author: McCLENDON, J. WHIPPLE, C.J. concurring in part and dissenting in part.

text:
    Courtney QUEEN v. WOMAN'S HOSPITAL FOUNDATION
    2018 CA 0222
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: OCTOBER 31, 2018
    William D. Grimley, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee Courtney Queen
    Randall L. Champagne, Baton Rouge, Louisiana, Counsel for Defendant/Appellant Woman's Hospital Foundation
    BEFORE: WHIPPLE, C.J., McCLENDON, WELCH, HIGGINBOTHAM, & CRAIN, JJ.
   McCLENDON, J.

Appellant, Woman's Hospital Foundation ("Woman's Hospital"), appeals a judgment in favor of appellee, Courtney Queen, awarding damages for injuries sustained in a slip-and-fall accident. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

The underlying suit arises out of a personal injury suffered by Ms. Queen at Woman's Hospital in Baton Rouge, Louisiana. On December 1, 2015, at around 8:50 p.m., Mr. Isiah Smith, who was employed as a floor tech at Woman's Hospital, was mopping the landing area near the second floor elevators. Ms. Queen, who had been visiting a relative at the hospital, entered the elevator on the hospital's first floor and proceeded up to the second floor. Prior to Ms. Queen exiting the elevator on the second floor, Mr. Smith had set up two (2) wet floor signs by the elevators, one at the outer edge of the elevator landing area and one in front of and in between the two back elevators. Ms. Queen indicated that she saw Mr. Smith as she was exiting the elevators, and surveillance video reflects that she went around one of the wet floor signs. Thereafter, she slipped and fell to the floor causing injuries to her back and left knee.

On July 6, 2016, Ms. Queen filed suit against Woman's Hospital, alleging that Woman's Hospital was negligent for, among other things, creating a hazardous condition and failing to take steps to adequately safeguard the public. Woman's Hospital answered the petition, generally denying Ms. Queen's allegations.

Following a bench trial, the trial court adopted Ms. Queen's proposed findings of fact and conclusions of law and rendered judgment in favor of Ms. Queen and against Woman's Hospital, awarding Ms. Queen $43,837.00 in damages.

Woman's Hospital has appealed, assigning the following as error:

1. The trial court erred in ruling Appellant - Defendant, Woman's Hospital Medical Center, was at fault, as the findings of the trial court ignored the clear law and jurisprudence in regards to alleged slip and falls on the premises of a hospital, and the reasonableness of the measures used by Woman's Hospital Foundation.
2. Alternatively, if this Court determines Defendant - Appellant was at fault, which is at all times denied, the trial court erred in not assessing fault to the Plaintiff - Appellee, Courtney Queen, despite her obvious comparative fault.
3. The Trial Court erred in its excessive award of damages to the Plaintiff - Appellee, considering her limited treatment and injuries.

DISCUSSION

Every act of man that causes damage to another obliges him whose fault it happened to repair it. LSA-C.C. art. 2315. Under a negligence standard, a hospital owes a duty to its visitors to exercise reasonable care for their safety, commensurate with the particular circumstances involved, but the duty owed is less than that owed by a merchant. Terrance v. Baton Rouge General Medical Center , 10-0011 (La.App. 1 Cir. 6/11/10), 39 So.3d 842, 844, writ denied, 10-1624 (La. 10/8/10), 46 So.3d 1271. As in any slip and fall case against a hospital, a plaintiff must show that she slipped, fell, and was injured because of a foreign substance on the hospital's premises. Id. The burden then shifts to the hospital to exculpate itself from the presumption of negligence. Id. The hospital must show that it acted reasonably to discover and correct the dangerous condition reasonably anticipated in its business activity. Id. The trial court must also consider the relationship between the risk of a fall and the reasonableness of the measures taken by the defendant to eliminate the risk. Id.

On appeal, Woman's Hospital contends that the trial court erred in finding it at fault for Ms. Queen's fall. The hospital does not dispute that there was a foreign substance on the floor of the second elevator landing area. However, the hospital avers that the trial court did not consider the reasonable measures it took to eliminate the risk caused by the dangerous condition. Specifically, the hospital avers that Mr. Smith performed his duties properly and reasonably by placing the wet floor signs in the area at issue prior to Ms. Queen exiting the elevator. Moreover, the hospital avers that the floor was not mopped when the hospital was busy. Rather, Mr. Smith indicated that he shampooed the carpets and rugs in his assigned area after he arrived at work to allow time for things to "die down" before he cleaned the elevator landings "when it's kind of slow." The hospital concludes that the measures taken were reasonable such that it is not responsible for Ms. Queen's fall.

In opposition, Ms. Queen posits that when she got off of the elevator, there was simply nowhere that she could go that was not wet. Moreover, she avers that she did not know that Mr. Smith had mopped between the wet floor sign and back wall when she exited the elevator. Rather, she believed that she was walking on a dry floor. Additionally, Ms. Queen notes that she only took four steps after she exited the elevator before she fell and only two seconds elapsed between her departing the elevator and her fall. Ms. Queen posits that no one riding on the elevator would have had prior warning that the floor was being mopped and was wet. In light of the foregoing, Ms. Queen concludes that the hospital's measures were not reasonable, and it should have done more to warn her of the floor's condition.

In Lee v. Ryan's Family Steak House Inc. , 06-1400 (La.App. 1 Cir. 5/4/07), 960 So.2d 1042, writ denied, 07-1577 (La. 10/12/07), 965 So.2d 405, this court determined that the district court's finding that a restaurant failed to exercise reasonable care under the circumstances was manifestly erroneous. The plaintiff therein slipped and fell at a restaurant buffet, and she testified that she noticed that the floor was slippery and wet. The restaurant had placed a warning cone, which was approximately three (3) feet tall and had a picture of a person slipping, in the aisle where the floor had recently been mopped. Although the plaintiff denied having seen any warning signs or cones in the area, she walked within a foot or two of the cone before she slipped and fell. This court, in reversing the judgment of the district court, stated that:

Finally, we find the trial judge's findings that the cone should have had "directional symbols" or arrows or language showing exactly where to go and where not to go to be unreasonable. A merchant is not the insurer of the safety of its patrons and has only a duty to exercise reasonable care under the circumstances for the safety of its patrons. We find that an approximately three-foot-high yellow warning cone containing the universal symbol for a wet floor to be adequate to alert a patron of a hazardous condition. It would be unreasonably burdensome to require a merchant to have a supply of cones with words and arrows explaining the circumstances of every possible hazardous condition to its customers. While it may have been more prudent for Ryan's to have placed more than one cone in the area after mopping, Ms. Lee's fall would not have been prevented by the placement of multiple cones. She entered the food bar area from the direction of the parallel food bars, walked within a foot or two of the warning cone on her way to the perpendicular food bar, then discovered the water on the floor for herself before turning and returning the same way she came and falling right alongside the warning cone. (Internal citation omitted.)

Lee , 960 So.2d at 1047.

In Mays v. Circle K. Stores, Inc. , 13-1397 (La.App. 1 Cir. 3/24/14), 2014 WL 1175384 (unpublished opinion), this court affirmed the district court's grant of a summary judgment in favor of defendant in a slip and fall case, determining that there was no genuine issue of material fact as to the exercise of reasonable care by the store. Plaintiff therein entered the store, approached a warning sign, which was placed within several feet from the mopped area and facing the store entrance, and passed it on the left. She testified that she saw the sign and recognized it as warning of a wet floor. However, once she arrived to the mopped area, she slipped and fell. This court began its discussion by stating that "[w]hether protective measures in a particular store are reasonable must be determined in light of the circumstances of the case, considering, commensurate with the risk involved, the merchant's type and volume of merchandise, the type of display, the floor space utilized for customer service, the volume of business, the time of day, the section of the store, and other considerations." Mays , 2014 WL 1175384 at p.2. Specifically, this court agreed with the assessment of the district court that the store exercised reasonable care in the placement of the warning sign, stating:

Ms. Mays could not avoid seeing the sign when she entered the store, and she saw the warning sign before she reached the slippery area of the floor. The trial court found it was not necessary for any more signs to be placed due to the small floor space of the store.

Id. at p.3. It was thus determined that the store had sufficiently shown that protective measures were taken to warn customers of the potential hazard and that it did not fail to exercise reasonable care.

Recently, in Toussaint v. Baton Rouge General Medical Center , 18-0029 (La.App. 1 Cir. 6/4/18), 251 So.3d 1151, this court affirmed a judgment rendered in favor of a plaintiff who had slipped and fallen in a hospital. In so holding, this court reasoned:

Despite BRGMC's [the hospital] assertions that it acted reasonably to eliminate the risk because its housekeeping employee followed HHS's [the housekeeping department's] policies and procedures, which were created with safety in mind, the evidence does not support this assertion. Mr. Totten and Ms. Franklin both acknowledged that Ms. Franklin was supposed to approach the spill with her housekeeping cart, including her mop bucket with wringer, additional "wet floor" signs, and anything else she might need to clean the spill, as opposed to just carrying a damp mop and one "wet floor" sign to the area. By failing to bring her cart, Ms. Franklin could not wring out her mop after mopping up the spilled water to avoid leaving excess water on the floor, and she could not use additional "wet floor" signs to warn passersby of the extent of the wet area. In addition, Ms. Franklin's inability to judge the size of the mopped area caused her to make the "questionable" decision to use only one "wet floor" sign in a situation where proper calculation of the size of the area mopped would result in the use of two signs.

Toussaint , 251 So.3d at 1157. Accordingly, this court concluded that it could not "say that the trial court erred in concluding that BRGMC failed to act reasonably to discover and correct the dangerous condition." Id.

In the instant case, the trial court found that Mr. Smith created a trap for those arriving on the second floor elevator landing because those departing the elevator would not be aware that he was mopping until they had exited the elevator at which time they would already be on a wet floor. Further, the trial court found that under the circumstances, Mr. Smith could have stepped forward in the front of the elevator and when the elevator door opened, he could have cautioned occupants that the entire floor was wet.

