Scott v. State Farm Fire & Casualty Co.

106 So. 3d 607, 2012 WL 4373389, 2012 La. App. LEXIS 1216
CourtLouisiana Court of Appeal
DecidedSeptember 26, 2012
DocketNo. 47,490-CA
StatusPublished
Cited by5 cases

This text of 106 So. 3d 607 (Scott v. State Farm Fire & Casualty 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
Scott v. State Farm Fire & Casualty Co., 106 So. 3d 607, 2012 WL 4373389, 2012 La. App. LEXIS 1216 (La. Ct. App. 2012).

Opinion

LOLLEY, J.

| franklin Scott appeals the judgment of the First Judicial District Court, Parish of Caddo, State of Louisiana, in favor of the defendant, the Parish of Caddo. For the following reasons, we affirm the trial court’s judgment.

FACTS

On March 29, 2009, at 12:05 p.m., Scott was driving a tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish, Louisiana. Although Scott had already traveled this section of road several times that day, a 90-foot pine tree located on private property had fallen across the road blocking both lanes since the last time he passed through. The tree had fallen across the road only 45 minutes prior to Scott’s arrival and no emergency crews had had an opportunity to respond. Scott failed to see the fallen tree in time to avoid it and hit the tree with his truck. Scott’s truck slid 350 feet from the point of impact, hitting various other trees before coming to a rest. As a result of the accident, Scott suffered serious injury to his neck.

In his original petition, Scott filed a suit for personal injury against the Parish of Caddo (the “Parish”), property owners Roger and Marilyn Connell, and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the right of way from potentially hazardous conditions. Subsequently a settlement was reached with the Connells and State Farm, and Scott reserved his right to proceed against the Parish.

Scott’s claim against the Parish was tried in a bench trial. After reviewing all the evidence, the trial court concluded that Scott failed to |2prove the Parish had actual or constructive notice of the dangerous condition posed by the dead tree prior to the collision and, therefore, the Parish was [610]*610not Hable for damages. Judgment was rendered in favor of the Parish, and this appeal by Scott followed.

DISCUSSION Admissibility of Evidence

Initially, we address Scott’s assignment of error regarding the evidence considered at trial. Scott asserts that the trial court erred by relying on “incompetent, inadmissible evidence” concerning the policies and procedures of neighboring Webster and Bossier Parishes. We disagree.

Evidence is relevant whenever it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. The trial court is granted broad discretion in its evidentia-ry rulings, which will not be disturbed on appeal absent a clear abuse of that discretion. Hays v. Christus Schumpert Northern La., 46,408 (La.App.2d Cir.09/21/11), 72 So.3d 955.

The Parish first called Ronnie Andrews, the Public Works Director for the Bossier Parish Highway Department. Andrews had been an employee of that department for almost 30 years. Next, the Parish called Teddy Holloway, the Public Works Director for the Webster Parish Highway Department. Holloway had been employed by the Webster Parish Highway Department for 14 years. Both witnesses discussed the mileage and type of roadway which they were responsible for maintaining. The | ^witnesses also testified to their departments’ policies concerning when to inspect a road and how a road inspection is completed.

The testimony from Ted Holloway and Ronnie Andrews concerning the practices of Webster and Bossier Parishes, respectively, was not incompetent or inadmissible. The record reflects that both witnesses had personal knowledge of the policies and practices of their respective parishes gained from years of work experience. Additionally, the testimony was relevant in that it covered the practices used by neighboring parishes with similar conditions and hazards as the Parish and went to show that the practices employed by the Parish were not exceptional but rather customary among similarly situated parishes. As previously stated, the trial court is granted wide discretion in its evidentia-ry rulings, and we do not find rebanee on this evidence to be an abuse of that discretion. Furthermore, even if the testimony of these witnesses was inadmissible, the error would be harmless as their testimony was generally corroborated by expert witness Joseph Blaschke. This assignment of error is without merit.

Knowledge of the Hazardous Condition

Scott also argues that the trial court erred by finding that the Parish did not have constructive notice of the dead tree before it fell onto Keatchie-Marshall Road. Specifically, Scott claims that because of the bright red needles at the crown of the tree and a distinct lack of bark along the trunk of the tree, both of which he argues are indicative of a dead pine tree, the Parish road crews should have noticed and removed the tree long before it fell into the road. We disagree.

|4A trial court’s findings of fact will not be disturbed on appeal unless the reviewing court finds that they are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993); Morton v. Hicks, 46,991 (La.App.2d Cir.09/28/11), 74 So.3d 268, writ denied, 2011-2140 (La.09/30/11), 71 So.3d 297. To reverse a fact finder’s [611]*611determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart, supra. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Further, when findings are based on determinations regarding credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings. Id. Only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in that which is said. Orea v. Scallan, 32,622 (La.App.2d Cir.01/26/00), 750 So.2d 488.

The state is not the guarantor of the safety of travelers, but owes a duty to keep highways and shoulders reasonably safe for non-negligent motorists. Lewis v. State through Dept. of Transp. and Dev., 94-2370 La.04/21/95), 654 So.2d 311, 314. In order to establish a breach of the state’s duty to maintain safe ty for the motoring public, a plaintiff must show that: 1) a hazardous condition existed; 2) the state had actual knowledge of the condition; and, 3) the state failed to take corrective action within a reasonable time. Id. at 315, citing Briggs v. Hartford Ins. Co., 532 So.2d 1154 (La.1988).

In the present case, the trial court was not manifestly erroneous in finding that the Parish lacked actual or constructive notice of the dead tree, as the record reflects a reasonable factual basis for all of the trial court’s conclusions. The trial court found that the tree, located in a stand of pines and hardwoods, could not have been spotted by a drive-by inspection. Regarding this issue, the trial court heard testimony from two expert witnesses, Tom Bourland and Steve Muslow.

Bourland, Scott’s expert forester, testified that the tree could not have been missed during a drive-by inspection of the road.

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106 So. 3d 607, 2012 WL 4373389, 2012 La. App. LEXIS 1216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-state-farm-fire-casualty-co-lactapp-2012.