Zula Mae Fuselier v. Dept. of Transportation & Develop. of the State of La.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 05-681

ZULA MAE FUSELIER, ET AL.

VERSUS

DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT OF THE
STATE OF LOUISIANA

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2002-337
HONORABLE JOEL GERARD DAVIS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Oswald A. Decuir, and Glenn B. Gremillion,
Judges.

AFFIRMED.

Elizabeth Brooks Hollins
Department of Justice
901 Lakeshore Dr. #820
Lake Charles, LA 70601
(337) 491-2844
Counsel for Defendant/Appellant:
Dept. of Transportation & Develop. of the State of LA.

James David Cain, Jr.
Lundy & Davis
P. O. Box 3010
Lake Charles, LA 70602
(337) 439-0707
Counsel for Plaintiff/Appellee:
Zula Mae Fuselier
Katherine Paige Fuselier

David Paul Bruchhaus
Mudd & Bruchhaus
P. O. Box 1510
Cameron, LA 70631
(337) 775-5063
Counsel for Plaintiff/Appellee:
Zula Mae Fuselier
Katherine Paige Fuselier

SAUNDERS, Judge.

This case arises out of an automobile accident. A father and son were burned

to death in the accident. Plaintiff, wife and mother of the decedants, filed suit

individually and on behalf of her minor daughter. A jury trial was held and the

daughter was awarded general and specific damages. Her mother, however, was

awarded only specific damages. Plaintiffs filed a motion for judgment

notwithstanding the verdict (JNOV). That motion was granted and defendant

appealed. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 24, 2001, Calvin Fuselier and his two minor children, Katherine and

Tyler, were traveling north on La. Hwy. 26. Mr. Fuselier was employed as a

custodian by the Jefferson Davis Parish School Board. He also delivered diesel and

gasoline to farmers during his spare time. On this date, Mr. Fuselier, after finishing

his work as custodian, took his children with him on his delivery so that he could

spend more time with them.

Shortly after entering Allen Parish, the right wheels of Mr. Fuselier’s truck

entered the shoulder of La. Hwy. 26 with the maximum distance the wheels went off

of the roadway being approximately three feet. As he corrected and attempted to re-

enter the roadway, the vehicle flipped over. Katherine Fuselier was ejected but her

father and brother were trapped inside. The truck caught fire and Calvin and Tyler

burned to death.

Zula Mae Fuselier, wife of Calvin Fuselier and mother of Katherine and Tyler

Fuselier, filed suit against the State of Louisiana, Department of Transportation and

Development, individually and on behalf of her minor daughter, Katherine, who

survived the accident. A jury trial commenced on January 26, 2004. The jury award

to Katherine for the death of her father was $125,000.00 for loss of love, affection

and companionship and $125,000.00 for past and future mental pain and suffering.

For her personal injuries, Katherine was awarded $100,000.00 for past, present, and

future pain and suffering as well as $39,658.91 for past medical expenses. As a result

of the death of her husband, Zula Mae Fuselier was awarded $372,781.00 for past and

future loss of economic support and $7,031.96 for funeral expenses. The jury found

Mr. Fuselier fifty percent at fault in causing the accident.

Immediately after the jury verdict was read, a bench conference was held.

Noting that no general damages were awarded to Zula Mae Fuselier for the deaths of

her husband and son, the trial judge offered to instruct the jury in that regard. The

attorneys, however, agreed to address the issue in post-trial motions. The judge

signed the judgment then plaintiffs filed a Motion for Judgment Notwithstanding the

Verdict (JNOV). That motion was heard on September 27, 2004. It was granted with

the trial judge awarding Zula Mae $500,000.00 for the wrongful death of her

husband, $250,000.00 for the survival claim of her husband, $500,000.00 for the

wrongful death of her son, and $250,000.00 for the survival claim of her son. The

trial judge reduced these awards by 50% based upon the jury’s apportionment of fault.

Defendant moved for a new trial but was denied. This appeal followed.

ASSIGNMENTS OF ERROR

1) The trial court’s ruling was not reasonable when it cast the State of
Louisiana, Department of Transportation and Development with 50%
liability when AASHTO standards set the minimum shoulder slopes at
25% and the shoulder slopes at the point of the accident were 5% and
11% making the shoulder slopes in question more than twice less steep
than required by AASHTO.

2) The trial court’s ruling was not reasonable when it cast the State of
Louisiana, Department of Transportation and Development with 50%
liability when the testimony and evidence presented by both the

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plaintiffs and the defendants set forth that on July 24, 2001, the date of
the accident, the shoulders of the road were solid at the point in which
the wheels on the right side of the gasoline truck driven by Calvin
Fuselier left the roadway, due to the fact that the AASHTO approved
reclaimed aggregate shoulders hardened in the summer heat, due to its
asphalt contents.

