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Boothe v. State, Department of Transportation and Development

Court of Appeals of Louisiana, First Circuit

September 21, 2018

SHERRY BOOTHE AND BARRY BOOTHE, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, AMBER AND AMANDA BOOTHE
v.
STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT AND PARISH OF EAST BATON ROUGE

          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, State of Louisiana Trial Court No. C585216 Honorable Janice Clark, Judge

          MELANIE NEWKOME JONES ATTORNEYS FOR BATON ROUGE, LA PLAINTIFFS -APPELLEES AND SHERRY BOOTHE AND BARRY BOOTHE, DAVID L. BATEMAN INDIVIDUALLY AND ON BEHALF OF BATON ROUGE, LA THEIR MINOR CHILDREN, AMBER AND AMANDA BOOTHE

          JEFF LANDRY ATTORNEYS FOR ATTORNEY GENERAL DEFENDANT -APPELLANT THOMAS A. LANE STATE OF LOUISIANA THROUGH THE ASSISTANT ATTORNEY GENERAL DEPARTMENT OF TRANSPORTATION BATON ROUGE, LA AND DEVELOPMENT

          BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

          PETTIGREW, J.

         The State of Louisiana, through the Department of Transportation and Development ("DOTD"), appeals the trial court's grant of a judgment notwithstanding the verdict (JNOV) in this matter. For the reasons that follow, we vacate in part, amend, and as amended, affirm.

         FACTS AND PROCEDURAL BACKGROUND

         This case arises out of a single-car accident that occurred on December 12, 2008, in East Baton Rouge Parish. Sherry Boothe was operating her 2004 Chrysler Pacifica eastbound on Greenwell Springs Road, after bringing her daughter to school. There had been a snow event in Baton Rouge, which, according to Mrs. Boothe, caused the school's closure the day before. As Mrs. Boothe crossed the Comite River Bridge to return home, she lost control of her vehicle, went across the median, flipped, and came to rest in the opposite lane of oncoming traffic. According to Mrs. Boothe, after exiting her vehicle, she immediately knew she had hit either ice or oil because of how slippery the road was.

         Mrs. Boothe noted that traffic was heavy going into Baton Rouge that morning, but stated that she had no problems traversing the bridge on the way to bring her daughter to school. According to Mrs. Boothe, following the accident, she was able to immediately open her door and stand up. However, because of the pain she was experiencing, Mrs. Boothe had to sit back down quickly. She kept saying to others at the scene, "Get that bridge closed." Mrs. Boothe expressed her fear that another motorist would come along, skid on the bridge, and roll right into her. Mrs. Boothe did not know if there was sand on either side of the bridge, adding, "I wouldn't think there was any [sand] on the side that had the black ice but." Mrs. Boothe stated that "there was no reason for [her] to be going over" the posted speed limit of 50 miles per hour. When asked if there was any reason why she should have taken extra precautions that morning, Mrs. Boothe replied:

I mean, not really. I had just come over that bridge and there was no sign of any problem. So, I don't recall when I entered going over it again thinking there could be ice on this bridge or, you know, I just ~ there was just nothing to indicate there were any problems with that bridge.

         As a result of the accident, Mrs. Boothe suffered a fractured cervical disc at C-2 and an aggravation of a preexisting congenital condition, neither of which required surgery. She was treated conservatively, including wearing a hard cervical collar for approximately three months.

         Mrs. Boothe and her husband Barry, individually and on behalf of their minor children ("plaintiffs"), filed a petition against DOTD seeking damages related to the accident.[1] After extensive discovery, the case was tried to a jury on January 25 and 26, 2017. On January 26, 2017, the jury answered "No" to the following jury interrogatory: "Was the State of Louisiana, Department of Transportation and Development at fault for Sherry Boothe's accident on December 12, 2008?" The jury was polled, confirming a 9-3 verdict, and the verdict was made the judgment of the trial court in a written judgment signed by the trial court on February 22, 2017.

         The plaintiffs filed a motion for a JNOV and a motion for a new trial. Following a hearing on June 12, 2017, the trial court granted the motion for JNOV and rendered judgment in favor of the plaintiffs in the amount of $919, 191.20, plus judicial interest until paid, and all court costs. The trial court also conditionally granted the motion for new trial in favor of the plaintiffs. The trial court signed a judgment in accordance with these findings on November 2, 2017.

         It is from this judgment that DOTD has appealed, assigning the following specifications of error:

I. The trial court erred in granting a JNOV, which effectively deprives [DOTD] of a trial by jury.
II. The trial court awarded damages pursuant to the JNOV, which are excessive or not recoverable based on the evidence presented and available to the jury.
III. The form of judgment concerning future medical exposure is improper. Future medical expense should be awarded in accordance with La. R.S. 13:5106 and La. R.S. 13:5106(B)(3)(C).

