Normand v. Jones

115 So. 3d 1, 12 La.App. 5 Cir. 508, 2013 WL 1442622, 2013 La. App. LEXIS 706
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 12-CA-508
StatusPublished
Cited by3 cases

This text of 115 So. 3d 1 (Normand v. Jones) 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
Normand v. Jones, 115 So. 3d 1, 12 La.App. 5 Cir. 508, 2013 WL 1442622, 2013 La. App. LEXIS 706 (La. Ct. App. 2013).

Opinion

STEPHEN J. WINDHORST, Judge.

| ^Appellant, Raymond Jones appeals the trial court’s judgment which awarded $75,000.00 in general damages, subject to an 80% reduction for his fault in the cause of the accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 5, 2008, Mardi Gras Day, at approximately 5:00 P.M., Mr. Jones stepped from the neutral ground into the left-lane of the eastbound side of Veterans Memorial Boulevard (“Veterans”) and was struck by a marked police unit owned by the Jefferson Parish Sheriffs Office and operated by Deputy Gregory Joerger. Deputy Joerger was driving westbound on the eastbound side of Veterans, in the lane closest to the neutral ground.

Newell Normand, in his capacity as Sheriff of Jefferson Parish, filed suit against Mr. Jones for damages to the Sheriffs vehicle related to the accident. Mr. Jones filed an Answer and Reconven-tional Demand against Sheriff Normand alleging that Deputy Joerger and Sheriff Normand were liable for the accident and subsequent damages Mr. Jones sustained.

After a bench trial, the trial court rendered judgment in favor of Mr. Jones and against Sheriff Normand, in the amount of $75,000.00 in general damages, |3$50,077.82 in medical expenses and $7,200.00 for lost wages with legal interest from the date of judicial demand. The trial court found Mr. Jones’ recovery would be reduced by 80% for his fault. Mr. Jones filed this appeal alleging that the trial court erred in assessing him with 80% fault, and that the award of general damages was inadequate.

STANDARD OF REVIEW:

The factual findings of a trier of fact may not be disturbed by an appellate court absent manifest error. Arabie v. CITGO Petroleum Corp., 2010-2605 (La.3/13/12), 89 So.3d 307, 312, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979). Allocation of fault between comparatively negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 98-1613, (La.3/2/99), 731 So.2d [3]*3197, 199. An appellate court must find, from review of the entire record, that there is a reasonable factual basis for the findings of the trier of fact, and must determine that the record shows the findings of fact are not manifestly erroneous or clearly wrong. Arabie, 89 So.3d at 312, citing Arceneaux, 365 So.2d at 1333; see also Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). If the findings of the trier of fact are reasonable, when the record is reviewed in its entirety, an appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990); Marange v. Custom Metal Fabricators, Inc., 2011-2678 (La.7/2/12), 93 So.3d 1253, 1259. When there are two permissible views of the evidence, the findings of the trier of fact cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883; Rosell, 549 So.2d at 844.

The issue to be determined is not whether the finder of fact was right or wrong, but whether the trier of fact’s conclusion was reasonable. Stobart, 617 So.2d at 882; Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler, 558 So.2d at 1112. A |4trier of fact’s reasonable evaluations of credibility and inferences of fact should not be reversed, even if the appellate court sitting as the fact finder would have weighed the evidence differently. Rosell, 549 So.2d at 844. The reviewing court must be mindful that the trial court is in a better position in witnessing the entire trial, evaluating the credibility of witnesses, and in reviewing first hand all the evidence. Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 610-611; Stobart, 617 So.2d at 883.

ALLOCATION OF FAULT:

In his first assignment of error, Mr. Jones alleged that the trial court erred in allocating 80% of the fault to him.

The following facts were adduced at trial. Mr. Jones arrived at the parade route between 12:00 P.M. and 1:00 P.M. He ate two to four sandwiches, chips, consumed six to eight beers, and watched the parade. He testified that even though he consumed six to eight beers while at the parade, he was alert, his speech was not slurred, his judgment was not impaired, and he was not intoxicated.

Immediately prior to the incident, Mr. Jones left his spot along the parade route and crossed to the neutral ground in an attempt to cross Veterans to purchase cigarettes. He walked over to the eastbound side of Veterans. He looked to the right and saw that traffic was stopped at the traffic light. Without looking to the left, Mr. Jones stepped off the neutral ground between two parked cars and onto the street, which is ordinarily one-way. He was struck by Deputy Joerger’s vehicle, headed westbound in the eastbound lanes. He testified that while walking from the neutral ground to the curb he did not observe any emergency or flashing lights nor did he hear a siren to warn him that Deputy Joerger’s vehicle was approaching.

When confronted with medical records in evidence, Mr. Jones could not confirm or deny whether he consented to take an ETOH (alcohol) test that was | .^administered once he arrived at the hospital. Mr. Jones was shown JPSO Exhibit 4, a serum drug screen which showed his blood alcohol level was .258% alcohol. Despite his extremely high level of alcohol, Mr. Jones continued to assert that he was alert and not impaired. Upon further examination, Mr. Jones admitted that he also had marijuana in his system.

Earlier that day, prior to his arrival at the parade route, Mr. Jones went to a daiquiri shop. Detective Wayland Shepard stated that while working the parade [4]*4route he went to the same daiquiri shop and was immediately directed to Mr. Jones. Detective Shepard testified that Mr. Jones appeared to be under the influence of alcohol, smelled of alcohol, and his speech was slurred. He asked Mr. Jones where he lived, and ordered him to leave the parade route and not return, or be arrested for public intoxication. Mr. Jones left the daiquiri shop without incident.

Detective Shepard further testified that while he did not witness the accident, when he arrived on the scene immediately after the accident, he recognized Mr. Jones from the incident earlier in the day at the daiquiri shop, and reported the earlier incident to his supervisor. At trial, Mr. Jones stated that he did not recall going to any daiquiri shops prior to his arrival at the parade route.

Deputy Joerger and his partner, Sergeant Chad Deer, were assigned to the Aurora and Veterans area on Mardi Gras Day. It is usually a “younger crowd” and more prone to “a lot of fights.” Prior to the accident in which Mr. Jones was injured, and on request from his supervisor, Deputy Joerger picked up a female and child and took them to the end of the parade route. His partner, Sergeant Deer, stayed at the assigned location.

After dropping off the female and child, Deputy Joerger testified that he was advised to go back to his post because several fights were breaking out and his partner was alone. He testified that the safety of his partner was his primary | (¡concern. The only available way to return to his post was to travel westbound in the eastbound lanes of Veterans, and he stated that he followed the Jefferson Parish Sheriffs Office procedure for traveling against the flow of traffic for emergencies, which was routinely used during Mardi Gras parades.

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115 So. 3d 1, 12 La.App. 5 Cir. 508, 2013 WL 1442622, 2013 La. App. LEXIS 706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/normand-v-jones-lactapp-2013.