3) The trial court erred by giving credence to the testimony of the
plaintiffs’ accident reconstructionist and highway engineer, when the
documentary and objective evidence presented at trial so contradict the
testimony of those experts, that a reasonable fact-finder could not give
credence to their testimony and this court should find manifest error
even though the trial court’s finding is purportedly based on a credibility
determination.

4) The trial court erred in finding that the routine maintenance on the road
shoulder in question by the Department of Transportation and
Development, created an unreasonable risk of harm, when the testimony
and evidence presented at trial demonstrated that six months had lapsed
between the grading of the shoulder in March 2001 and the subsequent
grading of the road shoulder a week before the accident on July 24,
2001.

5) The trial court’s ruling was not reasonable or based on evidence when
the evidence demonstrated that the shoulder was constructed of
acceptable materials, was inspected on a regular basis, was maintained
in a timely manner (correcting problems that are created by a force
external to DOTD - a vehicle traversing the shoulder and making it
irregular), and DOTD had fulfilled its obligations under the law and its
own internal rules.

6) The trial court erred in substituting its judgment of the facts and
determinations of credibility for that of the jury.

7) The trial court erred in failing to grant the motion for new trial after
finding reasons to grant the plaintiffs’ Judgment Not Withstanding the
Verdict and the additur.

8) The trial court erred in finding that Mr. Fuselier and his son lived after
the accident, when the jury made the determination that sufficient
evidence did not exist to make a damage award for that claim.

STANDARD OF REVIEW

Findings of the trial court are reviewable on appeal, and the appellate standard

of review has been clearly established. A trial judge’s findings of fact will not be

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disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State,

through Dep’t of Transp. & Dev., 617 So.2d 880 (La. 1993). “Absent ‘manifest error’

or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be

disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.

1990). “If the trial court or jury’s findings are reasonable in light of the record

reviewed in its entirety, the court of appeal may not reverse, even though convinced

that had it been sitting as the trier of fact, it would have weighed the evidence

differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate

courts are to determine if the trial court’s ruling was legally correct or not. Cleland

v. City of Lake Charles, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs

denied, 03-1380, o3-1385 (La. 9/19/03), 853 So.2d 644, 645.

ASSIGNMENTS OF ERROR NOS. 1, 2, 4, & 5.

In these assignments of error, defendants argue that DOTD should not be found

50% liable because the shoulder was correctly sloped, composed of authorized

material, and properly maintained. We first note that neither the jury nor the trial

judge specifically stated the grounds for imposing 50% liability on DOTD. After

reviewing the record, we conclude that liability is warranted due to the improper

slope of the shoulder. We find no problem with the composition of the shoulder and

make no determination regarding whether improper maintenance caused the excessive

slope. DOTD is liable for the improper slope regardless of whether it was due to

improper maintenance or improprieties in the original construction.

Plaintiff’s expert, Dr. Peter Parsonson, calculated the slope of the shoulder to

be 10.9% at the point where Mr. Fuselier attempted to steer his vehicle back onto the

roadway. Defendant argues that AASHTO allows up to a 25% slope for shoulders

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and cites jurisprudence wherein this 25% slope was deemed recoverable. According

to these sources, defendant argues that DOTD should not be liable because the slope

of the shoulder was less than half as steep as the permissible value. This argument

lacks merit.

First, AASHTO does not allow a 25% slope for shoulders. The AASHTO

manual provides that a 25% slope is permissible for foreslopes, the area between the

shoulder and ditch, not for the shoulders themselves. The AASHTO requirement for

shoulder slope is that the actual slope be in reasonable conformance with the highway

design specifications. In this case, the design specifications for La. Hwy. 26 called

for a shoulder slope of 5%, and further provided that the engineer, in his discretion,

could increase that value up to a maximum of 8%. Given that the slope at the point

where re-entry was attempted was 10.9%, the actual slope was more than double what

was called for in the design of the highway. Accordingly, we find that the jury and

trial judge were not clearly wrong in finding DOTD liable because the slope of the

shoulder was not in reasonable conformance with the design specifications as

required by AASHTO. Second, the jurisprudence cited by defendant is not

controlling in this matter. Those cases deal with improperly sloped foreslopes or

backslopes, the area across the ditch from the roadway. Because the issue in this

matter is the slope of the shoulder itself, cases dealing with other areas of the roadway

and ditch do not guide our analysis.

Defendant further argues that if a 25% slope is allowed for foreslopes it is

implicitly allowed for shoulders. This argument is unpersuasive. The foreslope and

shoulder are different parts of the highway with different design requirements just as

the roadway and the shoulder are different parts with different design requirements.

