JILLIAN DURAN * NO. 2019-CA-0748
VERSUS * COURT OF APPEAL GEORGE SILVA, STATE * FARM MUTUAL FOURTH CIRCUIT AUTOMOBILE INSURANCE * COMPANY AND ROB'S AIR STATE OF LOUISIANA CONDITIONING & HEATING, ******* INC.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-05183, DIVISION “N-8” Honorable Ethel Simms Julien, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge James F. McKay, III, Judge Paula A. Brown, Judge Dale N. Atkins)
Charles M. Thomas Mary E. Schonekas HUBER THOMAS & MARCELLE, LLP 1100 Poydras Street, Suite 2200 New Orleans, LA 70163
COUNSEL FOR PLAINTIFF/APPELLANT
Michele Trowbridge Barreca PORTEOUS HAINKEL & JOHNSON, L.L.P. 704 Carondelet Street New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED MARCH 25, 2020 DNA JFM This is a personal injury case that arises out of a bicycle and automobile PAB accident. Appellant, Jillian Duran (“Ms. Duran”) and Appellee, George Silva (“Mr.
Silva”) were involved in an accident on Christmas Eve in 2015. While riding her
bicycle to work through the French Quarter, Ms. Duran was struck by Mr. Silva,
who was driving a van owned by his employer, Rob’s Air Conditioning & Heating,
Inc. (“Rob’s HVAC”).
Ms. Duran filed a personal injury lawsuit against Mr. Silva, Rob’s HVAC,
and State Farm Mutual Automobile Insurance Company, Rob’s HVAC insurance
carrier, (collectively “Appellees”), for injuries she sustained from the accident. On
May 1, 2019, the trial court rendered judgment in favor of Appellees, dismissing
Ms. Duran’s lawsuit with prejudice. Ms. Duran now appeals. For the reasons that
follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of December 24, 2015, Ms. Duran was traveling
by bicycle to her place of employment at Bittersweet Confections, Inc., located at
725 Magazine Street, New Orleans, Louisiana. On the way, she was struck by Mr.
Silva, who was driving a 2008 Chevrolet Express van owned by his employer,
1 Rob’s HVAC at the intersection of Ursuline and Decatur Streets in the French
Quarter. As a result of the accident, Ms. Duran sustained several injuries, including
a broken shoulder and two tears to her rotator cuff tendon.
On May 23, 2016, Ms. Duran filed a personal injury lawsuit against Mr.
Silva, State Farm Mutual Automobile Insurance Company, and Rob’s HVAC. A
bench trial commenced on April 17, 2019, during which three witnesses testified:
Ms. Duran, Mr. Silva, and New Orleans Police Department Officer Andrew
Harrelson (“Officer Harrelson”), the investigating officer. The deposition of Ms.
Duran’s expert accident reconstructionist, Woodrow Poplin (“Mr. Poplin”), was
also introduced into evidence at trial.
Ms. Duran’s Testimony
Ms. Duran testified that she normally traveled through the French Quarter
from North Peters Street to Barracks Street and then down Decatur Street to get to
work. Ms. Duran stated there was construction on Barracks Street on the day of the
accident, which prompted her to take an alternate route and required her to turn
from Barracks Street and travel down French Market Place, which comes to a dead
end at Ursuline Street. Ms. Duran testified that she was traveling the wrong way on
Ursuline Street, a one-way street, before making a left turn on Decatur Street. She
testified that she traveled about “five or six seconds” on the left side of Decatur
Street when she was struck from behind by Mr. Silva’s van. Ms. Duran testified
she sustained injuries when Mr. Silva’s van struck her right shoulder and right
handlebar, which caused her to drag along the side of the van for a short distance
before she fell to the ground. She testified she did not see Mr. Silva’s van prior to
the collision.
