Marian Clinton v. Edward Jones

Judgment rendered March 3, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,747-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MARIAN CLINTON, ET AL Plaintiffs-Appellants

versus

EDWARD JONES, ET AL Defendants-Appellees

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 20184044

Honorable Bernard Scott Leehy, Judge

*****

PARKER ALEXANDER, LLC Counsel for Appellants,
By: Kevin David Alexander Marian Clinton and
Chad Curtis Carter Haley Clinton

PHELPS DUNBAR, LLP Counsel for Appellees,
By: Thomas Kent Ledyard Morrison Ace American Insurance
Taylor M. Bologna Company, Martin
Marietta Services Inc.,
and Edward L. Jones

*****

Before PITMAN, BLEICH (Pro Tempore), and BODDIE (Ad Hoc), JJ.

BODDIE (Ad Hoc), J.

Marian Clinton and Haley Clinton appeal a judgment dismissing their

personal injury claims following a trial on the merits because they failed to

carry their burden of proving the defendants’ negligence. Concluding that

the trial court correctly rejected the application of the doctrines of res ipsa

loquitur and negligence per se to the facts of this case, we affirm the

judgment.

FACTS

Early in the afternoon on April 2, 2018, Edward Jones was driving a

cement truck owned by his employer, Martin Marietta Materials, eastbound

on I-20 in West Monroe, Louisiana, when a chute fell from his truck and

landed in the outside lane of travel. There is no dispute that Jones was

acting in the course and scope of his employment when this occurred.

At the same time, Marian Clinton was driving her Chevrolet Captiva

vehicle in the outside eastbound lane on I-20 in West Monroe. Her daughter

Haley Clinton was her passenger. Marian was driving 60 mph and was three

car lengths behind the vehicle in front of her when that vehicle abruptly

changed lanes. Suddenly confronted with the chute in her lane of travel,

Marian was unable to change lanes because of a vehicle in the inside lane

and a vehicle on the outside shoulder. Her vehicle struck the chute and

sustained damages.

Marian pulled her vehicle to the shoulder in front of Jones’s cement

truck. She saw a man exit the truck, retrieve the chute from the roadway,

place the chute on the truck, and leave. As the truck drove past, she heard a

passenger in the truck yell something to her but she did not know exactly

what was said.

Jones was later cited by the investigating police officer for violating

La. R.S. 14:100 (hit-and-run driving) and La. R.S. 32:383 (care required for

loads on vehicles). According to the officer’s report, Jones stated: (i) he had

not been driving that truck for very long; (ii) he was driving slowly over the

ruts on I-20; (iii) he felt the cement chute fall from its place; (iv) he stopped

on the shoulder to retrieve the chute, which he was able to do after the

vehicle struck it; and (v) he fled the scene without contacting the police or

exchanging any information. The officer reported that nobody at the

accident scene complained of any injuries.

Marian and Haley (the “Clintons”) filed suit against Jones, Martin

Marietta Materials, and Ace American Insurance Company (Martin Marietta

and Ace are collectively referred to as “MMM”). The Clintons alleged they

sustained soft tissue injuries when their vehicle struck the chute.

In its answer to the petition, MMM raised as defenses that the

damages were caused solely by the fault or negligence of the Clintons or

others for whom MMM has no responsibility, the Clintons’ damages should

be reduced as a result of their own fault, and the Clintons failed to mitigate

damages. A curator was appointed to represent Jones due to the inability to

properly serve him.

A bench trial was held on December 5, 2019. The only witnesses to

testify at the trial were the Clintons. Their medical records and depositions

from their treating chiropractors were filed into evidence at trial. The

Clintons and MMM also introduced the police report into evidence at trial.

The trial court found in favor of MMM and dismissed all of the

Clintons’ claims against them. In its reasons for judgment, the trial court

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specifically rejected the application of the doctrines of res ipsa loquitur and

negligence per se to the facts of this case. The Clintons have appealed.

Res ipsa loquitur

The Clintons argue on appeal that the trial court erred in not applying

the doctrine of res ipsa loquitur in this matter. They maintain that the trial

court made unreasonable factual conclusions when it considered the road

condition of I-20 as a plausible cause of the accident.

As explained by the Louisiana Supreme Court in Linnear v.

