Brown v. Beauregard Elec. Co-Op., Inc.

647 So. 2d 668, 1994 WL 696726
CourtLouisiana Court of Appeal
DecidedDecember 14, 1994
Docket94-512
StatusPublished
Cited by7 cases

This text of 647 So. 2d 668 (Brown v. Beauregard Elec. Co-Op., 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
Brown v. Beauregard Elec. Co-Op., Inc., 647 So. 2d 668, 1994 WL 696726 (La. Ct. App. 1994).

Opinion

647 So.2d 668 (1994)

Edward BROWN and Gwen Brown, Plaintiffs-Appellees,
v.
BEAUREGARD ELECTRIC COOPERATIVE, INC., Defendant-Appellant.

No. 94-512.

Court of Appeal of Louisiana, Third Circuit.

December 14, 1994.
Writ Denied March 10, 1995.

*670 George Michael Canaday, John Ezell Jackson, Lake Charles, for Edward Brown et ux.

*671 Charles Harper, Lilynn Annette Cutrer, Lake Charles, for Beauregard Elec. Co-op., Inc.

Charles M. Jarrell, Opelousas, for Louisiana Employer's Safety Ass'n.

Before GUIDRY, C.J., and YELVERTON, KNOLL, THIBODEAUX and WOODARD, JJ.

WOODARD, Judge.

This appeal arises from a jury award to plaintiffs for injuries and loss of consortium caused by an automobile accident.

FACTS

While relocating a utility pole on March 7, 1990, defendant, Beauregard Electric Cooperative (Beauregard) temporarily obstructed one side of a rural highway, thus narrowing the road to one lane. Beauregard employees permitted traffic to flow in each direction for several minutes before alternating the direction of travel. As a precaution against accidents, the employees had stationed a flagman 100-150 feet from the job site who used bright orange gloves to warn approaching motorists to slow down. They did not wear orange vests or use flags or "slow/stop" paddles. Beauregard also placed a "Men Working" sign on the left side of the road 600 feet from the site.

Plaintiff, Edward Brown, was driving a fully loaded 18-wheel gravel truck for his employer, John Richey (Richey), when he rounded a curve 500 feet from the job site and noticed that traffic was stopped in his lane. He attempted unsuccessfully to slow his truck and swerved into the other lane being unable to stop his truck in time to avoid striking the cars in front of him. His truck hit several oncoming cars, and he was thrown to the ground as the truck overturned in a ditch.

As passers-by came to his aid, Mr. Brown continued to lie on the ground, complaining of pain in his back. He was taken to the hospital, where his injury was diagnosed as a T-12 compression fracture. Within several months he was released to return to work with no restrictions. He continued to experience back pain, however, and a CT scan in 1993 revealed a herniated L4-5 disc.

Mr. Brown filed suit against Beauregard, alleging that Beauregard's negligence had caused his back injury. His wife also sued, seeking damages for loss of consortium. The jury apportioned fault 50% to Beauregard, 35% to Richey, and 15% to Mr. Brown. The jury then awarded Mr. Brown $250,000 in globo for his injuries, and Ms. Brown $50,000 for loss of consortium. Richey was immune from suit because he was Mr. Brown's employer, and his fault was therefore disregarded. Thus, judgment was rendered against Beauregard in the amounts of $192,308 for Mr. Brown and $38,462 for Ms. Brown, representing 50/65ths of the jury's damage awards.

Beauregard appealed, contending that the trial court erred in finding Beauregard at fault and that the damage awards were excessive. Mr. and Ms. Brown answered the appeal seeking an increase in quantum and damages for frivolous appeal.

LAW

APPORTIONMENT OF FAULT

It is well settled that a public utility undertaking repair work alongside a highway, such as Beauregard, must do so in a reasonably safe and careful manner, so as to minimize the risk of accident to the motoring public. Kitchen v. Malvon Constr. Co., 520 So.2d 799, 803 (La.App. 3 Cir.1987). Encompassed within this general duty is the specific duty to warn motorists adequately of highway obstructions. Richey, as the owner of a commercial hauling truck, was bound to ensure that the truck was in proper working condition and met all applicable safety standards. Mr. Brown, as a motorist, was bound to maintain a proper lookout and to retain control of his truck. In such situations, in which several dangerous hazards combine to produce an accident, comparative fault is applicable. Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672, 674-75 (La.App. 3 Cir. 1991).

In assigning degrees of comparative fault, we must consider (1) whether the actors' conduct resulted from inadvertence, (2) the magnitude of the risk created by their *672 conduct, (3) the significance of the intended results of their conduct, (4) the actors' relative capacities, and (5) any extenuating circumstances requiring haste. Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967, 974 (La.1985). Apportionment of fault is an issue of fact, and the jury's findings in this respect should not be disturbed on appeal in the absence of manifest error. Monceaux, 590 So.2d at 676. The jury's apportionment of fault cannot be manifestly erroneous if it is reasonable in light of the record viewed in its entirety. Stobart v. State, DOTD, 617 So.2d 880, 885 (La.1993).

A former Richey employee testified at trial that Richey did not maintain the truck properly, and expert testimony indicated that Mr. Brown would have been able to stop the truck in time to avoid an accident if the brakes had been working properly and Mr. Brown had been paying adequate attention to the road. However, Beauregard's precautions did not inform motorists of the precise nature of the road conditions ahead; a reasonable motorist might not have anticipated traffic stoppage within 600 feet of the sign or within 150 feet of the flagman. Moreover, the sign was on the wrong side of the road. There was no warning of the presence of the flagman, and it appears that the flagman was not himself adequately equipped to warn of the potentially dangerous road conditions just ahead. Beauregard possessed the superior ability to take the precautions necessary to ensure safety. The jury could have reasonably decided that a reasonable motorist would not have been sufficiently alerted of the potentially dangerous conditions ahead, and therefore the finding that Beauregard was 50% at fault in causing the accident is not manifestly erroneous.

CAUSATION

The parties agree that the 1990 accident caused Mr. Brown's thoracic compression fracture, but they disagree as to whether his bulging lumbar disc resulted from this accident or a subsequent fall from atop a trailer in 1992. Given the amount of damages awarded to Mr. Brown, however, it is clear that the jury resolved this issue in his favor.

A plaintiff must prove by a preponderance of the evidence the existence of a causal relationship between the accident and the injuries he claims. A jury's determination whether the plaintiff has carried this burden is a finding of fact that will not be disturbed on appeal unless it is manifestly erroneous. Housley v. Cerise, 579 So.2d 973, 978-79 (La.1991). When the factfinder resolves this issue in the face of conflicting testimony and other evidence, that conclusion will not be disturbed unless (1) the favored testimony is internally inconsistent or implausible on its face, or (2) objective evidence or reliable documents so contradict the witness's story that it is insupportable based upon the record viewed as a whole. Stobart, 617 So.2d at 882.

Mr. Brown was neither diagnosed with nor treated for a lumbar injury until after the 1992 fall. Additionally, the medical evidence linking the injury with the 1990 accident was suspicious: Mr. Brown's treating physician testified that Mr. Brown told him that his lower back pain began after the accident, despite his earlier statements to that physician that the pain began after the 1992 fall. Mr. Brown altered the history of his back injury less than one week before the trial began.

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Cite This Page — Counsel Stack

Bluebook (online)
647 So. 2d 668, 1994 WL 696726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-beauregard-elec-co-op-inc-lactapp-1994.