Murray v. Windmann

274 So. 3d 787
CourtLouisiana Court of Appeal
DecidedMay 29, 2019
DocketNO. 18-CA-530
StatusPublished

This text of 274 So. 3d 787 (Murray v. Windmann) 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
Murray v. Windmann, 274 So. 3d 787 (La. Ct. App. 2019).

Opinion

WICKER, J.

*789The instant appeal, in which appellant appears pro se , arises from a February 12, 2015 auto and bike accident between appellant, King George Murray, III, and appellee, Brett Michael Windmann. Mr. Murray seeks review of the July 13, 2018 judgment of the trial court adopting the jury determination that Mr. Windmann was negligent, but was not the legal cause of the accident. For the reasons following, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On February 12, 2015, Mr. Murray and Mr. Windmann were involved in an auto and bike collision at the intersection of Airline Drive and Shrewsbury Road in Metairie, Louisiana. Mr. Murray, the bicyclist, brought suit against, defendant-driver, Mr. Windmann, and his insurer - Liberty Mutual Corporation1 - in the Twenty-Fourth Judicial District Court on February 10, 2016, seeking damages and a trial by jury. On June 18, 2018, the matter proceeded to trial by jury.

At trial, Trooper Chris Ledoux, of the Louisiana State Police Troop B, testified that he responded to an accident at 9:24 a.m. on February 12, 2015, at the intersection of U.S. 61 (Airline Drive) and Shrewsbury Road. Upon arrival, he observed a blue Chevy Malibu "somewhat on Shrewsbury, almost partially in the right lane of Airline" and a bicycle. Trooper Ledoux spoke with Mr. Windmann, Mr. Murray, and a witness, Ms. Debra Primo, at the scene of the accident.

Trooper Ledoux testified that Ms. Primo in her statement said that she saw the collision as she was the first car in line at a stop light at the intersection of Airline Drive and Severn Avenue. According to Ms. Primo's statement, while waiting for the light to turn green, she saw Mr. Murray pedaling his bicycle toward Kenner. As Mr. Windmann was making a right turn on red, Mr. Murray did not stop or slow down prior to impact.

Trooper Ledoux further testified that he spoke to Mr. Windmann, who stated that his car was stopped in the right lane headed northbound on Shrewsbury Avenue, and he was waiting for traffic to clear so that he could make a right turn onto Airline. According to Mr. Windmann, he saw that southbound traffic on Airline had cleared and he proceeded to turn right on red. At that time, he noticed Mr. Murray on a bicycle directly in his path and applied his brakes, but was unable to avoid the collision. Mr. Windmann informed Officer Ledoux that he did not look to his right before initiating his turn.

Trooper Ledoux also spoke with Mr. Murray, who stated that he was traveling against traffic on Airline Highway from the direction of the traffic circle at Airline and Causeway, when "the vehicle" pulled out in front of him and hit him. Mr. Murray told Trooper Ledoux that he was on the gravel portion along the south side of Airline. When asked by defense counsel if *790Mr. Murray could have avoided the accident, Trooper Ledoux testified:

In my opinion? Bicyclists, you generally have a shorter stopping distance than cars and there wasn't any obstructions in his path, so more than likely he probably - more than likely, I would say that if he was paying attention and he saw the car, he could have stopped in time.

Trooper Ledoux also observed minor damages to the Chevrolet Malibu on the front bumper and hood area. He further testified that it was not illegal for Mr. Windmann to make a right turn at the red light at the intersection of Airline and Shrewsbury and that there were no signs erected along the intersection that said "no turn on red."

On cross, Trooper Ledoux testified that he investigated between 150 and 180 automobile accidents each year. Of these accidents, only five or six have involved bicycles. He explained that a bicycle must abide by the same laws as vehicles, with the exception that they can ride on the shoulder and are also limited in the number of places they can ride. Trooper Ledoux further explained that a bicyclist should be riding with traffic and not against it. After conducting his investigation, Trooper Ledoux found that Mr. Murray broke the law by traveling against traffic and gave him a citation.

