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Murray v. Windmann

Court of Appeals of Louisiana, Fifth Circuit

May 29, 2019

KING GEORGE MURRAY
v.
BRENT MICHAEL WINDMANN, WESCO DISTRIBUTION, INC. AND LIBERTY MUTUAL INSURANCE COMPANY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 757-718, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, KING GEORGE MURRAY King George Murray, III

          COUNSEL FOR DEFENDANT/APPELLEE, WESCO DISTRIBUTION, INC. AND LIBERTY MUTUAL INSURANCE COMPANY H. Minor Pipes, III John W. Joyce

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Hans J. Liljeberg

          FREDERICKA HOMBERG WICKER JUDGE

         The instant appeal, in which appellant appears pro se, arises from a February 12, 2015 auto and bike accident between appellant, King George Murray, III, and appellee, Brett Michael Windmann. Mr. Murray seeks review of the July 13, 2018 judgment of the trial court adopting the jury determination that Mr. Windmann was negligent, but was not the legal cause of the accident. For the reasons following, we affirm the judgment of the trial court.

         FACTS AND PROCEDURAL HISTORY

         On February 12, 2015, Mr. Murray and Mr. Windmann were involved in an auto and bike collision at the intersection of Airline Drive and Shrewsbury Road in Metairie, Louisiana. Mr. Murray, the bicyclist, brought suit against, defendant-driver, Mr. Windmann, and his insurer - Liberty Mutual Corporation[1] - in the Twenty-Fourth Judicial District Court on February 10, 2016, seeking damages and a trial by jury. On June 18, 2018, the matter proceeded to trial by jury.

         At trial, Trooper Chris Ledoux, of the Louisiana State Police Troop B, testified that he responded to an accident at 9:24 a.m. on February 12, 2015, at the intersection of U.S. 61 (Airline Drive) and Shrewsbury Road. Upon arrival, he observed a blue Chevy Malibu "somewhat on Shrewsbury, almost partially in the right lane of Airline" and a bicycle. Trooper Ledoux spoke with Mr. Windmann, Mr. Murray, and a witness, Ms. Debra Primo, at the scene of the accident.

         Trooper Ledoux testified that Ms. Primo in her statement said that she saw the collision as she was the first car in line at a stop light at the intersection of Airline Drive and Severn Avenue. According to Ms. Primo's statement, while waiting for the light to turn green, she saw Mr. Murray pedaling his bicycle toward Kenner. As Mr. Windmann was making a right turn on red, Mr. Murray did not stop or slow down prior to impact.

         Trooper Ledoux further testified that he spoke to Mr. Windmann, who stated that his car was stopped in the right lane headed northbound on Shrewsbury Avenue, and he was waiting for traffic to clear so that he could make a right turn onto Airline. According to Mr. Windmann, he saw that southbound traffic on Airline had cleared and he proceeded to turn right on red. At that time, he noticed Mr. Murray on a bicycle directly in his path and applied his brakes, but was unable to avoid the collision. Mr. Windmann informed Officer Ledoux that he did not look to his right before initiating his turn.

         Trooper Ledoux also spoke with Mr. Murray, who stated that he was traveling against traffic on Airline Highway from the direction of the traffic circle at Airline and Causeway, when "the vehicle" pulled out in front of him and hit him. Mr. Murray told Trooper Ledoux that he was on the gravel portion along the south side of Airline. When asked by defense counsel if Mr. Murray could have avoided the accident, Trooper Ledoux testified:

In my opinion? Bicyclists, you generally have a shorter stopping distance than cars and there wasn't any obstructions in his path, so more than likely he probably - more than likely, I would say that if he was paying attention and he saw the car, he could have stopped in time.

         Trooper Ledoux also observed minor damages to the Chevrolet Malibu on the front bumper and hood area. He further testified that it was not illegal for Mr. Windmann to make a right turn at the red light at the intersection of Airline and Shrewsbury and that there were no signs erected along the intersection that said "no turn on red."

         On cross, Trooper Ledoux testified that he investigated between 150 and 180 automobile accidents each year. Of these accidents, only five or six have involved bicycles. He explained that a bicycle must abide by the same laws as vehicles, with the exception that they can ride on the shoulder and are also limited in the number of places they can ride. Trooper Ledoux further explained that a bicyclist should be riding with traffic and not against it. After conducting his investigation, Trooper Ledoux found that Mr. Murray broke the law by traveling against traffic and gave him a citation.

