Palmisano v. Ohler

204 So. 3d 1134, 16 La.App. 5 Cir. 160, 2016 La. App. LEXIS 2285
CourtLouisiana Court of Appeal
DecidedDecember 7, 2016
DocketNO. 16-CA-160
StatusPublished
Cited by11 cases

This text of 204 So. 3d 1134 (Palmisano v. Ohler) 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
Palmisano v. Ohler, 204 So. 3d 1134, 16 La.App. 5 Cir. 160, 2016 La. App. LEXIS 2285 (La. Ct. App. 2016).

Opinion

CHEHARDY, C.J.

hOn appeal, plaintiff challenges the trial court’s finding that he failed to meet his burden of proof in this personal injury action. For the following reasons, we affirm the trial court’s ruling.

Facts and Procedural History

On September 24, 2012, Felix Palmisano, who was riding a bicycle, was hit by a truck driven by Walter J. Ohler, III, and owned by Walter Ohler, Jr., at the intersection of Causeway Boulevard and Jefferson Highway in Jefferson Parish. As a result of the. incident, Mr. Palmisano suffered injuries to his neck, his back, and his right leg.

On September 20, 2013, plaintiff filed a petition for damages against Walter Ohler, Jr., Walter Ohler, III (hereinafter “defendant”), and GEICO General Insurance Company (hereinafter “GEICO”) for the injuries he received as a result of the accident. On November 3, 2015, the bench trial commenced with testimony from plaintiff and defendant.

At trial, plaintiff testified that, at 9:45 p.m. on September 24, 2012, he was riding a bicycle on the sidewalk next to the southern lanes of Jefferson Highway. The southern, or river side, lanes of Jefferson Highway travel eastbound into Orleans Parish. Plaintiff admitted that he was traveling west on the sidewalk, which is against the flow of traffic in the southern three lanes of Jefferson Highway.

Plaintiff further stated that the bicycle that he was riding had reflectors on the front handlebars, rear seat, and wheels of the bicycle. He admitted that there was no headlamp on this bicycle.

Plaintiff testified that, as he approached the crossing where Causeway Boulevard runs south across Jefferson Highway, he saw a vehicle moving through the north end of the crossing. Plaintiff, however, did not stop but headed across |2Causeway Boulevard. Plaintiff stated that he thought he could make it across one lane before the vehicle made it across seven lanes. Plaintiff remembered hearing a car horn from one of the vehicles waiting at the red light then feeling the impact from the truck.

Defendant stated that he was traveling south on Causeway Boulevard towards River Road. When he was approaching the stop light at Jefferson Highway, it was initially red but changed as he approached. Because he had the green light and traffic was very light, defendant proceeded into the intersection. At trial, defendant stated that he did not see any obstacles until he caught the glare from the reflector on the wheel of plaintiffs bicycle in his headlights.. Defendant immediately slammed on his brakes but still impacted the bicyclist, who rolled onto the hood of defendant’s truck.

After hearing the testimony and evidence, the trial judge found in favor of the defendants and dismissed plaintiffs petition with prejudice. In his findings of fact, the trial judge stated:

The only two witnesses to testify at the trial of this matter were the parties involved in the accident. Each party gave conflicting and irreconcilable accounts of how the accident occurred, and there were, no independent or disinterested witnesses brought before the Court to testify regarding this matter.
[1137]*1137After listening to the testimony presented and carefully considering the demeanor of the witnesses on the stand, the Court has no reason to suspect the credibility of either party. Additionally, there was an absence of physical evidence introduced by either party to substantiate their account of the collision. Based upon the foregoing, the Court finds that the Plaintiff has failed to prove by a preponderance of the evidence that the defendant was at fault for this incident.
Thus, the Court finds that Felix Pal-misano has failed to meet his burden of proof, and the Petition for Damages is dismissed with prejudice....

Plaintiff is appealing that judgment.

jjLaw and Argument

On appeal, plaintiff raises four assignments of error: first, the “trial court erred in failing to apportion any percentage of fault between the plaintiff and defendant pursuant to La. C.C.P. Art. 1917(B) and La. C.C. Art. 2323 since such comparative fault is factual in nature;” second, the “trial court erred in failing to find that the defendant, Walter Ohler, III, was at fault or at least comparatively negligent for the sued upon accident;” third, the “trial court erred in finding that the plaintiff, Felix Palmisano, failed to meet his burden of proof by a preponderance of the evidence that the defendant, Walter Ohler, III, was at fault or at least partially at fault for the sued upon accident;” and fourth, the “trial court erred in failing to consider and apply the law regarding the defendant’s duty to see what he should have seen, and to use caution in proceeding when the plaintiff had preempted the intersection.” Defendant notes that the trial court found that the plaintiff failed to bear his burden of proof and, thus, the trial judge did not reach apportionment of fault.

Tort liability in Louisiana is governed by La. C.C. art. 2315, which states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” In a negligence action under Article 2315, the plaintiff bears the burden of proving fault, causation and damages. Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, 74; Beausejour v. Percy, 08-379 (La. App. 5 Cir. 10/14/08), 996 So.2d 625, 628. Causation is a factual finding, which should not be reversed on appeal absent manifest error. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, 561-62; Housley v. Cerise, 579 So.2d 973, 979 (La. 1991); Smith v. State through Dept, of H.H.R., 523 So.2d 815 (La. 1988).

¿Manifest Error Review

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, 14-2592 (La. 12/8/15), 193 So.3d 1110, 1115-17. Thus, a reviewing court may not merely decide if it would have found the facts of the case differently. Hall v. Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90, 98; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993).

The issue to be resolved on review is not whether the judge was right or wrong, but whether the judge’s fact-finding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong [1138]*1138standard demands great deference to the trier of fact’s findings; for 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 in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination.

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204 So. 3d 1134, 16 La.App. 5 Cir. 160, 2016 La. App. LEXIS 2285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/palmisano-v-ohler-lactapp-2016.