Judgment rendered November 6, 2024 Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,818-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
CASSANDRA CROW Plaintiff-Appellant
versus
RICHARD FOSTER and STATE OF Defendants-Appellees LOUISIANA, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT ***** Appealed from the Third Judicial District Court for the Parish of Union, Louisiana Trial Court No. 49,656
Honorable Thomas W. Rogers, Judge
MORRIS & DEWETT, LLC Counsel for Plaintiff - By: B. Trey Morris Appellant Elizabeth A. Hancock Eric M. Whitehead
THE LAW FIRM OF EDDIE CLARK AND ASSOCIATES, LLC By: Eddie M. Clark
LIZ MURRILL Counsel for Defendants- Attorney General Appellees
JEANNIE C. PRUDHOMME C. BRYAN RACER CHARLEN T. CAMPBELL Assistant Attorneys General
Before STONE, MARCOTTE, and ELLENDER, JJ. MARCOTTE, J.
This appeal arises from the Third Judicial District Court, Parish of
Union, the Honorable Thomas W. Rogers presiding. Plaintiff, Cassandra
Crow (“plaintiff” or “Ms. Crow”) appeals a jury verdict in which defendants,
Richard Foster (“Foster”) and the State of Louisiana, through the
Department of Transportation and Development (“DOTD”) (Foster and
DOTD collectively referred to as “defendants” or “appellees”), were found
not liable to Ms. Crow for injuries she sustained in an accident with a motor
grader in Union Parish, Louisiana. For the following reasons, we affirm.
FACTS
On March 26, 2020, Ms. Crow was traveling along La. Hwy. 143 and
approached its intersection with La. Hwy. 2 with the intention of turning left.
At the time, Foster and other DOTD personnel were operating a mobile
work zone near the intersection. Foster was driving a John Deere motor
grader1 reshaping the shoulder of the roadway.
There is a dispute between the parties as to which lane of traffic was
open for eastbound motorists on La. Hwy. 2 at its intersection with La. Hwy.
143. DOTD claims that the mobile operation closed the eastbound lane of
travel such that eastbound traffic was temporarily directed to the westbound
lane. Ms. Crow contends that the eastbound lane was not closed. However,
the parties do not dispute that there were no flagmen at the intersection
directing traffic.
1 A motor grader is a large piece of mobile equipment with a 14-foot blade used by DOTD in the grading of roadways. Seeing no flagmen, Ms. Crow turned left onto La. Hwy. 2 in the
eastbound lane and positioned her car behind the motor grader and in front
of a backhoe also working on the mobile operation. Unaware of any
motorists behind him, Foster then began reversing the motor grader until he
collided with the front of Ms. Crow’s vehicle, causing her harm.
On December 30, 2020, Ms. Crow filed a petition for damages against
Foster and DOTD, alleging that she suffered injuries due to the negligence
of Foster and DOTD under a theory of respondeat superior. A motion in
limine was granted in favor of the DOTD as to general negligence at the
scene, etc. The court found that the only issue of liability to be determined
was the fault of the DOTD employee Foster. Ms. Crow claimed that as she
approached the intersection, she noticed a construction vehicle
approximately 50 yards to her right, and another similar construction vehicle
approximately 100 yards to her left. Ms. Crow claimed that she made a
complete stop at the stop sign and looked both ways but that no one from
DOTD provided any guidance. She eventually turned left into the eastbound
lane of travel on La. Hwy. 2.
Once she finished her left turn, Ms. Crow stated that she continued
eastbound in the right lane on La. Hwy. 2 until she encountered a motor
grader driven by Foster. The motor grader stopped, and plaintiff came to a
stop behind it. The motor grader then began backing up. Plaintiff claimed
that she could not reverse her vehicle as another construction vehicle had
stopped behind her. At this point plaintiff claimed she began honking her
horn, but Foster continued reversing and ultimately backed his vehicle into
the front end of her vehicle.
2 On June 25, 2021, defendants filed an answer to plaintiff’s petition.
Defendants denied liability for plaintiff’s injuries, asserting that she is
instead to blame.
On December 22, 2022, defendants filed a motion for summary
judgment, claiming that summary judgment should be granted because
plaintiff did not possess any competent evidence of fault on the part of
DOTD. Defendants claimed that the undisputed evidence showed that
DOTD was operating in a mobile work zone on the day of the accident, and
that a flag crew preceded and followed the heavy equipment that was cutting
shoulders on Hwy. 2. Defendants noted that even plaintiff acknowledged
seeing the heavy equipment working on the roadway.
