Judy Rideau and Kerry Bardell VS State Farm Mutual Automobile Insurance Company and Ward Trucking Service, Inc.
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 0894 JUDY RIDEAU AND KERRY BARDEll VERSUS Hfbt STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET Al ftAe On Appeal from the 18th Judicial District Court Parish of IberviUe Louisiana 0 Docket No 59696 Division Honorable William C Dupont Judge Presiding Walter Baton Landry Smith Rouge LA Attorney for Plaintiffs Appellees Appellants Judy Rideau and Kerry Bardell Matthew W Pryor Pujol E Attorneys for Defendants Timothy Brittany A Keaton Pujol Pryor Appellants Appellees State Farm Mutual Automobile Ins Co and Ward s Trucking Service Inc Prairieville LA BEFORE PARRO GUIDRY AND McCLENDON Judgment rendered 9 fcnh J I j tv Pf k J IAe AUG 2 9 2007 AJt 4 a J tH1 cI Jk PARRO J Both the verdict plaintiffs and defendants arising out of tried to cross a in this case accident in which an The roadway a child appeal a judgment based killed when was truck hit her a as jury she plaintiffs and defendants challenge certain evidentiary rulings and the jury s allocation of fault the defendants also appeal the court costs and the amount of on a damages part and affirm We amend in assessment of as amended FACTUAL AND PROCEDURAL BACKGROUND Right at sunset on two lane road where a in front of her house to group of children Bria s mother she stopped and asked the church was on to ten year old Bria Bardell tried to cross the January 31 2003 were get help Bria church cross running late was acquaintance who the road parking lot across to board a school bus for a preparing her way to work and a to the church was skating outing Before she left for work with his He watched Bria safely the road grandson in front of as she ran down the long driveway from her house to the roadside where she stopped and looked both There ways her was a long gap driveway and looked 20 25 feet on the church driveway before crossing not look to her acquaintance who was shouted and waved his stepped died onto the s unable to roadway she Company State The road is Louisiana rural and residential area Farm Highway hit was s 2 parties even attention to warn by a s southbound mail was driven to her right The church approaching but get Bria and insured though he When her delivery truck she by Simuel Ward owned by by State Farm Mutual Automobile 3 67 also known south of Clinton and just as Plank Road and the accident occurred in north of Zachary petition and answer designate Ward Trucking judgment Ward s Trucking Service Inc is used Both truck The truck The the 3 he was directly opposite stepping onto the roadway saw a arms to line up point although she looked watching Bria Trucking Service Inc Ward Insurance 2 left before at the end of paused right and walked southbound about apparently intending At that shortly afterward of her injuries Ward 1 She then turned to her the shoulder of the road again she did she in traffic in both directions when Bria Service Inc in East Baton as the name Rouge mixed of the defendant but in evidence in the record agree with this factual account and the uncontradicted 2 a Parish supports it Bria suit s parents Judy Rideau and Kerry Bardell against Ward s and State Farm Ward collectively occurred and that his negligence defendants answered claiming the accident in the alternative or before entering the contributed to After was street trial cause of Bria caused was the s strict Mr when the accident injuries and death s to take proper They also averred that the accident or filed exclusively by Bria by her comparative fault for failing by the negligence and a the sole s plaintiffs alleging that the defendants acting within the scope of his employment with Ward was the collectively was negligence precautions caused and jury found that Ward at fault percent Ms Rideau and s vicariously liable through was funeral expenses in the amount of concerning special items of the Bardell 216 000 costs as well After that costs to pay them and to pay them in solido in solido as 10 804 55 medical expenses of The trial court had to pay Ms 7 285 24 special items of plaintiffs filed a motion for court to strike either the 20 allocated to her mother mother or alternatively for and damages defendants then The she had Bria 4 a trial was an 504 000 to pay Mr in solido on all court 4 612 38 all awards seeking a for re to Bria or the 20 percent of fault allocate fault to either Bria or her judgment notwithstanding the verdict reversal of the both sides jury verdict on and both motions both liability plaintiffs and appealed plaintiffs contend it no a motion The trial court denied was legal duty to accompany her child intelligent and We note that this amount should have been reduced a new separate hearing judgment notwithstanding the verdict asking the proportionally The defendants also filed a 1 337 52 and costs in the amount of percent of fault allocated and to Rideau to pay them together with legal interest from date of judicial demand The were hearing and after applying the allocations judgment ordered the defendants 4 its They awarded general damages in the amount of 840 000 to 360 000 to Mr Bardell of fault or liability of other unnamed third parties employee for 60 percent of the fault and that Bria and her mother Ms Rideau each 20 The was to across assign fault the road to Bria s mother because when the evidence showed mature child who had been instructed in how to cross and not correct only by final award to Mr Bardell of error The total award for Mr Bardell was 360 000 and this sum the percentage of fault allocated to Bria which would have resulted in 288 000 3 had crossed this road that if there