Guidry v. Bernard

155 So. 3d 162, 14 La.App. 3 Cir. 234, 2014 La. App. LEXIS 2916, 2014 WL 7139836
Louisiana Court of Appeal·Decided December 10, 2014·No. No. 14-234·Published·Cited by 3 cases

Opinions

ON REHEARING

PICKETT, Judge.

|We granted rehearing in this case to consider the propriety of our original opinion and conclusion therein on the issue of liability. Upon reconsideration, we conclude that we |j>erred in our original opinion and reverse the trial court’s determination that neither party carried them burden of proof. We further conclude that Ms. Bernard carried her burden of proving that Mr. Guidry caused the October 10, 2010 automobile accident and that she suffered injuries as a result of the accident. Accordingly, we render judgment in favor of Ms. Bernard.

Liability

As set forth in our original opinion, the Guidrys alleged that Mr. Guidry turned right on to Louisiana Avenue from Carmel Drive on a green light and that the accident occurred north of the intersection when Ms. Bernard changed lanes and collided with their vehicle. Ms. Bernard alleged, however, that immediately before the accident occurred, she was traveling in the far right lane of Louisiana Avenue and entered the intersection at Carmel Avenue on a green light, but Mr. Guidry failed to yield to her and turned in front of her onto Louisiana Avenue, causing their vehicles to collide.

In her application for rehearing, Ms. Bernard argues that the majority erred in concluding that Mr. Guidry’s inconsistent testimony as to when and where the accident occurred — in the. intersection as he was turning right or north of the intersection after he completed his turn — “was due to a ‘misperception’ that did not reflect upon [his] credibility as to the color of the traffic light” when he made his turn. We agree.

We are mindful that the manifest error standard of review applies when the fact finder’s determination is based upon a credibility evaluation “for only the factfin-der can be aware of the variations in de[165] meanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citing Canter v. Koehring, 283 So.2d 716 (La.1973)). This standard cannot be applied blindly, however. Accordingly, “[w]here documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story,” we can conclude that “a finding purportedly based upon a credibility determination” is manifestly erroneous or clearly wrong. Id. at 844-45.

The trial court found that both parties were “very credible”; yet, it rejected Mr. Guidry’s testimony on two of the three determinative issues in this case. First, the trial court concluded that the physical damage to the parties’ vehicles supported Ms. Bernard’s testimony that the accident occurred in the intersection while Mr. Gui-dry was in the process of turning from Carmel Drive on to Louisiana Avenue. In doing so, the trial court rejected Mr. Gui-dry’s testimony that the accident occurred north of the intersection after he completed his turn. Notably, Mr. Guidry’s trial testimony on that issue contradicted his written statement given the day of the accident, where he stated that “while turning right ... my vehicle was struck.” Mr. Guidry testified this inconsistency was due to it being “hectic” with a lot of people around and his worry about his wife’s injuries after the accident. According to Mr. Guidry, he was so worried about his wife’s injuries that he “mistakenly” wrote down that the accident occurred when he was turning right, rather than after he completed his turn. Mrs. Guidry did not seek medical treatment for her injuries, however, until October 14, a week after the accident occurred.

Next, the trial court rejected Mr. Gui-dry’s testimony that he looked to his left before beginning his right turn but did not see Ms. Bernard approaching the intersection. Mr. Guidry testified at trial that he looked left before turning right. In his deposition, Mr. Guidry was asked whether he looked to his left before “actually turning your wheel to negotiate your right-hand turn,” and he testified that he did not recall. Mr. Guidry explained he testified in city court that he “wouldn’t have begun [his] turn without looking left” and that his testimony in city court took place at least two years before his deposition |swas taken. Nonetheless, the trial court accepted Ms. Bernard’s testimony on this issue and rejected Mr. Guidry’s explanation of the inconsistencies in his testimony, finding it was not possible that he looked to his left before beginning his turn but did not see Ms. Bernard approaching the intersection.

The trial court rejected Mr. Guidry’s testimony on these two issues, and the record supports these conclusions. Thus, the trial court found him not to be credible with regard to two of the three determinative facts in this case yet still found him to be credible as to the remaining determinative fact, whether his traffic light was green or red when he turned right. This finding contradicts the trial court’s own findings of fact regarding Mr. Guidry’s credibility and fails to recognize the internal inconsistency of Mr. Guidry’s contention that his written statement was accurate only with regard to the color of the traffic light. For these reasons, we conclude that a reasonable fact finder would not credit Mr. Guidry’s testimony that he had a green light when he turned from Carmel Drive onto Louisiana Avenue. Accordingly, we find the trial court’s conclusions that Mr. Guidry’s testimony on that issue was credible and that the evidence was in equipoise were manifestly erroneous.

[166] Nothing in the record discredits Ms. Bernard’s credibility. Therefore, we accept the trial court’s assessment of Ms. Bernard as being credible and accept Ms. Bernard’s testimony that she had a green light when she entered the intersection. Accordingly, we conclude that Ms. Bernard carried her burden of proof and reverse the judgment of the trial court. We assess Mr. Guidry with 100% fault in causing the accident.

General Damages

Ms. Bernard seeks damages for a neck and shoulder injury she allegedly sustained in the accident. An ambulance was called to the scene of the accident, and Ms. Bernard was transported to Lafayette General Medical Center in a cervical collar where she received treatment in the emergency room. Thereafter, Ms. Bernard sought medical treatment off and on from various health care providers for complaints of pain in her right shoulder and trapezius musculature.

Determining the injuries Ms. Bernard suffered as a result of the accident and the treatment associated with those injuries has required close review of the medical evidence because she suffered injuries in other accidents that occurred before and after the October 10, 2010 accident (hereinafter referred to as “the 2010 accident”). After conducting a close review of the medical evidence relating to all the treatment she received for the period beginning in April 2008 and ending at the time of trial, we conclude that Ms. Bernard proved she suffered injuries in the 2010 accident and is entitled to awards for general and special damages.

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Guidry v. Bernard, 155 So. 3d 162, 14 La.App. 3 Cir. 234, 2014 La. App. LEXIS 2916, 2014 WL 7139836 (La. Ct. App. 2014).

155 So. 3d 162 (Guidry v. Bernard) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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