Defendants further noted that only one lane of travel was open during
the length of mobile work zone, but that plaintiff did not utilize that lane of
travel, and instead pulled into an active work zone between a road grader
and a backhoe, two extremely large pieces of construction equipment.
Defendants claimed that Ms. Crow occupied a lane closed to the motoring
public so that DOTD could perform the shoulder cutting, and she is therefore
presumed to be at fault for the accident.
Defendants asserted that since there was no evidence that the mobile
work zone represented an unreasonably dangerous condition and since
plaintiff did not possess evidence to overcome the presumption of fault,
summary judgment should be granted.
Defendants also asserted that since the motor grader is not considered
a vehicle under Louisiana law, the requirement of La. R.S. 32:281(A) that a
driver of a vehicle shall not back up unless the movement can be made with
3 reasonable safety does not apply. Defendants then asserted that even if the
motor grader is found to be a vehicle, plaintiff still cannot prove that Foster
backed up the grader without reasonable safety, since Foster testified that he
checked behind him before reversing it.
On January 25, 2023, plaintiff filed a memorandum in opposition to
defendants’ motion for summary judgment. Plaintiff asserted that Foster
chose to back up his vehicle when he knew he could not watch for traffic
behind him and when he knew he did not have any flagmen at the
intersection to divert traffic. Plaintiff also asserted that the motor grader
qualifies as a motor vehicle pursuant to La. R.S. 32:1(48), but that even if it
does not, Foster was negligent in reversing a large construction vehicle
without being aware of traffic behind him.
On March 6, 2023, the trial court found that there were genuine issues
of material fact and denied summary judgment.
A five-day jury trial commenced on March 27, 2023, and concluded
on March 31, 2023. During voir dire, one juror, Ms. Patterson, testified that
despite the evidence, she would not award millions of dollars in damages to
plaintiff. Ms. Crow’s counsel then asked Ms. Archie, another prospective
juror, if she agreed with Ms. Patterson, and Ms. Archie answered in the
affirmative.
Defendants’ counsel then asked Ms. Patterson if she could follow the
judge’s instructions on how to evaluate the case and calculate what she
deemed to be a fair and reasonable reward, to which she responded, “All his
instructions.” Plaintiff’s counsel challenged Ms. Patterson for cause. The
trial court denied the challenge for cause, finding that Ms. Patterson had
4 been rehabilitated by defendants’ counsel. Plaintiff then used her last
peremptory challenge on Ms. Patterson.
Notably, during the conference to empanel the jury, Ms. Crow’s
counsel accepted Ms. Archie as a juror without any objections or challenges.
The trial court noted plaintiff’s inconsistent stand regarding Ms. Patterson’s
and Ms. Archie’s identical responses regarding their inability to award
millions of dollars in damages.
At trial, Ms. Crow testified that she saw the construction zone on La.
Hwy. 2 as she approached the intersection from La. Hwy. 143. She stated
that she saw the backhoe to her right and the motor grader to her left, each
with several workmen standing beside the equipment.
Ms. Crow said that before she arrived at the stop sign, she saw traffic
traveling westbound in the open westbound lane. However, at her
deposition 18 months before trial, she testified that she could not remember
in which direction the traffic was flowing. At the scene of the accident, she
informed the investigating officer, Union Parish Sheriff’s Deputy Scott
Barmore (“Dep. Barmore”), that she saw traffic traveling eastbound.
Ms. Crow testified at trial that at the intersection of La. Hwy. 143 and
La. Hwy. 2, she stopped at the stop sign, turned left (eastbound) onto La.
Hwy. 2, and got behind the motor grader that was moving very slowly. She
did not recall seeing flashing hazard lights on the motor grader. She said she
stopped when the equipment stopped. She testified that, after a while, the
motor grader started backing up. She said that she then blew her horn, but
the equipment kept coming and backed into her. Ms. Crow testified that she
never heard the back-up alarm on the motor grader. She stated that she did
5 not attempt to avoid the accident by backing up because the backhoe was
immediately behind her.
According to Dep. Barmore, Ms. Crow was initially moving with the
flow of traffic, saw the backhoe in her peripheral vison, it scared her, and
she pulled up behind the motor grader, which was in the eastbound lane.
Once she was behind the motor grader, she said that she looked back up, but
the equipment started reversing and hit her.
Dep. Barmore testified that when he arrived at the accident scene, he
noticed that the motor grader was flashing yellow hazard lights, that it
occupied the entire eastbound lane of La. Hwy. 2, and that there were no
flagmen for drivers who approached from the intersection. He further
testified that he did not observe any signage closing the eastbound lane of
traffic to the motoring public.