2 Mr. Silva’s Testimony
Mr. Silva testified that he was driving the 2008 Chevrolet Express van on
the day of the accident. He testified he was on his way to his place of employment
at Rob’s HVAC, located in Harvey, Louisiana, traveling from his home located in
Chalmette, Louisiana. Mr. Silva explained that his route to work requires him to
travel through the French Quarter on Decatur Street. On the day of the accident,
Mr. Silva testified that he was traveling about twenty-five miles per hour on
Decatur Street, a one-way street. Mr. Silva recounted that, as he passed the
intersection of Ursuline and Decatur Streets, he heard something hit his car that
sounded like a “thump.” Mr. Silva explained that Ursuline Street is also a one-way
street that intersects Decatur Street, and traffic on Ursuline Street travels from the
right across Decatur Street. Mr. Silva testified that he heard this “thump” as he
passed the light pole “with the one-way sign on it” that sits on the corner of
Ursuline and Decatur Streets. He explained that, when he looked out his rearview
mirror, he observed Ms. Duran on the ground “approximately five feet in front of
that pole, give or take,” closer to the corner of the intersection. He testified that he
stopped the van, parked, and got out to check on Ms. Duran. Mr. Silva testified
that, prior to the collision, he did not see Ms. Duran as she was not traveling on
Decatur Street as he approached the intersection of Ursuline Street, nor was she
traveling ahead of him on Decatur Street at any time prior to the accident.
Officer Harrelson’s Testimony
Officer Harrelson investigated the accident. Officer Harrelson testified that
he spoke to Ms. Duran and Mr. Silva at the accident scene, but was unable to
observe Ms. Duran’s bicycle as it had been removed from the accident scene prior
to his arrival. He testified that he was wearing a body camera that captured footage
3 of his investigation at the accident scene. Officer Harrelson recounted the
statement Ms. Duran provided at the accident scene. He testified that Ms. Duran
told him she was riding on Ursuline Street and turned left onto Decatur Street. He
testified that Ms. Duran admitted she was riding the wrong way on Ursuline Street.
Officer Harrelson testified that he did not know for how long Ms. Duran was
traveling on Decatur Street prior to the accident or the exact location of the
accident. However, Officer Harrelson testified that he asked a paramedic where he
believed the accident happened, and the paramedic pointed, “through the walls of
the ambulance,” to the general area where the crash happened, which was the
intersection of Ursuline and Decatur Streets.
Officer Harrelson also spoke with Mr. Silva at the accident scene. Mr. Silva
told Officer Harrelson he was traveling down Decatur Street when he heard
something hit his car. Officer Harrelson testified that he observed a black mark
going down the side of Mr. Silva’s van. He further testified that, even though he
was unable to observe Ms. Duran’s bicycle, the evidence suggested that the black
mark was caused by Ms. Duran’s handlebar based on his observation of the black
mark and the statements provided to him by Mr. Silva and Ms. Duran.
Officer Harrelson further testified that traffic traveling on Decatur Street has
the right-of-way at the intersection of Ursuline and Decatur Streets. Officer
Harrelson also explained that a building is located at the intersection of Ursuline
and Decatur Streets that would make it difficult for someone traveling on Decatur
Street to see a bicyclist traveling the wrong way down Ursuline Street. Based on
his investigation, Officer Harrelson concluded the accident occurred at the
intersection of Ursuline and Decatur Streets and that Ms. Duran was riding her
bicycle the wrong way on Ursuline Street. Therefore, Officer Harrelson determined
4 that the accident was Ms. Duran’s fault. Officer Harrelson described the accident
as a “sideswipe” accident and cited Ms. Duran for traveling on the wrong side of
the road on a one-way street, a violation of La. R.S. 32:194.1
Mr. Poplin’s Testimony
Mr. Poplin, Ms. Duran’s expert accident reconstructionist, testified by
deposition that the accident could not have occurred at the intersection of Ursuline
and Decatur Streets. Mr. Poplin explained that his opinion of the accident was
based upon his review of the following: photographs of the accident scene;
photographs of Mr. Silva’s van; a photograph of Ms. Duran’s bicycle; Officer
Harrison’s body camera footage; depositions of Ms. Duran, Mr. Silva, and Officer
Harrelson; Google Earth satellite images of the accident scene; and Officer
Harrelson’s crash report.
