Lesniewski v. Fowler Trucking Co.

471 So. 2d 916, 1985 La. App. LEXIS 8674
CourtLouisiana Court of Appeal
DecidedJune 12, 1985
DocketNo. 17026-CA
StatusPublished
Cited by3 cases

This text of 471 So. 2d 916 (Lesniewski v. Fowler Trucking Co.) 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
Lesniewski v. Fowler Trucking Co., 471 So. 2d 916, 1985 La. App. LEXIS 8674 (La. Ct. App. 1985).

Opinion

FRED W. JONES, Jr., Judge.

Walter Lesniewski, Jr., was severely injured when his Mercury Marquis ran into the rear of a Halliburton Company pickup truck stopped in the center of westbound Interstate Highway 20. The pickup, driven by James E. Tew, Sr., stopped because the lane was blocked by a 2' x 4' X 16' doghouse walk-around stand that had fallen from a Fowler Trucking Company (“Fowler”) truck operated by James H. Dibler. After a directed verdict absolving Tew and Halliburton of liability, a jury found Les-niewski 40% negligent and Fowler and Dibler 60% negligent. Damages were set at $1,700,000.00. Defendants appealed, urging that plaintiff was the sole legal cause of the accident. Plaintiff answered the appeal, asserting that the damages awarded were less than the proven special damages and seeking an increase reflecting both special damages and general damages. We affirm for the following reasons.

At 7:00 A.M. on Saturday, August 15, 1981, James H. Dibler, a truck driver for Fowler, arrived in Camfield, Arkansas in his 10-ton 18-wheeler winch truck to load an oil rig. As the rig was torn down, the pieces were placed on Fowler’s truck. Buster Staggs, also an employee of Fowler, supervised the loading operation. From noon to 2:00 P.M. Dibler’s truck was loaded with a “pony structure” consisting of two layers of mats and two dog-house walk-around stands. Dibler, Staggs and a “swamper” loaded the truck and secured the load with chains.

Before leaving Camfield, Dibler asked Staggs if the load was too high, because it looked that way to him. Staggs was in charge of routing the trucks and getting permits for oversized loads. Staggs told Dibler the load was not too high and instructed him to drive it. Dibler complied and drove south toward Bossier City on Highway 3.

Three miles north of Bossier City, Dibler pulled over “to clamp down the chains and boomers.” David Ryals, then an employee of Trans-Continental Drilling Company and a longtime friend of Dibler’s, stopped to assist him. Dibler told Ryals that the load was stacked too high. Ryals offered to drive with Dibler “to help guide him under the underpasses.”

Ryals testified that they entered 1-20 in Bossier City and headed west. They moved slowly under the first few overpasses and had adequate clearance. They then increased speed and moved to the center lane with Ryals in the lead. As Dibler went under the Pierre Avenue overpass, the top of the load struck the overpass, the chains came loose and the top dog-house stand fell into the center lane.

Stephen Payton, a Halliburton employee in a cement pumper truck, narrowly missed hitting the load by steering into the left lane where he nearly collided with another vehicle.1 James Tew and Prentiss Carpenter, both Halliburton employees, were following Payton when he suddenly changed lanes. Unable to change lanes in the medium to heavy 4:30 P.M. traffic, Tew brought his company pickup to a controlled stop, without skidding, about 15-20 feet behind the obstruction. He placed the transmission in “park” and turned on his four-way flashers to wait for a break in traffic.

Meanwhile, Dibler crossed from the center lane to the right lane and onto the shoulder. He put on his tractor brakes and his trailer brakes, turned on his four-way [918]*918flashers, and exited the cab to unhook the trailer.2 The purpose of this was to free the winch for use in moving the load from the highway. As he was disconnecting the trailer, Dibler noticed the Halliburton pickup stopped behind the dog-house stand in the center lane.

While Dibler was working on the trailer, Ryals made his way onto the shoulder and backed up to within 40 or 50 feet of Dibler’s truck. Ryals got out and retrieved the chains that were in the road. After speaking to Dibler, who was lowering the stands under the trailer, Ryals started to walk to his car.

During this time, Tew was anxiously searching his rearview mirror for a break in traffic, planning to move his truck before getting hit. Suddenly he saw a white car swing from the right lane into the center lane only 100-150 feet away from the back of his truck. Tew and Carpenter grabbed their necks and prepared for the impact. Tew placed both feet on his brake pedal and saw the driver of the car throw his arm before his face just before the car hit the truck. Ryals and Dibler heard but did not see the crash.

Tew called his dispatcher over the two-way radio in his truck and reported the accident. He then got out and started to flag traffic with his baseball cap. An ambulance arrived first and personnel went straight to work on Lesniewski. Second to come was Shelton Scott, a Shreveport policeman dispatched to investigate the accident. Finally, Lawrence Newton, an accident investigator for Halliburton, arrived

The ambulance attendants found Les-neiwski semi-conscious with fractured ribs and bleeding facial lacerations. They placed him on a spine board, put him in the ambulance, and headed for LSU Medical Center. On the way to LSU, Lesniewski stopped breathing and his blood pressure went to 0/0. The ambulance attendant administered CPR until they arrived at LSU some three to five minutes later. Lesniew-ski was immediately taken to the emergency trauma room where a team of physicians and nurses headed by Dr. Marshall Cunningham started emergency resuscitation procedures.

Dr. Cunningham testified that Lesniew-ski arrived Code 99, or without vital signs. The first step toward resuscitation was to insert a catheter into the subclavian vein and thereby introduce fluids directly to the heart. While inserting the catheter, the standard procedure is to take a blood sample and send it to the laboratory. This sample was labeled with only a number in this case since Lesniewski’s identity was not immediately known.

The medical technologist in the LSU Medical Center clinical laboratory received a sample labeled with Lesniewski’s number and ran the standard blood chemistry tests3 on it, using a Dupont Automated Clinical Analyzer (ACA).4 She determined that the blood serum alcohol level was 291.2 mg per deciliter.5 This information was relayed to the physicians in the emergency room who used it in determining the proper treatment of the patient. The sole evidence of the blood serum alcohol level result was in the hospital record which was admitted pursuant to La.R.S. 13:3714.6

[919]*919The emergency room team was able to restore Lesniewski’s vital signs. After becoming stable he was transferred to the VA Hospital, where he remained for some six weeks. The diagnosis was “irreversible brain damage.” At the conclusion of his hospitalization Lesniewski was removed to a nursing home. When his condition regressed, he was taken to the home of his son, where he has remained.

Walter Lesniewski’s condition was described by Dr. Paul D. Ware as spastic quadri-paresis secondary to a closed head injury and secondary to post-traumatic ce-phalopathy with aphasia and chronic brain syndrome. He is not paralyzed but is unable to walk or feed himself. He follows objects with his eyes and can communicate with facial expressions but cannot speak.

Comparative Negligence

Defendants argue that Lesniewski should have been found totally at fault, i.e., assigned 100% negligent. While conceding violation of La.R.S.

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Related

Brownell v. Dietz Motor Lines
503 So. 2d 1069 (Louisiana Court of Appeal, 1987)
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490 So. 2d 659 (Louisiana Court of Appeal, 1986)
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488 So. 2d 1163 (Louisiana Court of Appeal, 1986)

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Bluebook (online)
471 So. 2d 916, 1985 La. App. LEXIS 8674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lesniewski-v-fowler-trucking-co-lactapp-1985.