such were John McCrory to help her on a countless times at this location own duty Ms Rideau satisfied it by asking Bria cross the road safely 5 They ask for striking either the fault attributed to Ms Rideau alternatively a court erred in finding that neither of them overruling objections officer who did not see the accident and had The defendants contend Mr would turn suddenly and law absolves a driver of the road was error to considerably less than 60 percent mature child she should behavior sometimes allocation of fault not be expected from Finally they contend the training in accident reconstruction directly in his anticipate that Bria not They argue that the path to him Bria for they argue that it should be They claim that since Bria exceptionally was an given the benefit of the diminished standard of a child and should bear a greater degree of fault failing to look to the left before stepping roadway and Ms Rideau for failing to take the few child crossed the road awarding abused its discretion in over were out onto the extra minutes to ensure that her The defendants also claim that the trial court erred in safely admitting certain evidence from the Louisiana discretion in a In the alternative assign any fault to Mr Ward They also contend the jury could have found that both Bria and her mother independently negligent or testimony provided by the investigating no degree of fault be assigned some fault Ward could not and did across a re acquaintance liability when faced with sudden and unforeseeable actions by pedestrian therefore it should start church the fault attributed to Bria or were at to certain a They also contend Driver s Guide 1 million dollars to Bria assessing all s that the parents jury abused its and that the court court costs to the defendants STANDARD OF REVIEW The error appellate is 1 whether there is the trial court manifestly The The two clearly wrong standard finding 5 review of factual court s and 2 erroneous plaintiffs did not Neither side asserts on sue a part findings test for the is governed by the manifest appellate review of reasonable factual basis in the record for the whether the record further establishes that the Mart Mr appeal v Hill 505 So 2d 1120 McCrory and the jury was not McCrory was negligent that Mr 4 1127 La asked to factual a finding of finding 1987 Thus quantify any fault is not if there is on his part reasonable factual basis in the record for the trial court no to conclude there was manifest error inquiry is necessary factual basis exists if after See Stobart La legal errors State v deprive Legal a through Dep t of Transp and Dev it can a trial court errors reasonable finding only s finding was 617 So 2d 880 prejudicial when they materially affect the are finding to render 2 6 98 708 considered when when the legal So 2d judgment a 731 error affected finding process The on Picou findings v 918 20 see Boudreaux v one a factual 918 the v above appellate correct law and to each applicability of the manifest 1986 If only one of the by the application of incorrect principles of law that court s de novo also Buckbee Farmer So 2d 1373 and 1374 review is limited to the jury finding Aweco Inc 614 So 2d 604 SO 2d 641 649 7 n La v La App 1233 be not party and not interdict the entire to evaluate each proceed of law court is approach need findings but does La error Lungrin 97 0541 97 0577 findings favorable court should to determine the the prejudicial by applying the Evans novo of the Ferrara 483 So 2d 915 is tainted appellate only the record However some appellate pertinent to liability in order each 735 jury has made When such issues of material fact as to determining the essential material facts de the a applies incorrect principles of law and such party of substantial rights skews the trial court s required if when error occurs prejudicial are outcome and fact if additional 1993 A La However no reviewing the record in its entirety it determines the trial court clearly wrong 882 finding set aside a trial court s factual appellate court may an s so error rule to jury s factual are prejudicial affected 1236 1st Or jury finding 7 n Id La at 1993 writs denied 605 1992 ANALYSIS Evidentiary RulinQs All relevant evidence is admissible CE art 402 except Relevant evidence is evidence as otherwise provided by law having any tendency to make existence of any fact that is of consequence to the determination of the action less testifying as an expert may not 5 the more or Generally a give testimony in the form of opinions or probable than it would be without the evidence witness not art 401 LSA LSA C E inferences This rule is article 701 which opinions inferences where those opinions the or or provides that 95 2579 La 12 13 96 822 a 1st Cir 9 27 96 App 692 So 2d 1067 1997 State Thus a reI ex cert or inferences 577 writ denied appeal absent 05 2358 La a clear a denied 520 66 s U 1212 Exploration Co writ denied 03 2116 Dev La 02 1977 11 7 03 La his on App 1st Cir 6 27 03 Schuyten 952 So 2d 98 923 So 2d 732 training Temple The trial court is granted v 106 Smith Superior Systems Inc v Smith 04 2168 to hear certain allowing the jury the accident and had certain statements made no training issued to Mr Ward and that he concluded from his not speeding or driving improperly were investigation that inadmissible They in accident reconstruction by him including the observations that was assert testimony from Wayne the Zachary police officer who investigated the accident see La 742 the trial court abused its discretion in Therefore v 858 So 2d Addressing first the evidentiary issues raised by the parties the plaintiffs argue that he did not La 137 L Ed 2d physical evidence 857 So 2d 501 Verdin v