Eben Barra v. Rayborn Trucking, Mary Rayborn, Canal Insurance Company and Kenneth Downs.

EBEN BARRA * NO. 2022-CA-0122

VERSUS *
COURT OF APPEAL
RAYBORN TRUCKING, *
MARY RAYBORN, CANAL FOURTH CIRCUIT
INSURANCE COMPANY AND *
KENNETH DOWNS STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2018-07667, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Chief Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge
Tiffany Gautier Chase)

Jake J. Weinstock
Irvy E. Cosse, III
COSSE LAW FIRM, LLC
1515 Poydras Street, Suite 1825
New Orleans, LA 70112

Andrew D. Weinstock
DUPLASS, APLC
433 Metairie Rd, Suite 600
Metairie, LA 70001

COUNSEL FOR PLAINTIFF/APPELLANT

Guy D. Perrier
Ralph J. Aucoin, Jr.
Kristopher M. Gould
PERRIER & LACOSTE, L.L.C.
365 Canal Street, Suite 2550
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

DECEMBER 16, 2022

JCL This is a tort case. Plaintiff/appellant, Eben Barra (“Barra”), appeals the July

TFL 13, 2021 judgment of the district court and the October 14, 2021 denial of Barra’s

TGC post-trial motion for judgment notwithstanding the verdict, or alternatively, motion

for new trial. For the reasons set forth in this opinion, we affirm.

This litigation stems from an August 21, 2017 collision between an

automobile operated by Barra and a tractor-trailer operated by Kenneth Downs

(“Downs”), wherein Barra alleges he sustained personal injuries. The collision

took place at the intersection of Old Gentilly Road and France Road in New

Orleans. At this intersection, vehicles traveling on Old Gentilly Road may either

make a soft right turn to proceed onto an overpass on Alvar Street or make a hard

right turn onto France Road along the base of the overpass. The facts of the

collision are highly disputed. On August 2, 2018, Barra filed a petition for

damages against Downs; his employer, Rayborn Trucking; the tractor-trailer’s

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alleged registered owner, Mary Rayborn; and the tractor-trailer’s insurer, Canal

Insurance Company.1

This matter proceeded to a jury trial from May 10 through May 13, 2021,

where the jury returned a verdict finding Downs free from liability and dismissing

Barra’s lawsuit with prejudice. On July 13, 2021, the district court rendered a

judgment memorializing the jury verdict. On July 20, 2021, Barra filed a post-trial

motion for judgment notwithstanding the verdict (“JNOV”), or alternatively,

motion for new trial. A hearing went forward on September 30, 2021, and on

October 14, 2021, the district court rendered judgment denying Barra’s post-trial

motion. This appeal followed.

Barra’s sole assignment of error is that the district court erred in denying his

post-trial motion for JNOV and/or motion for new trial. However, Barra conceded

in the district court, and again in oral argument before this Court, that he is not

seeking a JNOV; rather, Barra seeks a new trial because the jury never reached the

issue of damages, having found Downs without liability. Moreover, Barra did not

brief the issue of damages on appeal. A motion for a new trial may be joined with a

motion for JNOV, or a new trial may be prayed for in the alternative. La. C.C.P.

art. 1811(A)(2). It is also well-settled that “a motion for a new trial requires a less

stringent test than for a JNOV because such a determination involves only a new

trial and does not deprive the parties of their right to have all disputed issues

1 Kenneth Downs, Rayborn Trucking, Mary Rayborn, and Canal Insurance Company are the

defendants/appellees herein. In the remainder of this opinion, we refer to them, collectively, as
“Downs.”

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resolved by a jury.” Harts v. Downing, 19-0620, p. 5 (La. App. 4 Cir. 6/24/20), 302

So.3d 102, 108 (quoting Stamps v. Dunham, 07-0095, p. 7 (La. App. 4 Cir.

9/19/07), 968 So.2d 739, 744). Considering that Barra’s burden on a motion for

new trial is lighter than that required for a JNOV, and because Barra waived his

arguments as to the denial of a JNOV, we consider on appeal whether the district

court erred in denying Barra a new trial.

