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.
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Hans J. Liljeberg
FREDERICKA HOMBERG WICKER JUDGE
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.
AND PROCEDURAL HISTORY
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 - 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
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.
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
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.
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.
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."
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.
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
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
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.
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
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.
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.
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.
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
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.
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.
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."
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 ...