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Janise v. Acadian Ambulance Service, Inc.

Court of Appeals of Louisiana, Third Circuit

April 25, 2018

GERALD JANISE
v.
ACADIAN AMBULANCE SERVICE, INC., ET AL.

          APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20141721 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

          Brenda Sibille Piccione Piccione & Piccione, A.P.L.C. COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Janise

          Tracy P. Curtis Lewis Brisbois Bisgaard & Smith, LLP COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Janise

          Bart Bernard Bart Bernard Law Firm COUNSEL FOR PLAINTIFF/APPELLANT: Gerald Janise

          Brad J. Brumfield Bruce D. Beach Ryan T. Morrow Law Office of Keith S. Giardin COUNSEL FOR DEFENDANTS/APPELLEES: Acadian Ambulance Service, Inc. William J. Gerard Liberty Mutual Insurance Company

          Court composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery, Judges.

          MARC T. AMY JUDGE.

         This dispute arises from an automobile accident between the plaintiff, Gerald Janise, and William Gerard, who was operating an Acadian Ambulance vehicle at the time of the collision. Following the accident, the plaintiff filed a petition for damages against Mr. Gerard, Acadian Ambulance, and the company's insurer. The jury ultimately found in favor of the defendants, and the plaintiff now appeals. For the following reasons, we affirm.

         Factual and Procedural Background

         On April 16, 2013, at the intersection of the Evangeline Thruway and Mudd Avenue in Lafayette, the plaintiff, Gerald Janise, was involved in an automobile accident with William Gerard, an operations supervisor for Acadian Ambulance Service, Inc. (hereafter referred to as "Acadian Ambulance"), who was driving a company vehicle.[1] Subsequently, Mr. Janise filed a petition for damages, naming Mr. Gerard, Acadian Ambulance, and their insurer, Liberty Mutual Insurance Company (hereafter referred to as "Liberty Mutual"), as defendants. The petition alleged: "When confronted with a red light . . ., William J. Gerard, with wanton disregard and gross negligence, failed to obey the traffic control signal, failed to secure a proper lookout, and failed to proceed through the intersection with caution, thereby causing the collision with Gerald Janise's vehicle." The petition further alleged that, as a result of the collision, the plaintiff sustained bodily injury, particularly to his head, neck, and back. The defendants answered, responding, in pertinent part: "Defendant avers that, by statute, it is entitled to qualified immunity due to the use of the ambulance's lights and siren, and, therefore, may not be held liable in this matter in the absence of gross negligence, which is expressly denied."

         Thereafter, the defendants filed a motion for summary judgment, arguing that, under La.R.S. 32:24, which is set forth in pertinent part below, "the driver of an emergency vehicle can be held liable only if his conduct amounts to reckless disregard for the safety of others." They argued that the conditions of La.R.S. 32:24 had been met in this case and, further, that Mr. Gerard's actions did not constitute reckless disregard for the safety of others, such that the defendants were not liable to the plaintiff. The trial court denied the defendants' motion for summary judgment, and the matter proceeded to a jury trial.

         At trial, when asked to describe the accident, the plaintiff explained that he was traveling south in the left of three lanes on the Evangeline Thruway and approaching the intersection of the Evangeline Thruway and Mudd Avenue when he "heard something" but "wasn't positive if [he] heard an ambulance or not." He testified that he looked to his right and saw an 18-wheeler in the middle lane and that "nothing was in the back of me or the front of me that I noticed." The plaintiff stated that he noticed that the 18-wheeler was "[s]lowly moving, coming to a stop but slowly moving." The plaintiff was asked whether the "[c]ars moving slowly up to the green light and congested traffic" notified him "that something may have been wrong" or "that it may have been unsafe to go through the intersection[.]" The plaintiff responded, "No." He stated that he saw a green light ahead of him, proceeded into the intersection, and then collided with the Acadian Ambulance vehicle.