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The AASHTO manual specifically requires that shoulder slope be in reasonable

conformance with the design specifications for the highway. The slope of the

shoulder at issue here was not in reasonable conformance with the design

specifications and the jury and trial judge were not clearly wrong in so finding. These

assignments lack merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant argues that no reasonable fact finder could have given credence to

plaintiffs’ expert accident reconstruction and highway engineer witnesses because

their testimony was contradicted by documentary and objective evidence. We

disagree. Both the jury and the trial judge found the testimony of these two witnesses

to be credible and we cannot overturn that finding unless it is manifestly erroneous.

Defendant attempts to discredit Dr. Peter Parsonson’s testimony by arguing that he

found the shoulder to be defective despite the fact that AASHTO authorizes a 25%

slope on highway shoulders. As previously noted, AASHTO allows for a 25% slope

on foreslopes but states that shoulders must be sloped in reasonable conformance

with design specifications. The highway plan introduced into evidence calls for a

shoulder slope of 5% and excerpts from the AASHTO manual call for the shoulders

to be maintained in reasonable conformance with that plan. Accordingly, Dr.

Parsonson’s conclusion that AASHTO does not sanction a shoulder slope of 11% and

that the shoulder of La. Hwy. 26 was defective because it was not in reasonable

conformance with the design plans and AASHTO is supported by the record. Neither

the jury nor the trial judge were manifestly erroneous in giving credence to his

testimony.

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Jerry Wallingford, plaintiffs’ expert in accident reconstruction, testified that the

accident could have been avoided if the shoulder was sloped at 5%, was not

composed of loose aggregate, and was hard and wider. He also testified that the left

turn made by Mr. Fuselier when attempting to re-enter the highway contributed to the

accident by causing the gasoline to shift to the right changing the truck’s center of

gravity. Mr. Fuselier never drove far enough into the ditch to reach the loose

aggregate; therefore, the part of the shoulder he traversed was hard and wide enough.

The fact remains, however, that the shoulder was sloped at 11% at the point where the

left turn back to the roadway was attempted. As such, the first element for avoiding

the accident proposed by Mr. Wallingford was not satisfied and his conclusions

regarding the cause of the accident are supported by the record as are Dr.

Parsonson’s. The fact finders were not manifestly erroneous in giving credibility to

this testimony.

Defendant further argues that Mr. Wallingford is not credible because he did

not attribute the roll over to the left turn executed by Mr. Fuselier. Mr. Wallingford

did not deny that this turn had a role in the accident; he simply did not attribute the

entire accident to this factor. Simply because Mr. Wallingford did not attribute all

fault to Mr. Fuselier does not destroy the credibility of his testimony. He stated that

DOTD erred by not maintaining the 5% slope and that the error was compounded

when the left turn caused the gasoline to slosh and change the truck’s center of

gravity. The jury and trial judge agreed that Mr. Fuselier was partially to blame as

evidenced by the equal apportionment of liability. They were not manifestly

erroneous to give credence to this testimony. This assignment lacks merit.

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ASSIGNMENT OF ERROR NUMBER 6

Here, defendant argues that the trial court erred by substituting its judgment for

the credibility determinations made by the jury. Because the credibility of plaintiffs’

experts was specifically challenged in another assignment and because defendant

contends that the jury’s failure to award survival damages and general damages to

Ms. Fuselier was based upon credibility determinations, our discussion of the

remaining assignments of error will encompass this issue. As will be seen by the

following discussion, we find that the trial judge did not substitute his judgment for

that of the jury. Rather, he concluded that the jury’s failure to award damages based

upon uncontradicted evidence was wrong. We agree.

ASSIGNMENT OF ERROR NUMBER 7

In this assignment of error, defendant argues that the trial judge erred in failing

to grant its motion for new trial after finding grounds to grant plaintiffs’ motion for

JNOV. As previously noted, following rendition of the jury’s verdict, the trial judge

offered to instruct the jury regarding the fact that no general damages were awarded

to Zula Mae Fuselier. The attorneys, however, agreed to address the issue in post-

trial motions. The trial judge granted plaintiffs’ motion for JNOV and awarded Zula

Mae $500,000.00 for the wrongful death of her husband, $250,000.00 for the survival

claim of her husband, $500,000.00 for the wrongful death of her son, and

$250,000.00 for the survival claim of her son. Defendant argues that the trial judge

erred first in granting plaintiffs’ motion because there was insufficient evidence

pertaining to the loss suffered by Ms. Fuselier following the death of her husband and

son. Defendant then argues that the trial judge erred again in denying its motion for

new trial. We disagree.

