Callihan v. Town of Vinton

668 So. 2d 735, 1995 WL 714685
CourtLouisiana Court of Appeal
DecidedMarch 12, 1996
Docket95-665
StatusPublished
Cited by8 cases

This text of 668 So. 2d 735 (Callihan v. Town of Vinton) 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
Callihan v. Town of Vinton, 668 So. 2d 735, 1995 WL 714685 (La. Ct. App. 1996).

Opinion

668 So.2d 735 (1995)

Felton James CALLIHAN, Plaintiff-Appellant-Appellee,
v.
TOWN OF VINTON, Defendant-Appellee-Appellant.

No. 95-665.

Court of Appeal of Louisiana, Third Circuit.

December 6, 1995.
Order on Rehearing March 12, 1996.

*737 Payton R. Covington, Lake Charles, for Felton James Callihan.

Dennis R. Sumpter, Sulphur, for Town of Vinton.

Mary M. Hamilton, Lafayette, for Fidelity & Casualty Company of New York.

Before KNOLL, COOKS and SAUNDERS, JJ.

SAUNDERS, Judge.

Plaintiff, Felton James Callihan, appeals from the trial court's award of general damages in the amount of $60,000.00 and special damages in the amount of $47,437.55. Defendant, *738 Town of Vinton, answers the appeal and also assign errors of law. Intervenor, Fidelity Casualty Company of New York, also answers each appeal.

Plaintiff, Felton James Callihan, an employee of Coburn Supply Company, Inc., was given the task of delivering some cast iron fittings to the Town of Vinton. In order to unload these fittings, plaintiff and Billy Wayne Burke, a prisoner employed by the Town of Vinton through a work release program, proceeded to pull the fittings to the rear of the truck where they could be removed more easily. Plaintiff and Burke intended to attach a chain to one end of the fittings and pull the other end with a backhoe.

In the course of securing the chain with the backhoe's bucket, plaintiff's right hand was caught in the closing jaw; Burke was operating the backhoe at the time. The ensuing accident resulted in permanent disabilities and accompanying deformities to the plaintiff's right hand.

Subsequently, plaintiff filed this action seeking damages against the Town of Vinton and Billy Wayne Burke. Fidelity Casualty Company of New York, Coburn's compensation insurer, intervened to recover money paid to and on behalf of plaintiff.

A trial on the merits was had on June 16 and 17, 1994. From the evidence adduced at trial, the trial court found that Burke's negligent operation of the backhoe substantially contributed to the resulting injuries incurred by plaintiff. As an employee of the Town, the fault attributed to Burke individually was imputed to the Town of Vinton.

Plaintiff's condition was evaluated by four doctors. Plaintiff also underwent two surgeries and was diagnosed with a permanent disability of the right hand ranging from 10% to 25%.

Accordingly, the trial court found that plaintiff was entitled to a general damage award of $60,000.00 for past and future pain and suffering, disfigurement, and 25% permanent partial disability to his right hand. Plaintiff was also granted special damages in the amount of $47,437.55, which included $38,672.18 in medical bills and $8,765.37 in worker's compensation. This was the stipulated amount of the intervention claim filed by Coburn's workers' compensation carrier, Fidelity Casualty Company of New York. Therefore, plaintiff was awarded a total of $107,437.55.

The trial court assigned the Town of Vinton 70% of the fault and attributed the remaining 30% to the plaintiff himself.

Plaintiff appeals this judgment on the basis that:

(1) The trial court committed "manifest error" or "clear error" when it failed to consider past loss of earnings;
(2) The lower court erred when it failed to award future loss of earnings;
(3) Error was committed in finding comparative negligence of 30% on the part of plaintiff;
(4) The trial court erred by awarding general damages of only $60,000.00.

STANDARD OF REVIEW

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." Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder's determinations:

1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).

See Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987).

This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier *739 of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that "the reviewing court must always keep in mind that `if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.'" Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).
This court has recognized that "[t]he reason for this well-settled principle of review is based not only upon the trial court's better capacity to evaluate live witnesses (as compared with the appellate court's access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts." Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id.

Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880, 882-883 (La.1993) (notes omitted).

This is not to suggest, however, that courts of appeal are not required to review findings of fact by the trial court. To the contrary, as the Supreme Court stated in Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, pp. 8-9 (La. 7/5/94), 639 So.2d 216, 221:

Notwithstanding the Court's earlier guidance to reviewing courts in Stobart v. State through DOTD, 617 So.2d 880 (La. 1993), it was not our purpose in that case to mandate that the trial court's factual determinations cannot ever, or hardly ever, be upset.

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668 So. 2d 735, 1995 WL 714685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callihan-v-town-of-vinton-lactapp-1996.