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Waters v. Roy Oliver Regional Transit Authority

Court of Appeals of Louisiana, Fourth Circuit

June 22, 2017

LEON WATERS
v.
ROY OLIVER REGIONAL TRANSIT AUTHORITY, TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA AND VEOLIA TRANSPORTATION SERVICES, INC.

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2011-11075, DIVISION "E" Honorable Clare Jupiter, Judge

          Patrick G. Kehoe, Jr. PATRICK G. KEHOE, JR., APLC COUNSEL FOR PLAINTIFF/APPELLEE

          David P. Salley Kevin M. Frey SALLEY, HITE, MERCER & RESOR, LLC COUNSEL FOR DEFENDANT/APPELLANT

          Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge Rosemary Ledet

          Rosemary Ledet Judge

         This is a personal injury case. The plaintiff, Leon Waters, filed suit for damages for injuries sustained on a Regional Transit Authority ("RTA") bus when the bus came to an abrupt stop to avoid hitting a preceding vehicle. Following a bench trial, the trial court awarded $695, 544.27 in damages in favor of Mr. Waters and against RTA; Veolia Transportation Services, Inc. ("Veolia"); and its insurer, Old Republic Insurance Company ("Old Republic") (collectively the "Defendants"). The trial court also found the preceding vehicle thirty percent (30%) at fault and thus reduced the damages award to $486, 881.00.[1] Both Mr. Waters and Defendants appeal. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         On Friday, October 22, 2010 at 10:02 p.m., Mr. Waters boarded a RTA bus in front of the Whole Foods Market on Magazine Street in New Orleans, Louisiana.[2] After entering the bus, Mr. Waters proceeded to the priority seating section[3] and sat down in a priority seat located behind the bus driver, Roy Oliver.[4]The bus, which was headed towards the Downtown area of New Orleans, was traveling behind a black truck.

         As the bus approached the intersection at Magazine Street and Bordeaux Street, the black truck applied its brakes and made a left turn onto Bordeaux Street. Mr. Oliver applied the brakes to avoid colliding with the truck. At that time, Mr. Waters was ejected from his seat and landed on his right side on the floor near the driver and the door of the bus. Mr. Oliver, as well as two other passengers, went to Mr. Waters' aid. Shortly thereafter, Mr. Waters complained of shoulder pain.

         After checking on Mr. Waters, Mr. Oliver reported the accident and requested an ambulance. Shawn Barnes, a Veolia supervisor, came to the scene. Both Mr. Oliver and Mr. Barnes drafted reports of the accident. Although Defendants concede that RTA buses are equipped with video recording systems, Defendants admit that they cannot produce the video of the October 22, 2010 accident.

         Thereafter, Mr. Waters was transported to Touro Hospital by ambulance and treated for his injuries, which are discussed in detail elsewhere in this opinion.

         On October 18, 2011, Mr. Waters filed a petition for damages naming as defendants Mr. Oliver, RTA, TMSEL, and Veolia as defendants. In his first supplemental and amending petition for damages, Mr. Waters added Old Republic, Veolia's insurer, as a defendant.

         On May 2, 2016, a bench trial commenced. On May 4, 2016, during the Defendants' case, the parties agreed to recess the trial until the parties had the opportunity to depose a defense witness, Marcia Kirch. On June 13, 2016, the trial resumed and concluded.

         On August 29, 2016, the trial court rendered judgment in Mr. Waters' favor and against RTA. Pointing out that the judgment failed to cast Veolia and Old Republic as liable for the damages award, Mr. Waters filed a motion for new trial. On September 12, 2016, the trial court rendered an amended judgment in Mr. Waters' favor and against RTA, Veolia, and Old Republic.[5] The trial court also dismissed Mr. Oliver with prejudice for the failure of Mr. Waters to effect service of process. The trial court, in both the original and amended judgments, awarded the following damages:

SPECIAL DAMAGES:

$ 445, 544.27

Past medical expenses

$ 59, 689.63

Future medical expenses

$ 111, 947.64

Past loss of earning capacity

$ 112, 256.00

Future loss of earning capacity

$ 145, 894.00

Los[s] of benefits

$ 15, 757.00

GENERAL DAMAGES:

$ 250.000.00

TOTAL:

$ 695, 544.27*

*(Reduced by thirty percent (30%) for the fault of the preceding driver for an adjusted total damage award of $486, 880.989.)