Dep. Barmore could not recall whether Foster told him that he looked
behind him before reversing. However, since both drivers agreed that Foster
backed into Ms. Crow, Dep. Barmore did not ask any additional questions
and completed his investigation, finding Foster to be at fault for the accident.
Deputy Barmore took 12 photographs at the scene showing that the
accident happened near the mouth of the intersection of La. Hwy. 143 and
La. Hwy. 2. The photographs showed Ms. Crow in the eastbound lane with
her rear passenger-side tire further away from the white fog line than her
front passenger-side tire, suggesting that she was still in the process of
turning when the accident occurred. The photographs further suggested that
she had not yet completed her turn when the motor grader backed into her,
6 as Ms. Crow’s front tires were still turned to the left at the time of the
accident.
Foster testified that the procession of the mobile construction crew
was near the intersection when he needed to stop and back up the motor
grader. He said that before he backed up, he stood up and turned around to
look behind him to make sure it was safe before reversing. When he saw
nothing behind him, he sat down, reversed the motor grader – which
activated the back-up alarm – and watched the blade he controlled over the
roadway shoulder to ensure that it did not hit signs at the edge of the
shoulder. Foster stated that he did not feel the need to use his mirrors while
reversing, as he had just looked to make sure nothing was behind him. He
said that he concentrated on the blade over the roadway shoulder to his right.
Foster said that he had traveled in reverse only about five or six feet
when he heard a noise and realized that he had hit a truck that was behind
him. He did not hear the truck honk at him. Foster testified that the truck
must have pulled up behind him after he had already started backing up, as
he did not see it when he turned around to make sure nothing was behind
him before reversing.
At the conclusion of defendants’ case-in-chief, plaintiff moved for a
directed verdict regarding her comparative negligence, claiming that there
was no evidence supporting negligence of any kind by plaintiff. The trial
court denied the motion.
At the jury charge conference, plaintiff’s counsel sought to include in
the jury instructions the portion of La. R.S. 32:1 that defines a vehicle and
La. R.S. 32:281 which provides Louisiana law on reversing a vehicle. The
7 trial court refused these instructions and ruled that a motor grader is not a
vehicle pursuant to Louisiana law.
The jury returned a verdict in favor of defendants, finding that they
were not liable to plaintiff. On April 27, 2023, the trial court signed a
written judgment in conformity with the jury’s verdict. Plaintiff now
appeals.
DISCUSSION
Directed Verdict
Appellant argues that the trial court erred in denying her motion for a
directed verdict because no evidence was presented to establish that plaintiff
breached any standard of care that caused or contributed to the accident.
Plaintiff claims that she made a legal left turn at the intersection and came to
a complete stop behind the motor grader before it started reversing and
backed into her. Ms. Crow claims that the roadcrew should have controlled
the intersection and that Foster should not have backed up if it could not
safely have been done.
Appellees argue that the trial court did not abuse its discretion in
denying Ms. Crow’s motion for a directed verdict. Defendants claim that
sufficient evidence demonstrated that Ms. Crow, a 17-year veteran school
bus driver with a current commercial driver’s license, failed to exercise the
heightened duty of care required by La. R.S. 32:320.1(A) for construction
zones. Defendants contend that Ms. Crow got nervous when she saw the
backhoe and pulled up between two pieces of construction equipment that
were flashing hazard lights and occupying the entire eastbound lane.
8 Defendants further contend that the evidence at trial showed that had
Ms. Crow followed the eastbound traffic in the westbound lane – or the lane
that was not occupied by construction equipment – she would have safely
bypassed the construction zone. Defendants assert that a directed verdict
was not warranted because the facts and evidence did not so overwhelmingly
favor a verdict for plaintiff at the close of defendants’ case such that
reasonable jurors could not have arrived at a contrary result.
A motion for directed verdict is a procedural device available in jury
trials to promote judicial efficiency. Fields v. Walpole Tire Service, L.L.C.,
45,206 (La. App. 2 Cir. 5/19/10), 37 So. 3d 549, writ denied, 10-1430 (La.
10/1/10), 45 So. 3d 1097. The motion is appropriately made at the close of
the evidence offered by the opposing party and should be granted when,
after considering all evidentiary inferences in the light most favorable to the
movant’s opponent, it is clear that the facts and inferences so
overwhelmingly favor a verdict for the movant that reasonable jurors could
not have arrived at a contrary conclusion. Id.; see also La. C.C.P. art. 1810.
