Paula Turner VS Dennis A. Chaney and American Alternative Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 0253 v PAULA TURNER VERSUS DENNIS A CHANEY AMERICAN ALTERNATIVE INSURANCE COMPANY Judgment Rendered November 2 2012 On Appeal from the 19 Judicial District Court In and far the Parish of East Baton Rouge State of Louisiana Trial Court No 577 534 The Honorable R Michael Caldwell Judge Presiding Steve Adams Attorney for Appellant Baton Rouge Louisiana Paula Turner Henry D H Attorneys for Appellees Susan N Olinde Jr Eccles Dennis A Chaney Drew Bernard American Alternative Insurance Baton Rouge Louisiana Corporation BEFORE CARTER C GUIDRY AND GAIDRY JJ J i il CARTER C J I Paula Turner appeals a judgment dismissing her claims for personal injury damages against the driver of an emergency vehicle and his insurer Dennis A Chaney and American Alternative Insurance Corporation after a finding that Mr Chaney was afforded immunity pursuant to Louisiana Revised Statutes Section 32 and that even if the matter involved ordinary 24 negligence the plaintiff was responsible far the majority of the fault in causing the motor vehicle accident We affirm FACTS AND PROCEDURAL HISTORY On the afternoon of April 25 2008 the Pride Volunteer Fire Department responded to an emergency call at an address on Pride Port Hudson Road located in East Baton Rouge Parish Dennis A Chaney a firefighter was driving a rescue unit owned by the city of Pride described as a Ford F with Kenneth Seale a first responder riding as a passenger 450 The unit was equipped with special lighting and a backup alarm both of which were activated at the time of the accident En route to the home of Luther Perkins the rescue unit proceeded north on Liberty Road As the rescue unit approached Paula Turner who was also proceeding north on Liberty Road she pulled her vehicle over as far to the right as possible to let the rescue unit pass Both the rescue unit and Ms Turner turned left onto Pride Hudson Road which is a rural Port lane two highway The rescue unit stopped somewhere near the u shaped driveway of the Perkins home Ms Turner stopped her vehicle near one of s the two entrances to the udriveway at a disputed distance behind the shaped rescue unit The rescue unit began backing up because Mr Chaney 2 explained he had passed the driveway for the emergency call and he intended to turn up one of the entrances to the driveway As the rescue unit backed up it collided with Ms Turner stopped vehicle s Ms Turner filed the instant suit for personal injury damages against Mr Chaney and his insurer Mr Chaney claimed immunity under Louisiana Revised Statutes Section 32 and generally denied liability for Ms 24 s Turner aileged injuries At the conclusion of the bench trial the court found that Mr Chaney was responding to an emergency call at the time of the accident and that the immunity statute applied to the act of backing up the rescue unit in this matter The court also noted that Louisiana Revised Statutes Section 32 requires a civilian vehicle to stay at least 500 feet 286 behind moving emergency vehicles and prohibits a civilian vehicle from driving or parking within a block of an emergency vehicle stopped in answer to an official call Finally the court noted it would fmd little fault on the part of Mr Chaney and substantial fault on the part of Ms Turner Accordingly on September 21 2011 the trial court signed a judgment in favor of Mr Chaney and his insurer dismissing Ms Turner claims against s them with prejudice The trial court denied a motion for new trial staring that the original decision was based more on Mr Chaney slack of fault and Ms Turner s overwhelming fault than upon the immuniry statute Ms Turner now appeals STANDARD OF REVIEW It is well that a court of appeal may not set aside a trial court settled s or a jury finding of fact in the absence of manifest error or unless it is s clearly wrong and where there is conflict in the testimony reasonable 3 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 Rosell v ESCO 549 So 2d 840 844 La 1989 Where two permissible views of the evidence exist the fact finder choice between them cannot be manifestly erroneous Stobart s v State Department of Transportation and Development 617 So 2d 880 883 La 1993 Moreover a trier of fact is vested with much discretion in its allocation of fault 5ee Clement v Frey 95 La 1 666 So 1119 96 16 2d 607 609 A trier of fact is free to accept or reject in whole or in part 10 the testimony of any witness Therefore an appellate court should only disturb a trial court allocation of fault when it is manifestly erroneous See s Duzon v Stallworth 01 La App 1 Cir 12 866 So 2d 837 1187 02 11 862 writs denied 03 03 La 5 842 So 2d 1101 ll10 0589 0605 03 2 Accordingly we review the record befare us in accordance with these standards APPLICATION OF LEGAL PRINCIPLES Louisiana Revised Statutes Section 32 sets forth certain privileges 24 and limited immunity for drivers of emergency vehicles in pertinent part A The driver or rider of an authorized emergency vehicle when responding to an emergency call may exercise the privileges set forth in this Section but subject to the conditions herein stated B The driver or rider of an authorized emergency vehicle may do any of the following 4 Disregard regulations goveming the direction of movement or turning in specified directions 4 C The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals including the use of a peace officer cycle rider whistle sufficient to warn s motorists of their approach except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle D The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others As explained in Lenard v Dilley 01 La 1 805 So 2d 1522 02 15 175 180 a driver of an emergency vehicle whose actions fall under Section 42 32 will be liable only if his conduct constitutes reckless disregard for the safety of others and thus rises to the level of gross negligence For a case to fall under this standard an emergency vehicle must be authorized and 1 the driver must be responding to an emergency call 2 the accident must arise out of one of the listed driver actions including moving against the normal flow of traffic and 3 the driver must make use of audible or visual signals sufficient to warn motorists of their approach Id If the emergency vehicle driver conduct does not fit the statute his actions