Shaquana Harvey, Individually and in Her Capacity as the Natural Tutrix of Jaden Harvey v. Eric Wayne Hamby, Plaquemines Parish Sheriff's Office, Through Gerald A. Turlich, Jr., Sheriff, and American Alternative Insurance Corporation

• Court: Louisiana Court of Appeal
• Decided: May 17, 2024
• Docket: 2023-CA-0756
• Status: Published

Opinion

SHAQUANA HARVEY, * NO. 2023-CA-0756 INDIVIDUALLY AND IN HER CAPACITY AS THE NATURAL * TUTRIX OF JADEN HARVEY COURT OF APPEAL * VERSUS FOURTH CIRCUIT * ERIC WAYNE HAMBY, STATE OF LOUISIANA PLAQUEMINES PARISH ******* SHERIFF'S OFFICE, THROUGH GERALD A. TURLICH, JR., SHERIFF, AND AMERICAN ALTERNATIVE INSURANCE CORPORATION

APPEAL FROM 25TH JDC, PARISH OF PLAQUEMINES NO. 64-194, DIVISION “A” Honorable Kevin D. Conner, Judge ****** Judge Roland L. Belsome ****** (Court composed of Chief Judge Terri F. Love, Judge Roland L. Belsome, Judge Dale N. Atkins) ATKINS, J., CONCURS IN THE RESULT.

Michael G. Riehlmann Brett J. Prendergast Jacque R. Touzet ATTORNEY AT LAW 4603 S. Carrollton Ave. New Orleans, LA 70119

COUNSEL FOR PLAINTIFF/APPELLEE

Daniel R. Martiny James B. Mullaly Jeffrey D. Martiny MARTINY & ASSOCIATES, LLC 131 Airline Drive Suite 201 Metairie, LA 70001

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED May 17, 2024 RLB TFL This appeal arises from the trial court’s allocation of fault in an automobile

accident involving Deputy Eric Wayne Hamby (“Hamby”) and Jaden Harvey

(“Jaden”). Jaden is represented by his mother, Shaquana Harvey (“Ms. Harvey”),

in her capacity as his natural tutrix. The trial court found Hamby 65% at fault and

Jaden 35% at fault in the cause of this crash. We affirm for the reasons below.

FACTUAL BACKGROUND

Hamby was traveling on Ferry Access Road in Point a la Hache in the

afternoon of January 13, 2017. He was driving a Plaquemines Parish Sheriff’s

Office vehicle. Eight-year-old Jaden was riding a small motorbike1 on the levee.

At the point where Ferry Access Road intersects with the levee, the two collided.

With his mother’s permission and encouragement, Jaden was riding his motorbike

to meet friends to play basketball. The ride to the basketball court was three to

four miles. He had driven this route before. Jaden testified that he was traveling at

20 miles per hour2 at the time of the collision. He also testified that his only

training to drive his motorbike came from his brother, who taught him how to

1 2017 TTR 110 motorbike. 2 Jaden testified that his motor bike did not have a speedometer but gauged it based

on the amount of wind he felt going by him. 1 handle, break, and switch gears. He was taught that he had the right of way when

driving past the ferry landing on the levee. That last instruction was incorrect.

Neither party contests the amount of damages found by the trial court.

However, the injuries Jaden suffered provide some insight into the speed of the

vehicles and the force of the impact. Jaden lost consciousness and suffered injury

to his leg so severe that it required surgery to install a metal rod to repair it. He

was hospitalized approximately three weeks and wore a hip-to-shin cast upon his

release. Although he was wearing a helmet at the time of the wreck, it was not

properly buckled. It came off at impact and Jaden suffered a significant laceration

of his head. His injuries continued to give him pain through the time of trial.

PROCEDURAL HISTORY

After a bench trial on September 14, 2022, the court rendered judgment

finding Hamby 65% at fault and Ms. Harvey 35% at fault. No fault was assigned to

Jaden because of his youthful age but the trial court held Ms. Harvey liable for

Jaden’s comparative fault. That judgment was appealed.3 On appeal, our Court

held that the trial court erred when it determined that Jaden was not capable of

negligence because of his young age. The case was remanded to the trial court so

that Jaden’s comparative fault could be addressed.

