richard Temple, filed a claim for damages against defendant, State of Louisiana, Department of Transportation and Development (DOTD). The petition alleged that DOTD was liable for the death of Mr. Tеmple's wife of one month, Anna Marie Temple. The jury awarded Mr. Temple $75,000.00 for his wrongful death claim, but allocated 85% of the fault to Mrs. Temple and 15% to DOTD. The trial court granted Mr. Temple's motion for additur, increased the award for wrongful death to $200,000.00, and alternatively granted a new trial on the issue of damages. DOTD rejected the additur, *573 thereby subjecting itself to the new trial. See La. C.C.P. art. 1814. After the new trial, the jury awarded Mr. Temple $100,000.00. Subsequently, the trial court granted Mr. Temple's motion for a Judgment Notwithstanding the Verdict (JNOV), and raised the award to $250,000.00. Both parties appealed.
Plaintiff assigned the following errors to the judgment:
1. The trial court erred in instruсting the jury that the plaintiff was presumed at fault for leaving the roadway, thus erroneously shifting the burden of proof.
2. The trial court erred in allowing the police officer to testify that he smelled alcohol "despite that same [c]ourt's earlier (and correct) ruling disallowing evidence of alleged intoxication based on a finding that there was no competent evidence that Anna Marie Temple was intoxicated at the time of her accident."
3. The trial court erred by failing to find DOTD 100% at fault.
4. Alternatively, if the testimony about the odor of alcohol was admissible, the jury erred in allocating thе majority of the fault to Anna Marie Temple.
DOTD assigned the following errors:
1. The jury erred in finding that DOTD was at fault when none of the alleged defects in the roadway was shown to have caused the accident.
2. The trial court improperly allowed a jury instruction and evidence about design guidelines formulated after O'Neal Lane was originally constructed.
3. The trial court improperly raised the award of damages.
After a thorough review of the record, we reverse the increase in damages by the trial court and reinstate the original jury verdict. The remainder of the judgment is affirmed.
FACTS OF THE ACCIDENT
Construction began on O'Neal Lane in 1957. It is unclear from the record at what times the lane was a actually a state road, but, at the time of the accident, the roadway was a state road and was being re-surfaced. Mrs. Temple lived in the area of O'Neal Lane for about fifteen years. The day before the accident, she drove the same route that she used the night of the accident, and was aware of the re-surfacing. On February 12, 1998, Mrs. Temple was killed in a one vehicle accident at approximately 1:30 a.m. As Mrs. Temple approached a curve in O'Neal Lane, her car left the roadway. After leaving the roadway, the car continued in a straight line over a driveway, bottomed out on the side of a driveway culvert and the dirt above it, impacted several mailboxes and some bushes, grazed a utility pole, and hit a steel guy line or cable attached to a telephone pole. Finally, the car came to rest upside down wrapped in the steel cable. Mrs. Temple, who was not wearing her seatbelt, was ejected from the car. No evidence of skidding or braking was found. The record contains no evidence that Mrs. Temple attempted to return to the roadway. No other accidents or collisions had occurred at the same point on O'Neal Lane.
JURY INSTRUCTIONS
The pertinent jury instructions given by the trial judge are as follows:
[DOTD's] duty to provide a reasonably safe highway does not require DOTD to take every conceivable measure to prevent injuries. DOTD does not have a duty to bring old highways up to current safety standards, unless the highway has undergone major reconstruction. Nevertheless, DOTD has a duty to correct cоnditions existing on *574 old highways that are unreasonably dangerous, and modern AASHTO standards may be considered by you in determining whether the roadway was unreasonably dangerous.
You must also determine whether the state has proven that the conduct of Anna Marie Temple contributed to the plaintiff's injuries. Louisiana law states that the recovery of an injured person must be allocated between any persons who may have contributed to that injury.
* * *
In this case, the standard applicable to Anna Marie Temple's conduct is that she exercisе a degree of care which we might reasonably expect a person to exercise for her own safety and protection. The state has the burden of proving by a preponderance of the evidence that Anna Marie Temple failed to conform to that standard and by that failure, caused her own injuries, either in whole or in part. If the state convinces you of that, then you must take into account the degree of fault attributable to Anna Marie Temple in returning your verdict. The greater the deviation made by a person from this standard, the greater you should make her degree of fault. I will give you some questions to answer on your verdict sheet that will assist you in this determination.
A presumption of negligence arises when a driver leaves her own lane of traffic. In order to rebut that presumption, plaintiff has the burden of proving that the driver was not guilty of any dereliction, however slight.
