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Young v. Marsh

Court of Appeal of Louisiana, Second Circuit

November 19, 2014

DERRICK YOUNG, SR., and LAWANDA YOUNG, INDIVIDUALLY and ON BEHALF OF THEIR MINOR CHILDREN, DEMEANTE YOUNG, DERRICK YOUNG, JR., DORIAN YOUNG, and DERRILON YOUNG, Plaintiffs-Appellees
v.
JOHNNY MARSH, CITY OF TALLULAH FIRE DEPARTMENT, THE CITY OF TALLULAH and XYZ INSURANCE COMPANY, Defendants-Appellants

Page 1246

[Copyrighted Material Omitted]

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Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana. Trial Court No. 07279. Honorable Michael E. Lancaster, Judge.

CAROL DENISE POWELL-LEXING, Counsel for Appellants.

MURPHY, ROGERS, SLOSS & GAMBEL, By: Ronald J. White; LAW OFFICES OF MASON L. OSWALT, By: Mason L. Oswalt, Counsel for Appellees.

Before BROWN, STEWART, and CARAWAY, JJ. CARAWAY, J., concurs in part and dissents in part with written reasons.

OPINION

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[49,496 La.App. 2 Cir. 1] BROWN, CHIEF JUDGE

In this action for damages arising out of an intersectional collision between two emergency responders, defendants, Johnny Marsh and the City of Tallulah, have appealed from the trial court's judgment in favor of plaintiffs, Derrick Young, and his

Page 1249

wife, Lawanda Young, and their four children. Defendants are contesting the trial court's determination of liability and apportionment of fault, as well as the damages awarded to plaintiffs. For the reasons set forth below, we affirm.

Facts and Procedural Background

At approximately 6:45 a.m. on June 17, 2007, Madison Parish Sheriff's Deputy Derrick Young and Tallulah Fireman Johnny Marsh collided at the intersection of U.S. Hwys. 80 and 65 in Tallulah, Louisiana. Deputy Young was traveling south on Hwy. 65 in a sheriff's patrol car, and Marsh was traveling east on Hwy. 80 in a city fire truck. Both were responding to an emergency involving an overturned vehicle on Interstate 20 near the Mound exit. Dy. Young had activated his flashing lights and siren; his air conditioner was running, the windows in his patrol car were up, and his dispatch radio was on. The traffic control signal was green as he approached the intersection.

Fireman Marsh had activated the lights and siren on the fire truck he was driving. The truck was loaded with water and weighed approximately 25,000 lbs. Marsh's speed was estimated to be 35-45 mph, and the posted speed limit was 25 mph. Marsh admitted that his traffic signal was red as he approached the intersection, and that his view to the left (north) was obstructed by a service station at the northwest corner of the intersection. [49,496 La.App. 2 Cir. 2] As Marsh proceeded through the intersection, his fire truck's front right bumper struck the rear right quarter corner panel of Dy. Young's patrol car. Billy Zeigler, the state trooper who investigated the accident, noted that there were no skid marks prior to impact, which indicated that the fire truck had not applied its brakes until after the impact. Trooper Zeigler further observed that there were 111 feet of skid marks made by the fire truck from the point of impact to the fire truck's resting spot.

Deputy Young was seriously injured as a result of the accident. Plaintiffs filed suit against defendants, Johnny Marsh, the City of Tallulah, the Madison Parish Police Jury (which was dismissed on a motion for summary judgment filed prior to trial), and XYZ Insurance Co. (although it was discovered prior to trial that the City of Tallulah was uninsured at the time of the accident). A bench trial was held on March 11, 2013. The trial court found that the June 17, 2007, accident was caused solely by the negligence of defendant, Johnny Marsh, a city employee, while in the course and scope of his employment with the Tallulah Fire Dept. The court awarded damages as follows:

Derrick Young:

General Damages-Cervical Injuries

300,000.00

General Damages-Lumbar Injuries

$100,000.00

Past Medical Expenses

$169,353.20

Future Medical Expenses

$61,347.20

Past Lost Wages

$85,000.00

Future Lost Wages

$345,000.00

Loss of Consortium

Lawanda Young:

$75,000.00

Demeante Young:

$25,000.00

Derrick Young, Jr:

$25,000.00

Dorian Young:

$25,000.00

Derillon Young:

$25,000.00

Page 1250

[49,496 La.App. 2 Cir. 3] Defendants have appealed, urging error in the finding and apportionment of fault, and the amounts awarded as damages.

Discussion

Liability and Apportionment of Fault

Defendants first assert that the trial court erred in assessing 100% of the fault to Marsh and the City of Tallulah. According to defendants, Marsh did not breach his duty of care as an emergency responder and should not have been assigned any fault. In the alternative, defendants contend that Dy. Young should have been assessed with some percentage of comparative fault.

Plaintiffs, on the other hand, urge that the trial court correctly found that the sole cause of the accident was the negligence of Marsh in running a red light while traveling at an excessive rate of speed in the city fire truck without first ascertaining that traffic favored with the green light (such as Dy. Young's patrol car) was yielding to his fire truck.

Both parties involved in this accident were drivers of emergency vehicles and therefore subject to the provisions of La. R.S. 32:24, which provides:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set ...

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