CenterPoint Energy Entex/Reliant Energy, 06-3030, p.12 (La. 9/5/07), 966

So. 2d 36, 45:

Res ipsa loquitur is a rule of circumstantial evidence which
allows an inference of negligence on the part of the defendant if
the facts indicate the defendant’s negligence, more probably
than not, caused the injury. It applies in cases involving
circumstantial evidence, rather than direct evidence, provided
the plaintiff establishes the following foundation of facts: (1)
the injury is of the kind which does not ordinarily occur in the
absence of negligence; (2) the evidence sufficiently eliminates
other possible causes of the injury, such as the plaintiff’s own
responsibility or the responsibility of others; and (3) the alleged
negligence of the defendant must fall within the scope of his
duty to the plaintiff, which will often be the case if the
defendant had exclusive control of the thing or situation that
caused the injury to the plaintiff.

As a qualification of the general rule that negligence is not to be presumed,

res ipsa loquitur must be sparingly applied. Spott v. Otis Elevator Co., 601

So. 2d 1355 (La. 1992).

The trial court determined that two primary possibilities, operator

error and highway defect, were equally plausible causes for the chute

becoming dislodged. The trial court noted that the parties had equal access

to the facts relating to the road condition, yet the Clintons offered no proof

that highway defects were less likely than operator negligence to have

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caused the chute to dislodge. The trial court reasoned that because two or

more equally plausible causes existed for the chute falling from Jones’s

truck, application of the doctrine of res ipsa loquitur was inappropriate and

no inference of negligence existed.

The trial court was not clearly wrong in finding that the evidence

presented at trial did not sufficiently eliminate other possible causes of the

accident. Neither Marian nor Haley had any knowledge as to why the chute

dislodged from the truck. They did not testify regarding what a Martin

Marietta employee did or failed to do which led to the chute falling from the

truck. Jones told the investigating officer that he had been driving slowly

over the ruts in the roadway. The effect of the ruts on the cement truck’s

motion could be an explanation for why the chute fell from the truck. There

was no expert testimony on behalf of the Clintons eliminating these ruts or

another road condition as a possible cause for the chute coming to be on the

roadway. Jones did not testify at trial. However, his statement to the police

was part of the police report that the Clintons and MMM introduced into

evidence.

In summary, the trial court properly rejected the application of the

doctrine of res ipsa loquitur as the trial court’s finding that a highway defect

was an equally plausible cause of the accident was not manifestly erroneous.

Negligence per se

A violation of La. R.S. 32:383 is negligence per se. Benoit v. State ex

rel. Dept. of Transp. & Dev., 2001-912 (La. App. 3 Cir. 12/28/01), 805 So.

2d 428. The Clintons contend that the trial court erred when it failed to

apply negligence per se to the facts of this case. They argue that the

Louisiana Legislature’s intent in enacting La. R.S. 32:383 was to protect
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highway travelers from items falling from or becoming detached from

vehicles that become a hazard to users of the highway. They further argue

that Jones’s violation of the statute was the cause-in-fact and legal cause of

their damages. MMM counters that a plain reading of the statute shows that

it applies to the contents being transported by and within the hold of a truck,

not to a component part or appurtenance of the truck.

In rejecting the Clintons’ argument that the doctrine of negligence per

se applied because Jones had violated La. R.S. 32:383, the trial court

determined that because the statute was clear and unambiguous and its

application did not lead to absurd consequences, it was to be applied as

written and no further interpretation was to be made in search of the

legislature’s intent. The trial court noted the disagreement between the

parties over the meaning of the word “load.” The trial court equated a

“load” to “cargo” or “goods” before considering that the chute was neither

cargo nor goods but was a device used to assist in the discharge of cargo or

goods. The trial court determined that the chute was no different from a lift

attached to the rear of a cargo van that is used to assist in the unloading or

discharge of a load of cargo or goods. The trial court believed that

notwithstanding Jones’s plea of guilt or no contest to La. R.S. 32:383, Jones

did not violate that statute and negligence per se was inapplicable to the

facts of this case.

Questions of law, such as the proper interpretation of a statute, are

reviewed by this court under the de novo standard of review. Louisiana

Municipal Ass’n v. State, 04-0227 (La. 1/19/05), 893 So. 2d 809; Gannett

River States Publ’g Corp. v. Monroe City School Bd., 44,231 (La. App. 2

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Cir. 4/8/09), 8 So. 3d 833, writ denied, 09-1029 (La. 6/19/09), 10 So. 3d

745.