The trial court has much discretion in deciding to grant or deny the motion.
Fields, supra.
The standard of review of a trial judge’s granting of a directed verdict
is whether, viewing the evidence submitted, reasonable men could not reach
a contrary verdict. Dowles v. Conagra, Inc., 43,074 (La. App. 2 Cir.
3/26/08), 980 So. 2d 180. In addition, the appellate court must evaluate the
propriety of a directed verdict in light of the substantive law related to the
claims. Watson v. Willis-Knighton Med. Ctr., 47,295 (La. App. 2 Cir.
6/20/12), 93 So. 3d 855.
9 Louisiana law provides that a motorist’s duty to exercise reasonable
care includes the duty to keep her vehicle under control and to keep a proper
lookout for hazards. Williams v. City of Monroe, 27,065 (La. App. 2 Cir.
7/3/95), 658 So. 2d 820. A motorist must use such diligence and care in the
operation of her vehicle as is commensurate with the circumstances. Collins
v. Creighton, 53,522 (La. App. 2 Cir. 9/23/20), 303 So. 3d 1114. A
motorist’s duty to look ahead and observe never ceases, and her failure to
see what she could have seen by the exercise of due diligence does not
absolve her from liability. Id. Pursuant to La. R.S. 32:320.1(A), a motorist
possesses a heightened duty of care upon approaching a vehicle with active
vehicular warning signals.
Here, the evidence supported the trial court’s denial of Ms. Crow’s
motion for a directed verdict. Ms. Crow testified that as she approached La.
Hwy. 2 from La. Hwy. 143, she saw the construction zone on La. Hwy. 2.
She also saw the yellow backhoe to her right and the yellow motor grader to
her left, each with several workmen standing beside it. Dep. Barmore
testified that the motor grader was flashing hazard lights and occupied the
entire eastbound lane. The motor grader also had a back-up alarm.
We find Ms. Crow’s testimony inconsistent regarding how the
accident happened as she approached the construction zone. At the scene,
she told Dep. Barmore that traffic was flowing eastbound in the westbound
lane and she got behind the last vehicle, got scared by the backhoe, pulled up
behind the motor grader, looked up and the equipment was reversing. At her
deposition, she testified that she did not recall in which direction traffic was
flowing on La. Hwy 2. At trial, she testified that some traffic was flowing
10 westbound, she pulled up behind the motor grader that was moving forward
in the eastbound lane, it stopped, she stopped, and after a while the motor
grader started backing up. Conversely, Foster’s testimony has been
consistent throughout that he stood up, looked behind him, and made sure
nothing was there before reversing.
The facts and evidence did not so overwhelmingly favor a verdict for
Ms. Crow at the close of defendants’ case such that reasonable jurors could
not have arrived at a contrary result. Indeed, the jury’s favorable verdict for
defendants validates the trial court’s ruling on the directed verdict.
Accordingly, we find that the trial court did not abuse its discretion in
denying Ms. Crow’s motion for a directed verdict.
Jury Instructions
Ms. Crow further argues that the trial court erred when it failed to
instruct the jury on La. R.S. 32:1 and La. R.S. 32:281 in a case where a
motor grader was backing down a public highway and struck a stopped car.
Plaintiff claims that La. R.S. 32:1(48) and 32:1(71) provide that a motor
grader is treated as a vehicle when operated on a public roadway, and that
the trial judge erred when he determined that a motor grader was not a
vehicle. Ms. Crow also claims that La. R.S. 32:281 provides the law for
vehicles backing down a public roadway, and that the trial judge erred when
he failed to include the law applicable to backing a vehicle on a roadway.
Defendants argue that the trial court adequately instructed the jury
regarding Foster’s duty as the operator of the motor grader. Regardless of
whether the motor grader was a vehicle or not, defendants claim that the trial
court correctly instructed the jury that all motorists are under a duty to drive
11 prudently, keep a proper lookout, keep his or her vehicle under control, and
look out for hazards. Defendants also note the jury was correctly instructed
that the operator of heavy equipment has the duty to exercise reasonable care
and shall not back up unless such maneuver can be made with reasonable
safety. Defendants contend that these jury instructions fairly and reasonably
pointed out the disputes and correctly stated the substance of the law for the
jury to apply to the issue of driver negligence.
Louisiana C.C.P. art. 1792(B) mandates district courts to instruct the
jury on the law applicable to the case before them. If the trial court omits an
applicable, essential legal principle, its instruction does not adequately set
forth the issues to be decided by the jury and may constitute reversible error.