must be gauged s by a standard of ordinary negligence Id Here it is undisputed that Mr Chaney was responding to an emergency call and that at the time he backed the rescue unit he was using visual signals as his lights were flashing and audible signals as an alarm sounded Plaintiff argues that the act of backing up an emergency vehicle falls outside the scope of La Rev Stat Ann 4 B 24 32 which permits a driver of an authorized emergency vehicle who is responding to an emergency call to disregard regulations governing the direction of 5 movement for vehicles Ms Turner argues that this exception is limited to turning the wrong way down a one way street or passing in an oncoming lane but does not contemplate the action of backing The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of government Rougeau v Hyundai Motor America 01 La 1 805 So 2d 147 1182 02 15 151 The starting point in the interpretation of any statute is the language of the statute itseif Fontenot v Reddell Vidrine Water Dist 02 La 0439 03 14 1 836 So 2d 14 20 When a law is clear and unambiguous and its application does not lead to absurd consequences the law shall be applied as written and no further interpretation may b e made in search of legislative intent Id A statute shall be construed to give meaning to the plain language of the statute and courts may not extend statutes to situations that the legislature never intended to be wvered Durnin Chrysler Plymouth Inc v Iones 01 La App 1 Cir 5 818 So 867 870 0810 02 10 2d When two or more interpretations may be given a law the interpretation which is reasonable and practical is preferred to that which makes the law ridiculous or meaningless Rabalais v Nash 06 La 0999 07 9 3 952 So 2d 653 662 In Rabalais the Louisiana Supreme Court noted that direction of movement is not defined by Section 32 4 B 24 Id Just as in Rabalais direction of movement is the point of contention at issue in this matter After reviewing the common and approved usage of movement Rabalais held that the driver of an emergency vehicle driving down a center turn lane did meet the definition of direction of movement Similarly although backing is not specifically listed by Section 32 4 B 24 6 we agree with the trial court assessment that backing is aof s direction movement The plaintiff would have this court allow an emergency vehicle go down the wrong way on a one way street or drive in the oncoming lane of traffic to get to an emergency but not back a few feet to turn into a driveway while responding to an emergency without being subject to ordinary negligence The legislature did not list each and every direction of movement but used the broad terms so as to include many types of maneuvers an emergency vehicle may have to make during an emergency response Thus the immunity statute applies meaning that liability is limited to damages caused by reckless disregard for the safety of others While looking far the particular house in response to the emergency call Mr Chaney passed up the u driveway to some degree Both shaped Mr Chaney and his passenger Mr Seale testified that the rescue unit passed up the driveway by a few feet Mr Perkins who was standing on his porch attempting to get the attention of the rescue unit testified that the unit passed the driveway by a few feet or inches Ms Turner while stopped near one entrance of the driveway testified that the rescue unit was stopped at least 87 feet in front of her vehicle Regardless as to the distance the trial court found that the flashing lights and alarm sounding on a rescue unit were sufficient to warn Ms Turner The court also found Ms Turner had time to move out of the way and did not instead relying upon the assumption that Mr Chaney was going to back up and turn into the other entrance to the u shaped driveway None of Mr Chaney sactions however rose to the level of gross negligence or reckless disregard far the safety of others 7 The trial court noted that varying statutes regarding the following and passing of emergency vehicles and regarding immunity are in place ecause bemergency vehicles because ofthe nature oftheir response that is there is an emergency may make unusual unexpected and sudden movements These people are responding to emergencies They should be provided some leeway They should be allowed to make maneuvers that are necessary for what they need to do The Louisiana Supreme Court has recognized a social value and premium placed on protection and high rescue efforts Lenard 805 So 2d at 180 As the trial court noted there were many ways Ms Turner could have avoided the accident but she chose to leave her car where it was stopped when an emergency vehide with lights flashing and an alarm sounding attempted to back up to turn into the driveway of a person in need of immediate assistance The trial court found that the actions of Mr Chaney did not amount to reckless disregard The trial court factual determination s that Mr Chaney did not act with reckless disregard for Ms Turner safety s is clearly supported by the record and may not be disturbed on appeal Because we find that Section 32 applies to the actions of Mr 24 Chaney we do not need to determine if his actions constituted ordinary negligence All of the remaining errors brought by Ms Turner involve the allocation of fault and damages which are mooted by this decision Although in denying the motion for a new trial the trial court stated that its original decision was based on the overwhelming fault of the Ms Turner rather than Section 32 this court finds that Section 32 applies to the 24 24 facts before the court and that a determination as to fault is unnecessary 8 Further it is well that a district court oral or written reasons for settled s judgment form no part of the judgment and that appellate courts review judgments and not reasons for judgment Bellard v American Cent Ins Co 07 07 La 4980 So 654 671 The judgment in 1335 1399 08 18 2d this matter dismissed Ms Turner claims against Mr Chaney and his s insurer Having reviewed the record and determined that Section 32 34 applies to the facts of this case we find no error in the trial court sjudgment dismissing Ms Turner claims with prejudice s CONCLUSION For the faregoing reasons the trial court sjudgment is affirmed All costs ofthis appeal are assessed to Paula Turner AFFIRMED 9
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