A court of appeal may not set aside the jury’s finding of fact in the absence

of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dep’t

of Transp. & Dev., 617 So.2d 880, 882 (La. 1993)(citing Rosell v. ESCO, 549

So.2d 840, 844 (La. 1989)). The issue to be resolved by the appellate court is not

whether the trier of fact was right or wrong, but whether the factfinder’s

conclusion was a reasonable one. Snider v. Louisiana Med. Mut. Ins. Co., 14-1964,

p. 5 (La. 5/5/15), 169 So.3d 319, 323. The appellate court must not re-weigh the

evidence or substitute its own factual findings merely because it would have

decided the case differently. Id. “[W]here there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be manifestly erroneous or

clearly wrong.” Serpas v. Tulane Univ. Hosp. & Clinic, 13-1590, 13-1591, p. 13

(La. App. 4 Cir. 5/14/14), 161 So.3d 726, 736 (citing Wallace v. Howell, 09-1146,

p. 2 (La. App. 4 Cir. 1/13/10), 30 So.3d 217, 218). Likewise, “[w]here the

factfinder’s determination is based on its decision to credit the testimony of one of

two or more witnesses, that finding can virtually never be manifestly erroneous or

clearly wrong.” Bellard v. American Central Ins. Co., 07-1335, p. 27 (La. 4/18/08),

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980 So.2d 654, 672. “This rule applies equally to the evaluation of expert

testimony, including the evaluation and resolution of conflicts in expert

testimony.” Id.

The appellate standard of review for a ruling on a motion for new trial is

whether the district court abused its discretion. Harts, 19-0620, p. 5, 302 So.3d at

108. A new trial is mandatory when the verdict or judgment appears clearly

contrary to the law and the evidence. La. C.C.P. art 1972. However, a jury verdict

must not be set aside on the grounds that the verdict is contrary to the evidence if it

is supportable by any “fair interpretation of the evidence.” Guillory v. Lee, 09-

0075, p. 38 (La. 6/26/09), 16 So.3d 1104, 1131. In determining whether the verdict

is supportable by any fair interpretation of the evidence, the district court has the

discretion to weigh the evidence without favoring either party, draw its own

inferences and conclusions, and evaluate witness credibility, though the court may

not usurp the jury’s factfinding role. Pitts v. Louisiana Med. Mut. Ins. Co., 16-

1232, pp. 9-10 (La. 3/15/17), 218 So.3d 58, 66; Martin v. Heritage Manor S.

Nursing Home, 00-1023, pp. 4-5 (La. 4/3/01), 784 So.2d 627, 631.

Barra contends that no reasonable factual basis exists for the jury’s finding

that Downs was completely without fault for the collision. He argues that Downs’

account of the accident was impossible, could not have occurred, was not credible,

and was inconsistent with the testimony of the other witnesses. Barra contends that

the jury was clearly wrong in failing to find Downs at least comparatively

negligent.

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Numerous witnesses testified at trial, including Barra, Downs, eyewitness

Anthony Scott, investigating officer Justin Bush, Barra’s expert Michael Gillen,

and Downs’ expert Douglas Morr. The jury also viewed photographs and body

camera footage of the accident scene, along with demonstratives by the experts as

to their opinions of how the accident occurred.

Barra testified to his account of the collision. Barra claimed that, just prior to

the accident, he drove alongside Downs on Old Gentilly Road for approximately

one block, with Barra in the right lane and Downs in the left lane. According to

Barra, Downs attempted to turn right from the left lane of Old Gentilly Road onto

France Road, striking Barra’s vehicle. Barra denied having driven on the curb or

sidewalk in an attempt to pass Downs on the right before making the right turn.

Barra also stated that his vehicle did not strike the stop sign located on the

sidewalk along Old Gentilly Road at the intersection. Barra claimed that, after

colliding with Downs, Barra accelerated to free his vehicle from underneath the

tractor-trailer and “jump[ed] the curb.” At trial, Barra testified that he was

proceeding “straight” through the intersection to drive over the overpass. However,

Barra gave a differing account of the accident to the investigating officer, stating

that he was turning right and assumed that Downs’ tractor-trailer was going to go

“straight” onto the overpass.

Downs testified to a conflicting version of the accident. According to

Downs, he made a button-hook2 right turn from the right lane, and Barra attempted

2 Gillen described a button-hook maneuver as: “where he swings wide left and then goes out and

comes back to the right.” In Gillen’s opinion, Downs executed this maneuver incorrectly.