There is no presumption of negligence when a driver consumes alcohol prior to an accident. In order to establish the negligence of a driver who may have cоnsumed alcohol prior to the accident, the state must show that the alcohol consumption was a legal cause of the accident.
Louisiana law provides that you divide the total responsibility of damages among those who were at fault. You should do this by assigning percentages which will [total] 100%. You are free to assign whatever percentage you deem to be appropriate and you should do so by answering the questions which will be provided to you on the special verdict sheet.
Presumption of Negligence
The plaintiff's primary concern is that the presumption of negligence instruction improperly shifted the burden of proof. Plaintiff, Mr. Temple, argues that the application of the presumption required him to prove "by clear and convincing" evidence that Mrs. Temple was not negligent.
The plaintiff has the burden to prove, by a preponderance of the evidence, that DOTD caused the accident and the attendant injuries and damages. See Payne v. State Farm Mutual Automobile Insurance Company, 99-2737, 99-2738, p. 3 (La.App. 1 Cir. 12/22/00),
The trial court has discretion in choosing the instructions to be given to the jury. However, if the wrong standard was applied to the prejudice of the plаintiff, this court would conduct a de novo review and render a decision. Payne, 99-2737, 99-2738 at p. 4,
In this case of a one vehicle accident, we do not find the exceptional circumstances that underlie the Ferrell presumption. Thus, we find that the presumption does not apply and the trial court abused its discretion in instructing the jury on its use. The remaining question is whether the instruction in this case impermissibly placed a heavier burden on plaintiff, Mr. Temple, thereby tainting the jury's verdict, and requiring a de novo review.
The effect of the Ferrell presumption is to shift, to the defendant, the plaintiff's initial burden to prove negligence in a vehicular accident. However, in this case, the burden of proof was not shifted to the defendant. It remained with the plaintiff,
Mr. Temple, who properly had the burden of proof in this wrongful death case. The plaintiff had the burden to prove, by a preponderance of the evidence, that DOTD caused the accident and attendant damages. Under the particular facts of this аccident (especially with one victim and one defendant accusing each other of 100% liability), and without the presumption, plaintiff's failure to prove DOTD's fault could reasonably result in a corresponding finding of victim fault. Most importantly, the other instructions given by the court at the same time as the presumption more clearly explained the proper placement of the burdens of proof and the essential principles of comparative negligence. The plaintiff's traditional burden to prove his case, in conjunction with the ameliorating effect of the other instructions, substantially dampened any possible prejudice or confusion that may have been caused by the inapplicable instruction. This finding is bolstered by the jury's allocation of fault to both parties on a record that is not overwhelmingly supportive of the causal link between the alleged defects in the roadway and the accident. Therefore, from our review of the record, we cannot say that the erroneous instruction improperly shifted the burden of proof, or created prejudice sufficient to interdict the jury's decision making process. For these reasons, a de novo review is not required.
AASHTO Standards
DOTD complains of the trial court's decision to allow testimony based on AASHTO (American Association of State Highway and Transportation Officials) standards and guidelines formulated and published after O'Neal Lane was constructed. DOTD argues that the current project was only a re-surfacing. Thus, only the standards in place at the time of construction, and applicable to the particular highway in question, should have *576 been presented tо the jury. Primarily relying on the Louisiana Supreme Court decisions of Petre and Aucoin, Mr. Temple asserts in his brief that post-construction standards and guidelines are "a relevant factor in determining whether the roadway is unreasonably dangerous" and DOTD was negligent in not correcting those defects. See Petre v. State, Department of Transportation and Development, XXXX-XXXX, pp. 10-11 (La.4/3/02),
DOTD has no duty to conform to post-construction standards, such as AASHTO, but does have a duty to correct conditions on old roadways "that are unreasonably dangerous." Cormier v. Comeaux, 98-2378, pp. 9-10 & 13 (La.7/7/99),
Therefore, the trial court did not abuse its discretion in its instruction to the jury on the use of the AASHTO standards. The instruction did not require the jury to apply post-construction standards or guidelines as a basis for finding that noncompliance was negligence per se. The instruction did correctly state the legally permissible use of post-сonstruction standards and guidelines like AASHTO to a case arising in 1998.
ADMISSIBILITY OF ALCOHOL ODOR EVIDENCE
Plaintiff, Mr. Temple, assigned error to the trial court's decision to allow testimony about the smell of alcohol coming from the victim. Mr. Temple argues that the testimony was more prejudicial than probative, and should have been excluded under the trial court's prior ruling prohibiting evidence of intoxication. Because of the legal error, plaintiff believes this court should conduct a de novo review.