         Mr. Gerard also recounted the accident at trial. He testified that, prior to the accident, he received a call from dispatch directing him to utilize the vehicle's lights and siren to respond to an emergency. After activating the lights and siren, he explained that he was traveling east on Mudd Avenue and had a red light, as well as other vehicles, ahead of him as he approached the Evangeline Thruway. He stated that he stopped the vehicle when he arrived at the Evangeline Thruway and that he noticed vehicles stopped in the right lane of the Evangeline Thruway, which was the lane closest to him, as well as a "bigger vehicle" or large truck in the middle lane. The "bigger vehicle, " as Mr. Gerard explained, was large enough to block "some of" his view of the left lane, which was the lane farthest from him, such that he "could see the entry part - - a little bit of the [left] lane" and could see that there was no vehicle stopped in the left lane. He testified that, after observing that there was no vehicle in the left lane and that the traffic in the right and middle lanes had stopped, he started to cross the intersection and was "creeping across . . . slowly" at about five to ten miles per hour. Mr. Gerard confirmed that once he began to cross the intersection, he did not stop the vehicle until the accident.

         Additionally, the jury heard testimony from Ronnie Angelle, who witnessed the accident. Mr. Angelle explained that at the time of the accident he was operating a tow truck and traveling southbound on the Evangeline Thruway but could not remember in which lane he was driving. He testified that, about a block before arriving at the intersection of the Evangeline Thruway and Mudd Avenue, he heard a siren. He stated that, as he approached Mudd Avenue, "everybody was either slowing down to stop or were stopped" even though the traffic light ahead was green. He testified that he then saw an emergency vehicle to his right on Mudd Avenue and further observed lights on the vehicle. Mr. Angelle testified that he stopped "about four or five car lengths away from . . . the stoplight, " and noticed a car come from somewhere behind him, enter the intersection while the traffic light was still green, and collide with the Acadian Ambulance vehicle.

         After the plaintiff presented his case in chief, the defense moved for a directed verdict, asserting that the record contained support that the conditions of La.R.S. 32:24 had been met, namely that Mr. Gerard was stopped before entering the intersection, proceeded with caution, and used lights and a siren. The defense argued that, because the conditions of the statute had been met, the question was whether the record contained evidence of gross negligence. The defense contended that the record did not contain evidence of gross negligence, such that a directed verdict was proper. However, the trial court denied the defendants' motion for directed verdict. After the defendants presented their case in chief, the plaintiff also moved for a directed verdict, alleging that La.R.S. 32:24 was inapplicable because the defendants had not established that Mr. Gerard was responding to an emergency at the time of the accident. The trial court denied the plaintiff's motion.

         The jury ultimately found that Mr. Gerard was responding to an emergency call; that Mr. Gerard proceeded past a red or stop signal but only after slowing down or stopping as may be necessary for safe operation; that Mr. Gerard made use of audible or visual signals sufficient to warn motorists of his approach; and that Mr. Gerard did not act with reckless disregard for the safety of others. In accordance with the jury's verdict, the trial court issued a judgment dismissing Mr. Janise's claims against Mr. Gerard, Acadian Ambulance, and Liberty Mutual, with prejudice. The plaintiff now appeals, asserting the following assignments of error:

1. The jury was clearly wrong when it found [Mr.] Gerard was responding to an emergency call.
2. The jury was clearly wrong when it found [Mr.] Gerard proceeded through a red light but only after slowing down as necessary for safe operation [in] accordance with La.R.S. 32:24.
3. The jury was clearly wrong when it failed to follow the dictates of La.Civ.Code art. 2323 which requires the trier of fact to determine the degree or percentage of negligence of all persons causing or contributing to the injury.
4. The jury was clearly wrong in failing to award general and special damages to Gerald Janise.

         Discussion

         The plaintiff's first two assignments of error deal with the applicability of the emergency vehicle statute, La.R.S. 32:24, which provides, in pertinent part:

A. The driver or rider of an authorized emergency vehicle, when responding to an emergency call, . . . may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver or rider of an authorized emergency vehicle may do any of the following:
. . . .
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation.
. . . .
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle or bicycle is making use of audible or visual signals . . . sufficient to warn motorists of their approach . . . .
D. The foregoing provisions shall not relieve the driver or rider of an authorized vehicle from the duty to drive or ride with due regard for the safety of all persons, nor shall such provisions protect the driver or rider from the consequences of his reckless disregard for the safety of others.