Considering the entirety of the record, we conclude that the trial court's finding that the measures taken by the hospital were not reasonable is manifestly erroneous. The footprint of the second floor elevator landing area is relatively small. Mr. Smith mopped the area at issue at a time when there were generally fewer visitors at the hospital. Mr. Smith placed two different "wet floor" warning signs to alert the public that the second floor elevator landing area had been or was being mopped. One of the warning signs was placed in front of the elevator Ms. Queen exited, and the surveillance video shows Ms. Queen walking directly past the sign prior to her fall. See Mays , 2014 WL 1175384 at p.3 (more signage not needed where plaintiff could not avoid seeing the sign and given the small space of the floor) and Lee , 960 So.2d at 1047 (wherein merchant not liable where plaintiff denied having seen warning sign, but she walked within a foot or two of the sign before she slipped and fell). Moreover, we note that both Mays and Lee involved merchants who owe a higher duty than a hospital. See Terrance , 39 So.3d at 844.

In addition to the signage, Ms. Queen admits to seeing Mr. Smith when she stepped out of the elevator. The surveillance video shows Mr. Smith with a mop in his hands at the time Ms. Queen exits the elevator. Mr. Smith also used a mop bucket with a wringer and the surveillance video shows that Mr. Smith wrung out his mop prior to mopping the area at issue. Unlike Toussaint , there is no evidence to suggest that Mr. Smith failed to follow the hospital's policies and safety procedures. Additionally, immediately following Ms. Queen's fall, another occupant of the elevator was able to safely traverse the same path taken by Ms. Queen.

Given the signage, the small area, Mr. Smith's presence in the area with the mop and mop bucket when Ms. Queen exits the elevator, evidence that Mr. Smith wrung the mop multiple times before its use, and no evidence that Mr. Smith failed to follow proper procedures, we find that measures taken by the hospital were reasonable. Although Ms. Queen posits and the trial court found that the hospital could have taken additional measures, the hospital need only take measures that are reasonable. Under these circumstances, the trial court was manifestly erroneous in concluding that the hospital was liable for Ms. Queen's fall.

Accordingly, we find merit in Woman's Hospitals first assignment of error. Because we find merit in Woman's Hospital's first assignment of error, we pretermit the remaining assignments of error. As such, we reverse the judgment of the trial court holding Woman's Hospital liable for Ms. Queen's accident.

CONCLUSION

For the foregoing reasons, the trial court's December 4, 2017, judgment in favor of Courtney Queen is reversed. Costs of this appeal are assessed to plaintiff, Courtney Queen.

REVERSED.

Whipple, C.J. concurs in part and dissents in part and assigns reasons.

Higginbotham, J. concurs in part and dissents in part for reasons assigned by C.J. Whipple.

Welch J. concurs and assigns reasons.

WHIPPLE, C.J. concurring in part and dissenting in part.

It is undisputed herein that Ms. Queen slipped, fell, and was injured because of a foreign substance on the floor, namely, the floor was wet (and slippery) as it was being mopped by a hospital employee. Thus, the burden shifted to the hospital to show that it acted reasonably to correct this dangerous condition reasonably anticipated in its business activity. See Terrance v. Baton Rouge General Medical Center, 10-0011 (La. App. 1 Cir. 6/11/10), 39 So.3d 842, 844, writ denied, 10-1624 (La. 10/8/10), 46 So.3d 1271.

Following my review of the record herein, and specifically after carefully reviewing the surveillance video, I am unable to say that the trial court was manifestly erroneous in finding that the measures taken by the hospital deviated or fell below the standard of care of reasonableness. As correctly noted by the majority, the hospital's employee placed wet floor signs in the small elevator landing area that he was mopping. However, the surveillance video also reflects that the employee placed both the warning sign and a buffer machine in what was, in fact, the only remaining dry area of the elevator landing. Accordingly, as noted by the trial court, the employee's actions forced persons exiting the elevator to do so by walking through the wet area, by impeding any dry route that may have existed for Ms. Queen (or the nurse after her) to traverse when she exited the elevator. Thus, although it was reasonable to expect that a hospital would mop this area, reasonable measures existed and were not taken that could have limited or corrected the dangerous condition caused by mopping the elevator landing area and the placement of buffer machine. Specifically, by mopping one area at a time, and merely placing the sign in the wet area rather than in the only dry area, the hospital could have easily ensured that part of the elevator landing area remained available to be safely traversed without the hazards of a wet, recently mopped floor obstructing the remaining dry area. In sum, I find no error in the trial court's conclusion that the hospital was negligent.

However, I also find that the trial court erred in failing to assign plaintiff any comparative fault whatsoever, given that she proceeded out of the elevator quickly, she was not otherwise distracted upon exiting the elevator, and she was somewhat familiar with the area as she had used the elevator previously. Cf. McLaughlin v. Home Indemnity Insurance Company, 361 So.2d 1227, 1230 (La. App. 1 Cir.), writ denied, 363 So.2d 922 (La. 1978) ("On the question of contributory negligence we find that plaintiff acted reasonably. Her unrebutted testimony is that she was proceeding very slowly down the steps, feeling her way along. This being the only route available to her, we find no negligence on her part."); Perkins v. Springhill General Hospital, 278 So.2d 900, 904 (La. App. 2 Cir. 1973) ("In the instant case, although Mrs. Perkins may have been aware of the probability of water or moisture being present on the floor of the corridor, she had no alternative route and was forced to transverse the wet area to get to and from the room.")

The majority opinion discusses and relies upon two prior decisions wherein this court reversed judgments of the trial court that were rendered in favor of the plaintiff in slip-and-fall cases. However, in my view, these cases are distinguishable. In Terrance, 39 So.3d at 844, this court reversed the decision of the trial court only after finding that the trial court legally erred by stopping its analysis after making a factual finding that the plaintiff fell in a foreign substance, without considering whether the hospital acted reasonably to discover and correct the dangerous condition. Terrance, 39 So.3d at 845. In the instant case, there is no such legal error by the trial court. Indeed, the majority opinion acknowledges that the trial court specifically addressed the reasonableness of the measures taken by the hospital, and ultimately found that the measures taken were not reasonable. Also, in Lee v. Ryan's Family Steak Houses, Inc., 2006-1400 (La. App. 1 Cir. 5/4/07), 960 So.2d 1042, writ denied, 07-1577 (La. 10/12/07), 965 So.2d 405, this court reversed the decision of the trial court only after finding that the trial court's oral reasons for judgment were internally inconsistent with the record. Lee, 960 So.2d at 1045. In the instant case, the majority opinion does not point out any inconsistencies between the trial court's reasons for judgment and the testimony and evidence in the record of these proceedings.

However, I do agree that the damage award of $43,837.00 should be reduced as clearly excessive, where plaintiff sustained only a bruised knee and lumbar strain as a result of the slip-and-fall incident and only required treatment for a four-month period.

For these reasons I respectfully concur in part and dissent in part.

WELCH, J., concurs.

I respectfully concur with the results reached in this opinion. The video speaks for itself and conclusively shows the plaintiff ignoring the wet floor warning signs, which resulted in her slip and fall.

The emergency doctrine does not apply under the circumstances of this case. The hospital staff member acted reasonably by placing two different "wet floor" warning signs in the area at issue prior to Ms. Queen exiting the elevator to alert the public that the second floor elevator landing area had been or was being mopped.

No evidence was presented to prove the actions of the mopping personnel was unreasonable.

      Ms. Queen had previously traversed the second floor landing area several times that day.


source: Caselaw Access Project

author: McCLENDON, J.

license: Public Domain

text:
    Karonda WASHINGTON, Lateisha Atkinson on Behalf of Her Minor Child, Ja'myah Bass and Tashell Jones on Behalf of Her Minor Child, Ezekiel Blakes v. ONEBEACON AMERICA INSURANCE COMPANY, Sid Gautreaux, East Baton Rouge Parish Sheriff, Tyler Comeaux, GoAuto Insurance Company and Shankeyshia Jones
    2018 CA 0248
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 02, 2018
    Benjamin T. Lowe, Spencer H. Calahan, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee, Karonda Washington
    Mary G. Erlingson, Judson G. Banks, Mary E. Colvin, Lee J. Ledet, Baton Rouge, Louisiana, Counsel for Defendants/Appellants, Sid J. Gautreaux, III, in his capacity as sheriff of East Baton Rouge Parish, Deputy Tyler Comeaux and Atlantic Specialty Insurace Company
    Chase Tettleton, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, GoAuto Insurance Company and Shankeyshia Jones
    BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
   McCLENDON, J.

Appellants seek review of a trial court judgment finding an officer grossly negligent in causing a motor vehicle accident when responding to an emergency. For the reasons that follow, we amend the judgment to assess fault comparatively and affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a motor vehicle crash that occurred on March 15, 2014 at around 11:30 p.m. on Airline Highway in East Baton Rouge Parish. Plaintiff, Karonda Washington, was a passenger in a 2003 Mazda Tribute being operated by her daughter, Shankeyshia Jones. Ms. Jones was traveling northbound in the right hand lane of Airline Highway, approaching its intersection with Jefferson Highway.

At about the same time, Brad Manuel and Tyler Comeaux, both deputies with the East Baton Rouge Parish Sheriff's Office, were traveling northbound in the left hand lane of Airline Highway, some unspecified distance behind Ms. Jones' vehicle. The two deputies were in separate police cruisers with their emergency lights and sirens on responding to a Code III call. A Code III call generally requires officers to move to the scene as quickly as possible with lights and sirens engaged. The officers were responding to a call regarding "a disturbance with a weapon ... with an individual inside of a home with a gun" along with screaming being heard in the background.

