Simmons v. Jackson

262 So. 3d 995
CourtLouisiana Court of Appeal
DecidedDecember 19, 2018
DocketNO. 18-CA-141
StatusPublished

This text of 262 So. 3d 995 (Simmons v. Jackson) 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
Simmons v. Jackson, 262 So. 3d 995 (La. Ct. App. 2018).

Opinion

CHAISSON, J.

In this case arising out of an automobile accident, Joseph Simmons, Jr. appeals a December 6, 2017 judgment in favor of Cornell Jackson and the Parish of Jefferson. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On November 8, 2013, Mr. Jackson, a Jefferson Parish employee, was driving east on the Westbank Expressway Service Road in Marrero when his vehicle collided with a vehicle driven by Mr. Simmons, who was attempting to cross the service road at its intersection with Robinson Avenue. At this intersection, there is no traffic control device for the service road, but there is a stop sign controlling traffic traveling on Robinson Avenue.

On June 24, 2014, Mr. Simmons filed a petition for damages in which he alleged that Mr. Jackson, who was acting in the course and scope of his employment with the Parish, was negligent in failing to yield the right of way, failing to maintain control of his vehicle, reckless and negligent operation of his motor vehicle, failing to see what should be seen, and other acts of negligence which caused the accident. Mr. Simmons prayed for recovery for his damages, which included bodily injury, mental anguish, medical expenses, loss of earnings and earning capacity, and other economic loss.

In their answer to Mr. Simmons' petition, defendants averred that the sole and proximate cause of Mr. Simmons' damages was his own negligence or fault, in particular: failing to see what should have been seen, failing to use proper care, and disregarding a stop sign.

The case proceeded to a bench trial on November 29, 2017. Both Mr. Simmons and Mr. Jackson testified as to their recollections of the accident. The court also heard testimony from the investigating officer, Louisiana State Trooper Henry J. Thompson, III, and received into evidence his police report, which contained a statement from an "anonymous" witness to the accident. The deposition of defendants' expert witness in accident reconstruction, Vernon O. Tekell, Jr., was also received into evidence. Both Trooper Thompson and Mr. Tekell shared the opinion that the accident at issue was caused by the fault of Mr. Simmons.

The court rendered judgment on December 6, 2017, in favor of defendants. In *998its written reasons for judgment, the trial court found that Mr. Simmons failed to meet his evidentiary burden. In his appeal of this judgment, Mr. Simmons raises two assignments of error: first, the trial court erred in admitting the deposition testimony of the expert witness, Mr. Tekell; and second, the trial court erred in admitting hearsay evidence when it allowed Trooper Thompson to narrate the statement from the anonymous witness. Although not specifically assigned as error, Mr. Simmons also argues that the trial court erred in finding that he was at fault in causing this accident and that Mr. Jackson was free from fault.

DISCUSSION

Beginning with Mr. Simmons' first assignment of error, under La. C.E. art. 103, error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and a timely objection stating the specific ground of the objection appears in the record. At trial, Mr. Simmons did not object to the introduction of Mr. Tekell's deposition transcript into evidence, and therefore, pursuant to La. C.E. art. 103, this assignment of error is without merit. Burgard v. Allstate Ins. Co. , 04-1394 (La. App. 5 Cir. 5/31/05), 904 So.2d 867, 879 ; see also Petre v. State ex rel. Department of Transp. & Dev. , 00-545 (La. App. 3 Cir. 12/29/00), 775 So.2d 1252, 1265.

Turning next to Mr. Simmons' contention that the trial court erred in admitting hearsay evidence, a review of the transcript of the trial proceedings shows that although Mr. Simmons objected to Trooper Thompson's reading aloud the anonymous witness's account of the accident, which objection was sustained, Mr. Simmons' counsel specifically stated that he had no objection to the introduction of Trooper Thompson's accident report that contained the witness's statement. Having failed to object at trial to the introduction of the accident report, Mr. Simmons has failed to preserve this objection for appeal and this assignment of error is also without merit. La. C.E. art. 103 ; Burgard , supra.

Although Mr. Simmons did not specifically assign as error the trial court's factual determinations regarding fault, we nevertheless address Mr. Simmons' argument that the trial court erred in finding that he was at fault in causing this accident and that Mr. Jackson was free from fault.

The court of appeal may not disturb the conclusions of the factfinder in the absence of manifest error or unless a particular finding of fact is clearly wrong. Estes v. Wal-Mart Stores, Inc. , 01-289 (La. App. 5 Cir. 10/17/01), 800 So.2d 1018, 1022. The question is not whether the factfinder was right or wrong, but whether the conclusion was a reasonable one. Id. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. Thus, where there are two views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. When findings are based on determinations regarding the credibility of witnesses, the manifest error - clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations of demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Loya v. Loya , 17-555 (La. App. 5 Cir. 2/21/18), 239 So.3d 1048, 1054 (citing Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989) ).

*999In this case, the trial court was presented with conflicting testimony concerning the facts leading up to the automobile accident. Mr. Simmons, who was traveling south on Robinson Avenue, was confronted with a stop sign at that intersection. There is no stop sign, or other traffic control device, directing the movement of vehicles traveling on the service road at its intersection with Robinson Avenue; therefore, vehicles traveling on the service road have the right of way at this intersection.

Mr.

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Related

Petre v. State Ex Rel. DOTD
775 So. 2d 1252 (Louisiana Court of Appeal, 2000)
Burgard v. Allstate Ins. Co.
904 So. 2d 867 (Louisiana Court of Appeal, 2005)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Loya v. Loya
239 So. 3d 1048 (Louisiana Court of Appeal, 2018)
Estes v. Wal-Mart Stores, Inc.
800 So. 2d 1018 (Louisiana Court of Appeal, 2001)

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Bluebook (online)
262 So. 3d 995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-jackson-lactapp-2018.