FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. C-20141721 HONORABLE LAURIE A. HULIN, DISTRICT
Sibille Piccione Piccione & Piccione, A.P.L.C. COUNSEL
FOR PLAINTIFF/APPELLANT: Gerald Janise
P. Curtis Lewis Brisbois Bisgaard & Smith, LLP COUNSEL
FOR PLAINTIFF/APPELLANT: Gerald Janise
Bernard Bart Bernard Law Firm COUNSEL FOR
PLAINTIFF/APPELLANT: Gerald Janise
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
composed of Sylvia R. Cooks, Marc T. Amy, and John E. Conery,
T. AMY JUDGE.
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.
and Procedural Background
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. 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."
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.
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.
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.
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
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
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
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.
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.
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
. . . .
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.
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
Lenard v. Dilley, 01-1522, pp. 6-7 (La. 1/15/02),
805 So.2d 175, 180.
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
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.
to an emergency call
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.'"
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 ...