At trial, a state trooper testified that he had many years of experience deteсting intoxication and the smell of alcohol. He stated that he detected the "odor of alcohol" coming from Mrs. Temple at the scene of the accident. Under questioning by plaintiff's counsel, the trooper agreed that other things smell like alcohol, such as "fake beer." Later, at the hospital, another trooper, familiar with issuing citations for DWI's, testified that he "smelled an odor of alcohol, what I believe to be alcohol coming from the room" where a doctor was performing a "blood alcohol extrаction" on Mrs. Temple. On cross-examination, the trooper admitted that he could not tell if the smell emanated from beer, cough syrup, or something else. Neither trooper testified that Mrs. Temple was intoxicated.
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." La. C.E. art. 401. Louisiana Code of Evidence article 701 allows а lay witness with firsthand knowledge to testify to an opinion "[r]ationally based on the perception of the witness; and" if it is "[h]elpful to a clear understanding of his testimony or the determination of a fact in issue." See La. C.E. art. 701, 2003 Authors' Notes (1). Thus, a *577 lay witness can give opinion testimony based on his training, investigation, perception of the scene, and observation of physical evidence. Wingfield v. State, Department of Transportation and Development, 2001-2668, 2001-2669, p. 19 (La. App. 1 Cir. 11/8/02),
The troopers testified to their personal opinions, based on training and experience, that they smelled the odor of alcohol emanating from the nearby victim. Mr. Temple's counsel was allowed to challenge their opinion, and, by questioning, attempt to rebut any inference that the alcohol smell came from an intoxicating beverage. Under the particular facts of this case, we cannot say that the trial court abused its discretion or was clearly wrong in allowing witnesses, with reasonably reliable first hand knowledge, to provide testimony "[r]ationally based" on their observations. While testimony concerning the use of alcohol or drugs may sometimes elicit prejudice, the plaintiff here was afforded an opportunity to question the observers, rebut any prejudicial perceptions, and expose weaknesses or errors in the testimony. Based on this record, we do not find that prеjudice "substantially outweighed" the probative value of the testimonial evidence. La. C.E. art. 403. A trial should be, as nearly as possible, a search for the truth. We find no abuse of discretion and no basis for a de novo review.
LIABILITY AND ALLOCATION OF FAULT
Both parties assign error to the jury's liability or fault determinations. In the event this court did not conduct a de novo review, Mr. Temple argues that the jury erred in assessing the majority of the fault to Mrs. Temple. DOTD asserts that the alleged defects did not cause the damages and it should not have been held liable.
DOTD has a duty to keep the state roadways reasоnably safe for persons exercising ordinary care and reasonable prudence. Cormier, 98-2378 at p. 6,
Whether a road is unreasonably dangerous and whether an unreasonably dangerous defect caused the plaintiff's damages are findings of fact. Petre, XXXX-XXXX at p. 7,
By assigning 85% of the fault to Mrs. Temple, the jury found her primarily responsible for leaving the roadway. This finding of liability and percentage of fault is bolstered by the absence of any skid or braking marks on the straight line path of the car after it left the roadway. The record contains no evidence or sign that Mrs. Temple tried to regain control or return to the road.
Plaintiff's expert, relying on various highway standards, found that the roadway had five defects: the roadway lacked fog and center lines to guide the driver, the utility poles and culvert were too close to the roadway, the ditch slope ratio and shoulder were not adequate, and a bump or reverse pothole acted as a launch pad, causing the driver to lose control of the car. The expert opined that the alleged defects were unreasonably dangerous, and without them, "we probably wouldn't be here."
DOTD's expert disagreed. He presented opinion and documentary evidence rebutting the applicability of the standards relied on by plaintiff's expert, challenging the requisite width of the shoulders on O'Neal Lane and the purpose of highway markings, questioning the economic feasibility of removing culverts and poles from highway right of ways, and contradicting the claimed steepness of the slope and existence of the bump. DOTD's witnesses testified that there were no unreasonably dangerous problems at the location of the accident and there had been no prior accidents, or complaints lodged prior to the Temрle accident. Thus, the jury was faced with conflicting evidence and opinions.
Based on our review of the record, the jury could have reasonably found, singly or in combination, that plaintiff failed to show (1) that, at the time and location of the accident, the bump or reverse pothole existed, (2) that the slope ratio of the ditch was unreasonably dangerous, (3) that it was economically feasible to remove obstacles from this road and other roadsides across the state, (4) that particular roadside objects presented a danger that outweighed their utility, (5) that the obstacles were new and unknown to Mrs. Temple,
(6) that the alleged defects specifically caused the accident and damages here, or
(7) that DOTD had actual or constructive notice of the alleged defects and failed to respond timely.
