Wanda Baker Smith v. the Municipality of Ferriday

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-755
consolidated with 05-756

WANDA BAKER SMITH, ET AL.

VERSUS

THE MUNICIPALITY OF FERRIDAY, ET AL.

************

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF CONCORDIA, NOS. 36263 and 36348,
HONORABLE LEO BOOTHE, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Marc T. Amy, Michael G. Sullivan, and Billy Howard Ezell,
Judges.

REVERSED IN PART; AFFIRMED IN PART;
AMENDED IN PART; AND RENDERED.

Antonio Marcell Clayton
Dennis Coleman Weber
Attorneys at Law
607 N. Alexander Avenue
Port Allen, Louisiana 70767
(225) 344-7000
Counsel for Plaintiff/Appellee:
Wanda Baker Smith

Neil D. Sweeney
Sweeney & Miller
7921 Picardy Avenue
Baton Rouge, Louisiana 70809
(225) 768-7300
Counsel for Plaintiffs/Appellants/Appellees:
Allen Whitehead
Paula Whitehead Brazil
James Whitehead
Brenda Whitehead
Eddie Whitehead

Stacy Christopher Auzenne
Auzenne Law Firm, L.L.C.
Post Office Box 11817
Alexandria, Louisiana 71315-1817
(318) 880-0087
Counsel for Defendants/Appellants:
Terrance A. Williams
Town of Ferriday

Randall Brian Keiser
Keiser Law Firm, L.L.C.
Post Office Box 12358
Alexandria, Louisiana 71315-2394
(318) 443-6168
Counsel for Defendants/Appellants:
Terrance A. Williams
Town of Ferriday

Lisa Coleman Lee
Attorney for Department of Health & Hospitals
1201 Capitol Access Road
Baton Rouge, Louisiana 70821
(225) 342-0207
Counsel for Intervenor:
State of Louisiana, Department of Health & Hospitals

SULLIVAN, Judge.

The Municipality of Ferriday and Ferriday Police Officer Terrence Williams

appeal a judgment awarding damages to Wanda Baker Smith and the children of

Harold Whitehead as a result of a collision between vehicles driven by Officer

Williams and Mr. Whitehead. For the following reasons, we reverse in part, affirm

in part, amend in part, and affirm as amended.

Facts

The collision between Mr. Whitehead’s vehicle and the vehicle driven by

Officer Williams occurred at approximately 3:00 a.m. on July 6, 1999. Officer

Williams was pursuing Ricky Hollins, a fellow Ferriday police officer who was

allegedly speeding south on U.S. Highway 65 in Ferriday, when he collided with

Mr. Whitehead’s Cadillac. Mr. Whitehead was traveling north on U.S. Highway 65

and was turning left off of the highway when Officer Williams hit him. Officer

Williams testified that he was speeding and did not have his siren or bar lights

activated when the accident occurred. The speed limit on U.S. Highway 65 where the

accident occurred is 25 m.p.h. Officer Williams testified that he was traveling

between 55 m.p.h. and 65 m.p.h. and admitted that he could have been traveling faster

as he approached Mr. Whitehead.

Due to questions which arose regarding Officer Williams’ veracity and the

validity of his actions prior to and after the accident, the Louisiana State Police (LSP)

commenced an investigation to determine whether Officer Williams’ actions were

criminal. Officer Williams gave a statement to LSP in which he stated that he had

received numerous complaints about Officer Hollins speeding in Ferriday before the

accident. He admitted that, if he had caught Officer Hollins, he would have “jack[ed]

him up” but not given him a ticket.

Mr. Whitehead died as a result of the accident, and Ms. Smith suffered severe

injuries. Ms. Smith filed suit against Officer Williams and Ferriday to recover

damages for her injuries. Mr. Whitehead’s children filed a survival and a wrongful

death action. The two suits were consolidated and tried March 22 through March 23,

2004.

The trial court found Officer Williams and Mr. Whitehead each 50% at fault

for the accident and awarded damages to Ms. Smith for her injuries and to

Mr. Whitehead’s children for his wrongful death but denied their survival action

claim. Defendants appealed, and Mr. Whitehead’s children answered the appeal.

Ms. Smith did not appeal or answer Defendants’ appeal.

