Brown v. State ex rel. Department of Transportation & Development

166 So. 3d 1197, 15 La.App. 3 Cir. 23, 2015 La. App. LEXIS 1041, 2015 WL 3390360
CourtLouisiana Court of Appeal
DecidedMay 27, 2015
DocketNo. 15-23
StatusPublished

This text of 166 So. 3d 1197 (Brown v. State ex rel. Department of Transportation & Development) 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. State ex rel. Department of Transportation & Development, 166 So. 3d 1197, 15 La.App. 3 Cir. 23, 2015 La. App. LEXIS 1041, 2015 WL 3390360 (La. Ct. App. 2015).

Opinion

COOKS, Judge.

|, FACTS AND PROCEDURAL HISTORY

On April 19, 2012, Weston Brown, who was fifteen years old at the time, was a guest passenger in a pick-up truck driven by his seventeen year old cousin, Dustin Brown. They were traveling on Louisiana Highway 928 in Catahoula Parish. Dustin passed a white Ford Explorer in the other lane of traffic before returning to his lane. Shortly after the passing maneuver, Dustin saw a white automobile stopped in the road.

While attempting to avoid the stopped vehicle, Dustin attempted to pass it in the other lane of travel. At that same time, the white automobile, operated by Amanda Coleman, began to turn left. In response, Dustin swerved farther to the left, resulting in his two left wheels leaving the asphalt portion of the roadway where the shoulder was located. Dustin then attempted to return to the right lane but overcorrected his vehicle, causing it to exit the highway on the left side. The truck entered a ditch, ultimately striking a solid concrete culvert. The truck flipped in the air, ejecting Weston Brown, who ultimately died from his injuries. It was acknowledged by all parties that Dustin was operating his truck in excess of the posted speed limit when these events occurred.

Louisiana Highway 923 was built in the 1950’s using the 1948 standards. When built it had two ten-foot lanes with five-foot shoulders on each side. The evidence established there was an overlay project on Hwy. 923 in 1998, which expanded the width of the travel lanes, while decreasing the width of the shoulders. Whether appropriate standards were used by DOTD during the overlay project was a contested issue at trial. DOTD contended because the overlay project was a resurfacing project and not a reconstruction project, it was able to use the 1948 standards rather than implement more modern standards. Plaintiffs disagreed and ^contended mandatory American Association of State Highway Transportation Officials (AASH-TO) standards required the use of more modern standards.

Plaintiffs, the parents of Weston Brown, Parvin Wesley Brown and Rhonda Brown, filed suit against several defendants, including Leslie Brown (the owner of the truck driven by Dustin Brown and his father), Angela Brown (Dustin’s mother), Dustin Brown, Amanda Coleman, State Farm Mutual Automobile Insurance Company (the insurer of the Brown vehicle), and the State of Louisiana, through the Department of Transportation and Development (DOTD). State Farm, Leslie Brown, Angela Brown and Dustin Brown were dismissed pursuant to a Partial Judgment of Dismissal signed on December 9, 2013. Amanda Coleman was dismissed pursuant to a Partial Judgment of Dismissal signed on May 12, 2014. That left DOTD as the sole remaining defendant.

A three-day jury trial commenced on May 14, 2014. Following trial, the jury returned a verdict finding DOTD to be thirty percent (30%) at fault, Dustin Brown sixty-five percent (65%) at fault and Amanda Coleman five percent (5%) at fault. The jury then awarded Plaintiffs special damage in the amount of $23,158.50, which reflected the medical and funeral expenses. Plaintiffs were also awarded $105,000.00 each in general damages.

Following the jury’s verdict, Plaintiffs moved for a judgment notwithstanding the verdict (JNOV) on the issue of the jury’s [1200]*1200award of general damages, contending they were inadequate. A hearing was held on July 17, 2014. The trial court rendered judgmént that day in open court granting the motion increasing the amount of general damages to $450,000.00 for each plaintiff. A written judgment reflecting that ruling was signed on July 28, 2014.

DOTD lodged this appeal, contesting three evidentiary rulings made by the trial court as well as the grant of Plaintiffs’ JNOV. They asserted the following assignments of error:

|al. The trial court abused its discretion by forbidding the admission of Trooper Jay Donaldson’s scale diagram of the accident, as he was available for cross-examination by the Plaintiffs.
2. The trial court abused its discretion by prohibiting Trooper Donaldson from testifying fully about the speed of the vehicle.at issue as he was qualified as an expert at traffic reconstruction and was available for cross-examination by the Plaintiffs.
3. The trial court abused its discretion by limiting the scope of Kelley Adam-son’s testimony to areas not discussed by Trooper Donaldson as such testimony was not cumulative.
4. The trial court abused its discretion by granting Plaintiffs’ JNOV and substituting its determination of the proper amount of damages for the jury’s where the jury’s damage award was reasonable.

ANALYSIS

I. Evidentiary Rulings.

“The trial court is given vast discretion in its evidentiary rulings, and its decision to admit or exclude evidence will not be reversed on appeal in the absence of an abuse of discretion.” Succession of Jones, 08-1088, p. 4 (La.App. 3 Cir. 3/4/09), 6 So.3d 331, 335 (citing BellSouth Telecomm., Inc. v. City of Lafayette, 05-1478, 05-1505 (La.App. 3 Cir. 1/5/06), 919 So.2d 844). “We will not overturn a trial court’s ruling on the admissibility of evidence unless that ruling is clearly wrong or we find that the trial court has committed an abuse of discretion in so ruling.” Gold, Weems, Bruser, Sues, & Rundell v. Granger, 06-859, p. 9-10 (La.App. 3 Cir. 12/29/06), 947 So.2d 835, 843, writ denied, 07-0421 (La.4/27/07), 955 So.2d 687.

In its first assignment of error DOTD contends the trial court’s refusal to allow into evidence a scaled diagram prepared by Louisiana State Trooper Jay Donaldson was erroneous and a clear abuse of the trial court’s vast discretion. Trooper Donaldson was deployed to the crash site to investigate the accident. LTrooper Donaldson prepared and attached to his accident report a scaled diagram that purported to depict the movement and speed of the Brown vehicle.

During Trooper Donaldson’s testimony, counsel for DOTD attempted to discuss the scaled diagram. Plaintiffs’ counsel objected, arguing that the diagram was attached to, and thus part of the accident report, rendering it inadmissible. The trial court ruled the scaled diagram could not be introduced into evidence, but did allow Trooper Donaldson to draw a diagram, using the scaled diagram as a reference, and allowed him to testify concerning this drawing.

While DOTD acknowledged the general rule that an accident report is not excluded from the hearsay rule and may not be admitted into evidence, it maintains “in [1201]*1201this circumstance the general rule should not be applied to hamstring the DOTD’s defense as it was in this case.” DOTD contends this is particularly true as Trooper Donaldson was available for cross examination.

Plaintiffs note this court, in Maricle v. Liberty Mutual Insurance Company, 04-1149 (La.App. 3 Cir. 3/2/05), 898 So.2d 565, held an accident report prepared by the investigating officer clearly contains hearsay as defined in La. Code Evid. art. 801(C) and is inadmissible unless it fits within one of the exceptions found in La. Code Evid. art. 803. Moreover, this court also explained:

[F]or a document to be admissible under La.Code Evid. art.

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166 So. 3d 1197, 15 La.App. 3 Cir. 23, 2015 La. App. LEXIS 1041, 2015 WL 3390360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-ex-rel-department-of-transportation-development-lactapp-2015.