         On the second day of trial, Mr. Murray's counsel called Dr. Mahmoud M. Sarmini who was tendered as an expert in physical medicine and rehabilitation medicine, including pain management. He testified that he first evaluated Mr. Murray on June 7, 2013 - prior to the accident at issue - for chronic lower back pain. On August 7, 2014, Mr. Murray had a follow-up visit regarding his back pain wherein he informed Dr. Sarmini that he experienced mild leg weakness which resulted in occasional falls. Dr. Sarmini evaluated Mr. Murray again on January 14, 2016, at which time he complained of increased back pain and a newly raised complaint of neck pain. During this visit, Mr. Murray reported to Dr. Sarmini that he was involved in an auto and bike accident in February of 2015, which led to increased back pain and an onset of neck pain, which Dr. Sarmini treated with several medications. Dr. Sarmini also ordered a CT scan of Mr. Murray's lumbar spine because Mr. Murray continued to complain of back pain and expressed that he experienced weakness in his left leg. Again, Dr. Sarmini prescribed nerve medication and discussed the possibility of physical therapy which would focus on developing muscle strength in Mr. Murray's back and neck as well as help with pain. Mr. Murray attended one 15-minute physical therapy session. Dr. Sarmini further testified that on August 12, 2016, Mr. Murray visited his office complaining of neck and back pain which had been aggravated after Mr. Murray slipped and fell in his dentist's office.

         On February 17, 2017, Mr. Murray indicated to Dr. Sarmini that he underwent epidural steroid injections at C7-T1 (the last vertebra of the thoracic spine) on January 17, 2017, which did not help to alleviate his pain. Dr. Sarmini stated that prior to Mr. Murray's bike accident, he never mentioned neck pain. However, after the bike accident, Mr. Murray indicated that he had some intensification of his back pain and a new onset of neck pain. Dr. Sarmini further testified that Mr. Murray's neck pain is likely correlated to his accident.

         Mr. Murray then visited with Dr. Sarmini again on July 18, 2017, at which time Mr. Murray stated that his neck and back pain became worse after a slip and fall accident and Mr. Murray further mentioned that he was hit by another car on March 21, 2017. Mr. Murray's final visit to Dr. Sarmini occurred on November 13, 2017, at which time Mr. Murray informed Dr. Sarmini of a new fall.

         Mr. Murray also testified that on February 12, 2015, the date of the accident at issue, he was on his bicycle headed to the gas station prior to going to work, as was his daily custom, when he was struck by Mr. Windmann's vehicle while attempting to cross the intersection of Shrewsbury and Airline.

         On cross examination, Mr. Murray testified that he was running late for work at the time of the accident but was not in a rush because he had contacted his employer. He proceeded down the Causeway/Airline Circle off-ramp with the flow of traffic on the right side of Airline Drive. Since the gas station he visits every morning for his orange juice is on the left side of the road, near the intersection of Airline Drive and Shrewsbury, Mr. Murray dismounted his bike and "ran" across six lanes of traffic to a "grassy area" near the intersection of Airline Drive and Shrewsbury. Mr. Murray testified that he saw Mr. Windmann's Chevy Malibu in the right lane at the intersection and decided to cross in front of it, as it was a pedestrian crossway. He testified that he noticed that Mr. Windmann was looking left and that Mr. Murray paused for five to ten seconds before crossing the intersection, as he believed the traffic was too close to Mr. Windmann for him to turn. Mr. Murray further testified that he waved at Mr. Windmann in an effort to get his attention before proceeding, however, Mr. Windmann continued to look to the left, so he waited until traffic "got so close upon him that I figured he wasn't going to turn. And when I went out there, that's when he gunned his - he gunned and hit it." Mr. Murray stated that at the time of the accident, he had just put his foot on the pedal and gave himself "a push." He stated that Mr. Windmann's wheels were the only thing turned and that Mr. Windmann had not yet made a partial turn. Mr. Murray stated that the vehicle hit both his bike and his left thigh and caused his medication to fall out of his pocket and onto the street. He explained that right after the accident, he asked Mr. Windmann to contact his wife and shortly thereafter he was taken to the hospital.