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A JNOV may be granted on the issue of liability, damages, or both. La.Code

Civ.P. art. 1811. The grounds upon which a JNOV may be granted are not provided

by statute; however, the supreme court has set forth the criteria to be used in ruling

on such motions. That court stated that:

a JNOV is warranted when the facts and inferences point
so strongly and overwhelmingly in favor of one party that
the trial court believes that reasonable persons could not
arrive at a contrary verdict. The motion should be granted
only when the evidence points so strongly in favor of the
moving party that reasonable persons could not reach
different conclusions, not merely when there is a
preponderance of evidence for the mover. The motion
should be denied if there is evidence opposed to the motion
which is of such quality and weight that reasonable and
fair-minded persons in the exercise of impartial judgment
might reach different conclusions. In making this
determination, the trial court should not evaluate the
credibility of the witnesses, and all reasonable inferences
or factual questions should be resolved in favor of the non-
moving party.

Joseph v. Broussard Rice Mill, Inc., 00-0628 (La. 10/30/00), 772 So.2d 94, 99.

DOTD contends that the jury did not award general damages to Ms. Fuselier

because she did not testify about the loss of her husband and five-year-old son;

therefore, the trial judge, in granting plaintiffs’ motion as it related to these issues,

erred by substituting its judgment for the jury’s credibility determinations and/or

because the facts and inferences did not overwhelmingly weigh in Ms. Fuselier’s

favor. This argument is unpersuasive. The trial judge considered all of the evidence

and listened to Ms. Fuselier’s testimony. While more verbal testimony specifying the

effects of the deaths of her husband and son would have been preferable, several

photographs demonstrating the nature of the family were introduced into evidence.

These photographs depict a close, loving family. They show a family that attended

church together and participated in extracurricular activities. The pictures also

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chronicle a husband and wife spending time together on family outings and holiday

activities. Furthermore, Ms. Fuselier’s testimony revealed that she and her husband

worked together to prepare their children for school. In short, this evidence depicted

a very loving bond between Ms. Fuselier and her husband and son. The trial judge

examined this uncontradicted evidence and concluded that the jury was wrong in

failing to award general damages to Ms. Fuselier. All facts and inferences point to

the fact that Ms. Fuselier suffered a terrible loss. The trial judge did not evaluate or

weigh the evidence. It was uncontradicted. Accordingly, we find no error in the trial

judge’s grant of plaintiffs’ motion for JNOV.

Defendant also argues that a new trial is warranted because the award to Ms.

Fuselier eclipsed the award to Katherine Fuselier and is at odds with the damages

awarded by the jury. We have already determined that there was no error in the

granting of the JNOV. Once the trial judge made this determination, an independent

assessment of damages must be made under the particular facts of the case. Anderson

v. New Orleans Pub. Serv., Inc., 583 So.2d 829 (La.1991). The trial judge considered

the evidence presented at trial and concluded that Ms. Fuselier enjoyed a close loving

relationship with her husband and son. He then examined relevent jurisprudence and

awarded Ms. Fuselier $500,000.00 for the loss of her husband and $500,000.00 for

the loss of her son. After reviewing the record and relevant jurisprudence, we find

that that the trial judge did not abuse his discretion in making this award. This

assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

In this assignment of error, defendant argues that the trial judge improperly

substituted its judgment for credibility determinations by the jury in granting

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plaintiffs’ motion for JNOV as it related to the survival claims for Calvin and Tyler

Fuselier. Dr. Patricia Post, Katherine’s treating psychologist, testified that Katherine

told her she heard her father screaming when flames engulfed the truck and she told

her dad to get her brother out of the truck. The jury, however, failed to award

damages for the survival claims of Calvin and Tyler Fuselier and the trial judge

concluded they were wrong to do so.

Defendant argues that Dr. Post’s testimony was hearsay and not credible or

correct. We first note that defendant did not object to Dr. Post’s testimony.

Accordingly, the evidence was accepted into evidence and the trial judge was free to

consider it in ruling on plaintiffs’ motion for JNOV. Furthermore, the fact remains

that the events relayed to Dr. Post by Katherine were uncontradicted. The trial judge

considered this evidence and determined that it pointed so strongly and

overwhelmingly in favor of Ms. Fuselier that a JNOV was proper. He awarded

$250,000.00 for the survival claim of Calvin Fuselier and $250,000.00 for that of

Tyler Fuselier. We agree with that ruling. An eight year old girl spoke openly to her

psychologist of hearing screams coming from the burning truck. This testimony is

uncontradicted and was not objected to. Accordingly, we find no error in the trial

judge’s award of damages for the survival claims of Calvin and Tyler Fuselier. This

assignment lacks merit.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

against defendant.

AFFIRMED.

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