STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
13-1449
DEMPSEY RAY WILEY
VERSUS
BAYOU GAMING, INC. AND FRED TAYLOR
**********
APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, DOCKET NO. 43,552-A HONORABLE KATHY JOHNSON, DISTRICT JUDGE
JAMES T. GENOVESE JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, J. David Painter, James T. Genovese, and John E. Conery, Judges.
REVERSED.
Thibodeaux, Chief Judge, dissents and assigns written reasons.
Paul A Lemke III Post Office Box 595 Harrisonburg, Louisiana 71340 (318) 744-5431 COUNSEL FOR DEFENDANTS/APPELLANTS: Fred and Nicole Taylor V. Russell Purvis Smith, Taliaferro & Purvis 407 Mound Street Post Office Box 298 Jonesville, Louisiana 71343 (318) 339-8526 COUNSEL FOR PLAINTIFF/APPELLEE: Dempsey Ray Wiley GENOVESE, Judge.
In this personal injury action, Defendants, Fred and Nicole Taylor, appeal
the trial court‟s judgment finding them liable and awarding damages for the
injuries sustained by Plaintiff, Dempsey Ray Wiley, as a result of a barroom
scuffle. For the following reasons, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The record indicates that on October 14, 2007, Dempsey Wiley (Wiley) was
present at the Stockyard Saloon, a bar located in Vidalia, Louisiana. According to
his petition filed on May 13, 2008, Wiley alleged he “was physically attacked and
beaten by Fred Taylor and other employees of the Stockyard Saloon.”1 The
petition further described the alleged attack as follows:
After [Wiley] had been knocked to the ground[,] he was repeatedly stomped and kicked by Defendant, Fred Taylor[,] and the other unknown employees of Defendant Bayou Gaming, Inc.
[]
[Wiley] suffered grievous injuries caused by the beating which was caused by the intentional acts of Defendant, Fred Taylor[,] and negligent acts of Defendant, Bayou Gaming, Inc. Further, Bayou Gaming, Inc., is vicariously liable for all acts of Fred Taylor.
[Wiley] suffered numerous injuries as a result of the beating necessitating numerous surgeries[,] and on April 4, 2007, [Wiley‟s] foot was amputated as a result of the beating suffered by [him].
In September 2008, Wiley filed an amended petition naming Fred Taylor‟s wife,
Nicole Taylor, as a defendant in her capacity as “[l]essee of Bayou Gaming, Inc.,
and Stockyard Saloon.”
1 Through discovery, it was learned that the Stockyard Saloon was owned by Nicole Taylor, Fred Taylor‟s wife. The building which housed the Stockyard Saloon was owned by Bayou Gaming, Inc. (Bayou Gaming). Nicole Taylor leased the building which housed the Stockyard Saloon from Bayou Gaming. A bench trial was held on February 16 and 17, and November 16, 2012.
Following the presentation of Wiley‟s case, the trial court granted a motion for
involuntary dismissal2 in favor of Bayou Gaming3 and denied a motion for
involuntary dismissal sought by Nicole Taylor.4 At the conclusion of the trial, the
matter was taken under advisement, and the filing of post-trial memoranda was
allowed.
On April 1, 2013, the trial court issued written Reasons for Judgment and
signed a Judgment in favor of Wiley. In its written Reasons for Judgment, the trial
court stated the following relative to the issue of Fred Taylor‟s liability:
While the testimony is contradictory with regard to this issue, the uncontested fact is that [Wiley] had sustained significant injuries by the time Concordia Parish Deputies Webber and Merrill arrived at the Stockyard which Dempsey did not have when he arrived. Further it is obvious to this Court that these injuries could not have been sustained by [Wiley] merely as a result of a fall or from his kicking a truck as Fred testified. This Court gives much weight to the testimony of Dr. J.H. Fairbanks, [Wiley‟s] treating orthopedic surgeon, who testified in his deposition that the injuries received by [Wiley] simply could not have been sustained from a fall or from kicking a truck[,] but the trauma suffered by [Wiley] had to be occasioned by the infliction of an outside force[.]