Adams v. Rhodia, Inc. 07-2110 (La. 5/21/08), 983 So. 2d 798.
Whether the trial court gave adequate jury instructions is reviewed
under the manifest error standard. Adams, supra. Adequate jury
instructions fairly and reasonably point to the issues in dispute and to the
principles of law that the jury should apply to those issues. Johnson v. First
Nat’l Bank of Shreveport, 00-870 (La. App. 3 Cir. 6/20/01), 792 So. 2d 33.
Under the manifest error standard of review, appellate courts should not
reverse unless the jury instructions were so erroneous or inadequate, so that
the jury was prevented from reaching a verdict based on the law and the
facts. Martinez v. Schumpert Med. Ctr., 27,000 (La. App. 2 Cir. 5/10/95),
655 So. 2d 649.
The trial judge is under no obligation to give any specific jury
instructions requested by either party. Adams, supra; Johnson, supra.
However, the court must correctly charge the jury with the principles of law
12 applicable to the issues in dispute. Johnson, supra. Ultimately, the
determinative question is whether the jury was misled by the instructions
and prevented from dispensing justice. Adams, supra.
Regardless of whether the motor grader was a vehicle or not, the trial
court instructed the jury that all motorists are under a duty to drive
prudently, keep a proper lookout, keep his or her vehicle under control, and
look out for hazards. Specifically, the trial court instructed the jury as
follows:
A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. The driver of an automobile is under a never ceasing duty to exercise reasonable care under the circumstances. The operator of heavy equipment shall not back up the same unless such movement can be made with reasonable safety. A reasonable standard of care is generally imposed upon operators of heavy equipment to ensure that the maneuver can be safely accomplished.
Accordingly, we find that the trial court’s jury instructions correctly
stated the substance of the law for the jury to apply to the issue of driver
negligence. This assignment of error is without merit.
Jury’s Determination of Liability
Appellant argues that the jury erred by assigning 0% fault to Foster,
who backed the wrong direction on a Louisiana highway and struck a
stopped car. Plaintiff claims that where a driver backs unsafely down a
public roadway and strikes a stopped vehicle, the backing driver is the cause
of the wreck and finding otherwise is clearly erroneous. Plaintiff asserts that
without the proper legal instructions from the judge, the jury clearly erred by
not assigning fault in what should have been a straightforward assessment of
negligence while applying Louisiana traffic laws.
13 Appellees argue that the jury’s finding that they were not liable to Ms.
Crow was not manifestly erroneous because the jury’s findings were
reasonable in light of the record reviewed in its entirety. Defendants
contend that the jury was presented with different accounts of how the
accident happened from Foster and Ms. Crow. Since the jury found in their
favor, appellants assert that the jury determined that based on the evidence
presented, Foster’s version of events was more believable. Defendants
claim that the jury’s credibility call as to which witnesses they chose to
believe regarding Foster’s negligence cannot be manifestly erroneous or
clearly wrong.
Appellate courts review a jury’s finding of fact based on the “manifest
error” or “clearly wrong” standard. Rosell v. ESCO, 549 So. 2d 840 (La.
1989). If the jury’s findings are reasonable in light of the record reviewed in
its entirety, the appellate court may not reverse, even though it is convinced
that had it been sitting as the trier-of-fact, it would have weighed the
evidence differently. Id. To reverse a factfinder’s determination, the
appellate court must find from the record that a reasonable factual basis does
not exist for the finding of the trial court and that the record establishes that
the finding is clearly wrong. Stobart v. State through Dept. of Transp. &
Dev., 617 So. 2d 880 (La. 1993).
Even if 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. Cole v. State Dept. of Public
Safety & Corr., 01-2123 (La. 9/4/02), 825 So. 2d 1134. Moreover, where
14 the factfinder’s conclusions are based on determinations regarding the
credibility of the witnesses, the manifest error standard demands great
deference to the trier of fact because only the trier of fact can be aware of the
variations in demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said. Lowery v. St. Francis
Med. Ctr., 54,513 (La. App. 2 Cir. 5/25/22), 339 So. 3d 770.
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 well find manifest error, even in a finding purportedly
based upon a credibility determination. Rosell, supra. But, where such
factors are not present, and a factfinder’s conclusion is based on its decision
to credit the testimony of one of two or more witnesses, that conclusion can
virtually never be manifestly erroneous or clearly wrong. Rosell, supra.