evidentiary rulings and its determinations will not be disturbed App 1st Cir 12 28 06 Officer Chris on 96 2629 117 S Ct 1696 and observation of scene clear abuse of that discretion 1st Cir 9 28 05 rationally based understanding of his testimony Louisiana Land and 681 So 2d 63 1 are lay witness may give opinion testimony based Deplt of Transp and broad discretion in its App lay witness may provide testimony in the form of fact in issue investigation perception of the on a exception of Louisiana Code of Evidence perception of the witness and 2 helpful to the determination of 569 to the limited subject lay opinions no citation Mr Ward was on the ultimate issues of fault After contention a thorough examination of the trial transcript Officer Wayne s statements were knowledge namely that he did not ticket such as unsafe only skid marks driving disagree with this merely reports of facts within his personal Mr Ward and that no evidence at the indicated Mr Ward had violated any traffic rules The trial court was to evidence and conditions he when he we quite specific in or not investigated the accident and Officer Wayne himself 6 by speeding allowing Officer Wayne personally had found scene or to testify found at the scene was very circumspect about with providing factual information only trial Moreover testimony from eye witnesses estimate would be he wasn t these statements including Mr McCrory in generally they indicates that and should a my Therefore the motorist a s standard of pedestrian because although its principles may be applicable a were not stated allowing the Louisiana Driver s Guide for Class D and E licenses to be admitted to establish approaching consistent allowing these statements The defendants claim the trial court erred when who going any faster than the speed limit trial court did not abuse its discretion in care were applicable under the facts of this motorist has the highest duty to a For instance the case pedestrian on anticipate the possibility that the pedestrian will guide the side of the road enter the road The defendants argue that this statement fails to take into consideration the rural nature of this highway the lack of and her Guide own intersection clothing worn by Bria duty to be careful However the principles stated in the Louisiana Driver s As stated in pedestrian crosswalk the dark or consistent with Louisiana law are 400 406 an La Baumgartner concerning the duty of v State Farm Mut Auto a motorist vis Ins Co a vis a 356 SO 2d 1978 The operator of a motor vehicle a dangerous instrumentality has the duty to watch out for the possible negligent acts of pedestrians and avoid injuring them A higher standard of care than that required of pedestrians is imposed upon the motorist commensurate with the hazards his conduct inflicts upon the public safety constant See also Blair Public Serv Tynes 621 So 2d 591 596 97 v Inc 476 So 2d 800 always be applied to the court instructed the in LSA 5 R it is a 1985 These 5 R 32 213 in each case namely that place of safety and walk into the path of a a must a marked crosswalk within to all vehicles yield the right of way of discretion in the court or s on an the a as vehicle that is Therefore a so the not close that roadway at an we must described pedestrian should unmarked crosswalk at roadway Moreover pedestrian impossible for the driver to yield and that every pedestrian crossing point not within New Orleans v general principles of law particular factual circumstances and LSA Turner 1993 jury concerning the correlative duties of 32 212 B suddenly leave La La a intersection find no abuse admission of the statements from the Louisiana Driver s Guide 7 JNOV NeQIiQence and Allocation of Fault Article 1811 F of the Louisiana Code of Civil Procedure authorizes grant a judgment notwithstanding the verdict JNOV damages both or A JNOV should be the evidence in the points light trial court to either the issue of liability or granted only if the trial court after considering most favorable to the to the motion party opposed finds it strongly and overwhelmingly in favor of the moving party that reasonable so persons could not arrive at La on a App 1st Cir 948 So 2d 177 779 80 11 3 06 Broussard On a issues contrary verdict 950 So 2d 711 Stack 95 2508 v 714 La where virtually determinations by the fact finder the trial court to decide that issue on Louisiana courts have a JNOV adopted a Breaux v 06 2822 App 1st Cir 9 27 96 are 05 1911 1 26 07 La 680 So 2d 771 dispute exists and required legal questions are by entering writ denied factual no Mclin no within the credibility province of Id duty risk analysis in determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315 liability for damages For prove five separate elements conduct to a conform his element injuries the legal cause 1 specific standard of or 3 to attach under a the defendant had cause in of the s 01 2217 inquiry is whether the defendant failed to the breach of care was a cause in the defendant a Pinsonneault fact of the 816 So 2d 270 275 76 Duty is and to support his or her claim Bowman or and actual 2 16 01 03 1579 damages are 10 3 03 855 So 2d 315 all factual issues 780 So 2d 563 So 2d 800 and 801 La Snearl 574 writs denied Where there are v 8 Breach of causes of an The arising from 849 So 2d 622 duty Mercer 99 1738 01 1319 and 01 1320 concurrent Trust City of Baton v Rouge Parish of East Baton Rouge 02 1376 La App 1st Cir 5 9 03 627 writ denied actual question of law plaintiff has any law statutory jurisprudential general principles of fault 5 was a Farmers Bank a duty plaintiffs substandard conduct s Merchants v must to conform his or her plaintiffs injuries the scope of protection element 4 3 02 La 