Dakmak v. Baton Rouge City Police Department

153 So. 3d 498, 2014 WL 4373199
Louisiana Court of Appeal·Decided September 4, 2014·No. No. 2012 CA 1468·Published·Cited by 9 cases

Opinion

THERIOT, J.

1 gIn this case involving an automobile accident between an on-duty police officer and another driver, the defendant police department appeals a trial court judgment rendered in accordance with a jury verdict finding it at fault and awarding damages to plaintiffs, as well as the trial court judgment denying defendant’s motion for judgment notwithstanding the verdict. Plaintiffs answered the appeal. We amend the judgment to reduce the survival damages award to the statutory cap of $500,000.00, and as amended, affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from an accident which occurred on February 2, 2008 on Airline Highway in Baton Rouge, Louisiana between an on-duty Baton Rouge Police Department (“BRPD”) officer, Stephen C. Tibbetts, and plaintiff, Nelson Dakmak, Sr. On the night of the accident, just prior to [503]*50310:40 p.m., Officer Tibbetts was patrolling the area of Airline Highway when he saw a vehicle traveling north on Airline Highway which matched the description of a stolen vehicle. He pulled out onto Airline Highway and attempted to catch up with the • vehicle in order to determine if it was in fact the stolen vehicle. He did not activate his lights or sirens, but floored the accelerator, eventually reaching a speed of 92 miles per hour.1 At this time, Mr. Dak-mak was traveling south on Airline Highway. When Mr. -Dakmak attempted to turn left onto Delcourt Street from Airline Highway, his vehiclé was struck by Officer Tibbetts’ oncoming vehicle. Mr. Dakmak, who was 83 years old at the time of the accident, was paralyzed from the waist down as a result of the accident. While hospitalized for his injuries after the 1 ¡¡accident, Mr. Dakmak was diagnosed with hepatocellular carcinoma, a type of liver cancer. Mr. Dakmak died on April 30, 2008.

Just prior to his death, Mr. Dakmak filed suit for damages arising from the accident, naming Officer Tibbetts and BRPD as defendants. Following his death, the suit was amended to substitute his sons, John Mark Dakmak, individually and as the succession representative of the Estate of Nelson Dakmak, Sr., William Joseph Dakmak, and Nelson Dakmak, Jr., as plaintiffs. Additionally, the petition was amended to include an allegation that Mr. Dakmak’s death was caused by the accident and to assert a claim for - wrongful death.

After a jury trial, the jury rendered a verdict finding that Officer Tibbetts was negligent in causing the accident and that Mr. Dakmak was not negligent. The jury also found that Officer Tibbetts’ negligence caused Mr. Dakmak’s injuries, including his death. The jury awarded $1,000,000.00 for Mr. Dakmak’s injuries ánd $10,000.00 for each of his three sons’ wrongful death claims. Officer Tibbetts and BRPD filed a motion for JNOV, which was denied, and this appeal followed.

On appeal, BRPD assigns as error the jury’s apportionment of fault, its finding that Mr. Dakmak’s death was caused by the accident, the amount of damages awarded, and the trial court’s denial of JNOV. Plaintiffs answered the appeal, arguing that the $10,000.00 award to each of Mr. Dakmak’s grown children for his wrongful death was abusively low, that the court erred in refusing to allow testimony regarding Mr. Dakmak’s medical bills, and that the court erred in refusing to allow a proffer of certain uncertified medical bills.

| .DISCUSSION

Allocation of Fault

BRPD argues on appeal that some degree of fault should have been assigned to Mr. Dakmak because he failed to ascertain in advance that the way was clear before turning left in front of an oncoming vehicle. The allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 98-1613, p. 2 (La.3/2/99), 731 So.2d 197, 199. In apportioning fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Gibson v. State Through Dept, of Transp. and Development, 95-1418, p. 12 (La.App. 1 Cir. 4/4/96), 674 So.2d 996, 1005, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373-74 (citing Campbell v. Louisiana Dept, of Transp. and Development, 94-1052, p. 7 (La.1/17/95), 648 So.2d 898, 902). We re [504]*504view a fact finder’s apportionment of fault under the manifest error-clearly wrong standard of review. Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610.

A left turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety. Duplantis v. Danos, 95-0545, p. 10 (La. App. 1 Cir. 12/15/95), 664 So.2d 1383,1389. A high degree of care is required of a left-turning motorist. A left-turning motorist involved in an accident is burdened with a presumption of liability, and the motorist must show that he is free of negligence. Id. at p. 10, 664 So.2d at 1390. An oncoming motorist has a right to assume that a left-turning motorist will yield the right-of-way. Anderson v. May, 01-1031, p. 5 (La.App. 5 Cir. 2/13/02), 812 So.2d 81, 85. Nevertheless, the favored driver can still be found negligent if his or her ^substandard conduct contributed to the cause of the accident. For instance, a motorist making a left turn at an intersection will be held free of negligence when the collision results because of the oncoming vehicle’s excessive speed which he could not reasonably anticipate. Id. Left-turning drivers will be held free of negligence if they have made the proper signal and commenced the turn upon a reasonable belief, after observing approaching traffic, that the turn would not unduly interfere with the progress of approaching traffic, or where the sole proximate cause of the accident was excessive speed, lack of lookout, or lack of control on the part of the approaching vehicle in failing to observe a reasonably-signaled left turn intent and continuing to approach without attempting to bring the vehicle under control. Id. at pp. 5-6, 812 So.2d at 85.

Officer Tibbetts testified that while on patrol on the night of the accident, he floored the accelerator of his police vehicle in an attempt to “catch up” to a suspicious vehicle. In doing so, he increased his speed to 92 miles per hour.2 Officer Tib-betts testified that he was not paying attention to his speed; he was just focused on his surroundings and keeping an eye on the tail lights of the suspect vehicle in front of him. As soon as he saw Mr. Dakmak’s vehicle begin to turn left in front of him,3 he veered towards the shoulder and braked, but was unable to avoid the collision. According to the black box data retrieved from the police vehicle, Officer Tibbetts let off the gas 3.5 seconds before the crash, but despite braking was still traveling 59 miles per hour when he struck Mr. Dakmak’s vehicle.

| (¡Officer Tibbetts testified that he did not turn on his police lights or siren while attempting to catch up to the suspicious vehicle because he believed he was only required to do so if he was “in pursuit” of a suspect. Despite the fact that it was dark at the time of the accident, he did not think that it was unsafe for him to be traveling at such a high rate of speed without flashing lights or sirens because the traffic was light at that time of night.

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Dakmak v. Baton Rouge City Police Department, 153 So. 3d 498, 2014 WL 4373199 (La. Ct. App. 2014).

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