At some point, Ms. Jones moved her vehicle into the left hand lane to make a left turn onto Jefferson Highway. Deputy Manuel stopped his police cruiser behind Ms. Jones' vehicle. Deputy Manuel, in an attempt to have Ms. Jones move her vehicle so that he could pass, changed the tone on his siren multiple times. After Ms. Jones had made sufficient room to allow Deputy Manuel to pass, Deputy Comeaux's cruiser rear-ended Deputy Manuel's cruiser and pushed it to the right. Thereafter, Deputy Comeaux's cruiser rear-ended Ms. Jones' vehicle. Ms. Washington was injured in the accident.

On June 10, 2014, Ms. Washington filed suit against Deputy Comeaux; Sid Gautreaux in his capacity as the East Baton Rouge Parish Sheriff; the Sheriff's insurer, Atlantic Specialty Insurance Company (improperly identified as OneBeacon America Insurance Company in the petition); Ms. Jones; and Ms. Jones' insurer, GoAuto Insurance Company. Ms. Washington alleged that the accident was caused by the fault of Mr. Comeaux and/or Ms. Jones and sought recovery for injuries sustained in the accident.

Ms. Jones and GoAuto Insurance Company filed an answer, alleging that Deputy Comeaux was responsible for the accident, or alternatively, that fault should be apportioned between the two defendant drivers.

Deputy Comeaux, the Sheriff, and Atlantic Specialty Insurance Company (sometimes referred to collectively as appellants) filed an answer, asserting that Ms. Jones was liable for the accident for, among other things, failing to comply with a motorist's duties under LSA-R.S. 32:125 upon approach of an emergency vehicle.

Following a trial on the merits, the trial court found the appellants solely liable for the accident, reasoning as follows:

The court finds that the defendant, Sheriff Comeaux, ... was grossly negligent in the manner in which he operated his police unit on the night of the accident. From his own testimony he stated that he, and I'm paraphrasing, that he was blinded by the blue lights, either from his car or from another sheriff's deputy's car that was in front of him that did not allow him to see the braking of the vehicles in front of him. He was operating the vehicle based off the testimony, in the neighborhood going well over ninety something miles-per-hour. And the road condition of the night of the accident, it was wet. And so the court finds that he was grossly negligent in operating the vehicle at such a high rate of speed without being able to clearly see what was in front of him. He was not able to stop his vehicle from running in the back of his - another sheriff deputy's vehicle that he knocked off the road and then propelled into the vehicle in which the plaintiff was riding in.

No reference was made by the trial court regarding the position of Ms. Jones' vehicle or Ms. Jones' failure to stay in the right lane of travel as the emergency vehicles approached. On November 6, 2017, the trial court signed a judgment in accord with its ruling in open court, holding the appellants solely liable for the accident and awarding damages in favor of Ms. Washington.

In their appeal, appellants assign the following as error:

1. The trial court erred in finding that Plaintiff met her burden of proof that Deputy Comeaux was grossly negligent.
2. Alternatively, the trial court erred in finding that Deputy Comeaux was that sole cause of the subject accident and failing to assign any comparative fault to Shankeyshia Jones.

DISCUSSION

A reviewing court cannot disturb the factual findings of a trial court absent abuse of discretion or manifest error. Rosell v. ESCO, 549 So.2d 840 (La. 1989). To reverse the trial court's factual findings, the appellate court must find from the record that no reasonable factual basis exists for the findings and must determine that the record establishes the findings as clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Thus, the inquiry is whether the factual findings are reasonable, not whether the trier of fact was right or wrong. Id. If, in light of the record in its entirety, the trial court's findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

Appellants assert that Deputy Comeaux, because he was responding to a Code III emergency with lights and sirens activated, was immune from liability because the plaintiffs failed to show that he acted with reckless disregard or was grossly negligent. Specifically, LSA-R.S. 32:24 provides immunity from liability to drivers of emergency vehicles, under specific circumstances as follows:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
(1) Park or stand, irrespective of the provisions of this Chapter.
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
(3) Exceed the maximum speed limits so long as he does not endanger life or property.
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals, including the use of a peace officer cycle rider's whistle, sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

By setting the standard as reckless disregard, "[t]he legislature has obviously recognized the high social value and premium placed on protection and rescue efforts." Lenard v. Dilley, 01-1522 (La. 1/15/02), 805 So.2d 175, 180.

"Reckless disregard" connotes conduct more severe than negligent behavior. "Reckless disregard" is, in effect, "gross negligence." Id. Gross negligence has been defined as the "want of even slight care and diligence" and the "want of that diligence which even careless men are accustomed to exercise." Id. (quoting State v. Vinzant, 200 La. 301, 315, 7 So.2d 917, 922 (La. 1942) ).

Appellants contend that Deputy Comeaux's actions fall squarely within the parameters of the conduct the legislature aimed to protect by enacting LSA-R.S. 32:24. Appellants also assert that the trial court was manifestly erroneous in finding that the road was wet, that Deputy Comeaux exceeded ninety miles-per-hour, and that Deputy Comeaux could not clearly see the road or anything else in front of or around his patrol unit. Appellants conclude that Deputy Comeaux bore no fault for the accident.

However, following our review of the record, we find no manifest error in the trial court finding that Deputy Comeaux was grossly negligent. While appellants assert that Deputy Comeaux's speed prior to the accident was not established with certainty, the record establishes that Deputy Comeaux was traveling well above the posted speed limit of 55 m.p.h. at the time of the accident. Specifically, both deputies acknowledged that they were traveling above the posted speed limit. Moreover, both deputies also testified that prior to the crash there was a distance between the two deputies' vehicles because Deputy Comeaux had stopped at a prior intersection to allow Deputy Manuel to proceed through a red light. Deputy Comeaux indicated that Deputy Manuel was traveling at a high rate of speed and Deputy Comeaux testified that he "was moving to catch back up with him."

Additionally, although appellants assert that the trial court manifestly erred in its conclusion that Deputy Comeaux proceeded without being able to clearly see what was in front of him, appellants concede that the record, at a minimum, establishes that the blue emergency lights on Deputy Manuel's vehicle reduced Deputy Comeaux's visibility and reaction time. Specifically, at trial, in response to plaintiffs' counsel's questions, Deputy Comeaux testified:

Q. And did you see anything indicating that Deputy Manuel driving in front of you was stopping or attempting to stop?
A. Yeah - Yes, sir. Eventually I did. He was slowed to stop. And as I was closing on him, I recognized that he was stopped and applied my brakes accordingly.
Q. And what did you notice? Brake lights?
A. Yes, sir. It is kind of hard to explain unless you've seen it personally, but when you are running lights and sirens at night, the blue light is very bright. And it washes out. It is almost like a sea of blue. The only thing that actually shows up is the singular brake light that is in the back window. So that's eventually what I saw.
* * *
Q. Did you see Deputy Manuel travel at a high rate of speed and come to a complete stop?
A. Yes, sir. But at the same point in time, he had a clear windshield in front of him and he was able to see the other vehicle move in front of him and was able to respond to that accordingly. I was not able to see that, so all I could do was respond to what I saw.
* * *
Q. [Why could] everybody else [stop] but you?
A. I mean, once again, Deputy Manuel was able to directly respond to the vehicle that was in front of him that pulled over in front of him. He was able to see that and recognize that. I'm coming up behind him. He's got blue lights on. It takes longer and it's harder to see those red brake lights coming through that blue light.
Q. So to make sure I understand you correctly, you said the blue lights blind you?
A. No, sir, I didn't say that. I said it is harder to see the red light through it. It is. It's like a blue blob driving down the road sometimes.

We recognize that the trial court erred in its factual finding that the road was wet, given that it did not start raining until after the accident. Even so, considering the entirety of the record and the fact that Ms. Jones was in the left lane for a period of time prior to the accident, we cannot conclude that the trial court manifestly erred in finding that Deputy Comeaux was grossly negligent and bore some responsibility for the accident. Based on the record, the trial court could have found that Deputy Comeaux was operating his vehicle at a high rate of speed even though he was aware that his vision was impaired by the blue lights on Deputy Manuel's vehicle.

Appellants urge that Ms. Jones, even if she is not solely at fault, is comparatively negligent because she failed to yield her vehicle to the police cruisers, and she failed to stay on the right-hand side of the highway as required by LSA-R.S. 32:125A. Louisiana Revised Statutes 32:125A, regarding the procedure a motorist should apply on approach of an authorized emergency vehicle, provides:

Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

Appellants also assert that Ms. Jones violated LSA-R.S. 32:79(1), which requires a motorist on a two lane roadway to drive "entirely within a single lane" and not move into another lane "until the driver has first ascertained that such movement can be made with safety." Appellants aver that because Ms. Jones planned to turn left at the next intersection, she moved into the left lane of travel, rather than yielding to the oncoming emergency vehicles. Because she failed to adhere to these statutory responsibilities, appellants assert that Ms. Jones bears some responsibility for the accident.

The trier of fact is owed some deference in allocation of fault since the finding of percentages of fault is a factual determination. Duncan v. Kansas City Southern Railway Co., 00-0066 (La. 10/30/00), 773 So.2d 670, 680, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. See Stobart , 617 So.2d at 882. Allocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder within that range cannot be clearly wrong. Foley v. Entergy Louisiana, Inc., 06-0983 (La. 11/29/06), 946 So.2d 144, 166. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607, 611.

In determining the percentages of fault, the trier of fact should consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. In assessing the nature of the conduct of the parties, 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. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985). These same factors guide the appellate court's evaluation of the respective fault allocations. See Clement, 666 So.2d at 611.

The duty to yield the right of way to an emergency vehicle arises only when the motorist observes or hears, or under the circumstances should have observed or heard, the audible and visual warnings of such a vehicle. Carpenter v. Hartford Acc. & Indem. Co., 333 So.2d 296, 300 (La.App. 1 Cir. 1976) and Pope v. Prunty, 37,395 (La.App. 2 Cir. 8/20/03), 852 So.2d 1213, 1221, writ denied, 03-2496 (La. 11/26/03), 860 So.2d 1137. The burden of proving Ms. Jones' negligence rests on the appellants. See Carpenter, 333 So.2d at 300 and Pope, 852 So.2d at 1221.