On the second day of trial, Mr. Murray's counsel called Dr. Mahmoud M. Sarmini who was tendered as an expert in physical medicine and rehabilitation medicine, including pain management. He testified that he first evaluated Mr. Murray on June 7, 2013 - prior to the accident at issue - for chronic lower back pain. On August 7, 2014, Mr. Murray had a follow-up visit regarding his back pain wherein he informed Dr. Sarmini that he experienced mild leg weakness which resulted in occasional falls. Dr. Sarmini evaluated Mr. Murray again on January 14, 2016, at which time he complained of increased back pain and a newly raised complaint of neck pain. During this visit, Mr. Murray reported to Dr. Sarmini that he was involved in an auto and bike accident in February of 2015, which led to increased back pain and an onset of neck pain, which Dr. Sarmini treated with several medications. Dr. Sarmini also ordered a CT scan of Mr. Murray's lumbar spine because Mr. Murray continued to complain of back pain and expressed that he experienced weakness in his left leg. Again, Dr. Sarmini prescribed nerve medication and discussed the possibility of physical therapy which would focus on developing muscle strength in Mr. Murray's back and neck as well as help with pain. Mr. Murray attended one 15-minute physical therapy session. Dr. Sarmini further testified that on August 12, 2016, Mr. Murray visited his office complaining of neck and back pain which had been aggravated after Mr. Murray slipped and fell in his dentist's office.

On February 17, 2017, Mr. Murray indicated to Dr. Sarmini that he underwent epidural steroid injections at C7-T1 (the last vertebra of the thoracic spine) on January 17, 2017, which did not help to alleviate his pain. Dr. Sarmini stated that prior to Mr. Murray's bike accident, he never mentioned neck pain. However, after the bike accident, Mr. Murray indicated that he had some intensification of his back pain and a new onset of neck pain. Dr. Sarmini further testified that Mr. Murray's neck pain is likely correlated to his accident.

Mr. Murray then visited with Dr. Sarmini again on July 18, 2017, at which time Mr. Murray stated that his neck and back pain became worse after a slip and fall accident and Mr. Murray further mentioned that he was hit by another car on March 21, 2017. Mr. Murray's final visit to *791Dr. Sarmini occurred on November 13, 2017, at which time Mr. Murray informed Dr. Sarmini of a new fall.

Mr. Murray also testified that on February 12, 2015, the date of the accident at issue, he was on his bicycle headed to the gas station prior to going to work, as was his daily custom, when he was struck by Mr. Windmann's vehicle while attempting to cross the intersection of Shrewsbury and Airline.

On cross examination, Mr. Murray testified that he was running late for work at the time of the accident but was not in a rush because he had contacted his employer. He proceeded down the Causeway/Airline Circle off-ramp with the flow of traffic on the right side of Airline Drive. Since the gas station he visits every morning for his orange juice is on the left side of the road, near the intersection of Airline Drive and Shrewsbury, Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cooper v. United Southern Assurance Co.
718 So. 2d 1029 (Louisiana Court of Appeal, 1998)
Freeman v. Poulan/Weed Eater
630 So. 2d 733 (Supreme Court of Louisiana, 1994)
Alexander v. Pellerin Marble & Granite
630 So. 2d 706 (Supreme Court of Louisiana, 1994)
Sims v. Ward
938 So. 2d 702 (Louisiana Court of Appeal, 2006)
Karagiannopoulos v. State Farm Fire & Cas.
752 So. 2d 202 (Louisiana Court of Appeal, 1999)
Gilley v. Wendy's, Inc.
723 So. 2d 517 (Louisiana Court of Appeal, 1998)
Philips v. Berner
789 So. 2d 41 (Louisiana Court of Appeal, 2001)
Kelly v. Riles
751 So. 2d 302 (Louisiana Court of Appeal, 1999)
Miller v. Clout
857 So. 2d 458 (Supreme Court of Louisiana, 2003)
Clyde Snider, Jr., Et Ux v. Louisiana Medical Mutual Insurance Company
169 So. 3d 319 (Supreme Court of Louisiana, 2015)
Frazier v. Shady
200 So. 3d 874 (Louisiana Court of Appeal, 2016)
Yokum v. Funky 544 Rhythm & Blues Cafe
248 So. 3d 723 (Louisiana Court of Appeal, 2018)
Handy v. Owens Corning Corp.
262 So. 3d 965 (Louisiana Court of Appeal, 2018)
Banks v. Jack Jackson, Inc.
788 So. 2d 709 (Louisiana Court of Appeal, 2001)
Wallace v. La. Dep't of Transp. & Dev.
267 So. 3d 90 (Supreme Court of Louisiana, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
274 So. 3d 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-windmann-lactapp-2019.