Short v. Terminix Pest Control, Inc.

104 So. 3d 119, 2011 La.App. 1 Cir. 2293, 2012 WL 4320445, 2012 La. App. LEXIS 1176
CourtLouisiana Court of Appeal
DecidedSeptember 21, 2012
DocketNo. 2011 CA 2293
StatusPublished
Cited by1 cases

This text of 104 So. 3d 119 (Short v. Terminix Pest Control, Inc.) 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
Short v. Terminix Pest Control, Inc., 104 So. 3d 119, 2011 La.App. 1 Cir. 2293, 2012 WL 4320445, 2012 La. App. LEXIS 1176 (La. Ct. App. 2012).

Opinion

GAIDRY J.

|2In this suit for damages arising out of an automobile accident, the defendant appeals from a judgment in the plaintiffs favor, and plaintiff answers the appeal. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit arises from an automobile accident which occurred on the morning of March 19, 2008 in Houma, Louisiana. Immediately prior to the accident, Delphine Short was traveling north on Grand Cail-[121]*121lou Road, and Terminex Pest Control (“Terminex”) employee Daniel Daigle was stopped in his Terminex truck at the stop sign on Evelyn Avenue at its intersection with Grand Caillou Road. Mr. Daigle then made a right turn onto Grand Caillou Road and entered the left northbound lane. Ms. Short either was already traveling in the left northbound lane or was in the process of entering the left northbound lane from the turning lane when the left front corner of Mr. Daigle’s truck collided with the passenger door side of her vehicle. Neither party reported any injuries at the time of the accident, but Ms. Short later developed back problems which she attributes to the accident.

Ms. Short filed suit against Mr. Daigle, Terminex, and Terminex’s insurer, alleging that Mr. Daigle was at fault in causing the accident and that the injuries Ms. Short sustained in the accident aggravated a previous back condition, causing extensive new damage and making surgery necessary.

A jury trial was held, after which the jury concluded that Mr. Daigle, not Ms. Short, was negligent in causing the accident and Ms. Short’s injuries. The jury awarded Ms. Short $150,000.00 for her past and future mental and physical pain and suffering, $25,000.00 for her past and future disability, $43,000.00 for her past and future loss of earnings or earning capacity, $131,000.00 for her past medical expenses, and $150,000.00 for |sher future medical expenses. The jury made no award for Ms. Short’s past and future loss of enjoyment of life. Ms. Short filed a motion for judgment notwithstanding the verdict, which the court granted in part, awarding Ms. Short $25,000.00 for her past and future loss of enjoyment of life. The court declined to increase the award for past and future pain and suffering as requested by Ms. Short. Defendants filed a motion for new trial, which was denied.

On appeal, defendants allege that the trial court erred in allowing the investigating police officer to testify at trial as to his opinion of the cause of the accident and in assigning 100% of the fault in the accident to Mr. Daigle. Ms. Short answered the appeal, asking this court to increase the jury’s general damages award.

DISCUSSION

Defendants first argue that the trial court erred in allowing the investigating police officer, who was not qualified as an expert witness under La. C.E. art. 702, to offer his opinion as to who caused the accident.

All relevant evidence is admissible, except as otherwise provided by law. La. C.E. art. 402. Relevant evidence is evidence having 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. Generally, a witness not testifying as an expert may not give testimony in the form of opinions or inferences. This rule is subject to the limited exception of Article 701 of the Louisiana Code of Evidence, which provides that a lay witness may provide testimony in the form of opinions or inferences where those opinions or inferences are: (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his testimony or the determination of a fact at issue. Rideau v. State Farm Mutual Automobile Insurance Company, 06-0894, p. 6 (La.App. 1 Cir. 8/29/07), 970 So.2d 564, 572. Thus, if an investigating police officer is not qualified as an accident reconstruction expert, his testimony in the form of opinions is limited to those opinions based upon his rational perception of the facts and recollections [122]*122pertaining to the scene of the accident. Whether Article 701 was violated is a determination within the discretion of the trial court. The trial court is granted broad discretion in its evidentiary rulings, and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Id.

At the trial of the matter, Ms. Short sought to have the court exclude the police report, which was listed by the defendants as a potential trial exhibit, from evidence as inadmissible hearsay under La. C.E. art. 803(8)(b)(i). Ms. Short also objected to the testimony of the police officer at trial, since even after reading the police report, he had no independent recollection of the events contained therein. The trial court ruled that the police report itself was inadmissible, but that the officer could refresh his memory from the police report in order to testify at trial.

Defendants then called Houma Police Officer Joseph Renfro as a witness over plaintiffs objection. Officer Renfro testified that he had no independent recollection of the accident and could only testify as to what was in the report. Officer Renfro testified that the parties told him that Mr. Daigle entered the left northbound lane at about the same time that Ms. Short was entering the left northbound lane from the turn lane. However, on cross-examination by plaintiff, Officer Renfro testified that he gave Mr. Daigle a violation for Improper Turn, but did not give any violations to Ms. Short. Defendants objected to this testimony by Officer Renfro, but following an off-record discussion, the officer was allowed to testify. IsAlthough Officer Renfro could not recall at trial why he had given the violation to Mr. Daigle, he acknowledged his deposition testimony that he did so because he had determined from his diagram of the accident scene that Ms. Short had already entered and controlled the left northbound lane when Mr. Daigle turned off of Evelyn Avenue into her lane. Officer Renfro also testified that he does not write down verbatim what he is told by the parties at the accident scene; rather, his report is a summary of what the parties told him and may have been written up to forty-eight hours after he investigated the accident, and therefore it is possible his report may contain errors or miscommunications.

Although the defendants object on appeal to Officer Renfro’s testimony, it was the defendants who called Officer Renfro to testify, over objections from the plaintiff, at trial. Officer Renfro’s testimony that he determined, from his diagram of the accident scene, that Ms. Short entered and controlled the lane before reaching the intersection with Evelyn Avenue, was rationally based upon his perceptions of the accident scene and helpful to the determination of a fact at issue. Thus, the trial court did not abuse its discretion in allowing the officer to testify. This assignment of error by defendants is without merit.

Defendants next allege that the jury erred in concluding that Mr. Daigle was solely at fault in causing the accident. Defendants argue that based upon Ms. Short’s testimony that she is unable to see from her right eye and that she does not remember ever seeing the Terminex truck prior to the collision, as well as Mr. Dai-gle’s testimony that he stopped at the stop sign on Evelyn Avenue and looked both ways to make sure traffic was clear before proceeding onto Grand Caillou, it was error for the jury to find that Mr. Daigle was solely at fault in the accident. Ms.

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Bluebook (online)
104 So. 3d 119, 2011 La.App. 1 Cir. 2293, 2012 WL 4320445, 2012 La. App. LEXIS 1176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/short-v-terminix-pest-control-inc-lactapp-2012.