We recognize that Ms. Jones' testimony when questioned by counsel regarding whether she was in the right lane or left lane when she first heard the police sirens and/or saw the emergency lights was somewhat equivocal. However, the trial court, seeking clarification of Ms. Jones' testimony, questioned her as follows:

Q. You said there were cars on your right hand side?
A. Well, we were coming -- I was at the right, but I had got to the left. So there were cars back to the right, yeah.
Q. You got to the right - you got to the left after you saw the lights of the police?
A. Yeah. So there were cars to the right.
Q. Make sure I'm clear. So you're in the right hand lane?
A. Yeah.
Q. You saw the police lights?
A. I just couldn't see how far away they were.
Q. And then you got in the left lane?
A. Yes.
* * *
Q. And then once you got into the left lane, then there were cars coming in the right lane?
A. Yes.
Q. Where you couldn't get back over?
A. Right.

Accordingly, Ms. Jones, when directly questioned by the trial court regarding her lane position, stated that she was traveling in the right lane when she first heard and/or saw the emergency lights of the police vehicles.

By moving to the left lane in front of the approaching emergency vehicles, Ms. Jones violated her statutory duty owed under LSA-R.S. 32:125A. More specifically, the statute requires drivers of vehicles to yield the right of way immediately to the emergency vehicle without thought of their own destination and even if doing so causes them inconvenience. See Riggs v. State, 488 So.2d 443, 445 (La.App. 3 Cir. 1986) ("Mrs. Riggs should have pulled to the right when she saw [the emergency] vehicle, even though she would have ended up past her driveway.") See also Jones v. Thomas, 27,140 (La.App. 2 Cir. 8/23/95), 660 So.2d 86, 90-91, writ denied, 95-2351 (La. 12/8/95), 664 So.2d 426 (Motorist must abide by duties in LSA-R.S. 32:125, even though doing so would cause motorist "[t]o miss her turn at [the] intersection [which] would have caused her to go out of her way to get home.") Ms. Jones knowingly moved from the safety of the right lane into the left lane directly into the path of the approaching emergency vehicles. In light of Ms. Jones' violation of her statutory duty, we conclude that the trial court manifestly erred in failing to assign any fault to Ms. Jones. In considering the factors set forth in Watson and cognizant that we can only raise the fault percentage to the lowest percentage the trial court could have assessed Ms. Jones, we assess Ms. Jones with 25% fault.

CONCLUSION

For the foregoing reasons, we reverse the November 6, 2017 judgment of the trial court to the extent it failed to assess Shankeyshia Jones with comparative fault, and we amend the judgment to assess Ms. Jones with 25% fault and appellants with 75% fault. The judgment is affirmed in all other respects. Costs of this appeal in the amount of $3,728.00 are assessed 50% to appellants, Sid J. Gautreaux, III, in his capacity as Sheriff of East Baton Rouge Parish, Deputy Tyler Comeaux, and Atlantic Specialty Insurance Company, and 50% to appellees, GoAuto Insurance Company and Shankeyshia Jones.

JUDGMENT AMENDED IN PART AND AFFIRMED AS AMENDED.

      Four children were also guest passengers in Ms. Jones' vehicle.

      Suit was also filed on behalf of two of the minors in the vehicle. Their claims are not at issue in this appeal.

      The Louisiana Supreme Court explained in Lenard that LSA-R.S. 32:24(D) sets forth two standards of care for an emergency vehicle driver, depending on the circumstances of the case. If, and only if, an emergency vehicle driver's actions fit into subsections (A), (B) and (C) of the statute, will an emergency vehicle driver be held liable only for his or her actions which constitute reckless disregard for the safety of others. Lenard, 805 So.2d at 180. On the other hand, if the emergency vehicle driver's conduct does not fit subsections (A), (B) and (C) of the statute, such driver's actions will be gauged by a standard of "due care." Id. The parties do not dispute that the "reckless disregard" standard applies here.

      Appellants assert that a handwritten note in the Accident Review Board report stated "96+ according to care download," but there was no witness that testified at trial that could authenticate that information nor was there any indication at what point in time the alleged speed would have been recorded.

      After Ms. Jones moved to the left lane, it is undisputed that she was unable to move back to the right lane because of traffic. Our conclusion might be different had Ms. Jones been in the left lane when she first became aware of the police cruisers. See Wiley v. Sutphin, 108 So.2d 256, 260 (La.App. 2 Cir. 1958) ("The law does not exact the doing of the impossible, or that, in attempting the impossible, a person be exposed to greater danger.")


author: WHIPPLE, C.J.

text:
    Chris LEWIS v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NUMBER 2018 CA 0407
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 02, 2018
    Chris Lewis, Jackson, LA, Plaintiff/Appellant, pro se.
    Jonathan R. Vining, Baton Rouge, LA, Counsel for Defendant/Appellee, Louisiana Department of Public Safety and Corrections.
    BEFORE: WHIPPLE, C.J., McCLENDON AND HIGGINBOTHAM, JJ.
   WHIPPLE, C.J.

Chris Lewis, an inmate in the custody of the Louisiana Department of Public Safety and Corrections ("DPSC"), housed at Dixon Correctional Institute in Jackson, Louisiana, seeks to appeal the June 20, 2017 judgment of the district court, which dismissed his petition for judicial review at DPSC's costs. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Lewis is currently serving a sixty-year sentence for armed robbery, running concurrently with a twenty-year sentence for first degree robbery, as imposed on April 8, 1991. In April 2014, Lewis filed a request for administrative remedy procedure ("ARP"), DCI-2014-275, in which he alleged that his master record miscalculated his release date information because it failed to accurately reflect his entitlement to earn good time credits at an increased rate ("double good time") pursuant to Act 138 of the 1991 regular legislative session, as well as failed to accurately reflect good time credits that had been reinstated. Lewis contended that while his original master record reflected his entitlement to double good time, he received a miscalculated master record in February 1991, together with a cover page that indicated he had refused double good time. He further contended that his master record did not reflect his parole eligibility date.

After relief was denied at both steps of the administrative level, Lewis filed a petition for judicial review in the Nineteenth Judicial District Court on February 26, 2015, contending that he was entitled to double good time from the imposition of his sentence. In its answer to Lewis's petition, DPSC denied that Lewis was entitled to earn good time at an increased rate. However, contrary to its previous position, DPSC ultimately filed an Exception of Subject Matter Jurisdiction in the district court below on March 15, 2017, contending that the matter was now moot because there no longer existed a justiciable controversy. Specifically, DPSC represented that despite initially denying Lewis's ARP request, a decision had been made to grant his grievance, and he had in fact been granted double good time. Attached to its exception was a March 10, 2017 copy of Lewis's amended master prison record, listing a good time release date of September 21, 2023, instead of the prior release date of July 3, 2032.

Thereafter, in response to the district court's request for clarification regarding Lewis's good time calculations, DPSC filed a Notice of Compliance on April 4, 2017, clarifying that 1991 La. Acts, No. 138 (providing for double good time) applied prospectively only to that portion of Lewis's sentence that remained after January 1, 1992, the effective date of Act 138. DPSC further explained that Lewis had lost a total of 315 days of good time due to forfeitures. To the Notice of Compliance, DPSC attached another copy of Lewis's master prison record, which set forth the good time credits that had been forfeited.

Lewis opposed the exception, contending that while DPSC had recalculated his sentence, it failed to properly calculate and credit his double good time retroactive to the date of sentencing.

On May 24, 2017, the Commissioner issued his report, in which he concluded that because DPSC had granted Lewis the relief he sought while his petition for judicial review was pending, the issue in Lewis's ARP request is now moot. However, the Commissioner noted that the issue of payment of costs still remained and determined that DPSC should be cast with costs given that its "unnecessary delay" in acting on Lewis's ARP request necessitated this suit. Accordingly, the Commissioner recommended that Lewis's petition for judicial review be dismissed at DPSC's cost. By judgment dated June 20, 2017, the district court dismissed Lewis's petition for judicial review with prejudice at DPSC's costs, in accordance with the Commissioner's recommendation. Notice of judgment was mailed to the parties on June 22, 2017.

Dissatisfied with the relief he received, Lewis sought to obtain review of the June 20, 2017 judgment in this court. Specifically, on August 21, 2017, Lewis filed a "Motion to Proceed In Forma Pauperis," and, thereafter on August 31, 2017, he filed a "Motion for Notice of Extension of Time to File Appeal." On September 12, 2017, the district court denied Lewis's Motion for Notice of Extension of Time to File Appeal, with the handwritten notation that "[t]he Court has no authority to extend the time for taking an Appeal."

In January 2018, Lewis attempted to file a "Motion to Appeal In Forma Pauperis" with the district court. The district court then mailed Lewis an appellate pauper form on January 26, 2018. The completed pauper papers were filed on March 5, 2018, and the district court granted Lewis's appeal by order dated March 12, 2018. Lewis's motion and order for appeal were ultimately filed in the district court record on that same date, March 12, 2018.

On March 28, 2018, this court issued a show cause order, noting that Lewis's appeal appeared to be untimely and ordering the parties to show cause by briefs why the appeal should or should not be dismissed for that reason. Lewis responded by brief to the show cause order, and by order dated June 25, 2018, the rule to show cause was referred to the panel to which the appeal was assigned. Accordingly, we will address it first.

