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Brown v. State

Court of Appeals of Louisiana, Third Circuit

May 27, 2015

PARVIN WESLEY BROWN, ET UX
v.
STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT

Page 1198

APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CATAHOULA, NO. 27,245. HONORABLE KATHY JOHNSON, DISTRICT JUDGE.

Charles S. Norris, Jr., Christopher J. Norris, Norris Law Firm, LLC, Vidalia, LA, COUNSEL FOR PLAINTIFFS/APPELLEES: Parvin Wesley Brown and Rhonda Brown.

Daniel Vidrine, Law Offices of Daniel Vidrine, Baton Rouge, LA, COUNSEL FOR PLAINTIFFS/APPELLEES: Parvin Wesley Brown and Rhonda Brown.

James D. " Buddy" Caldwell, Attorney General, Ronald J. Fiorenza, Special Assistant Attorney General, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, Alexandria, LA, COUNSEL FOR DEFENDANT/APPELLANT: State of Louisiana, through the DOTD.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and Elizabeth A. Pickett, Judges.

OPINION

Page 1199

[15-23 La.App. 3 Cir. 1] D. KENT SAVOIE, Judge.

FACTS AND PROCEDURAL HISTORY

On April 19, 2012, Weston Brown, who was fifteen years old at the time, was a guest passenger in a pick-up truck driven by his seventeen year old cousin, Dustin Brown. They were traveling on Louisiana Highway 923 in Catahoula Parish. Dustin passed a white Ford Explorer in the other lane of traffic before returning to his lane. Shortly after the passing maneuver, Dustin saw a white automobile stopped in the road.

While attempting to avoid the stopped vehicle, Dustin attempted to pass it in the other lane of travel. At that same time, the white automobile, operated by Amanda Coleman, began to turn left. In response, Dustin swerved farther to the left, resulting in his two left wheels leaving the asphalt portion of the roadway where the shoulder was located. Dustin then attempted to return to the right lane but overcorrected his vehicle, causing it to exit the highway on the left side. The truck entered a ditch, ultimately striking a solid concrete culvert. The truck flipped in the air, ejecting Weston Brown, who ultimately died from his injuries. It was acknowledged by all parties that Dustin was operating his truck in excess of the posted speed limit when these events occurred.

Louisiana Highway 923 was built in the 1950's using the 1948 standards. When built it had two ten-foot lanes with five-foot shoulders on each side. The evidence established there was an overlay project on Hwy. 923 in 1998, which expanded the width of the travel lanes, while decreasing the width of the shoulders. Whether appropriate standards were used by DOTD during the overlay project was a contested issue at trial. DOTD contended because the overlay project was a resurfacing project and not a reconstruction project, it was able to use the 1948 standards rather than implement more modern standards. Plaintiffs disagreed and [15-23 La.App. 3 Cir. 2] contended mandatory American Association of State Highway Transportation Officials (AASHTO) standards required the use of more modern standards.

Plaintiffs, the parents of Weston Brown, Parvin Wesley Brown and Rhonda Brown, filed suit against several defendants, including Leslie Brown (the owner of the truck driven by Dustin Brown and his father), Angela Brown (Dustin's mother), Dustin Brown, Amanda Coleman, State Farm Mutual Automobile Insurance Company (the insurer of the Brown vehicle), and the State of Louisiana, through the Department of Transportation and Development (DOTD). State Farm, Leslie Brown, Angela Brown and Dustin Brown were dismissed pursuant to a Partial Judgment of Dismissal signed on December 9, 2013. Amanda Coleman was dismissed pursuant to a Partial Judgment of Dismissal signed on May 12, 2014. That left DOTD as the sole remaining defendant.

A three-day jury trial commenced on May 14, 2014. Following trial, the jury returned a verdict finding DOTD to be thirty percent (30%) at fault, Dustin Brown sixty-five percent (65%) at fault and Amanda Coleman five percent (5%) at fault. The jury then awarded Plaintiffs special damage in the amount of $23,158.50, which reflected the medical and funeral expenses. Plaintiffs were also awarded $105,000.00 each in general damages.

Following the jury's verdict, Plaintiffs moved for a judgment notwithstanding the verdict (JNOV) on the issue of the jury's

Page 1200

award of general damages, contending they were inadequate. A hearing was held on July 17, 2014. The trial court rendered judgment that day in open court granting the motion increasing the amount of general damages to $450,000.00 for each plaintiff. A written judgment reflecting that ruling was signed on July 28, 2014.

DOTD lodged this appeal, contesting three evidentiary rulings made by the trial court as well as the grant of Plaintiffs' JNOV. They asserted the following assignments of error:

[15-23 La.App. 3 Cir. 3] 1. The trial court abused its discretion by forbidding the admission of Trooper Jay Donaldson's scale diagram of the accident, as he was available for cross-examination by the Plaintiffs.
2. The trial court abused its discretion by prohibiting Trooper Donaldson from testifying fully about the speed of the vehicle at issue as he was qualified as an expert at traffic reconstruction and ...

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