Thongsavanh v. Schexnayder

40 So. 3d 989, 2009 La.App. 1 Cir. 1462, 2010 La. App. LEXIS 666, 2010 WL 1837837
CourtLouisiana Court of Appeal
DecidedMay 7, 2010
Docket2009 CA 1462
StatusPublished
Cited by17 cases

This text of 40 So. 3d 989 (Thongsavanh v. Schexnayder) 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
Thongsavanh v. Schexnayder, 40 So. 3d 989, 2009 La.App. 1 Cir. 1462, 2010 La. App. LEXIS 666, 2010 WL 1837837 (La. Ct. App. 2010).

Opinions

GAIDRY, J.

|2A driver involved in a motor vehicle accident appeals a judgment against her for personal injury damages awarded to a passenger in another vehicle, and the passenger answers the appeal, seeking modification of the allocation of fault and an increase in the damages awarded. For the following reasons, we affirm the trial court’s judgment and deny the answer to the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Phouthone Thongsavanh, and her husband, Southone Thongsavanh, are natives of Laos and residents of Ascension Parish. Plaintiff, who is presently 58 years old, has unfortunately been quadriplegic and totally disabled since 1998.

This action arose from a motor vehicle accident that occurred shortly after 5:00 p.m. on December 5, 2005 in Ascension Parish, near the City of Gonzales. The [993]*993accident occurred at the intersection of U.S. Highway 61 (Airline Highway) and Louisiana Highway 431 (which becomes Louisiana Highway 30 on the western side of Airline Highway). Airline Highway is a four-lane highway with two northbound lanes and two southbound lanes, with additional right and left turning lanes in both directions at the intersfection at issue. Louisiana Highway 431 is a two-lane highway, with a right turning lane for entry into the right or outer northbound lane of Airline Highway. The intersection is controlled by traffic lights.

Immediately prior to the accident, Robert Groome was operating his pickup truck in the right northbound lane of Airline Highway, approaching the intersection. At the same time, Martha W. Schexnayder was operating her automobile in the opposite, southbound direction, in the left turn lane. Plaintiffs husband was operating their Volkswagen Beetle automobile in the | aright turning or outer lane of Louisiana Highway 431, preparing to turn right onto Airline Highway northbound. Mr. Groome proceeded through the intersection pursuant to a green traffic signal. The traffic signal facing Ms. Schexnayder was also green, but there was no green turn arrow granting turning traffic the right of way. After Ms. Schexnayder initiated a left turn, her automobile struck Mr. Groome’s pickup truck on the driver’s side, causing it to rotate clockwise. The pickup truck then struck the driver’s side of the Volkswagen occupied by plaintiff and her husband. As the result of the impact between Mr. Groome’s pickup truck and the Volkswagen, plaintiff sustained significant injuries.

Plaintiff and her husband filed suit on December 5, 2006, naming as defendants Ms. Schexnayder and her liability insurer, Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau), and Mr. Groome and his liability insurer, State Farm Mutual Automobile Insurance-Company (State Farm).1 The defendants filed answers, denying liability and affirmatively alleging the comparative fault of each other and plaintiffs husband.

The case was tried before a jury on May 13 and 14, 2008. Following the trial, the jury returned a verdict in favor of plaintiff and against Ms. Schexnayder (defendant) and her insurer, finding defendant 90% at fault, Mr. Thongsavanh 10% at fault, and Mr. Groome free from fault. The jury awarded plaintiff $150,000.00 in total damages, itemized as follows:

Physical pain and suffering (past and
future): $50,000.00;
Mental pain and suffering (past and
future): $19,328.17;
Past medical expenses: $61,342.66;
Permanent disability: $19,329.17.

I/The trial court signed a judgment in accordance with the jury’s verdict on October 15, 2008, adjudging defendant and Farm Bureau in judgment in solido for $13,674.71 and defendant solely liable for the balance of $121,325.29.2 All court costs were assessed to Farm Bureau, and legal interest on the judgment was apportioned to defendant and Farm Bureau according to the terms of Farm Bureau’s policy.

On October 29, 2008, defendant and Farm Bureau filed a motion for judgment notwithstanding the verdict (JNOV) and an alternate motion for new trial. Those post-trial motions were heard on January 30, 2009, and denied by the trial court by judgment signed on March 2, 2009.

[994]*994Defendant now appeals, and plaintiff has answered the appeal.

ASSIGNMENTS OF ERROR

We summarize defendant’s assignments of error as follows:

1. The trial court committed legal error by excluding from evidence a recorded statement of one of the defendant drivers.

2. The trial court committed legal error by excluding from evidence diagrams of the accident scene prepared by an accident reconstruction expert.

3. The trial court committed legal error in its qualification of the interpreter used to translate testimony at trial, as the interpreter was not certified and was acquainted socially with plaintiff and her husband.

4. The jury was clearly wrong or manifestly erroneous in its apportionment of only 10% fault for the accident to plaintiffs husband.

5. The jury abused its discretion by awarding excessive amounts for elements of general damages.

| Jn her answer to the appeal, plaintiff contends that the jury was clearly wrong in finding and apportioning 10% of the fault for the accident to her husband and that the jury abused its discretion in awarding her inadequate damages.

DISCUSSION

Written Statement of Defendant Driver

Following the accident at issue, Mr. Groome, the driver of the pickup truck, prepared a brief written statement describing what he observed, and his statement was made part of the investigating state police trooper’s accident report. In that written statement, Mr. Groome explained that “[there] was no place to swerve because there was a car pulling onto Hwy 61 [Airline Highway] North bound [sic],” and that he “tried to miss the white car but hit it and slammed into the black car.” Defendant’s automobile was white; the Volkswagen occupied by plaintiff and her husband was black. The basis of defendant’s contention that plaintiffs husband, Mr. Thongsavanh, was negligent was his alleged intrusion into or toward Mr. Groome’s lane of travel.

Defendant contends that the written statement was properly admissible in evidence as a “present sense impression” under La. C.E. art. 803(1), which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present sense impression. A statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition, or immediately thereafter.

We disagree. Although Mr. Groome acknowledged preparing and signing his written statement on the day of the accident, there was no evidentiary foundation laid to satisfy the critical requirement of immediacy following |fithe perceived event. The supreme court has explained the phrase “immediately thereafter” as “allowing only for ‘the time needed for translating observation into speech.’ ” Buclcbee v. United Gas Pipe Line Co., Inc., 561 So.2d 76, 84 (La.1990).

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Thongsavanh v. Schexnayder
40 So. 3d 989 (Louisiana Court of Appeal, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
40 So. 3d 989, 2009 La.App. 1 Cir. 1462, 2010 La. App. LEXIS 666, 2010 WL 1837837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thongsavanh-v-schexnayder-lactapp-2010.