Issues

Pursuant to the errors assigned by Defendants and the Whiteheads, we will

address the following issues:

1) The assessment of fault;

2) The solidary liability of Ferriday and Officer Williams;

3) Ms. Smith’s award for past and future medical expenses;

4) Ms. Smith’s award for general damages;

5) Mr. Whitehead’s children’s awards of wrongful death
damages;

6) The trial court’s refusal to award survival damages;

7) The trial court’s failure to award compensation for funeral
expenses; and

8) The trial court’s refusal to admit polygraph examination
results.

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Discussion

Assessment of Fault

Defendants and Mr. Whitehead’s children assign the trial court’s assessment

of fault as error; each contends the other driver is 100% at fault for the accident. The

trial court assessed fault for the following reasons:

The Plaintiffs maintained that although Harold Whitehead has liability
in causing the accident, Officer Williams[’] act of speeding at a rate
between 60 mph and 85 mph down a Highway with a posted speed limit
of 25 mph without either bar lights or siren on, and doing so while not
in pursuit of an actual or suspected violator of the law, contributed to the
cause of this accident. The Plaintiffs calculate liability as being 50% on
the Defendants and 50% on the Plaintiffs.

This Court finds that the Plaintiff[s] have well supported their
claim for contributory negligence, and finds that Officer Williams is
50% at fault for the cause of the accident, and Mr. Whitehead is 50% at
fault for the cause of the accident.

The trial court’s discussion elsewhere in its Reasons for Judgment conflicts

with this conclusion:

This Court finds that the scene of the accident had been well lit on
the night of the accident, and Mr. Whitehead saw the police cruiser
approaching. This Court finds, however, that Officer Williams was
traveling at so great a speed that Mr. Whitehead miscalculated the
amount of time he had to turn . . . and as a result, the two cars collided.

Mr. Whitehead’s children contend the trial court’s assessment was erroneously

made pursuant to statements made by Ms. Smith in her post-trial brief. The post-trial

briefs are not in the record for us to determine who actually took this position. The

record does not contain a judicial confession by Mr. Whitehead’s children that

Mr. Whitehead was at fault in causing the accident.

Defendants contend that Mr. Whitehead is solely at fault because he turned left

in front of Officer Williams. The Whiteheads acknowledge that Mr. Whitehead had

a high duty of care to insure that he could turn left safely. They argue that Officer

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Williams’ failure to activate his siren and emergency lights made it impossible for

Mr. Whitehead to realize that Officer Williams was exceeding the speed limit by at

least 30 m.p.h. Therefore, they urge it was reasonable for Mr. Whitehead to assume

that Officer Williams was driving the posted speed limit of 25 m.p.h. The

Whiteheads further contend that the accident would not have occurred if Officer

Williams had been driving 25 m.p.h. They conclude that Mr. Whitehead’s left turn

in front of Officer Williams was not negligent, and he should not be assessed with

any fault.

In personal injury actions, the trier of fact must determine “the degree or

percentage of fault of all persons causing or contributing to the injury.” La.Civ.Code

art. 2323. The trier of fact’s allocation of fault is entitled to great deference and

should be affirmed, unless it is manifestly erroneous or clearly wrong. Gregor v.

Argenot Great Cent. Ins. Co., 02-1138 (La. 5/20/03), 851 So.2d 959.

In allocating fault, the trier of fact must consider the nature of the conduct of

all parties and the extent of the causal relationship between the conduct and the

damages claimed when allocating fault. Watson v. State Farm Fire & Cas. Ins. Co.,

469 So.2d 967 (La.1985). Various factors may affect the degree of fault assigned:

(1) whether the conduct resulted from inadvertence or involved an
awareness of the danger, (2) how great a risk was created by the
conduct, (3) the significance of what was sought by the conduct, (4) the
capacities of the actor, whether superior or inferior, and (5) any
extenuating circumstances which might require the actor to proceed in
haste, without proper thought.

Id. at 974.

Officer Williams was on duty when the accident occurred. Louisiana Revised

Statutes 32:24 grants drivers of authorized emergency vehicles certain privileges

when they are responding to emergencies, if certain conditions are met. Section 24

(emphasis added) provides in pertinent part:

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A. The driver of an authorized emergency vehicle, when
responding to an emergency call, or when in the pursuit of an actual or
suspected violator of the law, or when responding to, but not upon
returning from, a fire alarm, may exercise the privileges set forth in this
Section, but subject to the conditions herein stated.