Mr. Poplin testified that the physical evidence, including the black mark on
Mr. Silva’s car, revealed that Ms. Duran was traveling on Decatur Street, rather
than turning onto Decatur Street from Ursuline Street when the accident occurred.
Mr. Poplin explained that “in a sideswipe-type collision” the right handlebar is
“pushed forward,” causing the front wheel of the bicycle to rotate to the left,
which, in turn, would “pitch the bicycle” or cause it to rotate in a downward
direction to the right based on the momentum of the rider. As such, Mr. Poplin
opined that the “downward mark” found on Mr. Silva’s van indicated that Ms.
1 La. R.S. 32:194 provides:
Every person riding a bicycle upon a highway of this state shall be granted all of the rights and shall be subject to all the duties applicable to the driver of a vehicle by this Chapter, except as to special regulations in this Part, including special regulations applying to peace officers utilizing bicycles in furtherance of their official duties, and except as to those provisions of this Chapter which by their very nature can have no application.
5 Duran’s turn was complete and the two vehicles made parallel contact. Mr. Poplin
conclusively found this accident to be a “sideswipe/rear-end collision.” Thus, he
opined that Mr. Silva should have had an opportunity to see Ms. Duran, prior to the
collision, if he was looking forward and was alert while driving.
In addition to the testimony presented at trial, screenshots from Officer
Harrelson’s body camera footage of the accident scene, photographs of Mr. Silva’s
van, and a photograph of Ms. Duran’s bicycle were introduced into evidence. The
video from Officer Harrelson’s body camera was also introduced by Appellees
which captured Officer Harrelson’s investigation of the accident scene.
At the close of the trial, the trial court took the matter under advisement to
review Mr. Poplin’s deposition. On May 1, 2019, the trial court rendered judgment
in favor of Appellees and dismissed Ms. Duran’s lawsuit with prejudice. Ms.
Duran timely appeals.
STANDARD OF REVIEW
“Appellate courts review findings of fact made by the trial court judge using
the manifestly erroneous or clearly wrong standard of review.” Keller v. Monteleon
Hotel, 2009-1327, p. 2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1043 (citing
Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989)). “[W]here there is conflict in the
testimony, reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court may feel that
its own evaluations and inferences are as reasonable.” Id. (internal citation
omitted). “Where there are two permissible views of the evidence, the factfinder's
choice between them cannot be manifestly erroneous or clearly wrong.” Id.
In order for an appellate court to reverse a trial court’s finding of fact, an
appellate court is required “to find that the findings are not supported by a
6 reasonable factual basis and that the record demonstrates that the findings are
clearly wrong.” Id. (citing Stobart v. State through Dep't of Transp. and Dev., 617
So.2d 880, 882 (La. 1993)). Ultimately, the appellate court must determine
whether the “factfinder's conclusion was a reasonable one.” Id., 2009-1327, p. 2,
43 So.3d at 1042-43.
DISCUSSION
On appeal, Ms. Duran raises the following six assignments of error: (1) the
trial court erred in assessing 100% of fault to her for the accident; (2) the trial court
erred in determining the accident occurred at the intersection of Ursuline Street and
Decatur Street; (3) the trial court erred in finding Mr. Silva was not liable for the
accident; (4) the trial court erred in failing to consider the weight of the physical
evidence demonstrating that Ms. Duran was “sideswiped” by Mr. Silva; (5) the
trial court erred in failing to consider the expert testimony of Mr. Poplin; and (6)
the trial court erred in failing to award Ms. Duran damages.
For discussion purposes, we have consolidated these assignments of error
into three issues. The issues are as follows: (1) whether the trial court erred in
finding Ms. Duran solely at fault for the accident; (2) whether the trial court
properly considered the testimony of Ms. Duran’s expert accident
reconstructionist, Mr. Poplin; and (3) whether the trial court erred in failing to
award Ms. Duran damages.
