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Smith v. The City of Monroe

Court of Appeals of Louisiana, Second Circuit

April 10, 2019

KENNETH SMITH Plaintiff-Appellant
v.
THE CITY OF MONROE, ET AL. Defendant-Appellees

          Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2017-1635 (Civil) Honorable J. Wilson Rambo, Judge

          ANTHONY J. BRUSCATO Counsel for Appellant

          CITY ATTORNEYS Counsel for Appellees LEGAL DEPT. - CIVIL DIVISION Angie D. Baldwin Brandon W. Creekbaum

          Before MOORE, STONE, and COX, JJ.

          MOORE, J.

         Kenneth Smith appeals a judgment that rejected his claim for personal injuries arising from an incident in which Smith, as a pedestrian, had his right hand struck by a passing motorist. We affirm.

         FACTUAL BACKGROUND

         Shortly before 3:00 AM on May 29, 2016, Smith was walking south on La. Hwy. 594 (also called Millhaven Road), a two-lane asphalt highway east of the city limits of Monroe, Louisiana. The road has no paved shoulder, only a few inches of asphalt beyond the fog line. Smith was walking on the left side of the road, by his admission, sometimes in the lane of traffic, sometimes straddling the fog line, and sometimes stepping into the grass. He had drunk, by his account, four 12-oz. beers earlier that evening. Although it was the middle of the night, he was dressed entirely in black - hat, shirt, pants and shoes - and was shown in cellphone video as a dark-complected African American. There was little artificial lighting in the area, only a ground-mounted floodlight beaming onto the sign for La. State Police Troop F, located on the east side of La. 594 and somewhat north of where the accident occurred.

         Terrance Ervin, an off-duty corporal in the Monroe Police Dept., was driving an unmarked Ford Explorer north on La. 594, returning home from a security detail at the Monroe Civic Center that evening. He testified that he was not tired, was going 40-45 mph, and was using his low beams. When he neared Troop F, however, he suddenly saw a "blur" on the east side of his lane. He testified that the "pavement just came alive" some 15-20 feet ahead of him, and he heard an impact about ½ to 1 second later. He testified that he thought he might have struck a deer, so he drove up to Troop F, turned around, came back and pulled alongside Smith, who was still standing off the side of the road.

         Ervin's passenger side mirror had struck Smith's right hand. The glass in the mirror was broken but the mount was still intact. Smith testified that he was not sure exactly where he was standing when his hand was hit, but the right side of his body was "on the side of the northbound lane." Ervin testified that the "blur" he saw was "in the road, inside the fog line," and he steered left to avoid hitting it, but could not. Ervin called State Police and, while he was waiting, took a cellphone video of Smith, transferred to a CD and admitted at trial as Exhibit P-3 (a still from the video was also admitted, as Ex. P-5). According to Ervin, Smith had "slurrness" in his speech and difficulty punching numbers on his own cellphone.

         State Trooper Matthew Meek arrived at the scene at 3:05 AM. He described Smith as "almost incoherent," "very intoxicated" and "with a strong odor of alcohol." He wrote Smith a ticket for "pedestrian violation," La. R.S. 32:316. In the accident report, he diagrammed Smith standing directly on the fog line and Ervin swerving slightly to the left before contact. He ascribed the accident to (1) pedestrian actions and (2) pedestrian condition, and wrote that Ervin was neither distracted nor impaired. Aside from the broken glass in the mirror, Trooper Meek found no physical evidence of the accident. He testified that he spoke to Smith in the ambulance, but Smith testified that the trooper never interviewed him, and just gave him a ticket.

         Smith was taken to the St. Francis Medical Center ER in Monroe, where he was treated for an arm contusion, pain and minor bleeding; he received 4 mg of morphine. The date of the accident, May 29, was the Sunday before Memorial Day, so Smith did not have to work on Sunday or Monday. The following day, Tuesday, he returned to his job as a contract laborer for the City of Monroe, Department of Public Works; he never missed a day of work. Nearly two months post-accident, he went to Dr. J.D. Patterson for physical therapy that lasted about three months. His medical expenses totaled $6, 058.32.

         PROCEDURAL HISTORY AND TRIAL

         Smith filed this suit against Ervin and his employer, the City of Monroe, in May 2017. The City conceded that Ervin was in the course and scope ...


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