         From the trial court's ruling, both Defendants and Mr. Waters appeal.

         DISCUSSION

         For ease of discussion, we divide our analysis of the issues presented into the following four categories: (i) liability; (ii) comparative fault; (iii) general damages; and (iv) special damages.[6] We separately address each category.

         Liability

         Defendants contend that the trial court erred in finding them liable for Mr. Waters' injuries. Citing Jacobs v. Reg'l Transit Auth., 03-2158 (La.App. 4 Cir. 4/14/04), 872 So.2d 571, Defendants argue that the trial court erroneously applied the stricter "common carrier" standard of negligence;[7] rather, Defendants maintain that the general negligence standard applies here. Under general negligence, Defendants contend that Mr. Waters failed to prove Mr. Oliver engaged in conduct that fell below the reasonable person standard of care. Defendants further contend that Mr. Waters failed to prove that his continuing shoulder and neck injuries were caused by the accident.

         This court in Jacobs, supra, explained the proper standard to be applied in RTA cases as follows:

Pursuant to La. R.S. 48:1656(23), as amended by Acts 199, No. 735, effective August 15, 1995, the RTA is not considered a common carrier in a suit for personal injuries. As such, the RTA is not held to the previous higher standard of care that allowed a plaintiff to make out a prima facie case of liability merely by showing that he/she was a fare-paying passenger and sustained an injury, thereby shifting the burden to the RTA to exculpate itself from liability. The 1995 amendment to La. R.S. 48:1656(23) states:
Notwithstanding the provisions of any other law to the contrary, including the provisions of R.S. 45:161 et seq., the authority created herein shall not be deemed a "person" as defined in R.S. 45:162(12) or a "common carrier" as defined in R.S. 45L162(5) nor shall the authority be construed of interpreted to be such. Additionally, the authority shall not be deemed to be a common carrier, or interpreted to be such by any court of this state in a suit for personal injury or property damage.

03-2158 at p. 3, 872 So.2d at 573 (emphasis supplied). Furthermore, any entity contracted to manage or operate the RTA shall not be considered a common carrier in a suit for personal injury or property damage. La. R.S. 48:1656(23); La. R.S. 48:1653(1). Accordingly, this court has held, as Defendants contend, that absent the stricter standard of proof for common carriers, the proper standard is general negligence. Jacobs, 03-2158 at p. 3, 872 So.2d at 573; see also Manuel v. Reg'l Transit Auth., 09-1256, p. 5 (La.App. 4 Cir. 5/12/10), 36 So.3d 1131, 1133.

         The applicable standard of care in this case is thus the general negligence standard. See La. C.C. art. 2315(A) (providing that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."). In a personal injury suit, a well-settled principle is that liability is determined under the duty-risk analysis.[8] Brewer v. J.B. Hunt Transport, Inc., 09-1408, p. 14 (La. 3/16/10), 35 So.3d 230, 240.

         Under the manifest error standard, a trial court's factual determinations will not be reversed unless the appellate court finds a reasonable factual basis does not exist for the trial court's finding and that the record establishes that the finding is clearly wrong. Holden v. Zurich Am. Ins. Co., 44, 242, p. 4 (La.App. 2 Cir. 5/13/09), 13 So.3d 221, 224. "When findings are based on determinations regarding the credibility of a witness, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings." Holden, 44, 242 at pp. 4-5, 13 So.3d at 224 (citing Hanger One MLU, Inc. v. Unopened Succession of Rogers, 43, 120, p. 6 (La.App. 2 Cir. 4/16/08), 981 So.2d 175, 179; Green v. Nunley, 42, 343, pp. 2-3 (La.App. 2 Cir. 8/15/07), 963 So.2d 486, 489).

