Himel v. State ex rel. Department of Transportation & Development

887 So. 2d 131, 4 La.App. 5 Cir. 274, 2004 La. App. LEXIS 2406
CourtLouisiana Court of Appeal
DecidedOctober 12, 2004
DocketNo. 04-CA-274
StatusPublished
Cited by6 cases

This text of 887 So. 2d 131 (Himel v. State ex rel. Department of Transportation & Development) 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
Himel v. State ex rel. Department of Transportation & Development, 887 So. 2d 131, 4 La.App. 5 Cir. 274, 2004 La. App. LEXIS 2406 (La. Ct. App. 2004).

Opinion

19JAMES L. CANNELLA, Judge.

The Defendant, State of Louisiana, through the Department of Transportation and Development (DOTD), appeals from a judgment of liability and damages in wrongful death and survival actions brought by and on behalf of Sandra Himel, the decedent and her husband and son, Plaintiffs, Shelby Himel, Jr. and Shelby Himel, III. The Plaintiffs also filed a cross-appeal to the trial judge’s reduction of the damage award under La.R.S. 13:5106 B(2). We amend in part and affirm as amended.

On September 8, 2000, the decedent was an active and healthy 48-year-old woman living in Vacherie, Louisiana with her husband, their 21-year old son and their 9-year old granddaughter. That morning, she drove her son to work in Thibodaux in her 1994 Mazda. At around 8:00 a.m., she was returning home on Louisiana Highway 20, traveling northbound on the two-lane road when she lost control of her car, crossed the road and flipped over into the bayou paralleling the southbound lane. The accident occurred somewhere near mile post 28.9. The sole ^eyewitness to the accident was Richard Stein (Stein), an 18-wheel truck driver who had been following her car. Stein stopped, jumped from his truck, dove into the water and tried to remove her from the car. He was unable to do so because the car was “pretty much under the mud.” When the rescue unit arrived, the workers unsuccessfully tried to flip over the car. The mud was too soft. Allen Chenier, a volunteer fireman, used the rescue unit to pull the car onto shore where the rescuers were able to turn the car over and remove the dece[135]*135dent. She was not breathing. Cardiopulmonary resuscitation (CPR) was started. Her heart rate was finally detected 15-20 minutes later and she was transported to Thibodaux Regional Medical Center.

At the hospital, state troopers and the emergency medical technicians told Dr. Sarat Donepudi that they believed that the decedent had been trapped for 15-20 minutes in the submerged vehicle. The doctor found no physical injuries, but determined that she was in a coma caused by lack of oxygen. She was unable to respond to questions and unable to recognize anyone. According to the doctor, she was like a “vegetable.” The decedent remained in a comatose state until her death 14 months later, on November 1, 2002, from complications following surgery to remove an infected mediport.

The Plaintiffs1 filed suit on July 13, 2001 against DOTD, Wal-Mart Stores, Inc., Goodyear Tire and Rubber Company and the Kelly-Springfield Tire Company. All the Defendants, except DOTD, settled with the Plaintiffs prior to trial.2 A jury trial was held August 13, 2003 through August 15, 2003. The jury found DOTD 93% at fault and the decedent 7% at fault. It awarded her |4$1,260,912.15, which included medical expenses of $723,912.15. The jury further awarded $861,000 to Shelby Himel, Jr. and $300,000 to Shelby Himel, III for their wrongful death actions. The award totaled $2,421,912.15. In the judgment by the trial judge on September 16, 2003, the award was reduced by $694,000 to comply with the trial judge’s interpretation of the statutory cap in La.R.S.13:5106 B(2). Judgment was entered against DOTD in the amount of $1,558,378.30.

On appeal, DOTD contends that the inconsistencies in the jury’s answers to the interrogatories require this Court to conduct a de npvo review. It further asserts that the trial judge erred in refusing to strike a certain juror for cause when the juror expressed her inability to be fair and impartial. Third, DOTD contends that the trial judge erred in allowing the Plaintiffs’ expert to testify regarding the road condition when the photograph relied on was not properly authenticated. Next, it asserts that the jury committed manifest error in finding that it was in any way at fault, or in its apportionment of fault. DOTD also asserts that the jury erred in awarding Shelby Himel, III $300,000 when he failed to appear at trial to testify, and in the amount awarded to Shelby Himel, Jr. for the decedent’s past lost wages ($87,-000), and for his loss of services, loss of past support, and loss of future support ($350,000).

The Plaintiffs answered the appeal. They contend that the trial judge incorrectly interpreted La.R.S.13:5106 B and in reducing the general damage awards to a single $500,000.

INCONSISTENT JURY INTERROGATORIES

DOTD first argues that the answers to the jury interrogatories were in[136]*136consistent, and that this inconsistency requires a de novo review. However, it failed to object either at the reading of the verdict or in any post-trial motions in the trial court. Thus, the trial judge never had an opportunity to take remedial action while the jury was present or otherwise rule on the question. As provided |Bby La.C.C.P. art. 1813, the objection is waived. Metz v. Howard, 93-726, p. 5 (La.App. 5th Cir.1/25/94), 631 So.2d 1248, 1250-51; Morris v. United Services Auto. Ass’ n., 32,528 p. 12-13 (La.App. 2nd 2/18/00), 756 So.2d 549, 560; Bourque v. Gulf Marine Transp., Inc., 480 So.2d 337, 340 (La.App. 3rd Cir.1985). In the absence of an objection properly raised in the trial court, the issue has not been preserved for appellate review and we will not address it.

FAILURE TO EXCUSE JUROR FOR CAUSE

DOTD next argues that one of the jurors that served on the jury, Elizabeth Ordeneaux (Ordeneaux), should have been excused for cause because she felt that the highway where the accident occurred was dangerous. She informed the trial court that her brother’s car had also gone off the roadway and into the bayou. He was unhurt. When asked by DOTD’s counsel if she could set aside her preconceived conclusions and listen to the evidence, she responded that “I think it’s dangerous.” She made that statement several times, but did not state that she could not evaluate the evidence fairly.

The juror was not alone in her assessment of the safety of the roadway. Most of the persons questioned indicated uneasiness about driving on that section of the highway or felt it was dangerous and unsafe. In addition to Ordeneaux, other members of the jury venire noted that family members or friends had run off the road into the bayou in that area. Several indicted that their preconceived notions of the roadway’s safety would affect their ability to judge the case fairly. They were excused for cause. However, when the trial judge questioned the potential jurors who felt that the road was dangerous in an attempt to rehabilitate them, Ordeneaux was overlooked and not questioned. That was an oversight. In the jury selection conference among the trial judge and attorneys, counsel for DOTD stated he did not know if she had been rehabilitated because he could not hear. Everyone was having trouble hearing the potential jurors’ responses because | (¡there was a problem with the acoustics in the courtroom. The trial judge and Plaintiffs’ attorneys thought that she had been rehabilitated. After reviewing the transcript, we find that she had not been rehabilitated. However, no counsel attempted to find out at the time that the trial judge was questioning the potential jurors what her response had been, or to ask the court reporter to read back the rehabilitation colloquy during the conference to find out whether she had been rehabilitated. A quick review of the colloquy would have brought the oversight to the notice of the trial judge and he could have rectified it then.

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Himel v. STATE EX REL. DOTD
887 So. 2d 131 (Louisiana Court of Appeal, 2004)

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Bluebook (online)
887 So. 2d 131, 4 La.App. 5 Cir. 274, 2004 La. App. LEXIS 2406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/himel-v-state-ex-rel-department-of-transportation-development-lactapp-2004.