RULE TO SHOW CAUSE ORDER

An order of appeal may be granted from the court which rendered the judgment, on oral motion in open court, on written motion, or on petition, within the delay allowed. LSA-C.C.P. art. 2121. Pursuant to LSA-C.C.P. art. 2087(A), a devolutive appeal may be taken within sixty days of: (1) The expiration of the delay for applying for a new trial, if no application has been filed timely; or (2) the date of the mailing of notice of the court's refusal to grant a timely application for a new trial. The delay for applying for a new trial shall be seven days, exclusive of legal holidays, with the delay commencing to run on the day after the clerk has mailed the notice of judgment. LSA-C.C.P. art. 1974. Once the seven-day period for filing a motion for new trial has passed with no motion for new trial filed, the judgment becomes final, and appellate delays begin to run. Nelson v. Teachers' Retirement System of Louisiana, 2010-1190 (La. App. 1st Cir. 2/11/11), 57 So.3d 587, 589-590. The appeal delays set forth in LSA-C.C.P. art. 2087 are not prescriptive periods that are subject to interruption; rather, these time limits are jurisdictional. Everett v. Baton Rouge Student Housing, L.L.C., 2010-0856 (La. App. 1st Cir. 5/6/11), 64 So.3d 883, 886, writ denied, 2011-1169 (La. 9/16/11), 69 So.3d 1149.

In the instant case, notice of the June 20, 2017 judgment was mailed on June 22, 2017. Thus, the deadline for filing a motion for new trial was July 3, 2017. Once the delays for filing a motion for new trial passed with no motion being filed, the appeal delays began to run, and Lewis had until September 1, 2017 to timely file a motion for a devolutive appeal. See LSA-C.C.P. arts. 1974 & 2087(A).

The March 12, 2018 motion and order of appeal clearly was not filed within the delays set forth above for perfecting a devolutive appeal of the June 20, 2017 judgment. Nonetheless, within the time delays for perfecting a devolutive appeal, Lewis did file an appellate pauper motion on August 21, 2017, and the Motion for Notice of Extension of Time to File Appeal on August 31, 2017. In his August 31, 2017 motion, Lewis averred that he had filed an appellate pauper motion and an order of appeal on August 13, 2017, but that "the trial court has not ordered a return date since the filing of such Motion so that the petitioner could properly prepare and file his writ [in order] to seek review of the trial court's ruling by the First Circuit Court of Appeal." Lewis further contended that "these actions [have hindered his] rights to seek review, [thus], violating due process." Thus, he requested that his "Motion for Extension of Time for filing appeal of an additional Thirty (30) days be Granted and a return date is set." (Emphasis in original).

Appeals are favored and should be maintained whenever possible. Thomas v. Bridges, 2013-1855 (La. 5/7/14), 144 So.3d 1001, 1010. Moreover, pursuant to La. C.C.P. art. 865, we are required to construe every pleading as to do substantial justice. Woodard v. Upp, 2013-0999 (La. App. 1st Cir. 2/18/14), 142 So.3d 14, 20. To this end, the characterization of a pleading by the litigant is not controlling. Rather, courts should look through the caption of pleadings in order to ascertain their substance. Greene v. Succession of Alvarado, 2015-1960, 2015-1961 (La. App. 1st Cir. 12/27/16), 210 So.3d 321, 339. Moreover, pleadings must be construed reasonably so as to afford litigants their day in court. Vicedomini v. Pelts & Skins, 2001-2268 (La. App. 1st Cir. 2/15/02), 808 So.2d 867, 869, writ denied, 2002-0813 (La. 5/24/02), 816 So.2d 850. Thus, we will determine whether the appellate pauper motion and the Motion for Notice of Extension of Time to File Appeal filed within the devolutive appeal delays were sufficient to preserve Lewis's right to appeal herein. See In re: S.H., 2016-1482 c/w 2016-1483, (La. App. 1st Cir. 2/17/17), 2017 WL 658255, *1-2 (unpublished) (wherein this court, in determining timeliness of an appeal, construed a rule for modification, albeit titled differently, as a motion for new trial and, thus, determined that the appeal delays did not begin to run until the trial court acted upon the motion).

While Lewis apparently mistakenly believed that he had filed a motion and order of appeal together with the appellate pauper motion in August 2017 and while he confused terminology pertaining to writ applications and appeals in this motion, Lewis, a pro se litigant, clearly evidenced his desire and intent to appeal the district court's June 20, 2017 judgment in this pleading and further requested that a return date be set. Thus, although not specifically labeled as a motion for appeal, we view Lewis's Motion for Notice of Extension of Time to File Appeal expansively as a motion for appeal, so as to do substantial justice as required by LSA-C.C.P. art. 865. See McClelland v. State National Life Insurance, 94-2123 (La. 11/18/94), 646 So.2d 309 (per curiam ) (wherein the Supreme Court determined that litigant's motion for new trial and motion to withdraw or amend judgment were documents seeking further review of the denial of his workers' compensation claim and, thus, construed those pleadings "expansively to serve as motions for appeal"). Accordingly, we recall the March 28, 2018 show cause order and maintain the appeal.

DISCUSSION

On appeal, Lewis contends that he still has not been credited with all good time to which he is entitled because he has not been credited with good time for all time he has served on his sentence.

The computation of good time is currently governed by LSA-R.S. 15:571.3. As noted in footnote one, section 1 of Act 138 of the 1991 regular legislative session amended and reenacted LSA-R.S. 15:571.3(B) to provide that inmates in the custody of the Department may earn good time at a rate of thirty days of good time for every thirty days served in actual custody. However, section 5 of Act 138 limited the Act's applicability to provide that its provisions "shall apply only to persons sentenced on or after the effective date of this Act and shall apply prospectively only to the remaining portion of any sentence of any person serving a sentence or sentences on or after the effective date of this Act."

Pursuant to section 5 of Act 138, any change in the amount of good time accrued would not apply retroactively to time already served under a sentence imposed prior to the effective date of the Act, but would apply to the remaining time of a sentence imposed prior to January 1992. Mingo v. Stalder, 98-2798 (La. App. 1st Cir. 9/24/99), 757 So.2d 709, 710. Thus, because Lewis was sentenced in 1991, Act 138 applies only to that portion of his sentence which remained to be served on January 1, 1992, the effective date of Act 138. See Mingo, 757 So.2d at 710. Accordingly, we find no merit to Lewis's contention that pursuant to Act 138, he is entitled to earn double good time retroactive to the date of sentencing.

CONCLUSION

For the above and foregoing reasons, the March 28, 2018 Rule to Show Cause Order is recalled and Chris Lewis's appeal maintained. Furthermore, the June 20, 2017 judgment of the district court, dismissing Lewis's petition for judicial review, is affirmed. Costs of this appeal in the amount of $896.50 are assessed against appellant, Chris Lewis.

RULE TO SHOW CAUSE ORDER RECALLED; APPEAL MAINTAINED; JUDGMENT AFFIRMED.

      Section 1 of Act 138 of the 1991 regular legislative session amended LSA-R.S. 15:571.3 to provide for diminution of sentence by good behavior at a rate of 30 days of good time for every 30 days served in actual custody,

      An individual who is unable to pay costs of court because of his poverty and lack of means may be allowed to prosecute a judicial proceeding in the appellate court without paying costs in advance or as they accrue or furnishing security therefor. LSA-C.C.P. art. 5181(A) ; Rogers v. Stalder, 2006-0647 (La. App. 1st Cir. 2/14/07), 2007 WL 466748, *1 (unpublished). However, where the individual is incarcerated for the commission of a felony, the court shall require the individual to advance costs in accordance with a schedule. LSA-C.C.P. art. 5181(B) & (C).

      AS noted above, the appellate pauper motion was actually filed in the district court on August 21, 2017.

      While Lewis contended in this pleading that he had filed a motion and order of appeal with the appellate pauper motion on August 13, 2017, no motion or order of appeal filed at or around that time appears in the record. Moreover, Lewis does not refer to a motion for appeal filed in August 2017 in his brief filed in response to the Show Cause Order.

      The good time rate set forth in LSA-R.S. 15:571.3 has been amended since Act 138 of 1991, to increase the rate of good time subject to certain limitations on eligibility. However, the applicability of those subsequent amendments and the effect, if any, on Lewis's sentence, are not at issue in this ARP request.


author: McCALLUM, J.

text:
    Albert MYLES OBO, Jalynn Faith Myles, Plaintiff-Appellee v. Gary HOWELL and XYZ Insurance Company, Defendants-Appellees
    Princeton S. Vallo, Individually and on Behalf of Prince Isaiah Holley (Deceased), Plaintiff-Appellant v. GMH Housing, LLC ; Gary M. Howell, Individually and as Sole Member of Gmh Housing, LLC; and XYZ Insurance Company, Defendants-Appellees
    52,460-CA 52,461-CA
    Court of Appeal of Louisiana, Second Circuit.
    January 16, 2019,
    SMITH & NWOKORIE, LLC By: Anselm N. Nwokorie, Counsel for Appellant Samuel Owojori, Individually and OBO Jeremiah Oladimeji Owojori (Deceased) and Ezekiel Owojori (Deceased)
    SMITH & NWOKORIE, LLC By: Brian G. Smith, Counsel for Appellee Princeton S. Vallo, Individually and OBO Prince Isaiah Holley (Deceased)
    J. GARLAND SMITH & ASSOCIATES By: Sarah M. Smith, Shreveport, J. Garland Smith, Counsel for Appellee Albert Myles, Individually and OBO Jalynn Faith Myles
    MUSGRAVE, McLACHLAN & PENN, LLC By: R. Todd Musgrave, Amanda H. Aucoin, New Orleans, Counsel for Appellee Gary M. Howell, Individually and as Sole Member of GMH Housing, LLC
    Before GARRETT, STEPHENS, and McCALLUM, JJ.
   McCALLUM, J.

In this tragic case, Samuel Owojori appeals a judgment sustaining an exception of no right of action and dismissing his claims related to the deaths of his son and grandson.

We affirm.

FACTS

Ashley Wilkins Owojori and Jeremiah Owojori were husband and wife. They had one child, Ezekiel Owojori, who was a minor. Ashley had two minor children, Jalynn Faith Myles and Prince Isiah Halley-Vallo, from prior relationships. Albert Myles is the father of Jalynn. Princeton Vallo is the father of Prince.