         In discussing La.R.S. 32:24, the supreme court has explained:

La.Rev.Stat. 32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver's actions fit into subsections A, B and C of La.Rev.Stat. 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver's conduct does not fit subsections A, B and C of La.Rev.Stat. 32:24, such driver's actions will be gauged by a standard of "due care."
"Due care" is synonymous with ordinary negligence. "Reckless disregard, " however, connotes conduct more severe than negligent behavior. "Reckless disregard" is, in effect, "gross negligence." Gross negligence has been defined by this court as "the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise." State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). "Reckless disregard" or "gross negligence" is the standard to be applied if the emergency vehicle driver's actions fit La.Rev.Stat. 32:24(A) through La.Rev.Stat. 32:24(C). Otherwise, the standard is ordinary negligence.
Thus, if the provisions of subsections A, B and C of La.Rev.Stat. 32:24 apply to the accident or incident in question, then the driver will be held liable only for his conduct which constitutes reckless disregard for the safety of others.

Lenard v. Dilley, 01-1522, pp. 6-7 (La. 1/15/02), 805 So.2d 175, 180.

         Whether the emergency vehicle driver's conduct "should be gauged by a 'reckless disregard' or 'ordinary negligence' standard of care is a question" for the trier of fact. Price v. Valenti, 13-822, p. 6 (La.App. 5 Cir. 4/19/14), 140 So.3d 121, 124, writ denied, 14-0978 (La. 8/25/14), 147 So.3d 1120. Regarding appellate review of factual findings, the supreme court has explained:

In reviewing the factual findings of a trial court, we are limited to a determination of manifest error. Hill v. Morehouse Parish Police Jury, 95-1100, p. 4 (La.1/16/96), 666 So.2d 612, 615. It is well settled that an appellate court may not disturb a jury's finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176. An appellate court must do more than simply review the record for some evidence which supports or controverts the findings. Stobart v. State of La., through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La.1993). It must instead review the record in its entirety to determine whether the factual findings were clearly wrong or manifestly erroneous. Id.
Significantly, the issue to be resolved is not whether the jury was right or wrong, but whether its conclusion was reasonable. Id. Thus, this Court, after a full review of the record, may not reverse reasonable findings, even if we had weighed the evidence differently sitting as the trier of fact. Siverd v. Permanent General Ins. Co., 05- 0973, p. 3 (La.2/22/06), 922 So.2d 497, 500.

Fontenot v. Patterson Ins., 09-0669, pp. 8-9 (La. 10/20/09), 23 So.3d 259, 267. With this standard of review in mind, we turn to consideration of the plaintiff's assignments of error.

         Responding to an emergency call

         In his first assignment of error, the plaintiff asserts that "[t]he jury was clearly wrong when it found [Mr.] Gerard was responding to an emergency call." In briefing to this court, the plaintiff argues that the defendants did not prove that Mr. Gerard was responding to an emergency call, such that La.R.S. 32:24 does not apply to this case. In particular, the plaintiff alleges that "the evidence does not support the need for an emergency dispatch" because "[Mr.] Gerard acknowledged that he knew another ambulance had been dispatched and was on its way to the scene." The plaintiff further asserts that the defendants failed to prove Mr. Gerard was responding to an emergency because Mr. Gerard "had been dispatched to check on a child who was hot earlier in the day, but 'is sleeping now, breathing all right.'"

         We begin by addressing the plaintiff's argument that the evidence does not support the need for an emergency dispatch because Mr. Gerard testified that he knew another ambulance was on its way to the scene. In his testimony, Mr. Gerard acknowledged that, prior to the accident, he knew an ambulance had also been called to the scene. However, Mr. Gerard explained that part of his job duty as operations supervisor is to respond to calls to which an ambulance is also dispatched to the scene. Further, Mr. Gerard stated that sometimes he arrives at the scene prior to the ambulance and that his truck is equipped with the same ...


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