....
This Court is of the opinion that the “outside force” was the direct result of the excessive use of force by Fred in removing [Wiley] from the premises. Even if [Wiley] was intoxicated, belligerent, and using abusive language, use of excessive physical force by Fred in removing [Wiley] from the premises is not permitted[.]
2 We note that at trial, these requests were incorrectly referred to as motions for directed verdicts; however, the correct designation for this procedural vehicle “[i]n an action tried by the court without a jury” is a motion for involuntary dismissal. La.Code Civ.P. art. 1672(B). 3 The trial court granted Bayou Gaming‟s motion for involuntary dismissal, stating that Wiley had “not met [his] burden of showing that [Bayou Gaming was] liable in any way other than they were the lessor to [Nicole] Taylor.” 4 The trial court denied Nicole Taylor‟s motion for involuntary dismissal, stating “[t]here is sufficient evidence to show that she was the lessor of the establishment and the owner of the bar.”
2 The trial court found that Fred Taylor had committed the intentional tort of battery
on Wiley and that Nicole Taylor, d/b/a the Stockyard Saloon, was vicariously
liable for Fred‟s tortious actions. The trial court awarded damages to Wiley as
follows:
General damage award for broken ankle, facial contusions, lacerations and damage to his shoulder: $80,000.00 (To be reduced by 30% due to comparative fault of [Wiley]) $56,000.00
General damage award for loss of leg: $300,000.00 (To be reduced by 70% due to comparative fault of [Wiley]) $90,000.00
Past lost wages: $75,433.00 (Calculated from date of injury, Oct. 14, 2007, until date of report of Dr. Rice, February 18, 2009) (To be reduced by 30% due to comparative fault of [Wiley]) $52,803.10
Future lost earnings: $567,663.00 (Based on report of Dr. Rice, dated February 18, 2009) (To be reduced by 70% due to comparative fault of [Wiley]) $170,298.90
Special damages for hospital expenses for initial injury: $20,257.41 (To be reduced by 30% due to comparative fault of [Wiley]) $14,180.18
Special damages for hospital expenses for amputation of leg: $97,272.90 (To be reduced by 70% due to comparative fault of [Wiley]) $29,181.87
TOTAL AWARD: $412,464.05
Fred and Nicole Taylor have filed a suspensive appeal.
ASSIGNMENTS OF ERROR
Fred and Nicole Taylor appeal the trial court‟s April 1, 2013 Judgment,
specifying the following assignments of error:
3 [1.] The trial court erred in finding that Fred Taylor was liable for an intentional tort of battery on Dempsey Wiley.
[2.] The trial court erred in finding that Nichole [sic] Taylor was vicariously liable for the actions of Fred Taylor and that she was negligent in protecting the patrons in her drinking establishment.
[3.] The trial court abused its discretion in awarding Mr. Wiley a personal injury judgment of $412,464.05 dollars as this award was unsupported by the record and testimony.
LAW AND DISCUSSION
Whether the trial court erred in finding that Fred Taylor was liable for
committing the intentional tort of battery on Wiley is a factual determination by the
trial court requiring that we apply the manifest error standard of review. In Ashley
v. Strong, 09-336, pp. 2-3 (La.App. 3 Cir. 10/07/09), 19 So.3d 1260, 1261-62
(quoting Poole v. Poole, 08-1325, pp. 4-5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806,
810), this court set forth the applicable standard of review as follows:
[A] factual determination of the trial court . . . is subject to the manifest error/clearly wrong standard of review. Stobart v. State, Through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993).
In order to reverse a fact finder‟s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. Where there is conflict in the testimony presented at trial, the trial court‟s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court‟s credibility determinations are subject to the strictest deference, and the manifest error or clearly wrong standard demands great deference for the trial court‟s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder‟s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. Thus, if the trial court‟s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, 549 So.2d 840.
