Waters v. Oliver

223 So. 3d 37, 2016 La.App. 4 Cir. 1262, 2017 WL 2687412, 2017 La. App. LEXIS 1160
CourtLouisiana Court of Appeal
DecidedJune 22, 2017
DocketNO. 2016-CA-1262
StatusPublished
Cited by12 cases

This text of 223 So. 3d 37 (Waters v. Oliver) 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
Waters v. Oliver, 223 So. 3d 37, 2016 La.App. 4 Cir. 1262, 2017 WL 2687412, 2017 La. App. LEXIS 1160 (La. Ct. App. 2017).

Opinion

Judge Rosemary Ledet

JjjThis is a personal injury case. The plaintiff, Leon Waters, filed suit for damages for injuries sustained on a Regional Transit Authority (“RTA”) bus when the bus came to an abrupt stop to avoid hitting a preceding vehicle. Following a bench trial, the trial court awarded $695,544.27 in damages in favor of Mr. Waters and against RTA; Veolia Transportation Services, Inc. (“Veolia”); and its insurer, Old Republic Insurance Company (“Old Republic”) (collectively the “Defendants”). The trial court also found the preceding vehicle thirty percent (30%) at fault and thus reduced the damages award to $486,881.00.1 Both Mr. Waters and Defendants appeal. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On Friday, October 22, 2010 at 10:02 p.m., Mr. Waters boarded a RTA bus in front of the Whole Foods Market on Magazine Street in New Orleans, Louisiana.2 [41]*41After entering the bus, Mr. Waters proceeded to the priority seating ^section3 and sat down in a priority seat located behind the bus driver, Roy Oliver.4 The bus, which was headed towards the Downtown area of New Orleans, was traveling behind a black truck.

As the bus approached the intersection at Magazine Street and Bordeaux Street, the black truck applied its brakes and made a left turn onto Bordeaux Street. Mr. Oliver applied the brakes to avoid colliding with the truck. At that time, Mr. Waters was ejected from his seat and landed on his right side on the floor near the driver and the door of the bus. Mr. Oliver, as well as two other passengers, went to Mr. Waters’ aid. Shortly thereafter, Mr. Waters complained of shoulder pain.

After checking on Mr. Waters, Mr. Oliver reported the accident and requested an ambulance. Shawn Barnes, a Veolia supervisor, came to the scene. Both Mr. Oliver and Mr. Barnes drafted reports of the accident. Although Defendants concede that RTA buses are equipped with video recording systems, Defendants admit that they cannot produce the video of the October 22, 2010 accident.

Thereafter, Mr. Waters was transported to Touro Hospital by ambulance and treated for his injuries, which are discussed in detail elsewhere in this opinion.

IsOn October 18, 2011, Mr. Waters filed a petition for damages naming as defendants Mr. Oliver, RTA, TMSEL, and Veo-lia as defendants. In his first supplemental and amending petition for damages, Mr. Waters added Old Republic, Veolia’s insurer, as a defendant.

On May 2, 2016, a bench trial commenced. On May 4, 2016, during the Defendants’ case, the parties agreed to recess the trial until the parties had the opportunity to depose a defense witness, Marcia Kirch. On June 13, 2016, the trial resumed and concluded.

On August 29, 2016, the trial court rendered judgment in Mr. Waters’ favor and against RTA. Pointing out that the judgment failed to cast Veolia and Old Republic as liable for the damages award, Mr. Waters filed a motion for new trial. On September 12, 2016, the trial court rendered an amended judgment in Mr. Waters’ favor and against RTA, Veolia, and Old Republic.5 The trial court also dismissed Mr. Oliver with prejudice for the failure of Mr. Waters to effect service of process. The trial court, in both the original and amended judgments, awarded the following damages:

[42]*42SPECIAL DAMAGES: $ 445,544.27
Past medical expenses $ 59,689.63
Future medical expenses $ 111,947,64
Past loss of earning capacity $ 112,256.00
Future loss of earning capacity $ 145,894.00
Los[s] of benefits $ 15,757.00-
GENERAL DAMAGES: $250.000.00
_k
TOTAL: $ 695,544.27*
* (Reduced by thirty percent - (30%) for the fault of the preceding driver for an adjusted total damage award of $486,880.989.)

From the trial court’s ruling, both Defendants and Mr. Waters appeal.

DISCUSSION

For ease of discussion, we divide our analysis of the issues presented into the following four categories: (i) liability; (ii) comparative fault; (iii) general damages; and (iv) special damages.6 We separately address each-category.

Liability

Defendants contend that the trial court erred in finding them liable for Mr. Waters’ injuries. Citing Jacobs v. Reg’l Transit Auth., 03-2158 (La. App. 4 Cir. 4/14/04), 872 So.2d 571, Defendants argue that the trial court erroneously applied the stricter “common carrier” standard of negligence;7 [43]*43rather, Defendants maintain | Kthat the general negligence standard applies here. Under general negligence, Defendants contend that Mr. Waters failed to prove Mr. Oliver engaged in conduct that fell below the reasonable person standard of care. Defendants further contend that Mr. Waters failed to prove that his continuing shoulder and neck injuries were caused by the accident.

This court in Jacobs, supra, explained the proper standard to be applied in RTA cases as follows:

Pursuant to La. R.S. 48:1656(23), as amended by Acts 199, No. 735, effective August 15, 1995, the RTA is not considered a. common carrier in a suit for personal injuries. As such, the RTA is not held to the previous higher standard of care that allowed a plaintiff to make out a prima facie case of liability merely by showing that he/she was a fare-paying passenger and sustained an injury, thereby shifting the burden to the RTA to exculpate itself from liability. The 1995 amendment to La. R.S. 48:1656(23) states:
Notwithstanding the provisions of any other law to the contrary, including the provisions of R.S. 45:161 et seq., the authority created herein shall not be deemed a “person” as defined in R.S. 45:162(12) or a “common carrier” as defined in R.S. 45L162(5) nor shall the authority be construed of interpreted to be such. Additionally, the authority shall not be deemed to be a common carrier, or interpreted to be such by any court of this state in a suit for personal injury or property damage.

03-2158 at p. 3, 872 So.2d at 573 (emphasis supplied). Furthermore, any entity contracted to manage or operate the RTA shall not be considered a common carrier |fiin, a suit for personal injury or property damage. La. R.S. 48:1656(23); La. R.S. 48:1653(1). Accordingly, this court has held, as Defendants contend, that absent the stricter standard of proof for common carriers, the proper standard is general negligence. Jacobs, 03-2158 at p. 3, 872 So.2d at 573; see also Manuel v. Reg’l Transit Auth., 09-1256, p. 5 (La. App. 4 Cir. 5/12/10), 36 So.3d 1131, 1133.

The applicable standard of care in this case is thus the general negligence standard; See La, C.C. art. 2315(A) (providing that “[ejvery act-whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”). In a personal injury., suit, a well-settled principle is that liability is, determined, under the duty-risk analysis.8 Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 14 (La. 3/16/10), 35 So.3d 230, 240.

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223 So. 3d 37, 2016 La.App. 4 Cir. 1262, 2017 WL 2687412, 2017 La. App. LEXIS 1160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-oliver-lactapp-2017.