Susan B. Quinn and William R. Quinn VS State of Louisiana Through the Department of Transportation and Development and State Farm Mutual Automobile Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT J NUMBER 2009 CA 0085 SUSAN B QUINN AND WILLIAM R QUINN VERSUS STATE OF LOUISIANA STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Judgment Rendered December 23 2009 Appealed from the Twenty First Judicial District Court In and for the Parish of Livingston Louisiana Trial Court Number 96 356 Honorable Ernest G Drake Jr Joshua M Palmintier Attorneys for Plaintiffs Appellants Susan B Quinn and William Quinn Michael C Palmintier Baton Rouge Judge LA James D Caldwell Attorney for Glen R Peterson Defendant Baton Rouge Attorney General Asst Attorney General R LA BEFORE v4rel 8 Appellee State of Louisiana Through the Dept of Transportation and Development WHIPPLE HUGHES AND WELCH n It @ WELCH J rendered of Quinn appeal R them in favor of the State of Louisiana against and Transportation DOTD with Quinn and William Susan B plaintiffs The For prejudice reasons through the Department their claims dismissing DOTD Development that follow judgment a against affirm the judgment of the trial we court I FACTUAL AND PROCEDURAL HISTORY On June 7 2001 vehicle westbound at Interstate 12 in on when she veered off the As of the roadway damages naming June 7 on Parish Livingston and collided with roadway 2002 Mr went into Mrs and Mrs grass and was Quinn s and collided with and DOTD that were State also traveling lane of travel trees In their unknown wheeled eighteen crossed its lane of travel and she veered to avoid she lost control of her vehicle the the petition She roadway alleged a collision ran into wet that the State Farm liable was eventually jury trial against DOTD verdict in favor of DOTD whether the petition for a unreasonably dangerous conditions of the roadway motion for summary judgment a hand side right liable for the State Farm was to whereupon so an westbound alongside uninsured underinsured motorist a the Quinn filed State Farm Company Quinn alleged that while doing Mrs a the Satsuma exit near along operating was Quinn sustained various personal Quinns alleged that the accident occurred when trailer which trees Quinn defendants the State of Louisiana DOTD and State Farm as Mutual Automobile Insurance tractor Mrs a m result of this accident Mrs a Thereafter injuries 11 45 approximately highway on her to as her dismissed as a defendant in this granted in its favor 15 16 This and Quinn 2 s the matter following then proceeded matter 17 and 18 2008 answering in the negative where Mrs liability insurer UM July automobile The jury returned jury interrogatory accident occurred had a a of defect which created In accordance with the unreasonable risk of harm an June 10 2009 the trial court signed a judgment jury verdict s in favor of DOTD and and Mrs and Mrs From this Quinn dismissing their claims with prejudice against on Mr Quinn have appealed On failed to grant statement to a mistrial after counsel for DOTD made and elicited of other accidents at testimony from his expert witness concerning the absence 9 409 during his opening occurred changed admitted into evidence the redacted thereby causing defective based on thing of harm a that was 3 in fact of his is plaintiff 1 DOTD injuries mistrial after counsel for DOTD a Quinn for petition as limited had within Netecke by custody or a on s version of how the accident damages DOTD damages recover may DOTD had actual measures Quinn contend that the dismissed from the suit and when it premised defective because it had take corrective the with certain portions LAW AND DISCUSSION liability La C C art 2317 must prove the thing when Quinns was citing to the jury to be confused II Generally grant that Mrs after State Farm at that location Mr and Mrs Additionally statement a during discovery refused concerning prior accidents trial court also erred when it failed to stated erred when it opening the accident site when DOTD of 23 U S C court Mr reference in his disclose any information privilege Quinn contend that the trial Mr and Mrs appeal judgment s from DOTD La R S 9 2800 of the of ownership thing that Essentially caused his condition that created an v allegedly public entity a a plaintiff damages 2 unreasonable risk constructive notice of the defect and failed reasonable time and 4 the defect a an State ex rei DOTD 98 1182 to was a cause 98 1197 p 7 originally signed ajudgment on August 13 2008 However that judgment did not contain the appropriate decretal language disposing of or dismissing the plaintiffs claims After this court issued a rule to show cause why the appeal should not be dismissed for that defect the parties submitted and the trial court signed an amended judgment on June 10 The trial court 2009 3 La 99 19 10 747 So 2d 489 97 1344 p 3 La 3 4 98 494 Brown admissible for the limited purpose of which caused the Ketcher condition 810 La to So 2d dangerous Capone v accident location is nature of the not was knowledge Ormet dangerous of a at 1222 the condition 2001 0060 p 21 1984 La same place is not Ketcher 440 La App 702 writ denied 2002 2379 La 11 22 02 822 So 2d 684 or dangerous and that the defendant did dangerous Corporation thing 440 So 2d 805 Company 440 So 2d 1220 writs denied place constructive or at 811 6 21 02 the particular evidence of the absence of other accidents show that the have actual a and the knowledge of the defendant of the 1st Cir 1983 App Furthermore relevant injury showing at Illinois Central Gulf Railroad v Indemnity Company 707 So 2d 1240 1242 