4 plaintiff duty appropriate standard of fact element a 2 a duty element substandard conduct damages the damage element Co the care her conduct to the the defendant duty risk analysis La La cause in App fact 1st Cir 6 22 01 794 accident the proper inquiry is whether the conduct in question the accident Whether the defendant s conduct about the harm determined and thus a cause by the fact finder So 2d 89 94 Manno v substantial factor in was a Bonin substantial factor in was a in fact of the injuries is Ferrellgas Inc v Gutierrez 05 0476 La bringing about a factual 03 3024 question to be La App 1st Cir 3 29 06 bringing 7 2 04 877 934 SO 2d 112 117 With reference to the allocation of fault when defendants Louisiana Civil Code article 2323 A liability is shared by provides in pertinent part two or more follows as In any action for damages where a person suffers injury death or degree or percentage of fault of all persons causing or contributing to the injury death or loss shall be determined If a person suffers injury death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury death or loss loss In the assessing the nature of the conduct of the degree of fault involved 3 the an awareness of the significance of what whether 1 including superior or various factors may influence the parties whether the conduct resulted from danger was inferior how 2 great a risk sought by the conduct and 5 any created was 4 the La 1 16 96 pursuant to the court of appeal finds allocation but 666 So 2d 607 comparative fault article is only a extenuating circumstances which might 611 v The Finish Line So 2d 12 16 The n Inc 12 writ denied lowering 99 1413 01 0214 or to the Id highest court s discretion La 3 16 01 error La App Frey 95 at 610 or If the 9 to lowest point see 12 22 00 also 781 787 So 2d 319 present the question of whether JNOV and a the fault attributed to Bria argument is that it is logically inconsistent or Id at 611 1st Cir legally erred in not granting their motion seeking either the fault attributed to Ms Rideau v finding of percentages of fault raising it 99 1414 plaintiffs first three assignments of the trial court The Clement factual determination respectively which is reasonably within the trial Dennis actor apportionment of fault it should adjust the clearly wrong to the extent of a or by the conduct capacities of the require the actor to proceed in haste without proper thought 1119 95 1163 inadvertence impose a duty on The striking gist of their both Bria and her mother If the jury believed the evidence established that Bria child who intelligent herself at the competent to was to ensure a legal Therefore her own matter it no if Bria knew about the measures jury s imposition of fault realize the a duty own had crossed by on Ms as potential danger in crossing the road at that to to failing plaintiffs further contend that protect herself then her mother Ms Rideau help Bria cross the road legal is Rideau to cross the road error on Accordingly Ms this occasion and that should have been by the trial court In the alternative the The duty to supervise her every time she needed reversed her duty and responsibility to take the necessary steps s safety when crossing the road Rideau could not be at fault for the on mature and must have found that she was aware of the need jury Bria was location and knew the proper had this road a location every school day for the previous six months and knew same how to protect herself then the for caution cross was the danger involved to supervise Bria plaintiffs argue that if the jury believed that Bria did not or as did not know how to she tried to mother could be negligent urge that it legal was for failing error to to impose the road cross child under the age of discernment and no protect herself then Ms Rideau had In that circumstance she fault could be attributed to Bria properly supervise her a Therefore was only her the plaintiffs duty on both Bria and her mother under these facts Minors who incapable of discernment at However this freedom from fault is limited to the minor of tender age who is fault being found legally so are incapable of discernment Bucher 308 So 2d 270 442 So 2d 608 609 two year old child of his age presented to him The 14 n 1975 App 1st Or 1983 contributory care or expected of and See Howard v a incapable of being legally at fault See Turner La intelligence determining whether age to also be 276 La by the standard of self child as child is six year old child writ denied an Fromenthal 444 So 2d 1242 comparative fault of a v La v Clark 1984 child is measured not adult but rather the self care expected of a experience under the particular circumstances Allstate Ins legally immune from are at fault Co due 520 So 2d 715 regard must be given maturity intelligence and knowledge generally and 10 La as to the 1988 In to the child s particular situation involved well as to all the facts and the circumstances of the as particular risk that produced the injury So 2d 130 132 33 La App 3rd Cir 1976 who hit his friend while swinging a intelligence and had failed to awareness He State Farm Mut Ins v In the Gremillion golf club potential consequences of his action sufficient Gremillion was was case a Co 28 329 La found not to understand the risks and not advanced in maturity knowledge in the pump while he was hurt or a kill him from the wells writ denied to adults App 2nd Cir 5 8 96 was disorder and found 532 So 2d 159 v 1988 a children and did not child who could be apply to a examining the record in this error for to The court trial appreciate the danger and parent have a discernment where he a Therefore we situation or agree with the is she knows of the Only to danger in a