4 Fred and Nicole Taylor assert that the trial court erred in finding that Fred
Taylor was liable for committing the intentional tort of battery on Wiley. Fred
Taylor denies battering Wiley and alleges that Wiley caused his own injuries. Fred
and Nicole Taylor contend that the evidence at trial established that Wiley “was
very intoxicated, . . . was belligerent and aggressive with other patrons in the bar
and the lady working the bar and was asked to leave[,]” and that he “became
aggressive and hostile with everyone in the bar[.]” Finally, Fred and Nicole Taylor
assert in brief that the trial court erred in relying upon Wiley‟s testimony to
determine that he had proven by a preponderance of the evidence that Fred Taylor
had battered him, particularly when Wiley “admitted he had blackouts and his
memory was vague about before and during the incident he alleges he was
battered.” For the reasons that follow, we find the trial court‟s determination
relative to Fred Taylor‟s liability to be manifestly erroneous and reverse the
Judgment of the trial court accordingly.
Whether Fred Taylor battered Wiley was hotly contested. The testimony of
Wiley and Fred Taylor was correctly characterized by the trial court as
“contradictory[.]” Wiley told one version of the incident, while Fred Taylor told
another. After thoroughly reviewing the record, we find that there is no reasonable
factual basis for the trial court‟s finding that it was proven by a preponderance of
the evidence that Fred Taylor committed an intentional battery on Wiley. We,
therefore, find that the record establishes that the trial court was clearly wrong.
First to testify at trial was Deputy Phillip Webber, an Investigator with the
Concordia Parish Sheriff‟s Department. On October 14, 2007, he was a patrol
deputy, and he responded to the complaint call made from the Stockyard Saloon.
He recalled speaking to Fred Taylor upon arriving, who stated that he “put [Wiley]
5 out of the bar.” Deputy Webber testified that Wiley “seemed to be very
intoxicated. He was belligerent, you know, yelling, screaming. And he was telling
me that Fred and whoever else there had jumped on him[,] and he was kind of hard
to control at that time.” According to Deputy Webber, the Sheriff Office‟s
dispatch record indicated that: (1) the complaint call was received from the
Stockyard Saloon at 8:42 p.m.; (2) the complaint call was made by Fred Taylor; (3)
he arrived on scene at 8:45 p.m.; and, (3) he requested a rescue unit for Wiley at
8:51 p.m. Though he did not know whom, Deputy Webber recalled “somebody
had Wiley held, like in a bear hug, sitting down on the concrete to the right of the
door.” Deputy Webber recalled putting Wiley in handcuffs, and it was while
Wiley was sitting on the ground, handcuffed, that he complained of being injured,
which prompted Deputy Webber to request a rescue unit. Upon being shown
photographs of Wiley‟s face taken in the hospital, and being questioned as to
whether he remembered observing injuries to Wiley‟s face, Deputy Webber
testified “I remember his leg. The face, I don‟t remember it like that. But, I‟m not
saying it wasn‟t.”
Fred Taylor was asked if, at any point, he ever touched Wiley, and he replied
that he “tried to help Mr. Wiley up when he fell against the pool table. [Wiley] got
very angry. Started hollering, I took his kids. And I got away from him.” Fred
Taylor claimed that Tracy Allen Walden, a customer, “got [Wiley] up. Walked out
the door with him.” When asked how Wiley injured his face, Fred Taylor claimed
that, once outside, “he fell face first in [sic] the concrete.” Wiley was crying and
“hollering he wanted to die[,]” and “[t]hat‟s when [he] realized, well, ain‟t nothing
you gonna be able to do with him. I called 911.” According to Fred Taylor, “long
as I stayed to the backside of Mr. Wiley, he was fine. He wasn‟t struggling.