When interpreting statutes, we are guided by the rationale of the

Louisiana Supreme Court in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-

2371, pp. 13-14 (La. 7/1/08), 998 So. 2d 16, 27:

The starting point in the interpretation of any statute is the
language of the statute itself. “When a law is clear and
unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further
interpretation may be made in search of the intent of the
legislature.” However, “when the language of the law is
susceptible of different meanings, it must be interpreted as
having the meaning that best conforms to the purpose of the
law.” Moreover, “when the words of a law are ambiguous,
their meaning must be sought by examining the context in
which they occur and the text of the law as a whole.”

It is also well established that the Legislature is presumed to
enact each statute with deliberation and with full knowledge of
all existing laws on the same subject. Thus, legislative
language will be interpreted on the assumption the Legislature
was aware of existing statutes, well established principles of
statutory construction and with knowledge of the effect of their
acts and a purpose in view. It is equally well settled under our
rules of statutory construction, where it is possible, courts have
a duty in the interpretation of a statute to adopt a construction
which harmonizes and reconciles it with other provisions
dealing with the same subject matter.

Citations omitted.

La. R.S. 32:383, titled “Loads on vehicles; care required thereto;

penalties; definition[,]” provides:

A. (1) The load on a vehicle shall not drop, sift, leak, or
otherwise escape therefrom, except that sand may be dropped
on a highway to secure traction or a liquid substance may be
dropped on a highway to clean or maintain such highway.
(2) Any load of garbage, refuse, sludge, and other discarded
material being transported by a commercial hauler shall be
covered while being transported in such a manner as to prevent
the load from spilling or dropping from the vehicle.
(3) Any violation of Paragraph (2) of this Subsection for failure
to cover any load of garbage, refuse, sludge, and other
discarded material shall be punishable by a fine of not more
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than five hundred dollars or by imprisonment for not more than
six months, or both.
(4) The penalty provisions of Paragraph (3) of this Subsection
shall not apply when the load was properly covered and
subsequently became uncovered as the result of an accident or
circumstances beyond the control of the operator of the vehicle.

B. (1) The load on any vehicle shall be securely fastened so as
to prevent the covering or load from becoming loose, detached,
or in any manner a hazard to other users of the highway.
(2) Freight containers, as defined in 49 CFR 171.8, used in both
the waterborne transport of cargo and in the overland transport
of cargo shall be properly secured so as to prevent the container
from becoming loose, detached, or in any manner a hazard to
other users of the highway.
(3) Any violation of Paragraph (2) of this Subsection shall be
punishable by a fine of not more than five hundred dollars or by
imprisonment for not more than six months, or both.
(4) The penalty provisions of R.S. 32:383(B)(3) shall not apply
when the freight container was properly secured and
subsequently became loose or detached as the result of an
accident or circumstances beyond the control of the operator of
the vehicle.

C. “Loose material” means dirt, sand, gravel, nails, or other
material that is capable of blowing or spilling from a vehicle as
a result of movement or exposure to air, wind currents, or
weather, but shall not include agricultural products in their
natural state or wood chips.

While loose materials are defined in La. R.S. 32:383(C), such

materials are regulated in La. R.S. 32:383.1. There is no definition of “load”

within the confines of La. R.S. 32:383 itself. However, our inquiry does not

end there.

Chapter 1 of Title 32 is the Louisiana Highway Regulatory Act. La.

R.S. 32:383 is included within Chapter 1, as well as within Part VI, which is

titled, “Size, Weight, and Load of Vehicle[.]” The definitions section of

Chapter 1 states that when used in the chapter, “‘Load’ means a weight or

quantity of anything resting upon something else regarded as its support.”

La. R.S. 32:1(38).

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Act 113 of 1977 made numerous modifications to the Louisiana

Highway Regulatory Act. As enacted by Act 113, La. R.S. 32:383 read:

A. The load on a vehicle shall not drop, sift, leak, or otherwise
escape therefrom, except that sand may be dropped on a
highway to secure traction or a liquid substance may be
dropped on a highway to clean or maintain such highway.
B. The load on any vehicle shall be securely fastened so as to
prevent the covering or load from becoming loose, detached, or
in any manner a hazard to other users of the highway.

Paragraph (C) defining “loose material” was added by Act 257 of

1982. That definition remains nearly identical to the current version with the

exception of “nails” being added as a “loose material” by Act 302 of 2006.