         When asked about the location of Mr. Windmann's vehicle immediately prior to and at the time of the accident, Mr. Murray stated that it was "behind the white line." However, Mr. Murray testified that he was struck by the middle of defendant's car, on his left side. Mr. Murray stated that when he was hit, he was thrown off his bike, rolled over the hood of Mr. Windmann's vehicle, his back slammed against the windshield and his right leg slammed against the top of the car and he then slid down on his head.

         Mr. Murray testified that he immediately felt pain in his neck, back, shoulders, and his right leg. According to Mr. Murray, he next remembers being attended to by EMS and speaking with Trooper Ledoux. Mr. Murray testified that Trooper Ledoux asked Mr. Murray where he had come from and Mr. Murray responded "I told him up there. That's all I say. I didn't tell him I was coming down or which side. He assumed what he wrote." According to Mr. Murray, he was x-rayed and admitted for medical observation in the emergency room. After Mr. Murray was in the observation room for approximately 20 or 30 minutes, Trooper Ledoux entered his room. Mr. Murray testified that Trooper Ledoux informed him that his bike was in the front of the hospital at security and that Mr. Murray was not "supposed to be up there riding a bike." Mr. Murray responded that he "should sue the state because y'all ain't got no sign up there saying pedestrian prohibited, so he got angry. He left and came back with a ticket, saying I find you at fault." Mr. Murray testified that the district attorney chose not to pursue the ticket.

         Mr. Murray testified that he was released from the hospital on the date of the accident and that, a few days later, he experienced pain in his neck, shoulders, and back. Mr. Murray went to Ochsner Hospital's emergency room where he was given unspecified medication, placed in an examination room, and then sent home. Prior to being released, Mr. Murray was told to contact Dr. Sarmini to schedule an appointment. After contacting Dr. Sarmini, Mr. Murray underwent an examination wherein he alleges Dr. Sarmini concluded that Mr. Murray's right leg was not getting enough blood flow as a result of the accident. Mr. Murray also stated that he was referred to Ochsner Baptist to see Dr. Walsh who administered epidural shots to his back on four occasions. Mr. Murray testified that the shots were non-effective and that on his next visit to Dr. Sarmini, they discussed the possibility of Mr. Murray having surgery. Mr. Murray stated that he did not have the surgery because of his mother's passing and the need for him to travel back and forth to Monroe because of "family problems." Mr. Murray also testified that he was unable to go to his therapy sessions because of financial difficulties.

         Mr. Murray testified that on the date of the accident, he was headed to his job at Super 8 Motel where he worked as a maintenance man. At the time of the incident, he was making $10 per hour. Mr. Murray testified that after the accident he missed a lot of work and was fired.

         Ms. Primo testified that she witnessed the accident at issue. She testified that she was the first car in line in the left lane on Severn Avenue, facing Airline, waiting on the red light to turn green. She testified that she was sitting at the red light listening to music and looking straight ahead on Severn Avenue when she saw Mr. Windmann's car "out of the left peripheral vision." According to Ms. Primo, Mr. Murray was riding his bike on the street about two or three car lengths away from the intersection of Airline and Shrewsbury and she noticed him about "a second or two before impact." She stated:

And all of a sudden, I saw something out of the left peripheral vision and it was a man on a bicycle and I thought, Oh, my god, he's going to hit that car, because he did not slow down and he hit the car and that's when the impact occurred.

         She further testified that she could not see the bottom of Mr. Murray's bike wheels which she testified were on the asphalt of the street prior to impact. Regarding the speed of Mr. Windmann's turn, Ms. Primo testified that prior to impact, Mr. Windmann was turning right "probably very, very slowly, like you would do when you are creeping out to see if there's other cars coming."

         When asked whether Mr. Windmann's car "actually impacted" Mr. Murray, Ms. Primo responded, "Mr. Murray ran into the car." With regard to the impact, Ms. Primo testified that:

[Mr. Murray] hit the car. He went to his right and his back hit against the windshield and then he slid off of the car right in front of the driver's side door by the wheel and he seemed to stop his ...

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