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Burtner v. Lafayette Parish Consolidated Government

Court of Appeals of Louisiana, Third Circuit

April 15, 2015

TAYLOR ADAM BURTNER
v.
LAFAYETTE PARISH CONSOLIDATED GOVERNMENT, ET AL.

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, DOCKET NO. 2010-7783 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

Ralph E. Kraft F. Douglas Gatz, Jr. Bryan E. Lege Kraft Gatz LLC ATTORNEY FOR PLAINTIFF/APPELLANT Taylor Adam Burtner

Bryan D. Scofield Scofield & Rivera, L.L.C. ATTORNEY FOR DEFENDANTS/APPELLEES Lafayette Parish Consolidated Government and Michael Anthony Milazzo

Court composed of Sylvia R. Cooks, Shannon J. Gremillion and David Kent Savoie, Judges.

SYLVIA R. COOKS JUDGE

FACTS AND PROCEDURAL HISTORY

This is an automobile accident case that occurred in Lafayette, Louisiana at 1:15 a.m. on July 22, 2010. The Plaintiff, Taylor Burtner, was driving his 2006 Ford Escape and came to a stop sign on Jomela Drive at its intersection with West Pinhook Road. At that point, West Pinhook has two lanes of travel in each direction, and there is no stop sign for vehicles traveling on West Pinhook at the intersection with Jomela Drive. West Pinhook curves just prior to its intersection with Jomela Drive. Mr. Burtner attempted to turn left from Jomela Drive onto West Pinhook, when he was struck by a police vehicle driven by Michael Milazzo, a Lafayette City Police Officer.

Mr. Burtner suffered injuries as a result of the accident, including a complex tibia and fibula fracture of the right leg, requiring three separate surgeries. Suit was filed against Officer Milazzo and his employer, Lafayette Parish Consolidated Government.

The evidence revealed, earlier in the evening, Plaintiff had visited the Tilted Kilt restaurant, where he drank two beers, before driving to the Frozen Sun Daiquiri Shop. Plaintiff admitted he also consumed two beers at the daiquiri shop. Plaintiff testified he refrained from drinking as much as the people he was with, because he was the "designated driver" that evening.

After leaving the daiquiri bar, Plaintiff drove to his apartment. One of his passengers, Jon Wilson, wanted to go home, but, according to Plaintiff, was too intoxicated to drive. Plaintiff drove Wilson home, and had another person, Harold Alpha, follow in Wilson's truck. After dropping Wilson off, Plaintiff and Alpha began driving back to Plaintiff's apartment.

On the way home after dropping off Wilson, Plaintiff came to the stop sign at Jomela Drive and West Pinhook. According to his testimony, Plaintiff looked to his left and then to his right, and then again to his left. After not seeing any oncoming traffic he moved out onto West Pinhook to begin his left turn. The collision then occurred with the police vehicle driven by Officer Milazzo.

Officer Milazzo was traveling in excess of the posted speed limit on West Pinhook, which was forty miles per hour. How much above the speed limit his vehicle was traveling was contested at trial. There was no dispute that Officer Milazzo was not responding to any police-related emergency, but instead was traveling back to the police station to use the restroom. Plaintiff's expert in accident reconstruction, Kelley Adamson, concluded that Officer Milazzo was traveling between fifty-five and sixty miles per hour at impact. Mr. Adamson maintained that this excessive rate of speed, combined with the curve in the road, prevented Plaintiff from being able to see the police vehicle when he was at the stop sign.

However, Officer Milazzo presented evidence suggesting his vehicle was traveling just minimally above the speed limit, at no more than fifty miles per hour. The defense argued if Plaintiff had been paying more attention he would have seen Officer Milazzo's vehicle before proceeding onto West Pinhook.

According to the defense, Plaintiff was distracted at the time he attempted to turn left, because he noticed his guest passenger, Alpha, was texting when he was making the left turn. Plaintiff testified he observed Alpha was texting when he looked to his right, but then again looked to his left before beginning his left-turn maneuver.

Following the accident, Plaintiff was transported to Lafayette General Medical Center by Acadian Ambulance. A blood alcohol test was performed on Plaintiff at 2:20 a.m., approximately one hour after the accident occurred.[1] The test revealed Plaintiff had a blood alcohol level of 0.06, which is below the 0.08 legal limit for intoxication. Defendants later hired a pharmacologist and toxicologist, Dr. William George, who concluded at the time of the accident, Plaintiff would have had a blood alcohol level of between 0.069 and 0.073, still below the legal limit for intoxication. Despite the fact that Plaintiff was not "legally drunk, " Dr. George testified that beginning at 0.050, a driver's reaction times and judgment are impaired. Thus, he testified ...


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