Juries are held in high regard, and their decisions are accorded great
deference. Eastman v. State Farm Mut. Auto. Ins. Co., 23-01107 (La.
5/1/24), 384 So. 3d 865, 872, reh’g denied, 23-01107 (La. 6/27/24). This
deference recognizes that the right to a jury is statutorily protected. See La.
C.C.P. art. 1731(A); see also La. C.C.P. art. 1736. Thus, overturning a
jury’s verdict that is reasonably supported by the record is, in essence, the
denial of the parties’ right to be heard and judged by the jury. Eastman,
supra.
Based on our examination of the record, we cannot conclude that the
jury was clearly wrong or manifestly erroneous in determining that Foster
was not at fault for the accident. Ms. Crow approached an intersection
15 where a mobile construction zone was apparent and proceeded to place her
vehicle five to six feet behind a motor grader and in front of a backhoe. In
our view, this fell far short of Ms. Crow’s duty to exercise reasonable care
under the circumstances. On the other hand, Foster exercised reasonable
care when he checked behind him to be sure no one was there before putting
the motor grader in reverse.
On direct examination, Ms. Crow gave the following testimony as to
how the accident occurred:
As I approached that stop sign, right there by that store, the fire station was behind me. I got to the stop sign and I noticed that they was working on the road and I saw a tractor to my right down there. There was a man laying back on the tractor seat and there were several men standing out beside him. And I looked to my left, there was a tractor off – moving – moving forward in the east-bound lane down – on down up the road. There were several men standing out – just standing out down that way. So, when I got to the stop sign, I looked. There was nobody standing up there to tell me what to do, so I sit there for a while. And so, before I got there, I saw some traffic going west-bound. So, I said well I guess I supposed to ease on out here. So, I eased on out and as I eased on out, I looked toward the men to see if anybody maybe was gonna stop me and tell me I was in the wrong but they didn’t so I just eased on along. So, the tractor was going on up the road and I wa – I was just easing on along behind the tractor and going real slow. So, the tractor stopped and I stopped. And it was a little while so, the tractor started back up and he start to backing up. So, as he started to back up, I thought that he would just be backing up a little and was gonna stop. But the tractor started coming – he kept backing up and I started blowing my horn because I was afraid that if I tried to back up I may back up in the tractor behind me cause I couldn’t see what was going – if there was any traffic coming in the west-bound lane.
On cross-examination, Ms. Crow testified as follows:
Q. Okay. And as you were at the stop sign, you saw traffic passing headed west-bound, correct?
A. As I was approaching.
16 Q. Okay. Now, they were passing these tractors, correct?
A. Going on the west-bound lane.
Q. Correct. So, their headed towards Sterlington.
A. No. They were headed toward Farmerville.
Q. Oh. Okay.
A. The traffic – when I arrived.
Q. Do you remember giving your deposition on November 8th, 2021?
A. Yes.
Q. And in that deposition, didn’t you testify that as you approached the stop sign, you do not recall which direction the traffic was going?
A. That’s when I arrived. When I arrived at the stop sign there was no traffic going. There wasn’t any traffic.
Q. All right.
A. I didn’t see any traffic.
Q. Didn’t you testify in your deposition that as you approached the stop sign, you remembered seeing the traffic?
A. I remember seeing the traffic as I was approaching the stop sign.
Q. Correct. And then you were asked which direction the traffic was going, correct?
A. Correct.
Q. And you said you did not remember, correct?
A. At that time, I may have not.
Q. So, you – you now remember a year and a half later the traffic was headed towards Farmerville?
17 A. Yes.
Ms. Crow’s trial and deposition testimony, inconsistent as it
was, represented a departure from the story she told immediately after
the accident, according to Dep. Barmore’s testimony:
Q. Okay. And that after being behind that flow of traffic, she caught sight of the backhoe in her peripheral vision, isn’t that correct?
Q. And the sight of that backhoe startled her, is what she told you.
A. That’s what she told me.
Q. Scared her.
A. Right.
Q. And when she got scared she got behind the motor grader.
The jury was presented with different accounts of how the accident
happened – a consistent one from Foster and several inconsistent ones from
Ms. Crow. Finding in favor of defendants, the jury evidently determined
that Foster’s account was more credible.
The jury’s credibility call as to which witnesses they chose to believe
regarding Foster’s negligence cannot be manifestly erroneous or clearly
wrong. The jury had reasons to question Ms. Crow’s credibility, as her
account of the accident differed from the date of the accident, to the time of
her deposition, to the time of trial. The record demonstrates that a
reasonable factual basis exists for the jury’s finding that Foster was the more
credible witness.
