Brian v. O.S. Johnson Construction Co.

676 So. 2d 756, 95 La.App. 3 Cir. 1409, 1996 La. App. LEXIS 1361, 1996 WL 336023
CourtLouisiana Court of Appeal
DecidedJune 19, 1996
DocketNo. 95-1409
StatusPublished

This text of 676 So. 2d 756 (Brian v. O.S. Johnson Construction Co.) 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
Brian v. O.S. Johnson Construction Co., 676 So. 2d 756, 95 La.App. 3 Cir. 1409, 1996 La. App. LEXIS 1361, 1996 WL 336023 (La. Ct. App. 1996).

Opinions

liSAUNDERS, Judge.

Following an adverse judgment in connection with her suit for damages against the named defendant and its insurer, plaintiff appeals. For the following reasons, we affirm in part, reverse in minor part, and award damages of $5,000.00.

On September 3, 1993, about one hour before the accident giving rise to this appeal, plaintiff was a guest passenger in a Dodge pickup truck driven by Ana Rena Araiza and insured by Allstate Insurance Company when a concession stand trailer towed by the vehicle jackknifed, causing the driver to lose control. Eventually the truck and trailer came to rest roughly perpendicular to the roadway, with the trailer lying just off the right-hand shoulder on the grass.

|2The accident was investigated by State Troopers Tony Rawson and Ronald Dowden. During the course of the troopers’ investigation, traffic on 1-49 North slowed as it passed.

About one hour after the officers had been at the scene of the accident, defendant’s tractor trailer, driven by Cory Murphy, crested a hill south of the accident site as it proceeded along 1^49 North. In order to avoid rear-ending the back of another vehicle that slowed down in front of Murphy’s truck, he hit his brake and swerved onto the right shoulder. Startled by the sight of the truck, whose rear tires were smoking, Murphy shouted to the bystanders, including plaintiff, to “Watch out!” Responding to Trooper Rawson’s warning, plaintiff traversed the tongue of the trailer, followed immediately by Ms. Araiza. In her suit against the truck driver, his employer and insurer, plaintiff alleged that she was injured while trying to [758]*758hurdle the back end of the truck and tongue of the trailer, both raised between 3 and 4 feet above the ground following the initial accident on 1-49 North above Alexandria.

Plaintiff having settled her suit with Ms. Araiza’s insurer arising from the initial jackknifing incident, the current appeal is limited solely to whether plaintiff sustained additional injuries for which Cory Murphy’s employer may be held responsible. Following trial on the merits on May 23, 1995, in which plaintiff, Ms. Araiza, the officers, and Cory Murphy testified live and in which plaintiffs treating specialist, Dr. Stephen Flood testified by deposition, the trial court rendered judgment in favor of O.S. Johnson Construction Company, Inc. and its insurer, Aetna Casualty and Surety Company, and against plaintiff, Carol Ann Brian. The trial court’s oral reasons entered immediately following the close of evidence and closing arguments, follow:

Well I don’t think there is any question about what happened here. Everybody is pretty consistent on that. Other than whether or not |3Ms. Brian fell when she stepped over the tongue of the trailer. We have conflicting testimony on that.
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It’s the Court opinion that the plaintiff has not borne its [sic] burden of proof of showing that the alleged actions of the defendant caused injuries sustained by Ms. Brian. I’m not doubting her. I’m just saying that the proof is lacking that is required by the law and the jurisprudence that the plaintiff bears the burden of proof.
In this instance the Court finds that the plaintiff has not borne the burden of proof, particularly in light of the testimony of Trooper Rawson, who said that he observed Ms. Brian step over the trailer. He did not see her fall. I have to accept that as being truthful, and again I am not doubting Ms. Brian. People just have different perceptions. But it all comes back to the fact that the Court finds that there has not been sufficient evidence to show that the injuries sustained by Ms. Brian were in fact caused or aggravated by the actions of the defendants. So the Court has no other alternative but to dismiss plaintiffs claims with costs. Judgment will be rendered accordingly.

In her devolutive appeal, plaintiff maintains that the trial court erred in holding that she did not sustain any injuries in traversing the tongue of the overturned trailer. Specifically, she takes issue with the trial court’s having required her to establish that she fell in order to recover, when the evidence overwhelmingly shows that her hasty retreat (even without falling) caused her injuries as firmly established by the medical evidence of Dr. Flood.

In response to these claims, defendants recant the trial court’s observation that Trooper Rawson was in a position to see plaintiff fall, stumble, or injure herself in any way, but saw nothing to that effect. Alternatively, they assert that it was plaintiffs failure to obey the officer’s directions to move off of the interstate’s shoulder and onto the adjoining embankment, and not the truck driver’s transgression, that caused the accident. “But for her conduct, her injuries allegedly would not have been sustained.” According to defendants, by the time plaintiff attempted to step over the trailer, the truck had already passed the accident scene in Ua slow and controlled manner. Finally, defendants argue that plaintiffs injuries had been caused not from crossing the tongue of the trailer, but from either the jolt of the initial one car accident or from a prior accident involving a horse in 1992.

Plaintiff seeks damages for cervical and lumbar strains, carpal tunnel syndrome, two herniated and two bulging discs, all of which she maintains were either caused or aggravated by the second incident of September 3, 1993. Plaintiff also seeks lost wages for delays in opening her counseling business she maintains are attributable to defendants’ negligence. As noted above, the trial court refused to award plaintiff any damages on the basis that she failed to establish that it was the second incident of September 3, 1993, and not some other, from which her complaints had risen.1

[759]*759It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). See also, Sevier v. United States Fidelity & Guaranty Co., 497 So.2d 1380, 1383 (La.1986); West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979); Davis v. Owen, 368 So.2d 1052, 1056 (La.1979); Cadiere v. West Gibson Products Co., 364 So.2d 998, 999 (La.1978); A. Tate, “Manifest Error” Further observations on appellate review of facts in Louisiana civil cases, 22 La.L.Rev. 605, 611 (1962). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the ^evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985).

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Bluebook (online)
676 So. 2d 756, 95 La.App. 3 Cir. 1409, 1996 La. App. LEXIS 1361, 1996 WL 336023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brian-v-os-johnson-construction-co-lactapp-1996.