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to pass Downs on the right during his maneuver and collided with the tractor-

trailer. Downs explained that, before the collision, he stopped at the stop sign, then

started again to make the right turn; but, a car was coming from France Road, and

he stopped again. Downs initiated his turn before Barra approached. At that point,

Barra’s and Scott’s vehicles were behind the tractor-trailer. Downs stated that,

when he initiated the turn, his tractor was fully in the right lane and his trailer was

blocking the right lane. Downs executed his turn by proceeding straight ahead until

he almost reached Alvar Street, then made a ninety-degree turn. At one point,

while turning, Downs’ trailer was partially in the left lane and was blocking the

right lane. Nevertheless, Barra was able to maneuver to the right side of Downs’

trailer. On questioning by Barra’s counsel, Downs agreed with the statement that

Barra tried to “shoot the gap” to the right of the tractor-trailer in the space created

by the turn. Downs stated that to get around him, Downs assumed Barra would

have to drive onto the sidewalk. Downs testified that Barra was in Downs’ blind

spot and he did not see him on the sidewalk or curb. Downs stated that Barra did

not collide with the stop sign at the intersection. Downs testified that neither the

tractor nor the trailer drove onto the sidewalk.

Scott testified that when he saw the tractor-trailer, it was straddling both

lanes; then, both tractor and trailer moved completely into the left lane as Downs

approached the stop sign at France Road. Scott testified that Barra began driving

on the sidewalk along France Road while attempting to avoid the collision, but the

collision occurred before Barra was able to get on the sidewalk. Scott stated that

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the tractor-trailer was the distance of seven to eight car lengths ahead of him. Scott

denied that Barra had driven alongside the tractor-trailer for an entire block on Old

Gentilly Road before approaching the intersection.

Officer Bush testified to his investigation of the accident. He noted that the

tire marks in the road were consistent with Downs’ vehicle, which he believed

supported that Downs began his maneuver from the right lane.

Gillen, a former police officer and Barra’s accident reconstruction expert,

testified to his opinion that Downs turned right from the left lane while Barra was

in the right lane. Gillen stated that the tractor-trailer was too long to make the right

turn entirely from the right lane, such that the tractor-trailer would need to be in the

left lane or swing out wide and encroach on the left lane. He admitted that during

the right turn, Downs would have created an opening on the right between the end

of his trailer and the curb, giving room for Barra to attempt to pass Downs on the

right, though Gillen would not recommend such a maneuver.

Morr, an engineer and Downs’ accident reconstruction expert, testified that

the photographs and physical evidence at the scene, shown on the investigating

officer’s body camera footage, were consistent with Downs initiating the right turn

from the right lane and executing a button-hook turn by swinging out left as he

turned the corner. According to Morr, Barra started behind the tractor-trailer,

overtook it, then slowed again before the collision.

In arguing that a new trial is merited, Barra insists that Downs’ version of

the accident is impossible. In particular, he contends that Barra could not have

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driven along the sidewalk without hitting the stop sign, and that Barra and Downs

agreed that Barra did not collide with the stop sign. Despite this assertion, we

cannot say that the jury verdict is unreasonable or not supported by the evidence at

trial.

The jury heard three different factual accounts of the accident from three

witnesses at the scene (including the two parties), diverging opinions from the

experts hired by each party, along with the investigating officer’s observations at

the scene. The testimony of Downs, Morr, and Officer Bush supported that the

collision occurred while Downs turned right from the right lane. Gillen conceded

that Downs could have made the right turn by swinging wide to encroach on the

left lane, as Downs described. It was within the province of the jury to weigh the

evidence and assess the credibility of all witnesses in determining whether Downs

bore any liability for the accident. The jury could have reasonably concluded,

based on a fair interpretation of the evidence at trial, that Downs made a right turn

from the right lane and that Barra attempted to pass Downs on the right in the

space created between the trailer and the curb. In ruling on the motion for new

trial, the district court also had discretion to weigh evidence and evaluate witness

credibility for the purpose of deciding whether the jury verdict was supportable by

any fair interpretation of the evidence. The district court reasonably exercised its

discretion in declining to disturb the jury verdict, based on its perception that the

jury appropriately weighed the credibility of witnesses and accepted one

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permissible view of the evidence over another. We find Barra’s argument without

merit.

Accordingly, for the reasons set forth in this opinion, we affirm the

judgments of the district court, dismissing Barra’s lawsuit without prejudice and

denying his post-trial motion for JNOV and/or motion for new trial.

AFFIRMED

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