On the night of January 24, 2016, a fire caused by faulty wiring occurred at an apartment owned by GMH Housing, LLC, and occupied by Ashley, Jeremiah, Ezekiel, and Prince. All four suffered severe injuries from smoke inhalation and eventually died from their injuries

On April 20, 2016, Albert Myles, who had custody of Jalynn, filed a wrongful death suit on her behalf against XYZ Insurance Company and Gary Howell, who was GMH's agent. Albert asserted that Jalynn was Ashley's only living descendant. Albert later amended his petition to make GMH Housing a defendant.

Under a separate suit number, Princeton Vallo, individually and on behalf of his late son Prince, filed suit against GMH, Howell, and XYZ Insurance on November 22, 2016. The petition was amended on February 22, 2017, to add Samuel Owojori, Jeremiah's father, as a plaintiff to recover damages for the deaths of Jeremiah and Ezekiel.

On August 31, 2017, Albert amended his petition to allege that Jalynn was the sole surviving sibling of Ezekiel and, therefore, was the proper person to bring an action seeking wrongful death and survival damages resulting from Ezekiel's death.

The lawsuits were consolidated on September 1, 2017.

On January 12, 2018, Samuel filed an exception of no right of action against the claims in Albert's amended petition. He argued that Jaylynn had no right of action for a wrongful death or survival claim related to Ezekiel's death. He contended that Ezekiel died at 4:11 p.m. on January 26, and that Jeremiah died at 12:28 p.m. on the following day. Samuel maintained that because Jeremiah survived Ezekiel, Jeremiah acquired the right to bring a survival action and a wrongful death action related to Ezekiel's death, and this right passed to Samuel by inheritance when Jeremiah died.

On January 18, 2018, Albert filed an exception of no right of action. He asserted that Samuel was not the proper party to bring claims on behalf of either Jeremiah or Ezekiel because Ashley was the last of the four victims to die. In his memorandum in support of the exception, Albert operated under the assumption that Ezekiel predeceased Jeremiah. Albert argued that once Jeremiah died, Ashley acquired not only the right to assert any survival and wrongful death actions on his behalf, but also any claims that passed to him as the father of Ezekiel. He further maintained that upon Ashley's death, Jalynn, as Ashley's only surviving child, would have acquired the right to assert all claims belonging to Ashley.

Hearing on the exceptions

A hearing on the exceptions of no right of action was held on January 24, 2018. At the hearing, Albert introduced copies of the death certificates of Jeremiah, Ezekiel, and Ashley. Samuel objected to the introduction of Ezekiel's and Ashley's death certificates on the grounds that they were not certified. His objection was overruled.

Jeremiah's death certificate showed that he died at 1:34 p.m. on January 26, 2016. Ezekiel's death certificate lists January 28, 2016, as his date of death. Ashley's date of death is listed as January 29, 2016, on her death certificate.

Samuel introduced excerpts from Ezekiel's and Jeremiah's medical records at the hearing. Jeremiah's discharge summary states that he was declared brain dead at 11:30 a.m. on January 25, and that he was disconnected from the ventilator and had no pulse at 12:28 p.m. on January 27. A consultation note from January 26 states that Jeremiah was assessed for brain death that afternoon, and was found to have had brain death with complete and permanent loss of brain function.

Ezekiel's discharge summary states that a brain death exam performed on January 25, 2016, was completely consistent with brain death. A second exam done on January 26 was also consistent with brain death. Ezekiel was pronounced dead at 4:11 p.m. on January 26, but his body remained on a ventilator for possible organ donation. It was noted in his discharge summary that of the four victims, three had progressed to brain death while only Ashley was taking agonal breaths as of earlier that day. A consultation note from January 26 states that the clinical examination was consistent with brain death.

Albert testified at the hearing that Ashley was treated at University Hospital in Shreveport, while Jeremiah and Ezekiel were treated at St. Francis Hospital in Monroe. Albert asserted that he had visited Jeremiah in the hospital, and that January 26 was accurate as the date of Jeremiah's death. He maintained that he knew that Jeremiah died before Ezekiel because he went to visit Jeremiah on the day that he died, and then he learned Ezekiel died during a later visit to the hospital. Albert further maintained that he had no doubt that Ashley was still alive after Jeremiah, Ezekiel, and Prince had died. He believed that the date of death listed on her death certificate is consistent with his understanding of what had happened. Finally, he stated that he last saw Ashley alive at the hospital on January 29 before being told later that evening by a hospital staff member that Ashley had died.

Cassandra Gipson is an aunt of Princeton Vallo and, thus, also a great-aunt of Prince. Gipson, who stayed at the hospital with Prince, testified that she believed Prince died on January 27. She also testified that she knew Ashley was the last to die of the four because they were waiting on her death in order to make funeral arrangements for Ezekiel and Prince. She also recalled seeing Ashley in the hospital before she left following Prince's death. Gipson also asserted that Ezekiel had died before Prince.

The trial court granted Albert's exception of no right of action, and denied Samuel's exception of no right of action. Accordingly, Samuel's claims, individually and on behalf of Jeremiah and Ezekiel, were dismissed.

Samuel has appealed.

DISCUSSION

Samuel argues on appeal that: (1) the trial court should not have relied on uncertified death certificates to determine the order of death; (2) the trial court erred in granting the exception because Jeremiah acquired the right to assert a survival action and a wrongful death action related to Ezekiel's death when he survived Ezekiel, and these rights passed to Samuel by inheritance when Jeremiah died shortly after Ezekiel; and (3) the trial court erred in even considering Albert's exception of no right of action because, as claimed by Samuel, Albert did not file a written exception of no right of action. We find each argument to be without merit.

Applicable law

An action can be brought only by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The function of an exception of no right of action is to determine whether a plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927 ; Turner v. Busby , 2003-3444 (La. 9/9/04), 883 So.2d 412. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

The exception of no right of action presents a question of law; therefore, an appellate court conducts a de novo review of the trial court's action on this exception. Waggoner v. America First Ins. , 42,863 (La. App. 2 Cir. 1/16/08), 975 So.2d 110.

To recover under a claim for wrongful death and survival damages, a plaintiff must fall within the class of persons designated as a beneficiary under La. C.C. arts. 2315.1 and 2315.2. Turner v. Busby , supra . The primary category under both wrongful death and survival actions includes "children" of the decedent. Reese v. State Dept. of Pub.Safety & Corr. , 2003-1615 (La. 2/20/04), 866 So.2d 244.

A survival action is "transmitted to beneficiaries upon the victim's death and permits recovery only for the damages suffered by the victim from the time of injury to the moment of death." Taylor v. Giddens , 618 So.2d 834, 840 (La. 1993). Regarding survival actions, La. C.C. art. 2315.1 sets out the order of claimants. It reads, in part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased's succession representative in the absence of any class of beneficiary set out in Paragraph A.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

A wrongful death action is a separate action from a survival action and it "does not arise until the victim dies and it compensates the beneficiaries for their own injuries which they suffer from the moment of the victim's death and thereafter." Taylor , supra at 840,. Regarding wrongful death actions, La. C.C. art. 2315.2 sets out the order of claimants. It reads, in part:

A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
(2) The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
(3) The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
(4) The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.
B. The right of action granted by this Article prescribes one year from the death of the deceased.
C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.

Order of death

A definition of death is provided in La. R.S. 9:111, which states:

A. A person will be considered dead if in the announced opinion of a physician, duly licensed in the state of Louisiana based on ordinary standards of approved medical practice, the person has experienced an irreversible cessation of spontaneous respiratory and circulatory functions. In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, duly licensed in the state of Louisiana based upon ordinary standards of approved medical practice, the person has experienced an irreversible total cessation of brain function. Death will have occurred at the time when the relevant functions ceased. In any case when organs are to be used in a transplant, then an additional physician, duly licensed in the state of Louisiana not a member of the transplant team, must make the pronouncement of death unless a hospital has adopted a written policy allowing that a single physician, duly licensed in the state of Louisiana, not a member of the transplant team, may make the pronouncement of death. In all cases in which a hospital written policy provides that a single physician makes the pronouncement of death, such policy shall also require an opinion by a second physician, not a member of the transplant team, as to the candidacy of the person for the process of organ donation.
B. The medical pronouncement of death by a coroner may also be based on personal observation, information, or statements obtained from coroner investigators, registered nurses, physician assistants, or emergency medical technicians at the scene who are reporting from firsthand observation of the physical condition of the deceased. The time of death shall be reported as the time that the death was reported or discovered. The name of the personnel that the coroner is relying on shall be noted on the coroner's investigative report.

The death certificates establish that Jeremiah died on January 26, Ezekiel died on January 28, and Ashley died on January 29. Samuel objected to the consideration of Ezekiel's and Ashley's death certificates because they were not certified. Nevertheless, public vital statistics records are presumed to be correct subject to rebuttal by evidence to the contrary. State ex rel. Lytell v. Louisiana State Bd. of Health through Rein , 153 So.2d 498 (La. App. 4 Cir. 1963), writ denied , 244 La. 1000, 156 So.2d 55 (La. 1963). Moreover, the order of death in the death certificates is consistent with the testimony from the hearing as well as with the excerpts from the medical records. We also note that while the death certificates for Jeremiah and Ezekiel contain death dates that may differ from the dates of brain death or death declaration in the excerpts, Jeremiah and Ezekiel were kept on ventilators even after brain death, presumably for the purposes of organ donation.

Jeremiah was declared brain dead at 11:30 a.m. on January 25. A brain death assessment on the afternoon of January 26 showed brain death with complete and permanent loss of brain function. He was disconnected from the ventilator and had no pulse at 12:28 p.m. on January 27.

A brain death exam performed on Ezekiel on January 25 was "completely consistent" with brain death. A second exam done the following day was again consistent with brain death. Ezekiel was pronounced dead at 4:11 p.m. on January 26, but his body remained on a ventilator for possible organ donation.

