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
P. Salley Kevin M. Frey SALLEY, HITE, MERCER & RESOR, LLC
COUNSEL FOR DEFENDANT/APPELLANT
composed of Chief Judge James F. McKay, III, Judge Terri F.
Love, Judge Rosemary Ledet
Rosemary Ledet Judge
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. Both Mr. Waters and Defendants appeal. For
the reasons that follow, we affirm.
AND PROCEDURAL BACKGROUND
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. After entering the bus, Mr. Waters
proceeded to the priority seating section and sat down in a
priority seat located behind the bus driver, Roy
Oliver.The bus, which was headed towards the
Downtown area of New Orleans, was traveling behind a black
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
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,
Mr. Waters was transported to Touro Hospital by ambulance and
treated for his injuries, which are discussed in detail
elsewhere in this opinion.
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.
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
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. 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:
$ 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
$ 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.)
the trial court's ruling, both Defendants and Mr. Waters
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. We separately address each category.
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; 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.
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
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.
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. Brewer v. J.B. Hunt Transport,
Inc., 09-1408, p. 14 (La. 3/16/10), 35 So.3d 230, 240.
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).
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.
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
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.
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. 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. Defendants thus maintain that Mr.
Oliver, in essence, was in compliance with his RTA training.
Mr. Oliver testified that the black truck came to a stop
before making a left turn without using its turning
signal. 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
Waters presented two accident reconstruction experts-Ray
Burkart and Dr. Oscar Franklin Griffith, III. 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?
A. At 15 miles per hour, it would be 88 feet.
Q. And if the bus driver was going 20 miles an hour, would
that distance ...