B. The driver of an authorized emergency vehicle may:

....

(3) Exceed the maximum speed limits so long as he does not
endanger life or property;

....

C. The exceptions herein granted to an authorized emergency
vehicle shall apply only when such vehicle is making use of audible
or visual signals sufficient to warn motorists of their approach,
except that a police vehicle need not be equipped with or display a red
light visible from in front of the vehicle.

D. The foregoing provisions shall not relieve the driver of an
authorized vehicle from the duty to drive with due regard for the safety
of all persons, nor shall such provisions protect the driver from the
consequences of his reckless disregard for the safety of others.

In Lenard v. Dilley, 01-1522, p. 6 (La. 1/15/02), 805 So.2d 175, 180, the

supreme court held that an emergency vehicle driver can only be held liable for

actions which constitute “reckless disregard for the safety of others,” i.e., “gross

negligence,” if the requirements of subsections A, B, and C of the statute are met. If

all three of these requirements are not met, an emergency vehicle driver is gauged by

an ordinary standard of “due care.” Id.

Officer Williams testified that he did not have his emergency lights or siren

activated and that he was speeding at 55 m.p.h. to 65 m.p.h. as he pursued Officer

Hollins. Therefore, the trial court correctly determined that the exceptions provided

in La.R.S. 32:24 are inapplicable in this matter, and Officer Williams’ actions are

judged by the due care standard.

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Officer Williams also testified that he had received complaints concerning

Officer Hollins speeding in Ferriday before July 6, 1999. Yet, he had never taken the

opportunity to talk to Officer Hollins about these complaints. He testified at trial that

he would have “possibly” given Officer Hollins a ticket if had caught him; however,

in his statement to LSP, he admitted that he would not have issued Officer Hollins a

ticket but would have merely “jack[ed] him up.” The trial court concluded that

Officer Williams was “simply in pursuit of a friend and not in pursuit of an actual or

suspected violator of the law.” This conclusion is clearly supported by the evidence.

All motorists on Louisiana highways are obligated to obey the traffic laws and

must drive with due regard for the traffic on the highway. A motorist making a left

turn at an intersection must “yield the right of way to all vehicles approaching from

the opposite direction which are within the intersection or so close thereto as to

constitute an immediate hazard.” La.R.S. 32:122. Motorists have an affirmative duty

not to drive faster than is reasonable and prudent under the conditions and potential

hazards existing at the time. La.R.S. 32:64(A); Lennard v. State Farm Mut. Auto. Ins.

Co., 26,396 (La.App. 2 Cir. 1/25/95), 649 So.2d 1114.

Application of the Watson factors to the facts of this case reveals that the trial

court’s allocation of fault is clearly wrong: 1) This accident did not result from

inadvertence. Officer Williams was aware that he was speeding more than twice the

posted speed limit and that without his siren and bar lights activated Mr. Whitehead

could not determine that he was speeding; 2) This accident is evidence that Officer

Williams’ conduct created great danger. Mr. Whitehead had the duty to insure that

he could safely turn left from Highway 65; however, his ability to correctly assess the

approach of Officer Williams’ vehicle was grossly impaired by Officer Williams’

excessive speed and failure to use his bar lights and/or siren; 3) There is little

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significance in Mr. Whitehead’s conduct of turning left, as it was for the purpose of

visiting a friend, and the same is true of Officer Williams’ conduct. Defendants

contend Officer Williams was pursuing a speeder, and his conduct was necessary for

the safety of Ferriday’s citizens. However, as the trial court observed, Officer

Williams was not in the role of police officer at the time he was chasing Officer

Hollins because he was “in pursuit of a friend and not in pursuit of an actual or

suspected violator of the law”; 4) Officer Williams was clearly in the superior

position to realize the seriousness of his actions, as he admitted Mr. Whitehead could

not determine his speed as he approached; 5) There were no extenuating

circumstances.

Defendants complain that the trial court accepted Plaintiffs’ expert’s opinion

over their expert’s opinion regarding the speed Officer Williams was traveling when

he struck Mr. Whitehead’s Cadillac. We need not address the differences of the

experts’ opinions. Officer Williams’ speed was addressed by Defendants’ experts in

the context of an officer in legitimate pursuit of a speeder. We affirmed the trial

court’s finding that Officer Williams was “simply in pursuit of a friend” when he hit

Mr. Whitehead. Thus, he was not in legitimate pursuit of a speeder, and the

testimony is unnecessary to the determination of this case. This is especially true in

light of Officer Williams’ admissions that he was speeding at 55 m.p.h. to 65 m.p.h.

and that Mr. Whitehead could not discern his speed as he approached. We further

observe that credibility determinations, including the evaluation and resolution of

conflicts in expert testimony, are factual issues to be resolved by the trier of fact.