Generally evidence of prior accidents place Louisiana v 1 st Cir 829 So 2d 1051 In this interrogatory during discovery case to the plaintiffs propounded the following DOTD INTERROGATORY NO 12 Please there have been any accidents other than the one sued upon in the area of the accident in question either before or after the accident sued upon and if so please state state whether or not A Name and address of person accident s B Exact location of accident C Date of accident D Whether accident E Whether arose F out Whether s you and if or not involved in the s a so have please accident report attach a copy of same an lawsuit in which the State on was a said party of the accident map which would identify the where these accidents have occurred on the roadway or not you have a points in question and if so please attach G persons s not or or Whether the area either before to its hazards or a copy of same of the accident has been rated in any way after the accident in question with regard or given and the date accident of said frequency rating 4 and if so the rating In response to this that the information DOTD interrogatory privileged under 23 was 23 United States Code 9 409 objected U S C to relevance and asserted 9409 provides provision of law reports surveys schedules lists or data compiled or collected for the purpose of identifying evaluating or planning the safety enhancement of potential accident sites hazardous roadway conditions or railway highway crossings pursuant to sections 130 144 and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal aid Notwithstanding any funds shall highway evidence in a other not Federal or State purposes in any action for location mentioned lists or damages arising from addressed in such reports statute enacted was aid highway conditions Long 2004 0485 v 10 p programs State La compile to Department 6 29 05 good in eliminate of or faith Despite reduce 94 95 the fact that DOTD asserted the accident location statements to The last brought out in morning And one hazardous and Development quoting United States s Annual during opening privilege set this is an concerning prior statements accidents that I would of a and highway hundreds of cars pooling of water on or a a you pretty busy interstate going by there daily were if there was indeed spot on that interstate where water pooling how many other cars that morning had the same How many other cars encountered this pooling of water problem such that it pulled them off the interstate I don t really know what was 5 9 this counsel for DOTD made want to He would want to know if there sort at the jury interstate highway Obviously some Report forth in 23 U S C go made the comment that he would want to know how many know roadway point out to you and it was we went through this jury picking process this of the gentlemen whose who was mercifully let thing our the purposes of 1986 409 and refused to disclose any information following schedules to meet Transportation 916 So 2d 87 Highway Safety Improvement Programs the a prevent the unauthorized Department of Transportation and Development Secretary particular at occurrence surveys to by Congress disclosure of information that States Federal any data or This subject to discovery or admitted into court proceeding or considered for other be but pulled them off How many other cars ended up in the ditch because of pooling of water on that day or any other day where that means there was a torrential rainfall And I that s Well Mr Ricca is morning knowing that tell you the answer to that question that question is that this is the first one going to And Ill tell you the answer to No complaints of any pooling of they that up when I heard that because first and foremost of information that Id want to know if I was a trier of fact Id kind be interested in what was perked piece a there as re their hat if that hanging if that water the s what s theory if that that now s they ve did not changed to When counsel for DOTD made these a Instead contemporaneous objection evidence moved plaintiffs the during trial Additionally counsel Michael Ricca DOTO project in the area on the pooling any or was roadway not at cross and to court On offer DOTD refused inappropriate novo a issue of any s this brought s or s from testimony the time and at problems counsel it for or did plaintiffs or not plaintiffs propounded and assertion of the of privilege to which allow on because DOTD citing the privilege court the lack of accidents refused to forth in 23 U S C 9 specifically set counsel for DOTD erred in refusing to at s court 6 opening statements the accident site provide information 409 Therefore the grant their motion for prejudicial evidentiary ruling thus warranting either review by this denied court of any for interrogatories DOTD of taking excessive indentions Instead testimony make expert witness in roadway counsel Again concerning forth problems reports responses to the of the beginning which the trial concerning rutting water its witness contend that the trial made to aware plaintiffs improvement project on an appeal the Quinns contend that examining accidents engineer to examine the witness the trial mistrial a for DOTD of ponding contemporaneously object attempted the to prior where the accident occurred and DOTD construction that he accidents for the statements a a new on was prior plaintiffs mistrial and trial or a de Initially statements accidents agree with the we before the jury and its examination of Mr Ricca at burden of the accident site that DOTD had actual this burden that location was error among other