18 The version of events surrounding this accident that the jury chose to
believe was based on Foster’s testimony as well as Ms. Crow’s own
statements to the investigating officer after the accident. We do not find this
version of events was so internally inconsistent or implausible on its face
such that a reasonable factfinder would not have believed it. Accordingly,
we do not find that the jury’s verdict was manifestly erroneous or clearly
wrong.
Challenge for Cause
Finally, Ms. Crow argues that the trial court erred when it denied her
challenge for cause against a biased juror who refused to award high
damages no matter what the evidence proved. Ms. Crow claims that this
juror was never unequivocally rehabilitated by defendants, and that as a
result of the trial court’s error, she was forced to exercise her last
peremptory challenge. Ms. Crow claims that this error fundamentally
altered the composition of the jury.
Defendants assert that the trial court did not abuse its discretion in
denying plaintiff’s challenge of the juror Ms. Patterson for cause.
Defendants note that Ms. Patterson repeatedly stated that if the evidence
established that plaintiff was entitled to compensation, she could be fair and
impartial in awarding damages, just not millions of dollars. Defendants
further note that when DOTD’s counsel asked Ms. Patterson if she could
follow all of the judge’s instructions, she agreed that she could.
Defendants also note that 11 jurors were already empaneled when
plaintiff exercised her last peremptory challenge to excuse Ms. Patterson,
and that plaintiff did not challenge any other prospective jurors for cause
19 before the twelfth juror was selected. Since there was no need for plaintiff
to exercise any additional peremptory challenges before the jury was fully
empaneled, defendants claim that the use of her last peremptory challenge
on Ms. Patterson did not prejudice her in any way.
A trial judge is vested with broad discretion in regulating and
supervising voir dire and in ruling on challenges. Riddle v. Bickford, 00-
2408 (La. 5/15/01), 785 So. 2d 795. The court’s ruling governing the
selection of a jury will be reversed only when a review of the entire voir dire
demonstrates that the trial court abused its discretion. Simms v. Progressive
Ins. Co., 38,804 (La. App. 2 Cir. 9/29/04), 883 So. 2d 473, writ denied, 04-
2871 (La. 1/28/05), 893 So. 2d 78.
A party who has exhausted all of her peremptory challenges before
the completion of the jury panel is entitled to appeal a ruling denying a
challenge for cause. Wyatt v. Hendrix, 43,559 (La. App. 2 Cir. 11/5/08), 998
So. 2d 233. The party must show: (1) the trial judge erred in refusing to
maintain the challenge for cause; and (2) he exhausted all of his peremptory
challenges. Id. The aggrieved party need not show that injury resulted from
the court’s ruling that forced him to accept the challenged juror. Id.
A juror may be challenged for cause when she has formed an opinion
in the case or is not otherwise impartial, regardless of the cause of the bias.
La. C.C.P. art. 1765(2); Simms, 883 So.2d at 479. A trial judge’s refusal to
excuse a prospective juror on the ground that she is not impartial is not an
abuse of discretion where, after further inquiry or instruction (rehabilitation),
the potential juror demonstrates a willingness and ability to decide the case
impartially according to the law and the evidence. Id.
20 Here, we do not find that the trial court abused its discretion in
refusing to excuse Ms. Patterson for cause. Ms. Patterson did not say she
would be unable to award any damages, and even expressed that she would
follow the judge’s instructions regarding how damages should be calculated.
We also observe the inconsistency in plaintiff’s position on this issue
considering she accepted another juror without any challenges or objections
who gave an identical response to Ms. Patterson on the damages question.
Furthermore, we find it significant that the jury never decided the
issue of damages because they found that defendants were not liable to Ms.
Crow. Prejudice cannot result from the denial of Ms. Crow’s challenge for
cause of a potential juror whom she claims was biased on damages when the
jury never determined damages. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s denial of Ms.
Crow’s motion for a directed verdict and the jury’s verdict finding that
defendants are not liable to her. All costs of this appeal are assessed to Ms.
Crow.
AFFIRMED.