App 1st Cir boy The existence of by allocating it to one 11 a in which the to younger JNOV a on plaintiffs that it was these parent due a under to the is not old in such a case particular situation danger then the parent has activity stay away enough to does the If the child has reached the age of a it was incumbent upon the court to correct the both Bria and her mother for imposed to avoid it duty to supervise the child or La oil well could independently at fault applies only when the child steps were trial court s dismissal of twelve year old deny their motion child to take and also knows how to avoid that child in that case legal theory whereby fault parent s negligent supervision of an negligent supervision theory applied only After the a boy just two He had attention deficit 529 So 2d 449 452 a Bituminous v a by his mother this court affirmed rash s leg and foot he testified that he knew that trial court had concluded that circumstances oil well on an Safeco Ins Co La 1098 at fault when his and also admitted he had been warned In Pritchard Killough In 674 So 2d 1091 legally playing learning disability yet Id at 33 negligent supervision claim against the parents of legal or anticipate that another child might suddenly and without days shy of his tenth birthday caught boy grade in school The evidence did not show that he had one impetuous and careless acts is peculiar Corp 331 ten year old warning place himself in the path of his swing since such knowledge of children Cas the including case or no or activity duty to supervise that duty is a question of law jury s assignment of fault the other Having failed to do to so and because the allocation of fault to both was evaluate the facts and circumstances with regard to Bria and Ms Rideau de determine whether Bria independently Bria Isidore ten years old was Ms Rideau testified that she bright very very preparing to go did well in school classmate had a to the district on placed at the state level won the school band and in She was very Bria He said happy was was a to the needs of her membership in grade her house end On the to a youth group I guess sunshine is a was caring child always wanting road safely In fact was to of the driveway she Bria s when as the age parents a jury found we sensitive on a across starting daily basis the road from awareness protect herself by her actions when she reached the stopped and looked in both directions for traffic conclude that Bria could be and For this very Mr Bardell six months since Bria indicated her particular facts and circumstances of this road very various occasions on case and maturity intelligence and knowledge of the proper ways crossing was help others and indicating that she knew the risk of oncoming traffic and also knew how Under the was performing She curious about during the evening when the accident occurred to She took always energetic good word for her get off the school bus when it stopped danger and her ability her classmate poetry Bria had crossed the road where the accident occurred during the school year of the cross a Shortly place the project write Her father confirmed that she She had demonstrated to both family that she knew how to fifth very doctor at St learning how to play the clarinet for inquisitive and would ask questions about things she also said that she first grade exhibited wisdom from her birth that church activities included s liturgical dance and singing solos creative and to outgoing and could communicate her thoughts verbally Her mother said Bria writing unusual novo competition and death s won sing dance and piano lessons took tap and ballet lessons and a the social studies competition After Bria Bria loved to in the fifth was and wanted to be presented their project at the district competition where it also this court must error reached the age of discernment and could have been before her accident Bria and were by legal at fault was s had tainted reason the was thus to avoid harm keeping to in mind protect herself independently at fault negligent supervision claim against her mother 12 legally inapplicable was situation Therefore court must re because Ms no the allocation of fault to Ms to duty completing the defendants claim that the 7 motorist who The sees a of fault fault no however on or the road near must address the we to Mr Ward was and a high degree of is position of peril Buckley is to be inattentive likely Exxon v required to exercise due roadway to to avoid Weatherford v So 2d 1208 1210 Commercial Union Ins affd 94 1793 La driver of motorist where care No to avoid 6 Since we This Each Industrial v find Ms finding case Helicopters premised the driver Rideau had no duty alternative claim that Ms answer or s adult to was ensure not affected to Inc The operative the as to exercise the adjudged few cases are 502 So 2d 593 on or to exercise exists in favor Bria s attempt to safely and of law and there is no 13 s fault Id App 3rd Or a proper lookout position where he road for to it factually we do not address supervise agreement to do so justification interrogatory on the verdict form pertaining to Mr Ward applicable to this portion of the jury s verdict See Picou 483 position peculiar she had to duty obtaining his The case La 596 cross the operator or in a identical in a 637 highest degree of his failure to maintain Rideau satisfied whatever error 5 R 32 214 duty the facts on standing beside the road Bria crossed the road by duty a must be to the therefore to exercise proper should have been known to the supervise in a Every driver existing facts of the particular fault appreciate 1st Or 5 20 94 App to a child becomes under the to see a two year old child plaintiffs asking