6 Mr. [Walden] had him laid [out] on the ground [and was] petting [Wiley‟s] head.
He was crying like a baby about his kids dying.” Fred Taylor explained that when
Deputy Webber arrived, “[Mr. Walden] was laying there rubbing [Wiley‟s] head,
babying him. [Deputy Webber] pulled up and started talking with Dempsey Wiley
or whatever. And he started struggling a little bit. He handcuffed him.” Upon
further questioning by the trial judge, Fred Taylor explained that Wiley walked
towards the exit but fell near a pool table. He tried to help Wiley stand up, but
“that‟s when he started trying to fight me, telling me I took his kids. And then I
backed off. Tracy [Walden] got, you know, got him up on his feet and walked him
out the door.” Fred Taylor described what he saw when he walked outside:
[Wiley] was leaning with his head on the truck crying and everything[,] and he done kicked the tire on the truck a couple of times[,] and he was cussing and turned around and looked at me and told me it was my fault; I did it; I took his kids. And he went to come toward me. Well, I moved backwards. When I did, he fell, cussing, I did it. I did it. Well, I got away from him[,] and [Mr. Walden] took over and I went in the bar and got the phone and called 911 and asked for somebody to come up there and give me a hand.
Danny Merrill, a retired Lieutenant with the Concordia Parish Sheriff‟s
Department, testified that on October 14, 2007, he was a supervisor on patrol and
also responded to the complaint call made from the Stockyard Saloon, arriving
shortly after Deputy Webber and before the ambulance. According to Lieutenant
Merrill, when he arrived, Wiley was lying on the ground. Lieutenant Merrill asked
Wiley what had happened, to which he responded, “[W]hat do you think
happened?” Lieutenant Merrill asked, “[W]ho did this to you?” Wiley‟s answer
was, “[W]ho do you think did this to me?” Lieutenant Merrill recalled that Wiley
complained about his leg, but he did not recall seeing injuries on his face. When
Lieutenant Merrill questioned Fred Taylor, he denied touching Wiley.
7 Mr. Walden, the only disinterested witness to the incident at issue, testified
that he overheard Wiley say something offensive to the female bartender and heard
Fred Taylor warn Wiley to calm down, or he would be made to leave. According
to Mr. Walden, “A little while later [Wiley] said something towards Fred. I didn‟t
really pick up what he said. But, I took it as if it was said to me, I would take it as
a threat. And then Fred told him he had to go.” Mr. Walden described what
happened next as follows:
Well, Fred told him to leave. [Wiley] got up; started walking towards the door. The pool table closest to the door, when he got there, he just -- like he fell or tripped, like he fell.
And Fred went over to help him. And then things kind of went downhill after that.
Well, when Fred went over, you know, to help him up -- because like I said, he fell – [Wiley] got really -- real quickly, got -- well mad. Like he got mad at Fred. He went off on Fred. He started trying to -- Fred bent over to help him up. He kind of reached for Fred like he was fixing to -- like he choked him. It looked like he was choking him.
Mr. Walden testified that he helped Wiley out of the door because Fred Taylor‟s
efforts to help Wiley stand up to leave only made matters worse. Mr. Walden
explained that once outside, Wiley kicked a vehicle‟s bumper, and “he fell down
on the ground. He tried to get up. He fell down again and hit is [sic] face on --
well not hit. Kind of like, like fell down trying to get back up.” According to
Mr. Walden, Wiley “started acting like his leg was hurting.” He admitted that he
held Wiley down until a sheriff‟s deputy arrived, stating “I was sitting on the
ground and [Wiley]‟s head and torso was [sic] in my lap. I was trying to restrain
him from getting up. Because, he said he was hurt.” He asked for someone to get
8 a washrag because Wiley was bleeding from falling and hitting his head on the
ground, and because he thought a cool rag would calm him. Mr. Walden denied
battering Wiley and disputed the allegation that Wiley was battered by anyone at
the Stockyard Saloon. Mr. Walden‟s testimony was clear that Wiley‟s injuries
were not inflicted by Fred Taylor.
Joyce Marie Tanner went to the Stockyard Saloon with Wiley, her brother.
According to Ms. Tanner, Wiley was not hurt and did not have any trouble walking
when they arrived at the bar. She stayed for about an hour, but left before the
incident at issue occurred. When she returned, Wiley was being loaded into an
ambulance.