Additional provisions were added to Paragraph (B) through Act 936 of 1985,

and to Paragraph (A) through Act 928 of 1990.

Referring to the definition of “load” found in some dictionaries, the

trial court compared a “load” to “cargo” or “goods.” However, that is not

the definition provided in La. R.S. 32:1.1 Nevertheless, we note that La.

R.S. 32:1 states: “When used in this Chapter, the following words and

phrases have the meanings ascribed to them in this Section, unless the

context clearly indicates a different meaning.” Emphasis added.

In Hartford Acc. & Indem. Co. v. Joe Dean Contractors, Inc., 584 So.

2d 1226 (La. App. 2 Cir. 1991), this court considered an attached chute to be

a part of a cement truck when interpreting an insurance policy. The owner

of the property where the cement was being delivered was injured while

assisting the driver of the cement truck in positioning the truck’s chute. The

chute was described by this court as a “hinged, permanent attachment

designed to direct the flow of the material from the truck.” Id., 584 So. 2d at

1
There is no reference to La. R.S. 32:1’s definition of “load” in the trial court’s
reasons for judgment or in the parties’ briefs to this court.
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1228. The driver’s employer filed a third-party demand seeking coverage

from its manufacturers’ and contractors’ liability insurer. That insurer filed

a motion for summary judgment in which it denied coverage under an

automobile exclusion which stated the policy did not apply to bodily injury

or property damage arising out of the use, loading, or unloading of any

automobile owned or operated by an insured. Concluding that the policy

clearly excluded coverage, this court stated:

The unfolding of the chute, permanently attached to the truck,
constituted the first preparatory step in pouring the cement from
the vehicle. And, adopting a commonsense approach, the act
causing the injury comprised a part of the unloading process.

Id., 584 So. 2d at 1229. This court added that even if it took the narrow

view that only the actual handling of property fell within the policy’s

definition of loading or unloading, coverage was still excluded because it

was clear the truck was in use at the time of injury.

Valuable guidance in this realm is further provided in Martinelli v

Travelers Prop. Cas. Ins. Co., 271 A.D. 2d 890, 706 N.Y.S. 2d 515 (2000),

wherein the plaintiff was injured while raking cement delivered through a

chute. The cement truck driver had connected two extensions to the chute

which was attached to the truck. The plaintiff’s claim for no-fault insurance

benefits was denied by the defendant on the basis that his injuries did not

arise out of the use or operation of the cement truck. Concluding that

Martinelli’s injuries arose out of the use or operation of the cement truck, the

court stated:

The purpose of the cement truck was to deliver cement and the
chute attached to the truck was essential to the unloading of the
cement. Accordingly, we conclude that the chute as a part of the
vehicle was a proximate cause of plaintiff’s injuries. We further
note that the fact the driver attached extensions to the chute
does not convert the chute into something other than a part of
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the vehicle. There is nothing in the record to indicate that the
extensions were anything other than normal equipment which
accompanied the truck for use in unloading cement.

Id., 271 A.D. 2d at 891.

It follows that judicial decisions of our sister states are advisory only

and not binding. However, the courts of this state have recognized their

persuasive authority, particularly where no case on point exists. Although

Louisiana courts should not apply out of state court decisions mechanically,

such decisions can serve as guideposts if they are found to be logically

persuasive and well-reasoned, as long as they are consistent with the law of

this state.

The trial court concluded that the chute was no different from a lift

attached to the rear of a cargo van. Thus, it reasoned that Jones did not

violate La. R.S. 32:383 and negligence per se was inapplicable to the facts

of this case. The chute was intended to be used as a device to aid in the

discharge of the load the truck was transporting. The trial court referred to

the chute as being dislodged from its “cradle or place of stowage.”

However, the record does not indicate whether the chute was fastened to the

truck or whether it stayed in place due to gravity. In any event, regardless of

the manner in which the chute normally remained on the truck, it is only

logical to conclude that it was part of the truck and not part of the “load” as

that term is used in La. R.S. 32:383. This in no way minimizes the potential

hazard that an unattached or poorly attached vehicle part poses to motorists.

The Clintons’ argument for the application of negligence per se was

properly rejected by the trial court.

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Affirmative defenses

The Clintons further argue on appeal that the defendants did not prove

their affirmative defense of fault of others by a preponderance of the

evidence; thus, the trial court erred in finding a strong possibility of the fault

of others, namely roadway defects, as a cause of their damages.