another La 650 So 2d 763 absolutely controlling of another the court the 7 injury to them is In McFarland failing 1980 See LSA highway 93 0841 they could become imperiled is under 1987 La discovering the presence of children in his path of travel upon one case thus motor vehicle a near a 2 20 95 of the child when her presence is known to to colliding with any pedestrian upon any or Co greater than ordinary care to avoid injury or 514 give warning by sounding the horn when necessary and precaution upon observing any child upon duty a a upon might suddenly place herself 390 So 2d 512 Corp care and care imposes upon him anticipate that the child possessed of limited judgment might be unable impending danger and this considerably less fault should be or jurisprudence of this state places child in this 6 jury s allocation of 60 percent of the fault and that either erroneous attributed to him allocation re supervise Bria Rideau must be reversed allocate the fault attributed to Ms Rideau to Bria Before manifestly Rideau had disregarding The manifest So 2d at 918 Bria the error by jury s rule is should have been by the driver seen The truck driver testified that he his rearview mirror to make sure his load was secure roadway right there Though lithe little boy was the child the driver said he Mr Ward testified Zachary mail on a never saw that he delivery Mr Ward at various times said he 5 45 p and the m normal However he had told an lighting being but later up and was not sun on was familiar with the The speed limit Mr a right clothes and he did not it was although traffic at that time and see 55 miles per hour and 50 miles per hour but or was half dark He indicated that traffic was often heavy on stepped was in shoulder of the road of the road was but parked Mr Ward said he did not slow down action other than the last second swerve to heavy it had let wearing dark was unable to the middle of his lane of travel when he right front bumper hit the child and threw her His truck ended up very out into his lane of travel about avoid The truck s was Plank Road Mr Ward said Bria place her at all until she He estimated that she much darker than He did not recall any artificial He swerved hard to the left hit her to three times was ten to twelve feet in front of his truck hitting her nearing was taped statement four days after the accident at the time of the accident not bad at 596 and knew it area Ward stated at trial that it adjuster that that was driving about 40 45 was he admitted that in acknowledged traveling about two hitting exceeding the speed limit The accident occurred about had set insurance just before the impact Id was at the accident site consistently stated he he swerved the truck to avoid route that he had been He checking and when he looked back at the driving south from Clinton and was each week for three to four years primarily residential him until was on or the left the shoulder honk the horn on onto the the opposite side and took because he did not right see no evasive Bria before that time Photographs of the accident site show highway marked with a yellow dashed line the edge of the road beyond which there on the a a straight stretch of two lane at the center and a white unbroken line at is a light colored flat paved shoulder computations of both the plaintiffs expert expert Charles Prewitt Mr Ward had flat James Sobek Based and the defendants completely unobstructed sight line and about 700 feet away from Bria when she reached the end of her 14 was driveway and began walking the shoulder on 8 have discerned that there Mr Prewitt probably tell that there some of the details such as admitted that at 300 feet perhaps avoid impact swerving some seconds or pedestrian was a could aCknowledged that was a the shoulder on pedestrian her movements or a he could have swerved Mr during which Bria road see looking Bria left alking w looking right and then was was used at 5 40 p under by both experts and civil m concerned down her to do at the side of the s U scene Mr Ward paying period of time at 5 42 p m so obviously the was in January 31 2003 as not was to determine that on was there Mr was some evidence sunset occurred the limit at which illumination is sufficient cloud cover McCrory testified that it Bria see long driveway toward the road as This there was was no pretty clear rain as she left her house and put him or far fog when as visibility began to walk at a distance of 777 from her length of her driveway and the width of the road to the point where standing in the church parking lot Another eyewitness Eric Hopkins said that was still enough light to see from his was accident site he did stated that Sobek said that depending Bria when she came on within his line of his position on the porch of the church office working with his cattle about 800 not see immediately after the accident he could Mr apparently stopping Observatory data neighbor Mark Lanier who 8 enough time Naval and said he could which included the there had sight line which gave him plenty opined that to the dispatched twilight defined Although m the accident occurred he could slow down and good weather conditions for terrestrial objects to be clearly distinguished lasted until 6 05 p was ve Mr Prewitt also Sobek said Mr Ward should have Mr extended an accident had occurred before that time and Mr Ward walking along the side of the road and then He out attention to the situation ahead of him for police officer Mr Ward he would toward the road stopping again and finally moving The might Sobek estimated that Mr Ward had at least ten of time to discern her and avert the accident been able to And at 300 feet turn of the head within his unobstructed