We also note that it is stated in Ezekiel's discharge summary that of the four fire victims, three had progressed to brain death and that only Ashley was taking "agonal breaths" as of earlier that day. Agonal breathing is defined as gasping. Finally, the order of death was also corroborated by the testimony of Albert and Gipson. Albert stated that he had visited the victims at the hospital, and that Jeremiah died before Ezekiel. He also stated that Ashley outlived Jeremiah, Ezekiel, and Prince. Gipson testified that she knew Ashley was the last to die, and that Ezekiel died before Prince.

Application of arts. 2315.1 and 2315.2

In Rachal v. Peters , 28,655 (La. App. 2 Cir. 9/25/96), 680 So.2d 1280, a granddaughter of the deceased brought a survival action against her uncle and a nursing home where the grandmother was housed. In affirming the judgment sustaining the exception of no right of action, this Court noted:

As we appreciate the law, it is only when the codal beneficiary who survives the decedent later dies that the beneficiary's heir "inherits" the beneficiary's right to bring either or both the wrongful death and survival actions. Arts. 2315.1(C) and 2315.2(C).

Id. at p. 4, 680 So.2d at 1283.

In Jackson v. Estate of Jones , 39,056 (La. App. 2 Cir. 10/27/04), 887 So.2d 618, writ denied , 2004-2907 (La. 2/4/05), 893 So.2d 874, a woman who was killed in an auto accident had two predeceased siblings, but was survived by a brother. Her nieces and nephews who were children of the predeceased siblings sought wrongful death damages as the result of their aunt's death. They argued that as intestate heirs of their aunt, they had the right to represent their deceased parents in the lawsuit. Citing Rachal v. Peters , supra , this Court rejected that argument. This Court concluded that their parents, through whom they attempted to inherit this right of action, were required to survive the victim in order for their right of action to come into existence. It was further noted that had their parents survived the victim and then died, the right of action would have passed to them.

In light of the foregoing, the right to bring a survival action and/or wrongful death action resulting from Jeremiah's death belonged to Ashley, as surviving spouse, and to Ezekiel, as surviving child. The right to bring a survival action and/or wrongful death action resulting from Ezekiel's death belonged to Ashley. Upon the deaths of the codal beneficiaries, their rights to bring these actions passed to their heirs. Accordingly, Samuel lacked a right of action to bring claims relating to either Jeremiah's or Ezekiel's death. Accordingly, Albert's exception of no right of action was properly granted.

Finally, Samuel argues that Albert's exception was not properly before the trial court because a written exception regarding Jeremiah's claims was never filed. That is incorrect. The record reflects that Albert filed his written exception of no right of action on January 18, 2018, and he asserted in the exception that Samuel was not the proper party to bring claims on behalf of either Jeremiah or Ezekiel.

CONCLUSION

At Samuel's costs, we affirm the judgment denying Samuel's exception of no right of action, sustaining Albert's exception of no right of action, and dismissing Samuel's petition for damages individually and on behalf of Jeremiah and Ezekiel.

AFFIRMED.

      The relevant times appear in the medical records in the military time format.

      The discharge summary states that the second exam performed by a Dr. Pena was done "today" and that Ezekiel was pronounced dead at "16:11 today." "Today" is likely in reference to January 26 because the consultation note from Dr. Pena lists January 26 as the service date. Moreover, the date of January 25 is specifically mentioned in the discharge summary.

      We recognize that Ashley's death certificate states incorrectly that she died at St. Francis Medical Center in Monroe.

      Jeremiah's relatives in Nigeria declined organ donation. Whether or not Ezekiel's organs were donated cannot be determined from the excerpts.

      Although Gipson testified that Ezekiel died before Prince, it is not clear from the record where Prince falls in the order of death other than that Ashley survived him.


author: Judge Daniel L. Dysart

text:
    Shawn MCNEIL v. Jason TROSCLAIR, United Rentals, Inc., Ace American Insurance Company, Regional Transit Authority of New Orleans, James Butler, Veolia Transportation Maintenance and Infrastructure, Inc., and Old Republic General Insurance Company
    NO. 2018-CA-0811
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 30, 2019
    John D. Sileo, Casey W. Moll, LAW OFFICE OF JOHN D. SILEO, LLC, 320 North Carrolton Avenue, Suite 101, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT
    Amy G. Lowe, TAYLOR, PORTER, BROOKS & PHILLIPS, L.L.P., 450 Laurel Street, 8th Floor, P.O. Box 2471, Baton Rouge, LA 70821, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Daniel L. Dysart

Following a bench trial on July 26, 2017, a judgment was rendered on October 10, 2017, dismissing the petition for damages filed by Shawn McNeil, with prejudice, as to all defendants. For the reasons that follow, we affirm the judgment.

BACKGROUND:

Shawn McNeil was a passenger on a Regional Transit Authority bus on February 18, 2013, when the bus was struck from behind by a truck owned by United Rentals (North America), Inc. ("United Rentals"), and driven by its employee, Jason Trosclair (hereinafter referred to collectively as "defendants").

Ms. McNeil claimed that she suffered injuries to her neck, lower back, shoulder and hip as a result of the accident. After being treated by several physicians and receiving injections and physical therapy, she underwent a discectomy in March of 2017.

Jason Trosclair, the driver of the truck that hit the bus, testified that he was stopped behind an RTA bus that was slightly in his lane of travel. When he realized that the bus would be stopped for an extended period of time, he attempted to go around it. He misjudged the distance needed to clear the bus, and bumped the right rear of the bus with his right side view mirror. He stated that the only damage to his truck was that the truck's mirror was folded in.

The bus driver testified that he heard a boom and felt the impact, which caused him to move in his seat. He said a couple of passengers told him they were injured, but he had no specific recollection of any of the passengers falling on the bus. The driver got off of the bus and spoke with Mr. Trosclair. He stated that he did not see any damage to the United Rentals truck, but when the RTA inspector arrived, she noted a dent and some scratches to the rear corner of the bus. According to protocol, the bus driver made a list of the passengers on the bus at the time. He testified that one passenger was taken away by ambulance. The driver stated that he made a claim for his own injuries and settled his claim.

Ms. McNeil testified that she had no prior health issues. She admitted that she injured her back in 1989 when a chair in which she was seated collapsed. Ms. McNeil testified that prior to this incident she worked as a housekeeper at a local motel where she cleaned eleven to nineteen rooms per day.

When asked at trial to describe what happened the day of the accident, she stated that she thought she was about to sit down when the bus was struck from the rear, but after viewing a video of the accident, she realized that she was already seated at the time of impact. She testified that she heard a "boom" and looked over her left shoulder to see what had happened. Ms. McNeil stated that she jerked her head in the direction of the noise, and when her "adrenaline went down" her body "went to shaking and stuff." The bus driver recorded the names of the passengers and told them they would have to ride on another bus to their destination. Ms. McNeil stated that she saw one of the other female passengers taken off in an ambulance.

Ms. McNeil testified that she hurt her back, right shoulder, neck and hip in the accident. The pain prevented her from riding her bike, walking her dog and cleaning her home. She said the pain was so miserable that she could not eat or sleep.

Initially she saw Dr. Altman in March, who was recommended by an attorney who contacted her after the accident. Dr. Altman gave her an injection on March 11, 2013, which relieved the pain in her hip, and prescribed physical therapy. Dr. Altman referred her to Dr. Allen Johnston, who she saw for the first time on April 7, 2014.

Dr. Johnson prescribed pain medication and referred her to Dr. Kenneth Vogel in January 2015. Ms. McNeil did not see Dr. Vogel until July 30, 2015. In addition to prescribing pain medication, Dr. Vogel eventually recommended a discectomy, which she had on March 22, 2016. Following surgery, she was prescribed physical therapy three times per week, but only attended ten sessions between May and October of 2016.

On cross-examination, Ms. McNeil testified that she twisted in her seat when she heard a loud noise behind her. Defense counsel questioned Ms. McNeil about the discrepancies in her deposition testimony taken on May 29, 2015, and her testimony at trial. Ms. McNeil admitted that after viewing the video she was mistaken when she said in her deposition that she was not yet seated or that she hit her back on the seat when the impact occurred. She insisted, however, that she did injure her hip and back when she twisted too quickly to see what had caused the noise, but could not explain how as she was not a doctor.

Ms. McNeil admitted that she filed suit against Moler Beauty College in 1989 after she fell from a chair that collapsed. She claimed to have injured her back in that incident. In her deposition, Ms. McNeil also reported that she was involved in an automobile accident in 1991, and filed suit claiming a back injury.

Dr. Kenneth Vogel, who was accepted as an expert neurosurgeon, testified at trial. He testified that on July 30, 2015, he evaluated Ms. McNeil, who was 48 years old at the time of the visit, for lumbosacral pain. She related a history of a bus accident on February 18, 2013, in which she was thrown about. At this visit, Ms. McNeil continued to complain of low back pain, with related insomnia and a general inability to enjoy life. She told Dr. Vogel of her prior accident in 1989, but reported the pain was temporary and completely resolved. After a physical examination, he determined that she had either a herniated disc or a lumbar injury, which he related to the bus accident.

Dr. Vogel stated that as Ms. McNeil was asymptomatic for 23 years (time between the prior and current accident), in all probability the bus accident caused her complaints of pain. When Ms. McNeil returned in mid-August, she had increased spasms in her low back she claimed were caused by walking up and down stairs. When she returned in mid-September, she had bilateral leg pain, and related that she found the pain intolerable. He prescribed a CT scan and discogram, and referred her to a pain management clinic.