Allocation of Fault
Ms. Duran argues the trial court erred in finding her solely at fault for the
accident. To support her argument, Ms. Duran contends the trial court erred in
determining the accident occurred at the intersection of Ursuline and Decatur
Streets, finding Mr. Silva was not at fault, and failing to consider the weight of the
7 evidence presented at trial, which she asserts demonstrates that she was
“sideswiped” by Mr. Silva’s van.
“Allocations of fault are factual determinations, which are not to be
disturbed by appellate courts in absence of manifest error or unless a particular
finding of fact was “‘clearly wrong.’” Antippas v. Nola Hotel Group, LLC, 2017-
0798, p. 4 (La. App. 4 Cir. 2/27/19), 265 So.3d 1212, 1216 (citing Aetna Life and
Casualty Company v. Solloway, 25,462 (La. App. 2 Cir. 1/19/94), 630 So.2d 1352,
1356). “Allocation of fault is not an exact science, or the search for one precise
ratio, but rather an acceptable range. Allocations of fault within such a range
cannot be clearly wrong.” Id. (citing Foley v. Entergy Louisiana, Inc., 2006-0983,
p. 32 (La. 11/29/06), 946 So.2d 144, 166).
Here, the trial court heard live testimony from Ms. Duran, Mr. Silva, and
Officer Harrelson, the investigating officer, regarding the events surrounding the
accident. Ms. Duran testified that she was traveling the wrong way on Ursuline
Street before yielding to make a left turn onto Decatur Street. She testified that she
was traveling on the left side of the street for approximately “five or six seconds”
before she was “sideswiped” by Mr. Silva’s van. Ms. Duran admitted that she did
not see Mr. Silva as she turned onto Decatur Street.
Mr. Silva testified that he was traveling about twenty-five miles per hour
down Decatur Street. He stated that, as he passed through the intersection of
Ursuline and Decatur Streets, he heard a “thump” when Ms. Duran hit his van. He
testified that he heard this noise at the corner of Ursuline and Decatur Streets
before the one-way sign and the light pole that sits on the corner of Ursuline and
Decatur Streets. Mr. Silva testified that he did not see Ms. Duran at any time prior
to the accident.
8 Officer Harrelson testified the accident occurred at the intersection of
Ursuline and Decatur Streets based on the location of the ambulance, explaining
that an ambulance generally parks near where a victim is found. Officer Harrelson
also testified that he determined the accident occurred at the intersection of
Ursuline and Decatur Streets based upon his interviews of Mr. Silva and Ms.
Duran at the accident scene. Officer Harrelson testified that a motorist traveling
down Decatur Street would have an obstructed view of a bicyclist that was
traveling the wrong way on Ursuline Street because of a building located at the
intersection of Ursuline and Decatur Streets that protrudes into the intersection. He
testified that, after speaking with both Mr. Silva and Ms. Duran, he concluded the
accident was Ms. Duran’s fault because she was traveling the wrong way on a one-
way street, on the wrong side of the road before crossing the intersection and
hitting Mr. Silva. Accordingly, he cited Ms. Duran for violation of La. R.S. 32:194.
He testified that Mr. Silva had the right-of-way on Decatur Street.
In Louisiana, it is well-settled that bicyclists have a statutory duty to comply
with traffic laws applicable to drivers of motor vehicles. La. R.S. 32:194.
“Bicyclists are also subject to the same duties applicable to drivers of motor
vehicles, including the duty to keep a proper lookout at all times.” Antippas, 2017-
0798, p. 4, 265 So.3d at 1217 (citing La. R.S. 32:194). Moreover, “[e]very person
operating a bicycle upon a roadway shall ride as near to the right side of the
roadway as practicable, exercising due care when passing a standing vehicle or one
proceeding in the same direction...” La. R.S. 32:197(A). Additionally, “[w]hen two
vehicles approach or enter an intersection from different highways at
approximately the same time, the driver of the vehicle on the left, shall yield the
right of way to the vehicle on the right.” La. R.S. 32:121(A).