When addressing the res ipsa loquitur issue, the trial court concluded

there was a strong possibility that the chute became dislodged when Jones

struck a defect in the road. The court also concluded there was a strong

possibility that Jones, a different Martin Marietta employee, or a third party

improperly and negligently placed the chute on the truck.

The trial court’s finding that a highway defect was an equally

plausible cause of the accident was not unsupported speculation. In his

statement to the police, Jones specifically mentioned ruts in the road.

Moreover, the purpose of an affirmative defense is to defend against liability

established by a plaintiff, which the Clintons failed to do in the first place.

The Clintons’ argument is without merit.

Adverse presumption rule

The Clintons additionally argue on appeal that the trial court erred in

failing to presume the unfavorable testimony of Jones. This is the adverse

presumption rule.

Also referred to as the “uncalled witness” rule, this presumption

applies when a party has the power to produce witnesses who would

elucidate the transaction or occurrence and fails to call those witnesses.

Bartley v. Fondren, 43,779 (La. App. 2 Cir. 12/3/08), 999 So. 2d 146; JPS

Equipment LLC v. Cooper, 50,506 (La. App. 2 Cir. 2/24/16), 188 So. 3d

1106. The presumption is rebuttable, particularly when the witness is
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equally available to the opposing party. Easter v. Direct Ins. Co., 42,178

(La. App. 2 Cir. 5/9/07), 957 So. 2d 323; JPS Equipment LLC, supra.

Whether to apply such an inference is fully within the discretion of the trial

court. Glasscock v. Bd. of Sup’rs of La. State Univ., 49,855 (La. App. 2 Cir.

8/19/15), 174 So. 3d 757, writ denied, 15-1628 (La. 10/30/15), 179 So. 3d

618; JPS Equipment LLC, supra.

Louisiana courts have limited the impact of the adverse presumption

rule by noting that the court may consider this presumption as it would any

other relevant evidence in the case. Any claim by the Clintons that the rule

applies to MMM’s failure to call Jones as a witness at trial is simply not

supported by the law or facts.

In Hemphill v. Strain, 371 So. 2d 1179 (La. App. 1 Cir. 1979), writ

denied, 373 So. 2d 510 (La. 1979), the appellants argued that the defendant’s

failure to call certain designated witnesses who were listed as such on the

pre-trial order raised a presumption that their testimony would be

unfavorable to defendants. The court noted that although such a

presumption is available in Louisiana, the presumption does not apply when

the witness is equally available to both parties, citing Hankel v. Hartford

Fire Ins. Co., 366 So. 2d 1031 (La. App. 1 Cir. 1978). Moreover, in Regions

Bank v. Parish of Caddo, 42,920 (La. App. 2 Cir. 2/27/08); 978 So. 2d 494,

writ denied, 08-0669 (La. 5/30/08), 983 So. 2d 897, the court ruled that the

uncalled witness presumption would not apply where the witness’s

testimony would have been cumulative.

MMM argues that Jones was no longer an employee of Martin

Marietta at the time of trial and it could not locate him despite diligent

efforts to do so. MMM further argues that it intended to call Jones as a
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witness, but declined to do so in order to avoid unnecessary and redundant

costs once it learned that the Clintons’ attorney had already taken steps to

procure a trial subpoena.

The record reflects that on November 14, 2019, the attorney for the

Clintons requested a trial subpoena for Jones. A joint pre-trial statement was

filed a week later. Jones was listed as a will-call witness by MMM. He was

listed as a may-call witness by the Clintons.

On November 21, 2019, MMM filed a motion to continue the trial that

had been set for December 5 on the ground that Jones had not been served

with his trial subpoena. MMM argued that Jones’s testimony was critical for

the defense of comparative negligence. The Clintons filed an opposition to

the motion in which they argued that MMM never sought a trial subpoena of

Jones before filing the motion, and that Jones’s presence was not required

because his negligence had already been established through negligence per

se for violating La. R.S. 32:383. MMM waived its motion at trial.

We discern no abuse of discretion in this record when the trial court

did not consider the adverse presumption rule. The Clintons were aware of

the difficulty in securing Jones’s presence at trial. They also objected to a

continuance in order for his trial subpoena to be served. Notably, they

argued in opposition to the continuance that Jones’s presence was not

required.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment in all

respects. All costs of this appeal are assessed to the appellants.

AFFIRMED.

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