Dr. Vogel saw Ms. McNeil again in February of 2016. She reported the same complaints of low back pain and bilateral leg pain. The MRI revealed herniation at L4-5 and L5-S1. Ms. McNeil was admitted to the hospital in March 2016 for a discogram, which confirmed the previously diagnosed disc herniation. On March 22, 2016, Dr. Vogel performed a microsurgical discectomy at L4-5 and L5-S1. He testified that because of the three-year interim between the accident and the surgery, he projected only a fifty-fifty chance of complete recovery.

Dr. Everett Robert, the physician who performed an independent medical examination of Ms. McNeil, and who was accepted as an expert in neurosurgery, also testified at trial.

Dr. Robert examined Ms. McNeil on January 27, 2016. Prior to her visit, Dr. Robert reviewed Ms. McNeil's prior medical records from the Metropolitan Health Group (Dr. Alden), and Drs. Johnson and Vogel. He also reviewed the accident report, plaintiff's deposition, and a copy of the lawsuit plaintiff had filed against Moler Beauty College. At the visit, Ms. McNeil related a history of the February 18, 2013 bus accident, in which she claimed to have injured her back on the bus seat. She told Dr. Robert that she had no immediate pain, but developed pain the next day. She denied any prior accidents.

Upon physical examination, Dr. Robert determined no objective findings of injury, stating that Ms. McNeil had good strength in her arms and legs and had normal reflexes. Dr. Robert did, however, note several inappropriate responses during the examination. For example, Ms. McNeil would jump and twist her whole body before Dr. Robert struck her to test reflexes. She also claimed to have back pain when the doctor put his hand on the top of her head, wincing and acting like she would fall. Dr. Robert explained that this is an abnormal response as pressure on top of the head should not transfer to the back. The examination revealed no spasms in the lumbar spine.

The doctor explained that pain can only be diagnosed by what the patient reports. The MRI report that Dr. Robert reviewed indicated that spinal changes in the patient were degenerative, and not caused by trauma. Based on his physical examination, the MRI report indicating degenerative changes, and Ms. McNeil's inappropriate responses to his examination, he concluded that Ms. McNeil had suffered no traumatic injury.

Dr. Robert issued another report on July 15, 2016, after Dr. Vogel had performed the discectomy, and after reviewing additional documentation from Drs. Vogel and Johnston. He also reviewed the discogram report. Dr. Robert testified that Ms. McNeil's complaints of pain were inconsistent with disc injury. He was of the opinion that Ms. McNeil should not have had any surgery.

After his deposition, Dr. Robert was provided with additional information from Ms. McNeil's March 13, 2016 surgery, including a radiology report and the actual discogram. He issued another report in May of 2017, wherein he maintained his position that Ms. McNeil should not have had a discectomy.

On cross-examination, Dr. Roberts admitted that at the time of his examination of Ms. McNeil, he was not yet board certified. He maintained his position that Ms. McNeil's surgery was unnecessary.

The trial court signed a judgment on October 10, 2017, dismissing Ms. McNeil's claims, with prejudice. In its accompanying Reasons for Judgment, the trial court stated that Ms. McNeil failed to establish a causal relationship between the bus incident and her injuries by a preponderance of the evidence. The trial court specifically relied upon the video introduced at trial, which indicated that none of the people on the bus appeared to have been injured.

Ms. McNeil appeals that judgment.

DISCUSSION:

The trial court found that Ms. McNeil failed to prove by a preponderance of the evidence that there was a causal relationship between the injuries she allegedly sustained and the accident of February 18, 2013. Ms. McNeil argues on appeal that this was error, as she presented uncontroverted medical evidence that, more probably than not, she was injured as a result of the bus accident in 2013. She also argues that she presented evidence that the bus was struck by a truck and that other persons on the bus were injured. She further argues that it was legal error for the trial court not to apply the Housley presumption , as she was asymptomatic for an extended period of time between incidents. Thus, because of this legal error, this Court must review the case de novo .

Defendants argue that based on the surveillance video and the numerous discrepancies between Ms. McNeil's deposition testimony and her trial testimony, it was within the trial court's discretion to discredit her testimony about the cause of her injuries. Accordingly, our review should be limited to a manifest error/clearly wrong analysis of the findings of fact. We agree.

"Causation is a factual issue." Levine v. Allstate Ins. Co., 17-0896, p. 2 (La.App. 4 Cir. 4/18/18), 243 So.3d 1286, 1288, (citing D'Angelo v. Guarino , 10-1555, p. 6 (La.App. 4 Cir. 3/9/12), 88 So.3d 683, 688 ). "Although the Louisiana Constitution extends appellate jurisdiction in civil cases to both law and facts, the exercise of this power is limited by the jurisprudential rule that factual determinations of the trier of fact will not be set aside by a reviewing court unless they are manifestly erroneous or clearly wrong." Id., (citing Brewer v. J.B. Hunt Transp., Inc., 09-1408, p. 9 (La. 3/16/10), 35 So.3d 230, 237 ). "To reverse a factfinder's determination ... an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong."

Levine , 17-0896, pp. 2-3, 243 So.3d at 1288, (citing Brewer, 09-1408, 35 So.3d at 239 ).

The jurisprudential presumption to which plaintiff refers was first explained in Housley v. Cerise , in which the Louisiana Supreme Court stated:

[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Housley, 579 So.2d 973 (La. 1991), (quoting Lucas v. Ins. Co. of N. America , 342 So.2d 591, 596 (La. 1977) ); also see , Lawrence v. Gov't Employees Ins. Co., 13-1296, p. 27 (La.App. 4 Cir. 10/15/14), 151 So.3d 917, 934.

To apply this presumption, one must first find that an accident occurred. Ms. McNeil argues that there is no dispute that the truck being driven by Mr. Trosclair struck the rear corner of the bus. The trial court agreed that there was a collision. However, the trial court relied heavily on the video introduced at trial, stating in its written reasons that "among the testimony evidence, and arguments of counsel, most notable is the video of the incident...." The trial court found that the bus surveillance video did not show any passenger on the bus being knocked down or tossed about, falling down, etc. The court noted in particular that the passenger standing at the fare box machine did not "even lose his balance."

This Court, in our review of all of the evidence presented, also viewed the video. It shows several passengers, including Ms. McNeil, turning and looking in the direction of the rear of the bus and resuming what they were doing. Additionally, our review of the plaintiff's trial testimony and the excerpts of the deposition testimony introduced at trial indicate numerous inconsistencies in Ms. McNeil's version of the events on the day of the accident. For example, in her deposition testimony she stated that she was attempting to move to the window seat from the aisle when the impact of the truck jerked her to a seated position, causing her to hit her back on the seat. She claimed she injured her hip when it struck the middle portion of the seats, as she was knocked down into the seat. To the contrary, the video showed Ms. McNeil completely seated in the aisle seat facing forward at the time of the incident. She turned to look over her left shoulder once, and then once again. She did not fall, nor did she strike her back, shoulder or hip on the bus seat. At trial, when asked about the difference in her deposition testimony and the video, she answered that she must have been mistaken about the events surrounding her injury, but insisted that she did hurt her shoulder, hip and back when she twisted to see what caused "the boom." She could not explain her answer other than to state that she was not a doctor.

Ms. McNeil notes that the defendants focus on the discrepancies between her deposition testimony and the events depicted on the video. She complains that the defendants failed to produce the video prior to her deposition such that she could have "refreshed her memory" about the "precise details of her body movements." The defendants argue that the video was not in their possession, and therefore they could not have produced it in discovery. They note that the video was produced by defendant RTA to all parties at the same time, and although it was after Ms. McNeil's deposition, it was produced before she answered supplemental discovery and before her independent medical examination.

Despite viewing the video, Ms. McNeil continued to give contradictory accounts of how she was injured. Our review of Ms. McNeil's testimony and the video supports the defendants' position.

Additional questioning of Ms. McNeil at trial revealed that she did not tell her treating physicians about an automobile accident in which she was involved in 1991 as a passenger in a car that was rear-ended. She was taken to the hospital for back injuries and was treated by a chiropractor. A lawsuit was filed, which was settled. When asked why she did not tell Dr. Johnston or Dr. Vogel about that accident, she replied that they did not ask.

Defendants argue that Dr. Vogel's testimony regarding causation should be discounted as he relied on the incomplete history of previous injuries related to him by Ms. McNeil. They rely on Catalano v. Roberts, 94-635 (La.App. 5 Cir. 1/18/95), 650 So.2d 330, in which the court discounted the plaintiff's medical evidence as he had failed to reveal other accidents and injuries to his treating physicians. Defendants also argue that Dr. Vogel's conclusions are based on Ms. McNeil's grossly exaggerated version of the events of February 18, 2013.

Ms. McNeil argues that the incomplete history is of no moment, as the previous accidents in which she was involved pre-dated this incident by over twenty years. Instead, she argues that in addition to her medical evidence, there was evidence that the bus driver and another passenger were injured.

Again, our review of the video indicates that the bus driver turned his head to look at his side view mirror. He got up from the driver's seat and exited the bus. It is clear that he did not see the truck hit the bus, but only heard a noise. Further, although the bus driver testified he made a claim for damages and settled it, that testimony alone does not prove he was injured. Likewise, the fact that another passenger may have been taken off in an ambulance does not prove that Ms. McNeil was injured.

The trial court made the factual finding that there was insufficient evidence to support Ms. McNeil's claim that she was injured in the incident on February 18, 2013. After a thorough review of all the evidence presented, we cannot say that the trial court was clearly wrong or manifestly erroneous in finding that Ms. McNeil failed to prove that the bus incident of February 18, 2013, caused the injuries of which she complains.

Accordingly, for the reasons set forth above, we affirm the judgment of the trial court.

AFFIRMED

      The judgment references all defendants originally named in the suit. However, the only defendants represented at trial were Jason Trosclair, United Rentals (North America), Inc., and Ace American Insurance Company.

      The bus sustained damages of $ 1,426.81.

      Housley v. Cerise, 579 So.2d 973 (La. 1991).

      As we find no error in the trial court's ruling, we pretermit discussion of plaintiff's third assignment of error.