Birdsall v. Regional Elec. & Const., Inc.

710 So. 2d 1164, 97 La.App. 1 Cir. 0712, 1998 La. App. LEXIS 763, 1998 WL 166987
CourtLouisiana Court of Appeal
DecidedApril 8, 1998
Docket97 CA 0712
StatusPublished
Cited by11 cases

This text of 710 So. 2d 1164 (Birdsall v. Regional Elec. & Const., Inc.) 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
Birdsall v. Regional Elec. & Const., Inc., 710 So. 2d 1164, 97 La.App. 1 Cir. 0712, 1998 La. App. LEXIS 763, 1998 WL 166987 (La. Ct. App. 1998).

Opinion

710 So.2d 1164 (1998)

Gary J. BIRDSALL, et al.
v.
REGIONAL ELECTRIC & CONSTRUCTION, INC., et al.

No. 97 CA 0712.

Court of Appeal of Louisiana, First Circuit.

April 8, 1998.

*1166 Joseph L. Waitz, Houma, for Plaintiffs-Appellees Gary J. Birdsall, et al.

*1167 P.M. Donovan, James F. Ryan, Metairie, for Defendants-Appellants Regional Electric & Construction, Inc. and Allstate Insurance Company.

Before CARTER and FITZSIMMONS, JJ., and CHIASSON,[1] J. Pro Tem.

REMY CHIASSON, Judge Pro Tem.

Dr. Gary Birdsall, MD, in his individual capacity and as administrator of his minor children, and his wife Wanda Birdsall brought suit against Regional Electric & Construction, Inc. (Regional) alleging that Dr. Birdsall suffered personal injuries when he struck his head on a board that was protruding out of a work truck owned by Regional. Wanda Birdsall and their five minor children sought damages for loss of consortium.

FACTS

According to the evidence elicited at trial, Dr. Birdsall returned home from a hunting trip on December 21, 1993, at approximately 4:30 in the afternoon. He noticed a Regional work truck in his driveway and commented about such to Mark Bourg, a fellow hunter, who gave him a ride home. Mr. Bourg parked his vehicle next to the Regional truck and they both alighted from the vehicle. Dr. Birdsall crossed in front of Mr. Bourg's vehicle and the Regional vehicle and then turned and walked along the side of the Regional vehicle until he reached his two sons who were playing in the yard. Dr. Birdsall spoke with each of his sons. Dr. Birdsall then turned to walk behind the Regional truck so he could get his belongings out of the back of Mr. Bourg's truck. In the process, he collided with a board protruding approximately six to seven feet from the rear of the Regional truck.

Mr. Bourg testified that he was standing approximately three feet from the Regional truck when the accident occurred. He turned around when he heard a noise and saw Dr. Birdsall walking toward him bent over and rubbing his head. Dr. Birdsall told him that he hit his head on a board and asked Mr. Bourg to examine his head. The evidence also revealed that the board was not flagged in any manner to make it more noticeable. Based upon these facts, the plaintiffs' safety expert concluded that the board presented a hazard.

Immediately after the accident, Mr. Birdsall began experiencing headaches, pain and intermittent numbness in his hands. A CAT scan revealed that he had a herniated cervical disc which eventually required a cervical fusion on August 5, 1995.

After trial, the jury found Regional 80 percent at fault and Dr. Birdsall 20 percent at fault. The jury made the following awards:

a) Past Medical Expenses               $ 20,138.60
b) Future Medical Expenses
                                       $      0.00
c) Past and Future Pain
  and Suffering, both Physical
  and Mental                           $150,000.00
d) Past Loss of Income                 $131,000.00
e) Loss of Future Earning
  Capacity                             $225,000.00
        Total                          $526,138.60
Loss of Consortium [of Mrs.
  Wanda Birdsall]                      $ 10,000.00
a) Loss of Consortium of
  Gary Birdsall, Jr.                   $  1,250.00
b) Loss of Consortium of
  Paul Birdsall                        $  1,250.00
c) Loss of Consortium of
  Celeste Birdsall                     $  1,250.00
d) Loss of Consortium of
  Hannah Birdsall                      $  1,250.00

Regional suspensively appealed, alleging the following assignments of error: (1) the jury erred in finding Regional at fault for this accident, (2) the jury erred in finding Dr. Birdsall only 20 percent at fault, and (3) the jury erred in the amount of damages awarded to plaintiff. Plaintiffs answered the appeal, seeking an increase in past and future lost earnings and damages for frivolous appeal.

NEGLIGENCE

A court of appeal may not set aside a jury's findings absent manifest error. Where there is a conflict in the testimony, *1168 reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. If the jury's findings are reasonable in light of the record reviewed in its entirety, we may not reverse even though we may have weighed the evidence differently if sitting as the trier of fact. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Regional contends on appeal that there existed contradictions in Dr. Birdsall's and Mr. Bourg's testimony regarding the truck with the protruding board. Consequently, Regional argues that the plaintiffs failed to prove that Regional was responsible for the accident. We disagree. The record contains ample testimony from which a reasonable jury could conclude that the truck with the protruding board belonged to Regional; thus, we cannot say that the jury was manifestly wrong.

Next Regional contends that it owed no duty to Dr. Birdsall because he was its general contractor and thus responsible for safety at the work site. Alternatively, Regional contends that even if a duty did exist, it did not encompass the facts of this case because Dr. Birdsall was blind in his left eye and he was walking without watching where he was going.

Although Dr. Birdsall did act as general contractor while constructing his home, the work Regional was performing on the date of the accident was remedial work after completion of the home. The Birdsalls were living in their new home at the time of the accident. Under these circumstances, we cannot say that the jury was manifestly erroneous in determining that Regional either shared the duty of providing a safe work place or was solely responsible for the condition of the work truck on the date of the accident.

We further find no merit in Regional's argument that it had no duty to prevent the accident in this case because the plaintiff was not watching where he was going. The duty to properly flag any item protruding from a pickup truck is for the purpose of making the object more visible. To say that the plaintiff's failure to see the board is not encompassed in this duty is to ignore the very purpose of the duty. If the board had been properly flagged, it is possible that Dr. Birdsall would have noticed it upon entering the driveway or at any other time before he turned into it unaware of its presence. We cannot say that the jury erred in determining that Regional owed a duty to Dr. Birdsall under the circumstances of this case.

COMPARATIVE FAULT

Regional also contends that the jury erred in assessing Dr. Birdsall with 20 percent of the fault. Regional argues that Dr. Birdsall had a duty, as a pedestrian, to see those obstructions in his pathway which would be discovered by a reasonably prudent person exercising ordinary care under the circumstances.

It is well settled that the allocation of comparative negligence is a factual matter within the sound discretion of the trier of fact and such determination will not be disturbed on appeal in the absence of manifest error. Haydel v. Hercules Transport, Inc., 94-1246, p. 19 (La.App. 1st Cir. 4/7/95); 654 So.2d 418, 430, writ denied, 95-1172 (La.6/23/95), 656 So.2d 1019. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for its finding, the appellate court should not disturb this finding. Daigle v. Legendre, 619 So.2d 836, 840-841 (La.App. 1st Cir.), writ denied, 625 So.2d 1040 (La. 1993).

The Louisiana Supreme Court, in Watson v.

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Bluebook (online)
710 So. 2d 1164, 97 La.App. 1 Cir. 0712, 1998 La. App. LEXIS 763, 1998 WL 166987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birdsall-v-regional-elec-const-inc-lactapp-1998.