         ANALYSIS

         In order for DOTD to be held liable, the plaintiffs must prove that (1) DOTD had custody of the thing which caused plaintiffs' damages, (2) the thing was defective because it had a condition which created an unreasonable risk of harm, (3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs' injuries. Cormier v. Comeaux, 98-2378 (La. 7/7/99), 748 So.2d 1123, 1127. DOTD's general duty is to maintain the public roadways in a condition that is reasonably safe and does not present an unreasonable risk of harm to the motoring public exercising ordinary care and reasonable prudence. Whether DOTD breached its duty to the public, by knowingly maintaining a defective or unreasonably dangerous roadway, depends on all the facts and circumstances on a case by case basis. Falcon v. Louisiana Dept. of Transp., 2013-1404 (La.App. 1 Cir. 12/19/14), 168 So.3d 476, 483, writ denied, 2015-0133 (La. 4/10/15), 163 So.3d 813.

         Not every imperfection or irregularity will give rise to liability, but only a condition that could reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. The existence of an unreasonable risk of harm may not be inferred solely from the fact that an accident occurred. Netecke v. State ex rel. DOTD, 98-1182 (La. 10/19/99), 747 So.2d 489, 495. JUDGMENT NOTWITHSTANDING THE VERDICT

         A JNOV is a procedural device authorized by La. Code Civ. P. art. 1811, by which the trial court may modify the jury's findings to correct an erroneous jury verdict. Wood v. Humphries, 2011-2161 (La.App. 1 Or. 10/9/12), 103 So.3d 1105, 1109, writ denied, 2012-2712 (La. 2/22/13), 108 So.3d 769. Article 1811 states, in pertinent part:

A. (1) Not later than seven days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of judgment under Article 1913, a party may move for a judgment notwithstanding the verdict. ...
(2) A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative.
B. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or render a judgment notwithstanding the verdict. ...
C. (1) If the motion for a judgment notwithstanding the verdict is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed and shall specify the grounds for granting or denying the motion for a new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment.
(2) If the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court orders otherwise.
(3) If the motion for a new trial has been conditionally denied and the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

         Article 1811 does not set out the criteria to be used when deciding a motion for JNOV. Wood, 103 So.3d at 1110. However, the Louisiana Supreme Court has established the standard to be used in determining whether a JNOV is legally called for, stating:

JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. This rigorous standard is based upon the principle that "[w]hen there is a jury, the jury is the trier of fact."

Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La. 10/30/00), 772 So.2d 94, 99 (citations omitted).

         In a case such as this, the trial court must first determine whether the facts and inferences point so strongly and overwhelmingly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict. Stated simply, if reasonable persons could have arrived at the same verdict, given the evidence presented to the jury, then a JNOV is improper. Cavalier v. State, ex rel. Dept. of Transp. and Development, 2008-0561 (La.App. 1 Or. 9/12/08), 994 So.2d 635, 644.

         An appellate court reviewing a trial court's grant of a JNOV employs the same criteria used by the trial court in deciding whether to grant the motion. See Smith v. State, Dept. of Transp. and Development, 2004-1317 (La. 3/11/05), 899 So.2d 516, 525. In other words, the appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact. If the answer is in the affirmative, then the appellate court must affirm the grant of the JNOV. However, if the appellate court determines that reasonable minds could differ on that finding, then the trial court erred in granting the JNOV, and the jury verdict should be reinstated. Neither the trial court nor this court may substitute its evaluation of the evidence for that of the jury, unless the jury's conclusions totally offend reasonable inferences from the evidence. Gutierrez v. Louisiana Dept. of Transp. and Development, 2011-1774 (La.App. 1 Cir. 3/23/12), 92 So.3d 380, 386, writ denied, 2012-1237 (La. 9/21/12), 98 So.3d 343.

         We turn now to a review of the evidence to determine whether it "overwhelmingly" supports the plaintiffs' contention that the evidence presented at trial clearly established liability on behalf of DOTD and the resulting damages to the plaintiffs.

         The crux of the plaintiffs' case at trial was that DOTD was negligent in failing to treat the roadway's icy conditions or to close the roadway until it was safe to travel. The plaintiffs maintained that there was ice on the Comite River Bridge that was not treated until after the accident in question. In support of their motion for JNOV, plaintiffs noted that during deliberations, the jury requested several items for review, including the police report, the meteorologist's report, the deposition of Conard Monroe, and the DOTD work orders. Plaintiffs argued, however, that because the work orders were the only items in evidence and available for review, "the fact that [the jury was] not allowed to see the items they requested, influenced them to determine their ultimate decision that the plaintiffs had not proven their case."

         In response to DOTD's appeal herein, the plaintiffs maintain that all four requirements necessary to prove a case against DOTD were satisfied, i.e., DOTD's custody of the roadway, the icy condition that presented an unreasonable risk of harm, DOTD's requisite knowledge of the defect in question, and causation. Thus, the plaintiffs contend, JNOV was appropriate in this case as the trial court properly found that the ...


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