On remand, no additional evidence was offered. On the basis of the record

at trial, the court issued an amended judgment on October 11, 2023, in which fault

was apportioned 65% to Hamby and 35% to Jaden. Ms. Harvey was not held to be

at fault. Hamby appealed the amended judgment contesting any liability on his

3 Harvey v. Hamby, 2023-0084 (La. App. 4 Cir. 10/4/2023), 376 So.3d 225.

2 part. Ms. Harvey answered the appeal arguing that Hamby should have been

assigned a greater degree of fault.

ANALYSIS

Hamby seeks relief on this appeal solely on the apportionment of fault. The

Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66,

(La. 10/30/00), 773 So.2d 670, 680, held that the trier of fact is granted “much

discretion” and is owed “some deference in allocating fault.” It follows, according

to the court, that the standard of review on appeal is manifest error.

Hamby argues that Jaden was negligent in 1) illegally operating his motorbike

on an unpaved levee; 2) operating his motorbike at an unreasonable speed; and 3)

approaching an intersection without exercising heightened observation. The record

gives some factual support to Hamby’s argument. On cross examination, Jaden

agreed that he had tried to beat Hamby’s car through the intersection. However,

the transcript shows that moments later, Jaden contradicted himself, saying that

Hamby’s car approached so quickly that he could not do anything to avoid it.

Hamby also argues that even if the trial court did not err in finding Ms. Harvey

was capable of fault, the allocation of 65% is excessive. An appellate court’s

determination of whether the trial court was clearly wrong in its allocation of fault

is guided by the factors set forth in Watson v. State Farm Fire & Casualty

Insurance Co., 469 So.2d 967, 974 (La.1985). In Watson, the court wrote that

when assigning fault the trier of fact must consider whether the conduct in question

resulted from inadvertence, how great a risk the conduct created, the significance

of the object of the conduct, the capacities of the actors, and any extenuating

circumstances.

3 In the October 2023 judgment, the trial court did not make an extensive

analysis of the respective fault of the parties. In reasons for judgment issued with

the October 2022 judgment the court laid out the considerations for its

apportionment. As we noted above, no new evidence was adduced on remand.

Therefore, our court may rely on the methodology in the earlier judgment. The

court wrote that:

Hamby was traveling at a rate of approximately 16 miles per hour when approaching the Pointe-a-la-Hache Ferry dock. For an area that is heavily trafficked in the afternoon, 16 miles per hour is not a reasonable speed since drivers are not able to see over the levee until they have reached the top. During the trial, plaintiffs examined accident reconstructionist, Wayne Winkler, who opined that 16 miles per hour was an unreasonable speed considering the environment. Mr. Winkler further explained that, with consideration of perception and reaction time, Mr. Hamby was able to see Jaden Harvey on his motorbike when his vehicle was 38-44 feet from the point of impact; however, because Mr. Hamby was driving at a rate unreasonable for the environment, he was unable to stop before the collision occurred.

The trial court agreed with Hamby that Jaden’s use of the levee as a roadway

was contrary to law. However, the court also noted that it is customary for people

to ride on the levee. Under the circumstances, the trial court ruled that Hamby

should have foreseen the possibility that someone may have been approaching the

intersection of the levee and the ferry ramp. It is also worth noting that a

significant number of government vehicles are legally permitted to drive on the

levee. This heightens the likelihood of intersectional collisions if drivers fail to

account for vehicles in both directions approaching the levee.

The trial court properly took into account the Watson rule that a court must

consider the capacity of the actors. In keeping with that instruction, the trial court

4 held that Jaden’s conduct must be judged according to his age. Hamby, as an adult,

should not be judged by the same standard.

It appears from the judge’s written reasons for judgment in the judgment and

the amended judgment that the trial court adequately considered the factors

enumerated in Watson. We do not find that the apportionment is clearly wrong or

manifestly erroneous. Based on the standard of review by which we are bound, we

must affirm the trial court’s apportionment of fault. As we have found the trial

court correctly apportioned fault, we find no merit to Ms. Harvey’s claims raised

by her Answer. Therefore, no award of costs is warranted.

AFFIRMED