Bouley v. Guidry

883 So. 2d 1099, 4 La.App. 3 Cir. 469, 2004 La. App. LEXIS 2317, 2004 WL 2181761
CourtLouisiana Court of Appeal
DecidedSeptember 29, 2004
DocketNo. CA 04-469
StatusPublished
Cited by2 cases

This text of 883 So. 2d 1099 (Bouley v. Guidry) 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
Bouley v. Guidry, 883 So. 2d 1099, 4 La.App. 3 Cir. 469, 2004 La. App. LEXIS 2317, 2004 WL 2181761 (La. Ct. App. 2004).

Opinion

LEZELL, Judge.

Jessica Bouley, a passenger in a vehicle involved in a single-car accident, appeals a trial court judgment which found her comparatively at fault for the quadriplegia she suffered as a result of the accident. In addition to disagreeing with the trial court’s allocation of fault to her, Bouley also claims that the trial court erred in finding that the Louisiana Department of Transportation and Development (DOTD) was not at fault for a defective ditch slope on U.S. Highway 90 in Jefferson Davis Parish.

FACTS

On October 20, 1996, Bouley traveled with an acquaintance, Dennis Guidry, on an outing that would change her life forever. The trip began at approximately 2:30 in the afternoon when Guidry picked up Bouley to go riding with him in his car, a 1977 Buick LeSabre. They drove around Lake Arthur, Louisiana, for a while and purchased some beer. Bouley had some Xanax, and she and Guidry took at least one. They then proceeded to Jennings toward Lake Charles where they purchased more beer. At this time, the pah’ decided to go to Beaumont, Texas, where they went to the apartment of a male friend. Guidry testified that they went to a couple of bars in Beaumont before leaving the friend’s apartment around midnight, but Bouley claims they left for home after staying a couple of hours at the friend’s apartment and never went to any bars. At some point, Bouley got in the back seat of the vehicle and laid down with her head on the passenger side. There is also a dispute between their versions as to when the decision was made, but it was decided that they would go to a friend’s house in Welsh, Louisiana. This is how the vehicle came to be traveling eastbound on Highway 90 in the early morning hours on October 21;

| gGuidry testified that he was getting tired, fatigued, and aggravated. He could not recall if he was dozing when the accident occurred. Initially, the car left the roadway on the right-hand side of the highway. Guidry testified that he tried to pull back onto the highway but the car came back on the roadway quickly, jumped lanes, and exited the left side of the road. Guidry testified that he tried to pull the car back onto the highway but the car eventually hit the bottom of the ditch, making a 180-degree turn, causing injury to Bouley’s spine at level C5-C6.

Trooper Waylan James Busby investigated the accident on the night it happened. He was called at 2:32 in the morning when it was dark but the weather was clear. Trooper Busby observed the vehicle in the north ditch facing west on Highway 90. He measured twenty feet from the point of impact to the location where [1103]*1103the vehicle came to rest. There were no skid marks visible. He did notice tire marks on the north side of the driveway. The marks proceeded over the driveway and then the vehicle struck the ditch. The only damage to the vehicle was on the front bumper.

In interviewing Guidry, Trooper Busby observed a strong smell of alcohol on Gui-dry’s breath. Guidry was also swaying, unsure of his balance, and fell while talking to Trooper Busby. After Guidry completed a field sobriety test, a Breathalyzer test was administered to Guidry twice at the Jefferson Davis Parish Sheriffs Office around 3:57 a.m. The first time the results were below .10, but the second time the results were .10. Guidry was then charged with DWI.

As a result of the accident, Bouley was rendered a quadriplegic with only minimal use in her right hand. Dr. Ralph Brown who treated Bouley after the accident explained that the force from the car spinning 180-degrees caused Bouley’s neck injury. Guidry was not injured in the accident but was issued a DWI after failing the second Breathalyzer.

|oBouley filed suit against Guidry and the DOTD. After hearing the testimony and reviewing the evidence, the trial court entered judgment allocating fifty percent of the fault for the accident each to Bouley and Guidry. Bouley was awarded $561,415.52 for past medical expenses and $2,808,329.00 for future medical expenses. She received $772.50 for loss of past earnings but no award was made for loss of future earnings. General damages were awarded in the amount of $1,500,000.00. Each of Bouley’s three children also received $100,000.00.

Bouley appealed the judgment, asserting that the trial court erred in several respects. These include allocating fault to Bouley for fading to wear a seat belt, failing to allocate fault to the DOTD, and failing to award Bouley damages for future lost wages.

BOULEY’S FAULT

In finding Bouley fifty percent at fault for the accident the trial court orally stated that she had to bear some responsibility for her injury for not wearing her seat belt, which it considered a major factor in her injury based on Dr. Brown’s testimony. Dr. Brown testified that Bou-ley was exposed to this type of neck injury because she was lying on the seat with no seat belt.

Louisiana Revised Statutes 32:295.1(E) clearly does not permit evidence of the failure to wear a seat belt as evidence of comparative negligence in causing injury. See Rougeau v. Hyundai Motor Am., 01-1182 (La.1/15/02), 805 So.2d 147. Therefore, the trial court erred in using this evidence to apportion any fault to Bouley. However, it appears the trial court did take other factors 'into consideration in assessing Bouley with fault, although not as heavily. Since there are issues concerning the failure to assess the DOTD with any fault, we will reserve our reassessment of fault until later in the opinion.

| ¿FAULT OF DOTD

Each side presented the testimony of an expert witness regarding the cause of the accident and resulting injury to Bouley. At issue was the slope of the ditch that Guidry encountered when his vehicle veered off the road to the left on the north side of Highway 90. Bouley claims that the trial court erred in relying on DOTD’s expert’s testimony and in finding that Cormier v. Comeaux, 98-2378 (La.7/7/99), 748 So.2d 1123 applied. Bou-ley argued that the fore slope of the ditch where the vehicle crashed was 2:1, which [1104]*1104was unreasonably dangerous, and was the cause in fact of the vehicle’s failure to recover, causing her injuries.

Cormier involved a claim arising out of an accident on Highway 90, one mile east of Mermentau, Louisiana. The accident also occurred in the early morning hours when the driver of the vehicle drove his vehicle off the road, across the shoulder and an adjacent roadside ditch, and into the back embankment of the ditch. The car rolled over and came to rest in the ditch facing north. The driver and a passenger were rendered quadriplegics as a result of the accident. The supreme court stated that the prime issue was whether the road was defective because the back slope created an unreasonable risk of harm. We do not find that the trial court’s reliance on Cormier is misplaced. Both cases involved the same highway and very similar conditions. The trial court did not rely on Cormier in coming to the conclusion that Highway 90 in the particular spot where the Guidry vehicle impacted with the ditch was not unreasonably dangerous. Its oral reasons for judgment clearly indicate that the trial court based its judgment on the evidence as presented to it in this case. Cormier was merely used as guidance by the trial court. Therefore, we will review the trial court’s determination that the slope of the ditch was not an unreasonably dangerous condition.

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Bluebook (online)
883 So. 2d 1099, 4 La.App. 3 Cir. 469, 2004 La. App. LEXIS 2317, 2004 WL 2181761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bouley-v-guidry-lactapp-2004.