Although plaintiff's expert concluded the defects probably caused the accident, his specific testimony on the defects primarily highlighted the dangerous possibilities presented by the alleged defects to all motorists. On this record, particularly in the absence of a more direct link to causation, we cannot say that the jury was "clearly wrong" in rejecting the majority of plaintiff's version of causation, liability, or allocation. Clement, 95-1119, 95-1163 at p. 7,
While assessing the greater fault to Mrs. Temple, the jury also assigned 15% of the fault to DOTD. Though we are unsure of the basis for that allocation, and must speculate, the likeliest candidatе is DOTD's failure to re-mark the roadway surface. On this issue, we again have a contest between the experts.
The trooper on scene testified that fog lines were missing from the edge of the roadway at the point the car left the road, but he remembered double yellow center lines. Mr. Temple introduced photos, taken a few days after the accident, in which the fog and center lines were missing. While Mr. Temple's expert opined that fog and center lines generally help motorists stay on the road by outlining the path of the roаdway, DOTD's expert testified that highway markings are used primarily to aid drivers unfamiliar with a roadway, not a repetitive user like Mrs. Temple. From the testimony, the jury may have found that the fog and center lines were missing. The jury may have extrapolated an opinion and found that the absence of these markings contributed, in conjunction with her own negligence, to Mrs. Temple's inability to keep her vehicle on the roadway.
Though our analysis of the basis for DOTD's fault is purely speculative, we are guided by the precepts of Stobart. Regardless of whether the fact finder favors the version of the story told by the plaintiff or defendant, we cannot reverse based merely on our choice of facts. If the record reasonably supports the determinations of the jury, we must defer to their first-hand observation of the witnesses and legal function as fact finder. See Stobart,
DAMAGES
In its reasons for granting the additur, and altеrnatively a new trial, the trial court noted that Mr. Temple was a stoic witness and that the couple had a five-year relationship before their marriage. The court stated that the jury's award was "an abuse of discretion." In assigning error, DOTD argues that the jury award of $75,000.00 was not abusively low, and thus the additur and the subsequent grant of a new trial was error. Alternatively, DOTD argues that the JNOV was wrongly granted and the second jury award of $100,000.00 should be re-instated.
The role of the appellate court, and the trial court in a jury trial, is not to replace or second guеss the jury and determine what the court thinks is an appropriate award of damages. The jury, or fact finder, has "much discretion" in the award of damages. La. C.C. art. 2324.1; Youn v. Maritime Overseas Corp.,
A trial court may offer an additur if the court finds that the jury award was so inadequate that the jury abused its discretion and a new trial should be granted. La. C.C.P. art. 1814. Thus, the decision to offer an additur rests on whether the grant of a new triаl would be proper. Magee v. Pittman, 98-1164, p. 18 (La.App. 1 Cir. 5/12/00),
The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdiсt. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury's responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury's factual determinations and must be viewed in that light. Thus, the jury's verdict should not be set aside if it is supportable by any fair interpretation of the evidence.
Davis v. WalMart Stores, Inc., XXXX-XXXX, p. 10 (La.11/28/00),
In other words, if the jury's award is within its range of discretion, an additur is not proper. See Accardo, 97-2320 at p. 9,
To begin, we interpret the trial court's remarks to mean that the grant was based on Code of Civil Procedure article 1972(1), the verdict was contrary to the law and evidence, or, under article 1973, the court found "good grounds therefore...." Therefore, the trial court exercised its discretion in its offer of the additur and subsequent grant of the new trial. See Davis, XXXX-XXXX at pp. 9-10,
From our reading of the record, and consideration of the particular facts here, we can find no basis for the grant of a new trial, or additur. "The jury's verdict was supportable by a fair interpretation of the evidence." Davis, XXXX-XXXX at p. 12,
*581 A(1). Thus, the duration of the pre-marital relationship is not wholly determinative of the scope of the damages for this particular spouse, and did not render the jury's initial award abusively low.
For the foregoing reasons, we vacate the award of $250,000.00 to Mr. Temple and reinstate the original jury award of $75,000.00. In all other regards, we affirm the judgment. The costs of the appeal, $4,373.64, are assessed equally between Mr. Temple and DOTD.
REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.
GUIDRY, J., concurs.
NOTES
Notes
[1] For cases arising after July 9, 1999, the "evidence of failure to adhere to [a postconstruction] standard, regulation, or guideline shall not be admissible in a court proceeding for any purpose." La. R.S. 48:35 F(2).