Lasyone v. Kan. City S. R.R., 00-2628 (La. 4/3/01), 786 So.2d 682. We do, however,

note that both experts testified this accident would not have occurred if Officer

Williams had been traveling the posted speed of 25 m.p.h.

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For these reasons, the trial court’s assessment of fault is reversed, and

Defendants are assessed 100% fault.

Solidary Liability

The trial court awarded judgment in favor of Plaintiffs against Officer Williams

and Ferriday without designating their liability as joint or solidary liability. The

Whiteheads contend Defendants’ liability is solidary and should be so designated in

the judgment. As a matter of law, an employer and an employee are solidarily liable

for damages caused by the employee’s negligence. OMSI v. Elliott, 03-1178 (La.App.

3 Cir. 3/3/04), 869 So.2d 300. Accordingly, we amend the judgment to provide that

Officer Williams and Ferriday are liable in solido to the Whiteheads.

General Damages

Defendants contend the trial court’s general damage award of $600,000.00 for

Ms. Smith’s personal injuries and pain and suffering is too high.

General damages are those which may not be fixed with exactitude. They

involve mental and physical pain and suffering, inconvenience, loss of intellectual

gratification and physical enjoyment, or other losses of life or lifestyle which cannot

be definitely measured in monetary terms. Simon v. Reel, 03-932 (La.App. 3 Cir.

3/3/04), 867 So.2d 174. The severity and duration of one’s injuries are factors in the

assessment of damages for pain and suffering. Id.

Ms. Smith suffered extensive, life-threatening injuries in the accident. When

she arrived at the emergency room, she was semicomatose, very short of breath, and

had no blood pressure. It was determined that she had a hemopneumothorax, blood

and air accumulation on the surface of the lung, that was contributing to her breathing

problems. She also had an excessive amount of bleeding and multiple fractures of her

lower extremities. Dr. Ronnie Gregg, the general surgeon who treated Ms. Smith for

her injuries, testified that before he performed surgery on her he did not think she
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would survive. Initially, Dr. Gregg surgically repaired multiple lung perforations, a

ruptured diaphragm, a ruptured pericardium, and multiple liver lacerations. Later, it

was determined that Ms. Smith also suffered a comminuted fracture of the right tibia

and fibula and a comminuted fracture of the left femur and tibia, which also required

surgery. An additional surgery had to be performed to stabilize the fractured femur.

Ms. Smith also suffered a fractured pelvis, a nearly amputated ear, a fractured right

ulna, and multiple facial lacerations. Ultimately, Dr. Gregg performed fifteen surgical

procedures on Ms. Smith. She was hospitalized for sixty-seven days. During that

time, she was on a ventilator for thirty days because her blood pressure could not be

maintained and her heart, which was failing, could not be stabilized.

Dr. Gregg testified that Ms. Smith also suffered with depression during her

recovery and had numerous infections which are common to patients isolated in

intensive care units for long periods of time.

Ms. Smith’s recovery was slow, and she continues to suffer with pain as a

result of her injuries. When released from the hospital, Ms. Smith had nightmares and

had problems balancing. Due to the broken pelvis, she had bladder control problems.

Due to the injuries to her lungs, she has pulmonary fibrosis, which is a difficulty with

gas exchange and respiration in her lungs, and she continues to have breathing

problems. Dr. Gregg testified that the condition is believed to be irreversible.

When asked to describe how the accident affected her, Ms. Smith stated:

[M]y body’s not the way it was and it never will be . . . my pelvis was
broke all up and my legs were broke up and it just bothers me a lot
because I’m not the person I used to be as far as body wise. My body
wasn’t perfect, but it was better than what it is now . . . It changed my
life . . . That’s why if there is something I feel I can do, I push myself.
You know, keep pushing, I don’t want to sit down and do nothing.

Ms. Smith suffered extensive, life-changing injuries. She underwent numerous

surgical procedures, and her recovery was slow and painful. She has residual

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problems and Dr. Gregg expects her to develop traumatic arthritis and premature

mobility problems as a result of the severe injuries to her legs. He also testified that

her lung condition may worsen.