was Mr Ward the shoulder and could make out on going 55 miles per hour maneuver at 600 feet speed the accident see people moving Mr Ward sight 15 was to 1000 but when across he the road A from the looked up could tell between 660 feet to 806 feet away from how many there were Pierre previously worked for the plaintiffs attorney for who had another taking site exactly job one to the site and could discern whether was asked by him to observe the dark clouds Despite that she observed that little dark Mr Lanier testified that he was making her observations and said there see details mailboxes concluded that the Based lighting on our in the record for the quite a ways was not a sky child m left and or review of the evidence plenty of daylight to at which time it was still we finding equally the left before have found we was we The find there is seen Bria getting a experts for both sides a reasonable factual basis to Mr Ward There was Mr Ward had been walking along the paved shoulder of a Mr Ward had position of danger and a plenty of time to discern to slow down move to reasonable factual basis exists for the have reviewed the record in its clearly wrong at fault in stepping attention to what the was responsibility as an In doing so jury s allocation of entirety to determine whether we note that Bria and Mr Ward onto the going on adult and he should bear the roadway and within s Mr Ward should have been his unobstructed sight line inattention and failure to act as an higher degree of fault In addition s a to paying Because of the well experienced professional driver high above the roadway in the cab of the truck Mr Ward had from which to estimate Bria as or were causing this accident Bria should have taken that last look greater risk to Bria from Mr Ward pedestrian was enough daylight at that time to jury s allocation of 60 percent of the fault walking alone in fault to Mr Ward almost at the accident sound his horn Since not the to prior point between 700 feet and 300 feet before the point of impact some was week overcast with thick was t here was still down the road While he closed the distance between them a one Debra factor in the accident paying attention he would easily have that female satellite radio controlled clock ample evidence from which the jury could have concluded that if the road at or just leaving his driveway when Ms Pierre was on a the m Visibility did not decrease until about 6 00 p see male were lighting conditions year after the accident When she took January 31 2004 at exactly 5 42 p on they as vis his a vis from his better greater a child position vantage point speed and the time in which he would reach her position 16 The risk created by his inattention or inadvertence position to avoid the accident Therefore conclude that the was great and he Since will not adjust that allocation but will a superior thorough review of the record leads our jury s allocation of 60 percent of the fault to Mr Ward wrong in was was not clearly agree with the allocation of 60 percent of the fault to Mr Ward we the fault attributed to Ms now merely Rideau to Bria percent of the fault to Bria The re allocate the entire 20 thereby resulting in an to us we percent of allocation of 40 judgment will be modified accordingly General Damaaes Much damages of discretion is left to the LSA C C art 2324 1 In judge or jury in the reviewing an award of assessment cert the award denied Youn 510 the award is Maritime Overseas v s U 1114 114 S Ct 1059 in either direction for the effects of the assess general damages the Corp 623 So 2d 1257 127 L Ed 2d 379 beyond that which a Youn 623 SO 2d at 1261 discretion is highest Inc a court 341 So 2d 332 335 The jury the life of on award is the La 1976 child our 1991 1 2 million in There is v no claim for survival between the time of survived the impact injury for any wrongful death damages While it is impossible 9 840 000 a monetary to to one who has suffered the loss of a loved one as v New Orleans Pub Serv Inc damage for wrongful death La damages as well App which are of time 17 as are awarded for the loss of love affection There 664 So 2d 1383 pain was no a 583 So 2d 829 medical and funeral expenses Cir 12 15 95 1st until the moment of death period Indus jurisprudential system has established that Anderson 95 0545 Winston v monetary The elements of Danos to determine the only Coco abuse of a companionship services and support Duplantis and then an place appropriate remedy result of the fault of another La reduce the award or Dennis 781 So 2d at 21 360 000 to Mr Bardell a only when reasonable trier of fact could award within that discretion in this case awarded to Ms Rideau and value an 1993 particular injury to the particular plaintiff under the prior awards appropriate point of La It is Only after it is determined that there has been resort to lowest or 1260 1994 particular circumstances that the appellate court should increase 9 general appeal must determine whether the trier of fact has abused its much discretion in making 833 of and suffering evidence in this See 1391 of the victim case that Bria Gibson State v Through Dep 674 SO 2d 996 1006 So 2d 373 and 374 such a t of Dev Transp writs denied 96 1862 While the loss of a 95 1418 96 1895 child is La App 1st Cir 96 1902 La 10 25 96 emotionally traumatic loss does not include the elements of loss of services and to the adult and in most cases adulthood and establishes a child is of a a child Moreover the provided by a same an level after the child reaches home separate from the parents with the defendants that this award was an reduce the highest award to the damage different nature than that does not continue at the abuse of the lowest