Baker v. City of New Orleans

555 So. 2d 659, 1989 La. App. LEXIS 2667, 1989 WL 155967
CourtLouisiana Court of Appeal
DecidedDecember 28, 1989
DocketNo. 89-CA-0440
StatusPublished
Cited by6 cases

This text of 555 So. 2d 659 (Baker v. City of New Orleans) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baker v. City of New Orleans, 555 So. 2d 659, 1989 La. App. LEXIS 2667, 1989 WL 155967 (La. Ct. App. 1989).

Opinion

PLOTKIN, Judge.

Defendant City of New Orleans appeals a trial court judgment in favor of plaintiff Mark Baker, claiming that the plaintiff failed to prove that the driver of the car involved in the accident which injured the plaintiff was an employee of the city, involved in the course and scope of his employment. Plaintiff cross-appeals, contesting the trial court’s finding that he was one-third comparatively negligent in causing the accident and seeking an increase in the award of $53,026.10 ($8,026.10 stipulated medical expenses plus $45,000 in general damages) reduced by one-third, for a total award of $35,350.73.

Facts:

Plaintiff was riding his bicycle toward the river in the bus lane of the neutral ground on Canal Street about 4:30 p.m. December 4, 1986, when he was struck by a car making a left turn at the corner of St. Charles Avenue. The bumper of the car struck him on his left knee. He was immediately hospitalized and underwent surgery that night.

Baker filed suit against the City of New Orleans and “John Doe,” alleging that his injuries were caused by the negligence of “John Doe,” the driver of an unmarked police vehicle who was engaged in the performance of his duties at the time the accident occurred. He filed an amending and supplemental petition substituting Officer Lester C. St. Amant’s name for “John Doe.”

Liability of the Defendants

The defendants claim that the plaintiff presented no evidence whatsoever to support his contention that Officer St. Am-ant was the driver of the vehicle involved in the accident. They claim that it was unnecessary for them to present any evidence at trial because the plaintiff failed to prove any facts which they, were required to rebut.

The trial was held on two different days. During the first day, only the plaintiff testified. He indicated that there was never any doubt at the scene of the accident that the driver of the vehicle was a policeman. He referred to the driver as “Officer St. Amant” and stated that Officer St. Amant called for police and for an ambulance on a walkie-talkie after the accident. An ambulance did arrive to convey Baker to East Jefferson Hospital.

More importantly, the defendants never asked any questions in an attempt to refute the plaintiff’s claim that he was injured in an accident with an unmarked police vehicle, driven by a police officer. Cross-examination of the plaintiff was limited to questions concerning his decision to ride his bicycle in the bus lane and questions about his alleged employment both before and after the accident.

[661]*661Baker claims and the City does not deny, that Officer St. Amand was present and available to testify on the first day of trial.

The trial resumed 20 days later. Mr. Philip Y.ales, an independent eyewitness corroborated Baker’s version of the accident, but referred only to the “white car” when he described the accident. After Vales completed his testimony, Baker called Officer St. Amant to testify under cross-examination. The City responded by informing the court that it did not know where the police officer was, that he was not present in court and that “the police officer would not add anything materially.” Thereafter, the plaintiff attempted to introduce the officer’s deposition, but the court erroneously excluded it.

The City offered no evidence on any issue.

The trial judge concluded, and we agree, that the plaintiff proved by a ponderance of the direct and circumstantial evidence, which was not contradicted, that Officer Lester St. Amant was the operator of an unmarked police vehicle, owned by the City of New Orleans, engaged in the course and scope of his employment, which was involved in an accident with the plaintiff.

Additionally, we agree with the trial court’s holding that Officer St. Amant was negligent in causing the accident by making a left turn at an intersection in violation of a “No Left Turn” sign, in the absence of extenuating circumstances or the exceptions granted authorized emergency vehicles. Louisiana jurisprudence imposes a very high degree of care on left-turning motorists, requiring them to take every reasonable precaution to insure that the turn can be made without endangering approaching vehicles. Casimere v. Ryder Truck Rental, Inc., 324 So.2d 855 (La.App. 4th Cir.1975), writ denied 329 So.2d 453 (La.1976). Additionally, Louisiana recognizes a presumption that a left-turning motorist is liable for any accident in which he is involved, placing the burden on the defendant to disprove liability. Dunn v. Snyder, 388 So.2d 450 (La.App. 2d Cir.1980). Since the defendants in the instant case failed to present any evidence whatsoever, they failed to meet their burden of overcoming the presumption of negligence. Therefore, we affirm the trial court judgment holding the defendants liable for plaintiff’s injuries.

Comparative Negligence

Plaintiff challenges the trial court judgment holding him comparatively negligent for riding his bicycle > in the bus lane on Canal Street, claiming that he has been unable to locate any law or ordinance prohibiting a bicyclist from using the bus lane. He implies that the lack of positive law on the subject indicates that his actions were not negligent. Additionally, he alleges that the collision itself took place in the street section of the neutral ground area, not the bus lanes, and that therefore his use of the bus lane, improper or not, was not a factor in causing the accident.

The following provisions of the City of New Orleans Municipal Code Section are applicable to the facts of this case:

Every person riding a bicycle upon a roadway shall be granted all the rights and shall be subject to all of the duties applicable to the driver of a vehicle by the laws of this state declaring rules of the road applicable to vehicles or by the traffic laws of the city applicable to the driver of a vehicle....
Municipal Code Section 38-200.
Whoever shall drive a vehicle of any description over curbs or upon or over a neutral ground shall be guilty of a misdemeanor.
Municipal Code Section 38-116.

On cross-examination at trial, the plaintiff admitted that he was travelling in the neutral ground of Canal Street when the accident occurred. He stated that he habitually rode his bicycle on the neutral ground. When read together, the municipal codal articles cited above provide that bicycles, like other vehicles, are prohibited from driving on the neutral ground. Therefore, we find no error in the trial court’s finding that the plaintiff was one-third comparatively negligent in causing the accident by riding his bicycle in the [662]*662Canal Street neutral ground bus lane. We affirm the trial court’s decision on this issue.

Quantum

Plaintiff makes two claims concerning damages: (1) that the general damage award of $45,000 was inadequate to compensate him for his extensive injuries and (2) that the trial judge erred in refusing to award him damages for lost wages while he was totally disabled.

The standard for appellate review of the amount of a damage award was established by the Louisiana Supreme Court in Reck v. Stevens, 373 So.2d 498 (La.1979), which stated as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
555 So. 2d 659, 1989 La. App. LEXIS 2667, 1989 WL 155967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baker-v-city-of-new-orleans-lactapp-1989.