Under direct examination, Wiley described what occurred to him as:
Fred come jerked me off the bar stool. And when he went on the floor, I was on top. Somebody kicked me off. That‟s when the stomping starts. And then the next thing I remember, I‟m by the pool table being stomped. And then when we get outside he‟s knocking me over this iron pipe that goes down the front of the bar. And then the next thing I remember, they loading me up in the ambulance.
When asked specifically by the trial judge, “What did you say happened about the
iron bar outside?” Wiley replied, “The problem is, see, I just remember bits and
pieces of it. But, what I do remember is Fred knocking me over that pole -- that
pole outside.” When asked what happened next, Wiley answered, “Well, I don‟t
remember. All I know the next thing it was the ambulance and the cops were
there.”
Under cross-examination, Wiley was asked if he said anything to Fred
Taylor while he was in the bar, and he replied, “It‟s possible I could have. . . . I
don‟t remember. But, I‟m sure he come jerked me off of there for some reason.”
Wiley testified that he drank three beers with his coworkers before leaving work
9 around four o‟clock and, while at the Stockyard Saloon, he remembered drinking
beers and a shot of Jagermeister. When asked by the court how many beers he
drank at the Stockyard Saloon, Wiley admitted that he did not know. He said, “It
was two or three -- three or four.” Wiley admitted that he did “not even remember
getting out the door[,]” but he was certain that he “never kicked a truck.” When
asked whether it was his testimony that two people attacked him, he replied, “I am
not sure. But, I know that Fred -- when Fred was kicking me, me trying to cover
up from him, somebody was kicking me in the head. So, I guess that adds up to be
two.” When the trial judge inquired, “And you testified that -- sometimes you
blacked out. You don‟t remember some of the facts that night.” Wiley
acknowledged, “Yes, ma‟am.”
Lindsey Nicole Meyers was the bartender at the Stockyard Saloon the night
the incident at issue occurred. Ms. Meyers testified that Wiley became upset
because Fred Taylor “wouldn‟t let him charge, have a charge account.” She
witnessed Fred Taylor ask Wiley to leave “two or three times” before he escorted
him out the door. Ms. Meyers did not go outside. She testified that she did not see
anyone stomp, push, or hit Wiley. In her opinion, Wiley was drunk and “upset
because his son just got killed.”
Dr. J.H. Fairbanks, an orthopedic surgeon, treated Wiley in the hospital for
his injured right leg. Dr. Fairbanks did not testify at trial; instead, he testified via
deposition. Photographs taken of Wiley in the hospital were attached to his
deposition. Noteworthy is the fact that Dr. Fairbanks did not recall the injuries to
Wiley‟s face until he was shown photographs, as revealed in the following
exchange:
10 PLAINTIFF‟S COUNSEL:
Was [sic] there any other injuries that you noticed at the time or diagnosed at the time of the fracture to [Wiley‟s] ankle?
DR. FAIRBANKS:
Not that I recall.
PLAINTIFF‟S COUNSEL:
I‟ve got some photographs I want to show you and I want you to see if that refreshes your memory. These are pictures taken of Mr. Wiley at the time of this.
Would these pictures be reflective of the condition of Mr. Wiley at the time you examined him in the emergency room?
I don‟t recall that but I would assume they would.
Despite the fact that Dr. Fairbanks did not witness how Wiley was injured and had
to “assume” the depiction in the photographs, the trial court clearly and
erroneously relied heavily upon his opinion to conclude that Wiley had suffered his
injuries as a result of a battery. The exact statements by Dr. Fairbanks upon which
the trial court relied and specifically quoted in its Reasons for Judgment are
evinced in the following exchange:
There‟s been some allegations that Mr. Wiley tripped and injured himself, would the injuries that you see in these photographs, would that be indicative of somebody that had tripped and fall [sic]?
Not likely.
11 PLAINTIFF‟S COUNSEL:
Would these be more indicative of somebody that had been beaten?
