Phelps v. White

645 So. 2d 698, 1994 WL 541515
CourtLouisiana Court of Appeal
DecidedOctober 5, 1994
Docket94-267
StatusPublished
Cited by9 cases

This text of 645 So. 2d 698 (Phelps v. White) 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
Phelps v. White, 645 So. 2d 698, 1994 WL 541515 (La. Ct. App. 1994).

Opinion

645 So.2d 698 (1994)

Ernest PHELPS, Plaintiff-Appellant,
v.
Richard WHITE, et al., Defendants-Appellees.

No. 94-267.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1994.
Rehearing Denied December 14, 1994.

*699 Laura E. Fahy, Patrick Dennis McArdle, New Orleans, for Ernest Phelps.

Chester James Rothkamm Jr., Baton Rouge, for Richard White et al.

Douglas Nealon Stracener, Baton Rouge, for Martrain Marine.

Before LABORDE, KNOLL and THIBODEAUX, JJ.

KNOLL, Judge.

This personal injury case involves a boating accident on Lake Concordia and raises questions of comparative fault and damages. Ernest Phelps, the surviving husband of Mary Phelps, appeals a jury determination that he was 75% at fault for the death of his wife in a boating accident and that Richard White (hereafter Mr. White), the operator of the other boat involved in the accident, was 25% at fault. Even though the jury found Mr. White 25% at fault, it neither awarded damages in favor of Mr. Phelps for the wrongful death of his wife nor recompensed him for property damages. The jury made no award for punitive damages.

Mr. Phelps contends that: (1) the jury's finding him 75% at fault was clearly wrong; and, (2) the jury's failure to award him damages for the wrongful death of his wife, property damages, and punitive damages is erroneous as a matter of law. We affirm in part, reverse in part, and render.

*700 FACTS

At approximately 4 p.m. on April 25, 1987, Mr. Phelps and his wife, Mary, launched their 14 foot wooden boat equipped with a 25 horsepower engine from the Sportsmen's Lodge and proceeded in a northeasterly direction on Lake Concordia to fish the lake. As the Phelps's boat proceeded from the dock, Mr. White was piloting a 16 foot Arrow Glass bass boat equipped with a 115 horsepower engine; the White boat was travelling parallel to shore and moving from east to west. When Mr. and Mrs. Phelps were approximately 150 feet from shore, Mr. White's bass boat struck their wooden boat on the starboard side at approximately the middle of the boat and became airborne. Mrs. Phelps was thrown into the water and died shortly thereafter from internal injuries associated with the collision of the two boats.

Mr. Phelps sued Mr. White, the owner and operator of the bass boat, Homer Miller, the previous owner of the boat and father-in-law of Mr. White, and Martrain Marine, Inc., the corporation which originally sold the boat and motor. Even though the jury rendered its verdict allocating fault 75% to Mr. Phelps and 25% to Mr. White, it awarded no damages. The trial judge granted judgment in accordance with the jury verdict and further awarded Mr. Phelps a proportionate share of $5,878, the stipulated medical and funeral expenses. Mr. Phelps' subsequent motion for JNOV was denied by the trial court. This appeal followed.

APPORTIONMENT OF FAULT

Mr. Phelps contends that the jury was manifestly erroneous in its assessment of any fault against him. Instead, he argues that Mr. White bears total fault for this boating accident.

For an appellate court to reverse a trial court's factual findings, it must find from the record that a reasonable factual basis does not exist for the trial court's findings and that the record establishes that the findings are clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Accordingly, the reviewing court must do more than simply examine the record for some evidence which supports or controverts the trial court's findings. The appellate court must review the record in its entirety to determine whether the trial court's findings were clearly wrong or manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993).

The issue which the appellate court must resolve is not whether the trier of fact was right or wrong, but whether the conclusions of the fact finder were reasonable. Id. Even though a reviewing court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where testimonial conflict exists. Id. The rule that questions of credibility are for the fact finder applies equally to the evaluation of expert testimony, unless the expert's reasons are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990).

In Rosell v. ESCO, 549 So.2d 840 (La. 1989), the Louisiana Supreme Court made it abundantly clear that where two permissible views of the evidence exist, the fact finder's choice between them cannot be clearly wrong. Nevertheless, Rosell further stated that where the documents or objective evidence so contradict the witness's story, or the story is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, a reviewing court may find manifest error or clear wrongness even in a credibility determination. Id.

Applying this standard of review to the specific issue raised in the case sub judice, it is well settled that the jury's allocation of fault is a factual finding which an appellate court will not disturb, unless, upon articulated and detailed analysis and reasons, it is demonstrable that the jury's allocation of fault is clearly wrong. Rodgers v. National Dealer Services, Inc., 508 So.2d 1007 (La. App.2d Cir.), writs denied, 512 So.2d 1183 and 513 So.2d 1211 (La.1987).

As an introduction to our analysis of this issue, we refer first to the testimony of Captain Claude R. Davenport, Mr. Phelps's expert witness in marine safety. Captain Davenport *701 testified that there are rules of the road for waterways, just like there are for highways. In a crossing situation, he stated that the vessel which has the other vessel on its right (starboard) side is referred to as the burdened vessel and the vessel approaching the right (starboard) side of the other boat is the privileged vessel. If, however, one vessel comes from an angle of 35° from the stern (the rear or back of a boat), this becomes an overtaking situation and not a crossing situation. Thus, the ultimate facts which are determinative of liability rest squarely with the resolution of the question of whether Mr. White was either crossing or overtaking Mr. Phelps's boat.

Mr. Phelps testified that he and his wife were proceeding from the dock area at the Sportsmen's Lodge in a northeasterly direction at approximately 5 to 10 miles per hour. He stated that as he cleared the dock, he noticed a motor boat on his starboard side, running close to the shore at least ¼ mile away which posed no threat to his entry into the lake. He testified that just before the accident he was handling his boat and watching where he was going. However, when his boat was approximately 150 feet from shore, Mr. White's boat struck their boat, hitting Mrs. Phelps and throwing her overboard.

The owner of the Sportsmen's Lodge, Jean Bongiovanni, testified that she saw Mr. White's boat travelling fast and that there was a passenger riding on the pedestal seat of Mr. White's boat. She saw Mr. Phelps's boat idling as it traversed the lake in a northeasterly direction. She observed Mr. White's boat veer to the right toward Mr. Phelps's boat as Mr. White's boat approached the lodge's pier and watched it as it went airborne over Mr. Phelps's boat.

A family consisting of 7 members was fishing from 3 different boats in the area of the accident. Marie Worthey, one of the family members, testified that Mr.

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Bluebook (online)
645 So. 2d 698, 1994 WL 541515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelps-v-white-lactapp-1994.