or 681 parents support since generally does not contribute to the family in providing these elements companionship provided by 4 4 96 Therefore we jury s discretion and point of agree we must award within that an discretion It is clear from the were testimony that both parents loved Bria very much and both grief stricken by this loss and contributed to her in his home her mother activities s However support throughout her life she did not live with him On the other hand had a very close comparisons with other wrongful death of a cases child the 0329 La App 3rd Cir 10 6 04 896 So 2d 999 mother of epileptic Louisiana Power son damages 250 000 to Mr Bardell 884 SO 2d 1214 award of Light Co community 0352 and 0353 La 575 000 in 33 597 La head on 1222 and on our parents for the when both Courteaux writ denied Hines 04 04 2751 La v oxidation an single Dartlone pond 6 21 00 to v 763 So 2d 779 17 year old son who was an exemplary parents sought therapy and medication for State v 275 000 to each automobile collision See Barton wrongful death damages 2nd Cir App App 4th Cir 9 22 99 753 So 2d 834 care s Based have been awarded to whom she found drowned in depression after the death a loving relationship with her parent for electrocution death of member of the killed in and was highest awards within the jury s discretion would have 575 000 to Ms Rideau and 3 18 05 visit him Bria had lived with her mother since birth and in which been 1 28 00 or only daughter Ms Rideau had organized her life around Bria and 350 000 per although Mr Bardell visited Bria regularly reI Dep t of Transp 745 So 2d 96 parent of Hattori 18 ex v writ denied 17 year old Peairs Dev 99 3214 only child who 95 0144 La 99 La was App 1st Cir 10 6 95 to each 662 So 2d 509 writ denied was a danger reduced to Anderson to 150 000 5 14 04 a see 666 So 2d 322 275 000 son at who died eleven side mirror while For these Rideau and a Hospital Svce Dist No 1 01 0659 v writ denied 325 000 malpractice cap 249 by jury which O K v Guard writ denied total of reduced reasons we a narrow will Bardell as a result court in JNOV La 1st Cir App 882 So 2d 1127 wrongful death of her 12 year old was hit by a truck s street apportion the general damages awarding 250 000 to Mr judgment will be amended city by 9 24 04 days after suffering serious injuries when he walking down day old child who died 03 1243 La 3 15 02 general damages on son La general damages for her mental anguish and for the scene was Dogs 04 1440 897 400 in the accident 02 0077 237 800 to father of two single mother of three year old Scarbrough 879 So 2d 239 single mother awarded Ms 1 12 96 439 500 000 due to medical truck awarded but seeing her Rebstock 800 So 2d 435 583 So 2d at 833 being hit by family 366 250 to mother and total of a of son to his App 5th Cir 11 27 01 811 SO 2d 914 for La parent of 16 year old Japanese exchange student shot by homeowner believing the student La 95 2677 After 575 000 to applying the percentages of fault the to order the defendants to pay 345 000 to Ms Rideau and 150 000 to Mr Bardell Court Costs According to LSA of 5 R 13 4533 the costs of the clerk sheriff witness fees taking depositions copies of acts used on the trial court are to be taxed as costs and hospital records R S 13 3666 of 73 74 The any equitable as costs 93 2238 La to the by the reports provisions of LSA 1st Cir 12 20 02 party cast in judgment is generally taxed with costs art manner 1920 the trial court has discretion to On appellate discretion warrants reversal of the trial court Cas Ins Co pursuant costs of medical City of Bogalusa 01 1014 La App v pursuant to LSA C C P a suit in Expert witness fees and the also to be taxed See Boleware 837 So 2d 71 however are and all other costs allowed costs App s review a showing of cost allocation 1st Cir 11 10 94 19 only 647 So 2d 351 assess costs an Thibodeaux 362 abuse of v USAA After defendants one on reviewing the facts of this find we of the cases appeal this no case and the cost items that abuse of discretion in the trial court cited to this court by the defendants in which matter does not involve a squabble between documents to be revealed under the Public Records Act Nicholls College Foundation 592 So 2d 419 422 593 So 2d 651 court s Sons discretionary Delaune v 0729 La La 1992 Nor is it 5 6 94 637 So 2d beautiful and radiant young crucial for point in time some a case La La App This case girl due in part to her public See State in which this court 1220 21 1050 costs were two Unlike allocation ex App 1st Cir 1991 decision to allocate costs between 634 So 2d 1212 s cost taxed to the were allocated re entities over reI Guste writ denied merely affirmed a plaintiffs and defendants 1st Cir 1993 involved the a trial See writ denied 94 untimely death of momentary lapse in judgment but due also to the inattentiveness of v a at a professional truck driver period of time during which he could have avoided the accident that killed her In this situation we the costs of court on find no abuse of discretion in the trial court s decision to impose the defendants CONCLUSION Based 575 000 to on the foregoing Judy Rideau and we amend the 250 000 to judgment of August Kerry Bardell After 2005 applying the percentages of fault of 40 percent to Bria Bardell and 60 percent amend the 17 re to award allocated to Simuel Ward we judgment to order the defendants Ward s Trucking Service Inc and State Farm Mutual Automobile Insurance and 150 000 to Mr Bardell party is to bear its own costs for this Company In all other in solido to pay respects the judgment is affirmed appeal AMENDED IN PART AND AfFIRMED AS AMENDED 20 345 000 to Ms Rideau Each
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