Davis v. Smith

796 So. 2d 765, 2001 WL 1155344
CourtLouisiana Court of Appeal
DecidedOctober 2, 2001
Docket35,117-CA
StatusPublished
Cited by11 cases

This text of 796 So. 2d 765 (Davis v. Smith) 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
Davis v. Smith, 796 So. 2d 765, 2001 WL 1155344 (La. Ct. App. 2001).

Opinion

796 So.2d 765 (2001)

Betty Ruth Grissom DAVIS, Plaintiff-Appellee,
v.
Lee R. SMITH, et al, Defendants-Appellants.

No. 35,117-CA.

Court of Appeal of Louisiana, Second Circuit.

October 2, 2001.

*767 Provosty, Sadler, deLaunay, Fiorenza & Sobel, by Albin A. Provosty, John D. Ryland, Alexandria, Counsel for Appellants, Clarendon National Ins. Co., James T. Gentry, Inc. and Lee R. Smith.

James M. Johnson, Minden, Counsel for Appellee, Betty Ruth Grissom Davis.

Before NORRIS, STEWART and KOSTELKA, JJ.

STEWART, J.

In this wrongful death action, the jury rendered a verdict allocating sixty percent of the fault to the decedent, Richard D. Davis, and forty percent of the fault to the defendant, Lee Smith. The jury awarded total damages of $135,150 to the decedent's widow, Betty R. Davis, the plaintiff herein. After the plaintiff filed a "Motion for Additur," the trial court increased the award of damages. Both parties now appeal. Because our review of the record under the manifest error standard convinces us that the jury erred in finding negligence on the part of either the decedent or the defendant, Lee Smith, we now reverse the jury's verdict.

FACTS

Around 12:30 a.m., on Sunday, May 28, 1995, Richard D. Davis was traveling south in a small pick-up truck along a rural, unlit section of U.S. Highway 79 in Claiborne Parish when he collided with a large tree limb that had fallen across the highway. The force of the collision turned Davis' truck sideways and buried it under the branches of the large limb, which measured approximately 90 feet in length.

Davis' collision was witnessed by Terry Sanders, who was traveling south along U.S. Highway 79 behind Davis. Davis had passed Sanders' vehicle in the last passing zone before the area where the accident occurred. However, Sanders did not believe that Davis was speeding. Sanders noted that it had been rainy and stormy the night of the accident. Sanders stopped his vehicle about two car lengths away from the accident scene and exited his vehicle after turning on his flashers. Sanders saw something shining, but he was not sure whether it was the tail-light of Davis' truck or the reflection of the headlights on his own vehicle. Sanders noted that Davis' truck was covered with limbs. As Sanders started toward Davis, he noticed the interior light of Davis' truck as Davis opened the door and began to exit his truck. At the same time, Sanders heard the "roar" of an approaching 18-wheeler. He hollered at Davis. Sanders testified at trial that "everything started happening real fast," as he heard the 18-wheeler start braking and as he began to back away from the scene and get back to his own vehicle. According to Sanders, the 18-wheeler jack-knifed and "ran off" into the limb as Davis made it out of his truck.

The 18-wheeler involved in the accident was driven by Lee R. Smith, an employee of James T. Gentry Trucking. Smith was on his second trip of the day from Shreveport to El Dorado, Arkansas to pick up a *768 load of chickens. Smith had slept eight to twelve hours before making these trips, and he had spent about three hours resting at home between the two trips. Additionally, he had conducted a thirty minute inspection of his rig before leaving on the second trip. No problems were found. Smith was driving a 1992 Peterbilt tractor with an attached trailer measuring almost ninety feet in length. He was traveling north along U.S. Highway 79; thus, Smith came from the direction opposite that of Sanders and Davis. Smith said that the road was wet and that there had been a shower or two in the area of the accident. He noticed a little steam rising off the road; however, he stated that this did not affect visibility. He testified that he was not speeding. Smith said that he came around a curve and across a bridge just prior to the accident. He first noticed the limb in the road as he came off the bridge. He testified that he did not see any lights or vehicles. Smith stated that he applied the brakes as soon as he saw the limb and that he jack-knifed the truck to avoid running directly into the limb.

Officer Russell Taylor of the Louisiana State Police investigated the accident after being notified that a tree was in the road. He arrived on the scene and found Davis' body in the branches of the limb in front of his pick-up truck. He believed that Davis was hit by the 18-wheeler driven by Smith. Officer Taylor noted that the tree limb covered the entire roadway. He also noted that the road was still damp from a previous rainfall. Although he initially testified that the lights on Davis' pick-up truck were still on when he arrived on the scene, Officer Taylor later testified that the pick-up truck's headlights were knocked out when the truck hit the limb. He did indicate that the truck's interior light may have been on when he arrived. Officer Taylor testified that no traffic violations were issued and that the primary factors contributing to the accident were the presence of the limb on the road and the lack of lighting along the highway.

Dr. Donald Haynes, the coroner of Claiborne Parish, viewed Davis' body at the scene of the accident. Dr. Haynes determined that Davis died instantly. He attributed cause of death to "multiple injuries due to a motor vehicle accident."

Davis' widow, Betty Davis, filed the instant wrongful death action against Smith, James T. Gentry, Inc., Clarendon National Insurance Company, and the State of Louisiana through the Department of Transportation and Development. Suit against the state was dismissed on an exception of no cause of action. This dismissal is not at issue on appeal. A jury trial was held on the claims against the other defendants in October 1999. The jury returned a verdict allocating forty percent of the fault to Smith and sixty percent of the fault to Davis. The jury awarded $30,000 in damages for loss of love and affection; $100,000 in damages for past loss of support; and $5,150 for funeral and ambulance expenses. No damages were awarded for future loss of support. Following the jury's verdict, the plaintiff filed a "Motion for Additur" seeking an increase in damages for loss of love and affection and an award for future loss of support. The trial court granted the motion in part, increasing the damages for loss of love and affection to $150,000. The trial court also assessed all costs to the defendants. This appeal followed.

DISCUSSION

Defendants appealed the judgment against them, and the plaintiff answered the appeal. Both assert error in the jury's finding of fault. The defendants argue that there was no showing of negligence on the part of Smith and that either the unavoidable *769 accident or sudden emergency doctrine should apply. The plaintiff argues that one hundred percent of the fault should be assessed against the defendants. Although other errors were also urged on appeal, our finding as to the issue of fault precludes the need for us to address the remaining issues.[1]

The jury's findings of fact are entitled to great deference and may not be overturned unless they are manifestly erroneous. Reversal is warranted when there is no reasonable basis for the factual findings and when the findings are clearly wrong. Guillory v. Insurance Company of North America, 96-1084 (La.4/8/97), 692 So.2d 1029; Stobart v. State, Through DOTD, 92-1328 (La.4/12/93), 617 So.2d 880. The manifest error rule also applies to our review of allocations of fault. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607; Barnes v. Reed, 32-380 (La.App.2d Cir.10/29/99), 743 So.2d 936.

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Bluebook (online)
796 So. 2d 765, 2001 WL 1155344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-smith-lactapp-2001.