Johnson ex rel. Johnson v. City of Shreveport

914 So. 2d 1212, 2005 La. App. LEXIS 2388, 2005 WL 2980582
CourtLouisiana Court of Appeal
DecidedNovember 8, 2005
DocketNo. 40,188-CA
StatusPublished

This text of 914 So. 2d 1212 (Johnson ex rel. Johnson v. City of Shreveport) 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
Johnson ex rel. Johnson v. City of Shreveport, 914 So. 2d 1212, 2005 La. App. LEXIS 2388, 2005 WL 2980582 (La. Ct. App. 2005).

Opinion

DREW, J.

11 Asserting that a vehicular collision involving a city bus never occurred, City of Shreveport (“Shreveport”) and the bus driver appeal a judgment awarding damages to plaintiff for injuries sustained by his minor son in the collision. We affirm.

FACTS

At approximately 11:30 on the morning of March 1, 2003, Pamela Cantley was returning from breakfast at a restaurant. Passengers in her Pontiac Grand Prix were her mother, 77~year-old Hazel Johnson, and Cantley’s 14-year-old nephew, Blake Johnson. Mrs. Johnson was a passenger in the front. Blake Johnson was sitting behind his aunt.

The car stopped at a red light at the intersection of 70th Street and Buncombe [1214]*1214Road. Behind the car was a SporTran bus driven by Inez Wiggins. The occupants of the car testified that the bus struck the rear of the car while it was stopped at the light. They felt an impact, and when they turned around, they saw the bus. Wiggins and a bus passenger, Shatina Robinson, testified that there was never any contact between the bus and the car.

Cantley described to the trial court what immediately preceded the accident:

I was sitting there and I looked out my side mirrors, looked out my rearview mirror. I know when I looked out my rearview mirror I thought to myself something like a word I shouldn’t use. But “That bus is close or that bus is fast or something.” Then I looked straight ahead and that’s when it hit the back of my car.

Cantley exited the car in order to check its condition, but did not see any damage to her car. The front of the bus and rear of the car were about Rthree or four feet apart at the time. Cantley thought a rubber bumper on the bus had hit her car’s bumper. Cantley recalled that when she looked at the bus driver, the driver “kind of put her hand over her mouth like people go opps (sic).” Cantley then waved at the driver and said it was okay.

Cantley returned to her car and decided not to call the police at that time because there was no damage to her car, she was unaware of any injuries, and she did not want to get the bus driver in trouble. Cantley then drove her mother and nephew to Mrs. Johnson’s home, where Blake also lived with his family. This took about five to ten minutes.

Blake asserted that because he was not wearing a seatbelt, the impact caused him to be knocked forward, hitting his head on the seat in front of him, then backwards, hitting his head on the back of his seat. Blake did not feel any pain immediately after the impact, but his neck began hurting about halfway home, and by the time he reached home, his neck continued hurting and he had a headache. He complained to his father about the pain in his head and neck, and he was taken to a First Care Clinic approximately three hours later.

Either Cantley or Blake’s father, William Johnson, called the police at approximately 3:30 that afternoon to report the accident. Sgt. Reginald Fields, who worked for both the Shreveport Police Department (“SPD”) and SportTran, notified SPD officer Antoine White at about 3:40 p.m. It was Officer White’s understanding that the bus driver had contacted Sgt. Fields; however, Sgt. Fields stated that he learned of the incident when someone called dispatch to report an accident. Officer White testified that Cantley 13told him that although she did not observe any damage to her vehicle at the accident scene and did not feel an accident report had been warranted at that time, she then wanted to document the incident because her nephew had injuries.

Blake was treated by Dr. James May, a family medicine physician, on March 4, 2003. Dr. May found evidence of muscle spasm and pain, which he considered to be a typical injury that he would see from a car wreck. Dr. Mark Guice, a chiropractor, first treated Blake on March 5, 2003. Dr. Guice’s diagnosis was a grade two whiplash with motor and sensory loss.

On August 25, 2003, William Johnson filed suit on Blake’s behalf against Shreveport d/b/a SporTran and Wiggins. Following trial on the merits, the trial court rendered judgment awarding $19,147.94, which included $15,000 in general damages. Shreveport and Wiggins appeal.

DISCUSSION

A court of appeal may not set aside a trial court’s finding of fact in the absence [1215]*1215of “manifest error” or unless it is “clearly' wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). To reverse a factfinder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

A reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether |4the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Where 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. Rosell v. ESCO, supra. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, supra.

When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands greatdeference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, supra.

The occupants of the vehicle were consistent in their descriptions of what- happened. Mrs. Johnson- described- the impact as a “big boom from behind” and a “severe jolt.” Cantley testified she felt a “jolt” and the impact threw her forward enough that her -seatbelt caught. Blake testified that he felt a “big jolt” from behind, and because he was not wearing a seatbelt, the • impact threw him forward and then backward.

Mrs. Johnson could not recall the car moving forward from the impact. Cantley did not think the impact moved her car because she had her foot on the brake. Cantley, who estimated the distance between’ the two |Bvehicles as three to four feet when she exited her car, did not see the bus move backwards after the accident. When questionéd about the car moving from the impact, Blake stated that the only thing he felt move was himself.

When Dr. Guice took Blake’s history on his first visit, Dr. Guice wrote that Blake was a passenger in the front seat, and it was Dr. Guice’s understanding that Blake’s hands hit the dashboard. Dr. Guice testified that he thought there were only two people in the car, so he assumed Blake was the passenger, and if he was a passenger, then he sat in the front seat, and if he was in the front seat, he would have hit the dashboard when he braced for impact. Blake never mentioned to Dr. Guice that his head hit the seat in front of him, then hit the seat behind him. Dr. Guice admitted that he did not write everything down verbatim. Blake denied that he told Dr. Guice that he was a front seat passenger. Blake told Dr.

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Related

Stobart v. State Through DOTD
617 So. 2d 880 (Supreme Court of Louisiana, 1993)
Miller v. Lowry
409 So. 2d 1252 (Louisiana Court of Appeal, 1982)
Williams v. Bulk Transport, Inc.
266 So. 2d 472 (Louisiana Court of Appeal, 1972)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Mart v. Hill
505 So. 2d 1120 (Supreme Court of Louisiana, 1987)

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Bluebook (online)
914 So. 2d 1212, 2005 La. App. LEXIS 2388, 2005 WL 2980582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-ex-rel-johnson-v-city-of-shreveport-lactapp-2005.