9 Ms. Duran’s testimony established four critical facts: (1) she admitted that
she was traveling the wrong way down Ursuline Street; (2) she failed to keep a
proper lookout as she turned left onto Decatur Street, as she admitted that she did
not see Mr. Silva; (3) she failed to properly yield before turning onto Decatur
Street; and (4) she was traveling on the wrong side of Decatur Street, in violation
of La. R.S. 32:197(A). Ms. Duran argues that her expert, Mr. Poplin, opined that
Ms. Duran was “sideswiped” or “rear-ended” based on the physical evidence he
reviewed in this matter. However, Mr. Poplin’s testimony conflicts with Mr.
Silva’s testimony, Officer Harrelson’s testimony, and the physical evidence
presented at trial. The screenshots from Officer Harrelson’s body camera footage
showed the accident occurred at the intersection of Ursuline and Decatur Streets.
Mr. Silva’s and Officer Harrelson’s testimony corroborated that the accident
occurred at the intersection of Ursuline and Decatur Streets.
Further, the trial court determined that Mr. Silva’s account of the accident
was “more credible.” In making this determination, the trial court found that Ms.
Duran provided inconsistent accounts of the accident to her medical providers.
“The trial court’s credibility determinations must be given great deference because
only the factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener's understanding and belief of what is said.”
Frost v. Carter, 2013-0375, pp. 12-13 (La. App. 4 Cir. 4/2/14), 140 So.3d 59, 67
(citing Billiot v. Billiot, 2001-1298, pp. 5-6 (La. 1/25/02), 805 So.2d 1170, 1174).
Ms. Duran and Mr. Silva gave conflicting accounts of the accident. As such,
the trial court had to make credibility determinations regarding their testimony. At
trial, Ms. Duran testified that she was established on Decatur Street when she was
“sideswiped” by Mr. Silva’s van, which hit her handlebar and caused her to fall
10 over to the ground. The record reflects that Mr. Silva gave a statement to Officer
Harrelson that he was traveling down Decatur Street when he heard something hit
his car and that he did not see Ms. Duran. Mr. Silva’s trial testimony was
consistent with the statement he provided to Officer Harrelson. However, contrary
to Ms. Duran’s trial testimony that Mr. Silva’s van hit her shoulder and handlebar
on her bicycle, the record reflects that Ms. Duran told her medical providers that
she hit her head on Mr. Silva’s rearview mirrors. At trial, Ms. Duran admitted that
she told her medical providers inconsistent statements about where her body made
contact with Mr. Silva’s van. As such, the record reflects that Mr. Silva’s account
of the accident was consistent and was corroborated by Officer Harrelson’s
testimony.
Furthermore, the physical evidence presented at trial does not definitively
prove Mr. Silva’s fault, as Ms. Duran argues. In particular, the photograph of the
black mark on Mr. Silva’s van, which Ms. Duran argues proves she was
“sideswiped,” was not sufficient evidence to negate Ms. Duran’s fault for the
accident. The record reflects there was no evidence presented to definitively
attribute the black mark on the side of Mr. Silva’s van to the collision. Officer
Harrelson testified that the black mark he observed on the side of Mr. Silva’s van
suggests that it was from Ms. Duran’s handlebars. However, he admitted that he
did not observe Ms. Duran’s bicycle at the accident scene, therefore, he could not
affirmatively attribute the black mark on Mr. Silva’s van to be a result of striking
Ms. Duran on her bicycle.
Moreover, Mr. Poplin could not confirm the black mark or the scratches on
Ms. Duran’s bicycle was a result of the accident, as he admitted he did not inspect
Ms. Duran’s bicycle at the time of the accident. Additionally, the damage to Ms.
11 Duran’s bicycle was not in his report because the photograph of her bicycle was
not provided to him until after his report was prepared.
We find that the trial court’s finding of fault is supported by the record and
is not “clearly wrong.” Antippas, 2017-0798, p. 4, 265 So.3d at 1216. Thus, we
conclude that the trial court was not manifestly erroneous in finding Ms. Duran
solely at fault for the accident.