         At trial, the parties submitted conflicting evidence regarding the speed of the bus and the proximity of the bus to the black truck. Mr. Waters testified that he frequently caught the bus at the same location in front of the Whole Foods on Magazine Street to get to his place of employment. He explained that he was employed as a room service attendant and a banquet server at the Sheraton New Orleans Hotel (the "Sheraton") on Canal Street. According to Mr. Waters, "Mr. Jewel" was the bus operator who normally drove the Magazine Street bus route that he rode; however, Mr. Jewel was off work on the day of the accident. Mr. Waters further testified that he typically boarded the bus at 9:50 p.m. and arrived at the Sheraton around 10:10 p.m. On the day of the accident, the bus was running late; Mr. Waters boarded the bus at 10:02 p.m. After boarding the bus, Mr. Waters felt the bus moving at a speed faster than normal to catch up.

         Mr. Oliver, the bus operator on the date of the accident, testified that he has been a bus driver for about nine years. He admitted that he was "behind schedule maybe four or five minutes, " on that day; however, he denied hurrying to make up time. Instead, he testified that he was traveling at approximately 15 miles per hour ("mph") at the time of the accident. Mr. Barnes, Mr. Oliver's supervisor, also reported that the bus was traveling at approximately 15 mph. Inconsistently, Mr. Oliver's post-accident report, which he drafted about three hours after the accident, stated that Mr. Oliver was traveling at 20 mph.

         Marcia Kirch, a defense witness, testified that she was a passenger on the bus at the time of the accident. She testified that the bus may have been traveling between 15 to 25 mph before it came to an abrupt stop.[9]

         Bryan LeDuff, a Veolia trainer, testified that Veolia trains its drivers to maintain a safe and proper distance behind a preceding vehicle by implementing a four-second rule.[10] According to Mr. Oliver, at the time of the accident, he was following Veolia's four-second rule; he was about 60 to 75 feet away from the black truck when he noticed the brake lights of the truck. Mr. Oliver testified that the black truck failed to use its turning signal before turning. As Defendants note in their brief, the appropriate distance between the bus and the black truck was between 80 and 120 feet as evidenced by Mr. LeDuff s testimony.[11] Defendants thus maintain that Mr. Oliver, in essence, was in compliance with his RTA training.

         Likewise, Mr. Oliver testified that the black truck came to a stop before making a left turn without using its turning signal.[12] He also testified that he used the "stab braking" procedure to slow down rather than slamming on the brakes. In his post-accident report, Mr. Oliver noted that "a black [truck] stop short to turn left. I had to break [sic] hard when Mr. Waters came out of [his] seat onto the bus floor." Mr. Barnes also noted in his report that the preceding vehicle made a sudden left turn, which caused "the operator [Mr. Oliver] to hit the brakes causing passenger to fall and hit right shoulder on the floor."

         Mr. Waters presented two accident reconstruction experts-Ray Burkart and Dr. Oscar Franklin Griffith, III.[13] Mr. Burkart noted that the stab braking procedure should not be used in vehicles with anti-lock braking systems-which the bus in question had-because it will actually take longer for the vehicle to stop. Regarding the distance between the bus and preceding vehicle, Mr. Burkart testified as follows:

MR. KEHOE [COUNSEL FOR MR. WATERS]:
Q. At 15 miles per hour and under the four-second rule, what should be the distance between the preceding vehicle, in this case the truck, and the bus if they are, in fact, following the four-second rule?
MR. BURKART:
A. At 15 miles per hour, it would be 88 feet.
MR. KEHOE:
Q. And if the bus driver was going 20 miles an hour, would that distance ...

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