Somebody that‟s been in a fight.
Dr. Fairbanks did not opine that Wiley‟s injuries were the result of Fred Taylor‟s
actions or those of anyone else. He simply stated that Wiley‟s injuries were
indicative of somebody who had been in a fight. There was no proof of a fight
much less any injuries incurred by Wiley and inflicted by Fred Taylor as a result of
a fight.
After reviewing the record in its entirety, we find that a reasonable factual
basis does not exist for the trial court‟s findings and that the trial court‟s
determination of Fred Taylor‟s liability is manifest error. The trial court ignored
and disregarded the testimony of the only independent witness, Mr. Walden. Not
only was Mr. Walden disinterested in the cause, he witnessed the entire event and
fully corroborated Fred Taylor‟s testimony that he did not batter Wiley. The trial
court, which acknowledged that “the testimony is contradictory[,]” based its
finding that Fred Taylor committed battery due, in part, to the fact that Wiley “had
sustained significant injuries by the time Concordia Parish Deputies Webber and
Merrill arrived at the Stockyard which [Wiley] did not have when he arrived.”
This circumstance, combined with the judgment of Dr. Fairbanks that Wiley had
“been in a fight” led to the trial court‟s “opinion that the „outside force‟ was the
direct result of the excessive use of force by Fred [Taylor] in removing [Wiley]
from the premises.” However, there was no proof by a preponderance of the
12 evidence of such an occurrence; thus, there is a failure by Wiley to establish
causation between his injuries and Fred Taylor‟s actions.
In light of the guidance outlined above as applied to the facts of this case set
forth in the record, we find manifest error in the trial court‟s finding that it was
proven by a preponderance of the evidence that Fred Taylor committed an
intentional battery on Wiley. Considering the evidence in the record, we conclude
that the evidence did not establish by a preponderance of the evidence that Wiley
was intentionally injured by anyone, much less that Fred Taylor was legally
responsible for Wiley‟s injuries. The trial court was manifestly erroneous and
clearly wrong in ruling otherwise. Accordingly, we reverse the judgment of the
trial court. Having reversed the trial court on the issue of liability, we need not
address the remaining issues of vicarious liability and damages.
DECREE
For the reasons stated herein, the judgment of the trial court is reversed.
Costs of this appeal are assessed against Plaintiff/Appellee, Dempsey Ray Wiley.
13 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
THIBODEAUX, Chief Judge, dissenting.
The proper standard of review is manifest error which the majority
acknowledges. The majority further observes that the issue of an intentional
battery was “hotly contested.” The plaintiff testified that he was beaten violently
and stomped on. One of the defendants indicated the plaintiff was intoxicated and
suffered an unprovoked fall. The trial judge heard and weighed this testimony.
After doing so, she concluded that “[t]he testimony of the witnesses varied
substantially as to what actually transpired and often is directly contradictory.”
She then went on to summarize the testimony and concluded that “it is obvious to
this Court that these injuries could not have been sustained by Dempsey merely as
a result of a fall or from kicking a truck as Fred testified. This Court gives much
weight to a testimony of Dr. J. H. Fairbanks, Dempsey’s treating orthopedic
surgeon . . . .” Dr. Fairbanks clearly indicated that the plaintiff’s injuries would
not be indicative of “somebody that had tripped and [fallen].” Rather, they would
be indicative of “somebody that’s been in a fight.” Clearly, the trial court believed
the testimony of Dr. Fairbanks and did not believe the testimony of the witnesses
who said that the plaintiff happened to have kicked a truck in the parking lot and
suffered an unprovoked fall. Dr. Fairbanks’s testimony was particularly persuasive
given the fact that the plaintiff’s injury required a plate and some screws and an
incision about five inches in length. He suffered a bimalleolar ankle fracture. I would affirm the judgment of the trial court but would reverse on the
damages awarded for the leg amputation. Dr. Fairbanks clearly testified in his
deposition that the plaintiff failed or refused to follow post-operative care.