Mr. Poplin’s Expert Testimony
Next, Ms. Duran argues the trial court erred in failing to consider the
testimony of her expert accident reconstructionist, Mr. Poplin, which Ms. Duran
contends demonstrates that Mr. Silva was liable for the accident and should have
had a percentage of fault allocated to him by the trial court.
“The great discretion and deference granted to the fact-finder on appellate
review extends to its assessment of expert testimony.” McKenzie v. Cuccia, 2004-
0112, p. 6 (La. App. 4 Cir. 6/23/04), 879 So.2d 335, 339 (citing Sistler v. Liberty
Mutual Ins. Co., 558 So.2d 1106 (La. 1990)). “The weight given expert testimony
is dependent upon the expert’s professional qualifications and experience, and the
facts upon which the opinion is based.” Tuft v. Tuft, 51,293 (La. App. 2 Cir.
1/18/17) (unpub.), 2017 WL 4341309, *6. “After weighing and evaluating expert
and lay testimony, the trial court may accept or reject the opinion expressed by any
expert.” Id.
In the case sub judice, the record reflects the trial court did consider Mr.
Poplin’s testimony and took the matter under advisement, at the conclusion of trial,
to review Mr. Poplin’s deposition. Ultimately, the trial court determined that Mr.
Poplin made “assumptions” regarding where the accident occurred, and that this
12 testimony directly conflicted with the documentary evidence presented at trial. We
agree.
Mr. Poplin opined this accident was a “sideswipe collision, a rear end—from
the rear.” He testified the physical evidence exhibiting the black mark on Mr.
Silva’s van revealed that Ms. Duran was traveling parallel to Decatur Street as
opposed to turning onto Decatur Street when then the collision occurred. Mr.
Poplin explained that, if Ms. Duran was in the “midst of a turn” at the time of the
collision, the bicycle’s front wheel would have made contact with Mr. Silva’s van,
which would have created a lower mark on the van. However, due to the placement
of black mark on Mr. Silva’s van and the damage on Ms. Duran’s right handlebar
of her bicycle, he opined that the turn was complete and the two vehicles made
contact parallel to one another.
Contrary to Ms. Duran’s contention that Mr. Poplin’s testimony was not
properly considered by the trial court, the record reflects the trial court did not err
in concluding Mr. Poplin’s testimony was based on “assumptions.” In his
deposition, Mr. Poplin admitted that he did not go to the accident scene, talk to
either Ms. Duran or Mr. Silva, or personally inspect Ms. Duran’s bicycle.
Furthermore, he stated that his opinion was based upon his review of satellite
images of the area from Google Earth, photographs of the accident scene and the
vehicles, and review of the depositions of Mr. Silva and Ms. Duran.
Notably, Officer Harrelson, who was at the scene, saw Mr. Silva’s van, and
interviewed both Ms. Duran and Mr. Silva, concluded that the accident was a
“sideswipe” accident, and that the accident was Ms. Duran’s fault. Thus, we do
not find the trial court abused its discretion in determining that Mr. Poplin made
13 “assumptions” regarding where and how the accident occurred. Accordingly, we
find this assignment of error lacks merit.
Damages
Lastly, Ms. Duran argues that the trial court erred in failing to award her
damages. Louisiana jurisprudence establishes that the trial court must determine
fault prior to making an award for damages. See Watson v. State Farm Fire &
Casualty Insurance Co., 469 So.2d 967 (La. 1985); Spears v. City of Scott, 2005-
230 (La. App. 3 Cir. 11/2/05), 915 So.2d 983, writ denied, 2005-2478 (La.
3/31/06), 925 So.2d 1259. The trial court evaluated the physical evidence and
testimony presented at trial and determined that Ms. Duran violated Louisiana
statutory traffic regulations. Accordingly, the trial court found Ms. Duran solely
liable for the accident. Ms. Duran is therefore not entitled to a damage award
because no fault was allocated to Mr. Silva. We find this assignment of error lacks
merit.
DECREE
For the following reasons, we affirm the trial court’s May 1, 2019 judgment
dismissing Ms. Duran’s lawsuit with prejudice.
AFFIRMED