Burnett v. Lewis

852 So. 2d 519, 2002 La.App. 4 Cir. 0020, 2003 La. App. LEXIS 2172, 2003 WL 21756340
CourtLouisiana Court of Appeal
DecidedJuly 9, 2003
DocketNos. 2002-CA-0020, 2002-CA-0021, 2002-CA-0022, 2002-CA-1573
StatusPublished
Cited by3 cases

This text of 852 So. 2d 519 (Burnett v. Lewis) 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
Burnett v. Lewis, 852 So. 2d 519, 2002 La.App. 4 Cir. 0020, 2003 La. App. LEXIS 2172, 2003 WL 21756340 (La. Ct. App. 2003).

Opinion

|, DAVID S. GORBATY, Judge.

FACTS AND PROCEDURAL HISTORY

On May 5, 1998, a Nissan Atima driven by Troylynn Washington struck a Ford Explorer driven by Michael Lewis at the intersection of Camp and Poydras Streets. The impact between the two vehicles caused the Explorer to roll over and strike a traffic signal support located at the intersection. The actual traffic signal became detached from the pole and subsequently struck Lisa Zachmann, a pedestrian walking near the intersection. The Explorer also rolled over onto two pedestrians, James L. Burnett, Jr. and Roberto Hinojo-sa, who were standing near the intersection as well. Mr. Burnett died the following day due to his injuries.

Jessie Ann Burnett, individually and as the surviving spouse of Mr. Burnett, and the natural tutrix of their seven minor children1, and as the personal representative of the succession of James L. Burnett, Jr., filed suit on July 20, 1998 against Michael Lewis and his insurer, State Farm Mutual Insurance Company; Troylynn Washington and her insurer, State Farm Mutual Insurance Company; L USAA Casualty Insurance Company, Mr. Burnett’s uninsured motorist carrier; and the City of New Orleans. The case was allotted to Division J of Civil District Court for the Parish of Orleans.

Lisa Zachmann and her husband, Michael Zachmann, individually and on behalf of their minor child, Lauren, filed suit against the above-named defendants2 on [524]*524March 24, 1999. The case was originally allotted to Division I of Civil District Court for the Parish of Orleans, but was subsequently consolidated with the lower-numbered Division J Burnett case. In August, 1999, the Zachmanns dismissed with prejudice defendants Washington and Lewis and their insurer, State Farm.

Robert Hinojosa and his wife, Donna, initiated suit against the same defendants on April 15, 1999. Their case was initially allotted to Division H of Civil District Court for the Parish of Orleans, but was also subsequently consolidated with the lower-numbered Burnett case in Division J.

The consolidated matter, which included these three separate sets of plaintiffs, went to trial on August 22, 2001. The fault of defendants Lewis and Washington was tried to a jury, and the liability of the City of New Orleans was argued to the Court, pursuant to LSA-R.S. 13:5105 and La. C.C.P. art. 1732(6). The jury rendered judgment in favor of the plaintiffs, and against defendants Lewis and Washington, and their insurer, State Farm. The jury found that Michael Lewis was seventy (70) percent at fault in causing the accident, Troylynn Washington was thirty (30) percent at fault, and the City of New Orleans was not at fault. The Injury awarded the Burnetts $1.6 million in general damages, $10,771 in medical expenses, $6,978 in funeral costs, and $1,266,326 for loss of economic support, plus interest from the date of demand until paid, and all costs of the proceedings. The jury awarded Roberto Hinojosa $500,000 in general damages and $150,000 in past and future medical expenses, and Donna Hinojosa $5,000 for past, present, and future loss of consortium, plus interest from the date of demand, and all costs of the proceedings. The jury awarded Lisa Zachmann $400,000 in general damages, plus $100,000 in past, present, and future medical expenses, and Michael and Lauren Zachmann each $5,000 for past, present, and future loss of consortium.

The trial judge concluded the proceedings and issued its judgment on October 2, 20013, finding in favor of the City and against all plaintiffs. The court found that the blame for the accident rested solely with Lewis and Washington. The court specifically held that “the plaintiffs have failed to prove beyond a preponderance of the evidence (1) the traffic signal light malfunctioned; (2) that the City had prior notice of the malfunction; (3) that the City had a reasonable opportunity to cure the defect; and (4) that the alleged defect was the cause in fact of their damages.” The court also found that “(1) Michael Lewis was speeding and either ran the red light or attempted to traverse the intersection on a late yellow light; and (2) Troylynn Washington was negligent in not looking for oncoming traffic prior to entering the intersection, or she in fact ran the red light.” Later, on November 27,2001, the trial court issued an Amended Judgment, because its first |4had erroneously rendered judgment against Troylynn Washington, a defendant who had settled with plaintiffs during trial. The deletion of Washington and her insurer was the only change to the October 2001 judgment. Subsequently, the plaintiffs filed separate appeals, which were consolidated. Inter-venor Texaco Exploration & Production Inc. (“TEPI”), the employer of James L. Burnett, Jr., also appealed.

[525]*525 ASSIGNMENTS OF ERROR BY THE ZACHMANNS

1. The trial court erred in altering the jury interrogatories outside the presence of counsel, conducting jury polling, adopting the jury verdict in a bifurcated trial, and signing defendant’s Ex Parte Motion to Make the Verdict of the Jury the Judgment of the Court.

Plaintiffs assert that Judge Ramsey substituted jury interrogatories in place of those provided to plaintiffs’ counsel in the September 7, 2001 charge conference. It was not disclosed to them that the jury would apportion fault by interrogatory on the strict liability and legal fault claims brought against the owner and custodian of the traffic signal, they aver.

Appellants contend that the jury instructions were confusing because they inquired about apportionment of fault not relevant to strict liability claims. However, the jury was well aware that the City of New Orleans was the only defendant on trial, because Lisa Zachmann testified that she had settled all of her claims against the defendants except the City of New Orleans.

| ¡Although the trial court must give jury instructions that properly reflect the applicable law, it is not bound to give instructions to the jury in the exact words requested. The adequacy of jury instructions must be determined in light of the instructions as a whole. An appellate court must exercise great restraint before overturning a jury verdict because the instructions were so erroneous as to be prejudicial. Labove v. Raftery, 99-1414 (La.App. 3 Cir. 4/19/00), 759 So.2d 240. It is well settled that adequate jury instructions are those that fairly and reasonably point up the issues and provide correct principles of law for the jury to apply to those issues. Laborde v. Velsicol Chemical Corp., 474 So.2d 1320 (La.App. 3 Cir.1985). The mere discovery of an error in the trial judge’s instructions does not itself justify the appellate court conducting a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the ease. Id. at 1324.

In the instant case, the jury instructions and interrogatories adequately set forth the correct principles of law to be applied. Additionally, the record contains no evidence to support plaintiffs argument that the trial judge made an ex parte communication with the jury regarding jury instructions. This court has held that it will not presume that a judge made an ex parte contact with a jury absent some credible evidence to support such an allegation. Kennedy v. St Charles General Hospital Auxiliary, 630 So.2d 888 (La.App. 4 Cir.1993).

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852 So. 2d 519, 2002 La.App. 4 Cir. 0020, 2003 La. App. LEXIS 2172, 2003 WL 21756340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnett-v-lewis-lactapp-2003.