proving defective because it had meet a However any to protected and from subject identifying an to prior set privilege despite was error a our we DOTD is a finding error at the an a prior accidents at or at the highway knowledge or same was of the data planning plaintiffs a compiled the are or safety are precluded particular location because 9 409 then it follows that same location s before the lack of accidents statements Mr Ricca novo statements s s constituted at the error testimony constituted a review present separate issues separately have raised evidentiary de set privilege precluded from offering evidence concerning allowing warranting plaintiffs of at whether counsel for DOTD will address such issues First since the and since to exercise the finding that counsel for DOTD mistrial and whether prejudicial evidentiary Therefore to forth in 23 U S C the jury and its examination of Mr Ricca warranting constructive evaluating accidents absence of other accidents Nevertheless accident site both was in order show that the Therefore if the discovery privilege DOTD invokes the establishing or to reports surveys schedules lists any evidence of DOTD has invoked the once issue Generally evidence of use DOTD chooses once at highway unreasonable risk of harm and an that evidence have actual s the lack of potential accident sites and hazardous roadway conditions not discovering use to DOTD the plaintiffs had the absence of other accidents was an not collected for the purpose of enhancement of that the would be entitled defective andor that it did 9 409 previously noted things Conversely if there forth in 23 U S C concerning constructive notice of the defect or plaintiffs defective condition As condition that created place DOTD would be entitled not plaintiffs contention that counsel for an error 7 issue regarding may affect the an evidentiary ruling applicable standard of review in that this evidentiary an must errors Department addressed first 2007 0156 p 3 abuse of discretion the trial 2000 3416 p La 6 29 01 10 its discretion in its the appellate a de Lungrin novo court st Cir 11 2 07 will outcome 979 So 2d 500 to errors of see de a 1986 Errors of the trial and deprive are 0339 2003 0349 124 S Ct 419 The finding or plaintiffs 708 So 2d 731 evidentiary novo assert of any on the that Mr Ricca problems or or outcome was error and not an find that the jury verdict when 735 error the v they cert Thus but should v State 2001 2669 p writs denied 2003 0313 s testimony that accidents of any on of the case and by this so 15 2003 denied 540 U S 950 tainted 8 or was at ponding not set aware issue of tainted the jury s of any concerning water had verdict that a a disagree court by the he roadway We court abuse of the trial was the pooling testimony after DOTD had invoked the privilege do by 2003 review should be undertaken While it 799 Engle has abused Wingfield process 845 So 2d 1059 60 5 30 03 excessive indentions substantial effect de 835 So 2d 785 157 L Ed 2d 282 problems reports rutting La v clearly See McLean prejudicial is court party of substantial rights a La 2 6 98 that interdict the fact App 1st Cir 118 02 trial court review novo Department of Transportation and Development 2001 2668 La a 502 also Brandt 621 If the trial be undertaken for every not Rouge Fire such that the jury verdict is tainted 97 0541 97 0577 p 7 review should be limited La commits be disturbed unless it is not 791 So 2d 614 1304 Baton v evidentiary rulings should conduct So 2d 1298 495 v 1 ruling evidentiary rulings materially affect the Evans s Devall court alleged evidentiary process Devall 2007 0156 at p 4 979 So 2d at 503 erroneous Hunter App court finding appeal on La review if the trial novo the standard of review for Initially errors de a that interdicts the fact error be conduct court must s discretion to forth in 23 U S S error During allow such 9 409 we the trial the jury with presented was contradicted Mrs ample Quinn caused her vehicle testimony s and expert evidence pooling highway and roadway where the accident occurred did not to run off the that unreasonable risk of harm brief water supported contain Given such evidence we a defective shoulder factual finding that the defect which created a do or a both not an find that Mr Ricca s testimony concerning the absence of other accidents where the accident occurred affected the materially substantial Therefore rights As for the trial provides that t hearing may grant he court court allowed to App 3rd Cir So 2d 622 following reach other a circumstances remedy a provide granted jury trial which trial court is are not of that discretion courts warranted mistrial La C C P a art 1631 C the motion of any party after or on mistrial may be declared because of that a a justice may not be done if the trial is 98 256 court mistrial in relief civil a of should be case to some error or the p 15 La 735 granted under the irregularity and moving party 2 where no Estate of Cristadoro App 4th Cir 123 02 La La 9 13 02 824 So 2d 1171 by admonition discretion in matter or Motions for mistrial instructions determining of right Id whether subject Estate of Cristadoro 2001 0026 at p a mistrial is 9 to the to grant jury a Id a A mistrial The conduct of the trial is within the that discretion is accepted that v 819 So 2d 1034 proof of prejudicial misconduct occurring during court and have not Riverland Medical Center v be cured cannot discretion of the trial Generally upon granted great since mistrials is matter 1 when the trial judge determines that it is impossible 1049 writ denied 2002 1325 should also be the