Detillier v. Smith

638 So. 2d 445, 1994 WL 226853
CourtLouisiana Court of Appeal
DecidedMay 31, 1994
Docket94-CA-34
StatusPublished
Cited by4 cases

This text of 638 So. 2d 445 (Detillier 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
Detillier v. Smith, 638 So. 2d 445, 1994 WL 226853 (La. Ct. App. 1994).

Opinion

638 So.2d 445 (1994)

Barbara DETILLIER
v.
David SMITH, the City of Westwego Volunteer Fire Department.

No. 94-CA-34.

Court of Appeal of Louisiana, Fifth Circuit.

May 31, 1994.

*446 James E. Shields, Gretna, for plaintiff/appellant.

Lynn L. Lightfoot, New Orleans, for defendant/appellee.

Before BOWES, DUFRESNE and WICKER, JJ.

WICKER, Judge.

This is an appeal in a lawsuit which arose out of a collision between a fire truck belonging to the City of Westwego and an automobile. The driver of the automobile sued, claiming neck, back and leg injuries. Following a four-day trial, a six-person jury absolved the defendants of liability. The plaintiff now appeals. We affirm.

Plaintiff is Barbara Detillier. Defendants are David T. Smith (a fireman of the Westwego Fire Department), the City of Westwego Volunteer Fire Department, and CIGNA Property and Casualty Company (the fire department's insurer).

Detillier testified that on August 8, 1990 she was in her automobile, waiting for a traffic signal in the left-turn lane at the intersection of Central Avenue and the Westbank Expressway in Westwego. When the green arrow came on, she looked in her rearview mirror and saw a fire truck in back of her. She denied seeing any flashing lights or hearing any siren from the fire truck. She figured the fire truck was going to turn left and she wanted to get out of its way as soon as possible. She hesitated for a second or two, looked to see if there was any oncoming traffic, then went on and made her left turn. As she was turning, the fire truck hit her car.

Plaintiff testified she tried to avoid the accident by turning her wheels to the right, but went over a curb. As she got out of her car, defendant Smith got out of the fire truck and asked her if needed an ambulance. She told him she was okay, only shook up. Then Smith said he was going to turn on the truck's lights so oncoming vehicles would be aware there was an accident; he got back in the truck and put on the flashing lights.

Smith's testimony regarding the accident differed significantly. He stated he was responding to a Signal 51-S alarm when the accident occurred. "51-S" indicates a structural fire, which requires a Code 3 response (i.e., flashing light and siren), so he pulled out of the station with lights and siren, going up Central toward the Expressway. He turned the siren off while traveling through the residential neighborhood in which the station is located, but used the lights and sirens to cross Lapalco Boulevard.[1]

After he crossed, he turned off the siren again and proceeded up Central to the Expressway. About 25 feet before the Expressway, he turned the siren back on. When he reached the Expressway the traffic signal had just turned green. There were two cars in front of him, which got out of the way, and he got behind plaintiff's car. Smith testified that plaintiff could not move to the left or the right because of oncoming traffic in both directions, so she waited for a green arrow.

When she got the green arrow, however, she did not turn immediately but just stayed there. Smith said he waited about five to ten seconds; he had the lights and siren on, and sounded the horn several times. When Detillier failed to move he proceeded to go around her on the left. It was still impossible to go to the right due to traffic. As he turned the truck left, he maneuvered into the right lane of the Expressway because the fire truck must make wide turns due to its size and weight. Smith stated he was looking in his mirror while making the turn and saw that Detillier was not turning, but when he was "almost straight into the lane" plaintiff's car hit the fire truck.

Smith stated that he did not wait longer for plaintiff to turn left because he was on an alarm—"You don't know if somebody's in *447 there burning up, you can't sit there 20 minutes waiting for somebody to move."

ISSUES ON APPEAL

The first question on the jury interrogatories was, "Do you find David T. Smith and the Westwego Volunteer Fire Department at fault for the accident on August 8, 1990?" The jury answered "No." Because they found no liability, they did not answer the remaining interrogatories.

On appeal plaintiff contends that the jury was prejudiced and the prejudice resulted in the adverse verdict; that the prejudice was reversible error; that the defendants should have been found 100% at fault or at least assessed a percentage of fault; and that in the absence of prejudice the lowest amount of damages plaintiff would have received is $500,000.

JURY PREJUDICE

The issues concerning jury prejudice arise from the denial of plaintiff's motion for new trial, which urged that the verdict was clearly contrary to the law and evidence and grounded in bias and prejudice.

La.Code Civ.P. art. 1972 sets forth the peremptory grounds for granting a new trial as follows, in pertinent part:

"A new trial shall be granted ... in the following cases:
(1) When the verdict ... appears clearly contrary to the law and the evidence.
* * * * * *
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done."

A. Contact between Jurors and Defendant

Plaintiff asserts that on the third day of trial two jurors met defendant Smith at the elevator and one juror went to the bathroom at the same time as Smith. The implication of plaintiff's argument is that there was jury tampering. During the trial plaintiff filed a motion to determine whether jury sanctity had been abridged. The motion was supported by affidavits from two members of plaintiff's family who observed the incident.

Although the trial judge denied a hearing on the record, she interviewed the jurors in chambers, in the presence of both counsel, and determined that no prejudice had occurred.

Subsequently, when the motion for new trial was argued, the judge advised plaintiff's counsel:

"I did talk to those jurors at your insistence. They both assured me that there was no problems. And I will also tell you that when I talked to the jury afterwards, as I always do, the rest of the jurors were extremely curious as to why it had happened. And, it's my remembrance that none of them had a clue when I told them that anything like that had occurred."

Simple contact between a juror and an interested party is not sufficient to require the granting of a motion for new trial. Searle v. Travelers Ins. Co., 557 So.2d 321, 325 (La.App. 4th Cir.1990), and cases cited therein. New trial is mandated only on a showing that the jury misconduct was of such a grievous nature as to preclude the impartial administration of justice. Gormley v. Grand Lodge, 503 So.2d 181, 186 (La.App. 4th Cir.1987).

There is nothing in the record to establish that there was bribery, improper behavior or anything else that would have prevented impartial justice, nor has plaintiff alleged any specific acts that could be so construed. At best, plaintiff's argument appears to be that the jurors and defendant Smith walking down the hallway together presented a suspect appearance.

The trial judge's statements in denying the motion for new trial effectively refute any basis for plaintiff's challenge to jury sanctity.

B. Surveillance Video

In addition, plaintiff contends the jury was prejudiced by being shown a surveillance video of plaintiff, made by the defense during the course of the trial.

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Cite This Page — Counsel Stack

Bluebook (online)
638 So. 2d 445, 1994 WL 226853, Counsel Stack Legal Research, https://law.counselstack.com/opinion/detillier-v-smith-lactapp-1994.