Gore v. City of Pineville

598 So. 2d 1122, 1992 La. App. LEXIS 986, 1992 WL 71007
CourtLouisiana Court of Appeal
DecidedApril 8, 1992
DocketNo. 90-908
StatusPublished
Cited by4 cases

This text of 598 So. 2d 1122 (Gore v. City of Pineville) 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
Gore v. City of Pineville, 598 So. 2d 1122, 1992 La. App. LEXIS 986, 1992 WL 71007 (La. Ct. App. 1992).

Opinion

KNOLL, Judge.

This appeal concerns whether the trial court erred in disallowing the worker’s compensation claim of William M. Gore because of employee intoxication. Gore argues on appeal that: (1) the trial court erred in finding that the city of Pineville, his employer, proved that he was intoxicated at the time of his work accident, and that his intoxication caused his injuries; (2) Pineville failed to lay a foundation for the admission of the blood test results; and, (3) before the trial court should have considered the blood alcohol test results, it was incumbent upon Pineville to prove beyond a reasonable doubt that the blood testing protocol established in State v. Rowell, 517 So.2d 799 (La.1988), was met. We affirm.

FACTS

Gore, a truck driver and heavy equipment operator for Pineville, was hauling sand on October 17, 1988, from the McVay Gravel Pit to the Pineville City Yard. At approximately 1 p.m. he ran off the road, and turned his truck over. Gore’s truck immediately caught fire, causing him to suffer burns to the upper part of his body. A co-employee who passed by shortly after the accident freed Gore from the burning vehicle.

Gore was transported by ambulance to Rapides General Hospital where he was initially admitted and various blood tests, including a blood alcohol test, were performed in order to determine the course of his medical treatment. After a few days at Rapides General, Gore was then transferred to the burn unit at Baton Rouge General Hospital where he received burn treatment for approximately two months.

Pineville refused to pay Gore’s medical expenses and denied his worker’s compensation benefits, contending under LSA-R.S. 23:1081 that Gore was not qualified for such benefits because his voluntary intoxication caused his injuries.

INTOXICATION

Gore contends on appeal that the record is void of testimony that he drank alcoholic beverages on the day of the accident or that his actions indicated that he was intoxicated. Furthermore, Gore argues that the trial court improperly considered evidence that at the time of his admission to Rapides General Hospital his blood alcohol level was 0.276 percent.

An employer in a worker’s compensation action who pleads the defense of intoxication, must prove by a preponderance of the evidence, that the employee’s intoxication was a substantial-cause of the accident. Thus, the employer must prove that the employee was intoxicated at the time of the accident, and that the employee’s intoxication caused the accident. LSA-R.S. 23:1081; Folse v. American Well Control, [1124]*1124536 So.2d 686 (La.App. 3rd Cir.1988), writ denied, 538 So.2d 592 (La.1989).

Regarding the issue of causation, the jurisprudence uniformly holds that the employer must prove by some competent evidence other than the mere fact of intoxication that the accident was caused by the employee’s intoxication. Ray v. Superior Iron Works and Supply Co., Inc., 284 So.2d 140 (La.App. 3rd Cir.1973), writ denied, 286 So.2d 365 (La.1973). In order to prove causation, the courts have generally looked for evidence other than the mere happening of the accident, such as behavior that would clearly demonstrate the employee’s intoxication and resulting impairment or loss of control. At the very least, the jurisprudence requires a showing that the accident was one that would not ordinarily happen absent intoxication. Folse, supra, and cases cited therein.

Initially, Gore argues that the evidence of his blood alcohol level on the day of the accident was improperly considered because of Pineville’s failure to lay a proper foundation for the admission of the blood test results.

We find that under the provisions of LSA-R.S. 13:3714 the blood test results were properly admitted without laying a foundation. R.S. 13:3714 states:

“Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”

In Brown v. Collins, 223 So.2d 453 (La.App. 3rd Cir.1969), we affirmed the admission of blood test results pursuant to the hospital exception to the hearsay rule recognized in LSA-R.S. 13:3714 for certified medical records. In Brown we stated at page 456:

“The next objection is that the proper foundation was not presented for the introduction of the hospital records. The argument here is that no witnesses were called to show that the blood sample taken from Collins in Jennings was the same as that tested by the hospital in Lake Charles. Furthermore, no witnesses were presented to testify ‘in regard to the manner in which the blood test was conducted at the Lake Charles Hospital.’ Such foundation witnesses were not required. The statute quoted above clearly states that a certified copy of the record of any hospital ‘shall be received in evidence by such court as prima facie proof of its contents,’. No foundation is required for the admission of these certified records ... The very purpose of the statute is to eliminate the requirement, under prior rules of evidence, that everyone who wrote any part of the record or had anything to do with the specimens, laboratory tests, treatments, etc. shown in the records, must be produced as a witness in court to verify the record. These witnesses no longer need be produced. The rights of the party against whom the record is sought to be used are protected by the provisions of the statute that he may summon and examine those making the record as witnesses under cross-examination. ’ ’

We find the same results mandated herein. Pineville offered the certified copy of the medical records of Rapides General, and under the clear provisions of LSA-R.S. 13:3714, the blood alcohol test results included therein were admissible into evidence without laying a foundation for their admission.

Further arguing, Gore contends that State v. Rowell, 517 So.2d 799 (La.1988), extends to civil proceedings, and requires proof of blood testing protocol to the criminal standard of proof beyond a reasonable doubt. We disagree.

It has long been established that although the presumption of intoxication provided by LSA-R.S. 32:662 is not applicable to civil proceedings, a civil litigant may still introduce into evidence a person’s blood [1125]*1125alcohol content and expert testimony to interpret the effect of such a level on a person’s ability to operate a motor vehicle. Lee v. Missouri Pacific R. Co., 566 So.2d 1052 (La.App. 2nd Cir.1990), writ denied, 569 So.2d 986 (La.1990), and cases cited therein.

Since Rowell, the Louisiana Supreme Court has stated that Rowell’s holding is limited to situations where the State relies upon the statutory presumption of intoxication provided by LSA-R.S. 32:662. State v. Honeyman, 560 So.2d 825 (La.1990). Accordingly, since the presumption of intoxication is not applicable to civil proceedings, we find that Rowell does not control, and proof of the blood testing protocol beyond a reasonable doubt is not required.

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598 So. 2d 1122, 1992 La. App. LEXIS 986, 1992 WL 71007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gore-v-city-of-pineville-lactapp-1992.