grant motion A 2001 0026 p 24 Gold Kist Inc to own judgment because would review of this deprived the plaintiffs of 722 So 2d 15 23 writ denied 99 0385 La 5 28 99 A motion for proper to Griggs 98 14 10 its mistrial a continue novo refusal s of the trial and outcome de a on circumstance that indicates to of otherwisewhich a to review 25 dramatic only for abuse 819 So 2d at 1049 remedy therefore if no remedy is available for the fact finder other appropriate verdict then Again while before the jury do those a have found that counsel for DOTD we concerning find that the trial not In comments own by the court in stated that the information to the concluded that based on jury Additionally we an s opening the accident site by denying a statements were error we mistrial based court on noted would be brought aware legal forth to trial that had been incurred Additionally that DOTD had refused under 23 U S C 9 409 Apparently by allowing the trial find that the trial not costs court to the trial disclose this the trial court to go forward and abused its discretion by motion for mistrial we another series of These matter do reaching length of time that had passed since the accident could be served justice the record statements the III motion for mistrial the trial of the jury and other plaintiffs denying the plaintiffs on cost getting the as at abused its discretion denying the plaintiffs docket and the parties the lack of accidents court variety of factors such its consider Id mistrial would be proper a to note that the statements statements plaintiffs made motion for mistrial by counsel was for DOTD in also based his opening follows were as through yet because there s another version As most of you Im assuming should know if you were to get into an accident with somebody who is uninsured or underinsured you all all Now Im not need to realize that you under your situation The own plaintiffs policy argue your own uninsured motorist coverage And that s exactly what was done in this can sue that these although they initially named their action granted State Farm in its judgment State was favor statements were UM insurer State Farm ultimately dismissed pursuant Since State Farm was to inappropriate as a a because defendant in this summary dismissed pursuant to judgment summary Farm could not be considered in the allocation of fault Therefore the plaintiffs contend that the mention of the fact that the UM carrier was named 10 as a defendant would lead the jury thereby warranting a to believe that the mistrial based on When the court determines that admitted st to establish his fault Duzon Cir 12 11 02 Cir 3 20 02 party nonparty is or dismissed fault However the mention of the fact that Mrs was Quinn s In fact the trial court addressed statements case was to them find that counsel for DOTD s mistrial based on court these the by lawyers to and dismissed as a statements were the trial court s State Farm once was during opening defendant in this changed after establish fault case or State Farm on evidence not merely the part of Instead statements denying the plaintiffs we of what he we do not motion for statements court to the jury As s decision to previously The petition only defendant decision to at to stated not once to be allocated fault if any admit the redacted 11 State Farm be considered in offered into evidence contained trial allow their State Farm eliminated defendant in this action State Farm could to DOTDthe App 3rd 819 So 2d during trial Accordingly abused its discretion in confusing the allocation of fault only to be introduced into evidence with all reference was erroneous was as a were Lastly the plaintiffs contend that the trial petition La La specifically informed the jury that the arguments believed the evidence would show the jurors find that the trial named constitute evidence offered not 10 counsel for DOTD by App 2003 0605 p be be considered in the allocation of version of how the accident occurred dismissed did State Farm not not La La 6 2102 assertions that plaintiffs argument that the UM insurer in this evidence may Young 2001 0715 v he may negligent writs denied 2003 0589 854 defendant State Farm could as a subsequent 570 writ denied 2002 1079 agree with the we not Stallworth 2001 1187 p 18 v Bowie 1110 813 So 2d 562 Thus 335 866 So 2d 837 842 So 2d 1101 5 2 03 or a already recovered statements be considered in the allocation of fault and not 1 these had plaintiffs petition into evidence a reference Therefore was not an abuse of the trial court s discretion and did III For all of the above and the trial court the plaintiffs is appellants Susan B taint the verdict of the jury CONCLUSION foregoing hereby affirmed not All reasons costs the June 10 2009 of this appeal Quinn and William AFFIRMED 12 R are Quinn judgment of hereby assessed to SUSAN B QUINN AND WILLIAM R STATE OF LOUISIANA QUINN COURT OF APPEAL VERSUS FIRST CIRCUIT STATE OF LOUISIANA THROUGH DEPARTMENTN OF TRANSPORTATION AND DEVELOPMENT STATE FARM MUTUAL AUTOMOBILE INSURANCE NUMBER 2009 CA 0085 COMPANY WHIPPLE J dissents lJt tJ 1 in the above respectfully disagree with the report am not harmless entitled convinced that the trial error court s To allow the DOTD to avail itself of regarding prior accidents and to then fails because accidents is they have not fundamentally F or these erroneous reasons T demonstrated unfair respectfully dissent matter because evidentiary rulings a privilege to were which it is jury that the plaintiffs case established the existence of prior argue to or captioned a

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