21 STONE, J., dissenting.
The paramount issue in this case is the trial court’s failure to
adequately instruct the jury on the applicable law specifically, defining the
term “motor vehicle.” The trial court improperly declared that the motor
grader was not a vehicle as clearly defined in La. R.S. 32:1(107) which
provides:
“Every device by which persons or things may be transported upon a public highway or bridge, except devices moved by human power or used exclusively upon stationary rails or tracks.” The trial court gave the following instructions:
“A motorist proceeding in compliance with law has the right to assume that other motorists will observe the law and can indulge in that assumption until he sees or should see that another motorist has not observed or is not going to observe the law. All motorists are under a duty to drive prudently, which includes a duty to keep a proper lookout. This obligation includes a motorist’s normal duty to keep his/her vehicle under control and to maintain a proper lookout for hazards. A motorist must use such diligence and care in the operation of his vehicle as is commensurate with the circumstances. The driver of an automobile is under a never ending duty to exercise reasonable care under the circumstances. The operator of heavy equipment shall not back up the same unless such movement can be made with reasonable safety. A reasonable standard of care is generally imposed upon operators of heavy equipment to ensure that the maneuver can be safely accomplished.”
Overview
At all times pertinent thereto, Ms. Crow was a motorist proceeding in
compliance with the law and she had a right to assume that other motorists,
including Foster, would observe the law. Furthermore, she was driving her
vehicle under that assumption until she realized that Foster was not, but by
then it was too late. Ms. Crow, without any indicators, such as traffic cones,
signs, flagmen, law enforcement directing traffic, etc., was maintaining
proper lookout while driving in her proper lane of travel in the proper
direction in which she was headed. She breached no duty as a motorist. In
1 fact, upon initial investigation, law enforcement determined that Ms. Crow
did not violate any traffic law.
Jury charges should be framed in a language which reduces the
possibility of confusing the jury.1 The judge may use semantics that may be
appropriate for that purpose.2 However, this does not appear to be a case of
simple semantics. In the jury instructions, the trial court used the terms
motorist, driver, operator, vehicle, automobile, road grader and heavy
equipment. The trial court seems to have conflated and interchanged all of
these terms and thereafter, defined a motor grader as a non-vehicle when
providing the jury instructions. The standard of care required — whether a
motorist is driving a car, a truck or a motor grader — is the same when
driven on a public road. By his own admission, Foster failed to utilize his
mirrors, and the jury deemed his act of standing once (presumably to see if
anyone or anything was behind him) sufficient. Had the proper jury
instructions been given, surely, the jury would have known that Foster’s
action required more than just standing.
La. R.S. 32:281(A) provides the standard of care for backing a vehicle; it
states:
“The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic.”
________________________
1 Cuccia v. Cabrejo, 429 So. 2d 232 (La. Ct. App. 5th Cir. 1983; Arnouville v. Joiner Enterprises, Inc., 423 So. 2d 1246 (La. Ct. App. 5th Cir. 1982). 2 Kolmaister v. Connecticut General Life Ins. Co., 370 So. 2d 630 (La. App. 4th Cir. 1979).
2 A motor grader is driven by people performing construction duties on public
roadways and highways and is not used exclusively upon stationary rails or
tracks. Pursuant to Louisiana law, a motor grader is indeed a motor vehicle;
and therefore, La. R.S. 32:281(A) is applicable and the jury should have
been so instructed.
Ms. Crow did not back into herself, and the jury could not have
reasonably found her 100% liable for the collision had the motor grader been
defined as a motor vehicle. The trial court’s use of the term “equipment”
rather than “vehicle” caused the jury to compartmentalize the standard of
care placed on all motorists (including drivers of “heavy equipment”) on the
public roads, which is incorrect.
Adequate jury instructions fairly and reasonably point to the issues in
dispute and to the principles of the law that the jury should apply to those
issues.3 If a trial court omits an applicable, essential legal principle, its
instruction does not and cannot adequately set forth the issues to be decided
by the jury.
When deciding whether an error in an instruction constitutes
reversible error, this court must determine if there was a likelihood that the
instruction probably contributed to the jury verdict.4 In my view, this failure
of the trial court to properly instruct the jury constitutes reversible error. La.
R.S. 32:281 delineates the law applicable to a backing vehicle on a roadway.
The verbiage used by the trial court ultimately decided the case. After the
presentation of evidence and arguments in a case, the trial court must
instruct the jurors on all law applicable to the cause submitted to them. La.
3 C.C.P. art. 1792. A motor grader is a vehicle under Louisiana law and any
jury instruction to the contrary is erroneous.
Respectfully, I dissent.
___________________________ 3 Johnson v. Nat. Bank of Shreveport, 2000-870 (La. App. 3 Cir. 6/20/01), 792 So. 2d 33, 52; Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So. 2d 798, 805. 4 Este v. Roussel, 2001-1859 (La. App. 4 Cir. 11/6/02), 833 So. 2d 999
4 5