Our review of a general damage award is guided by Youn v. Maritime Overseas

Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994),

where the supreme court noted that the trier of fact has “vast” discretion in awarding

damages, such that an appellate court should rarely disturb a general damage award.

Under Youn and its progeny, “[t]he initial inquiry is whether the award for the

particular injuries and their effects under the particular circumstances on the

particular injured person is a clear abuse of the ‘much discretion’ of the trier of fact.”

Id. at 1260. We find no abuse in the trial court’s general damage award.

Medical Expenses

The trial court awarded Ms. Smith $192,000.00 for past and future medical

bills, itemizing $44,000.00 for past medical expenses and $148,000.00 for future

medical expenses. Defendants urge that the award is error.

The parties stipulated that the Department of Health and Hospitals paid

$45,736.24 of Ms. Smith’s past medical expenses and that the remainder of her past

medical expenses were written off by her medical providers. Thus, Ms. Smith is only

entitled to collect $45,736.24 for past medical expenses. The trial court’s award of

$44,000.00 is less than the amount actually paid on her behalf for past medical

expenses; however, Ms. Smith is not entitled to an increase in the award for past

medical expenses because she did not answer Defendants’ appeal nor did she file her

own appeal. La.Code Civ.P. art. 2133; Matthews v. Consol. Cos., Inc., 95-1925 (La.

12/8/95), 664 So.2d 1191.

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Ms. Smith presented the testimony of Dr. Gregg to prove her claim for future

medical expenses. Dr. Gregg testified that he thought Ms. Smith would likely require

future medical treatment. However, he also testified that he could not testify with any

certainty or medical probability that Ms. Smith would require any specific medical

treatment or the cost of such treatment. Ms. Smith’s attorney questioned Dr. Gregg

regarding future medical treatment for Ms. Smith’s lungs and legs. While Dr. Gregg

testified that he would refer Ms. Smith to a specialist for her lung condition, he did

testify that he expects Ms. Smith will need inhalants for her lungs. Dr. Gregg

estimated an annual cost of such medications; however, there is no evidence

establishing the life expectancy of Ms. Smith, which would allow such an award.

Counsel coaxed Dr. Gregg into estimating the cost of a lung transplant in light of his

testimony that he expected Ms. Smith to have pulmonary fibrosis for the rest of her

life. However, Dr. Gregg explained that the pulmonary fibrosis may not be sufficient

to cause symptoms. Ultimately, Dr. Gregg testified that he expected Ms. Smith to

have problems in the future, “but how much one can’t say.” He testified that she may

eventually need a lung transplant or she may have minimal problems and minimal

expenses.

Counsel also addressed the likelihood of Ms. Smith requiring knee

replacements. Dr. Gregg estimated the cost for a single knee replacement to be

$40,000.00 to $50,000.00. However, on cross-examination, Dr. Gregg admitted that

the likelihood of Ms. Smith requiring knee replacements was speculative at that time.

Future medical expenses are a component of special damages and must be

proven by a preponderance of the evidence. Basco v. Liberty Mut. Ins. Co., 05-143

(La.App. 3 Cir. 8/17/05), 909 So.2d 660. To recover future medical expenses, the

plaintiff must present medical testimony to show that it is more probable than not that

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future medical treatment is indicated and the probable cost of the treatment. Id.

Dr. Gregg’s testimony does not satisfy these requirements; therefore, the trial court’s

award of future medical expenses is reversed.

Wrongful Death Damages

Mr. Whitehead’s children were awarded $10,000.00 each for the wrongful

death of their father. The trial court made this award on the basis that their

relationships with their father were estranged. The Whiteheads contend that an award

of $10,000.00 each is too low. They seek awards of $50,000.00 each. Defendants

contend the trial court erred in awarding wrongful death damages, urging that

Mr. Whitehead’s children did not present any evidence of a close relationship with

their father.

Elements of damage for wrongful death are loss of love and
affection, loss of services, loss of support, medical expenses and funeral
expenses. Damages for wrongful death are intended to compensate the
victim’s beneficiaries for their compensable injuries following the
victim’s moment of death.

Mathieu v. State, Dep’t of Transp. and Dev., 598 So.2d 676, 681 (La.App. 3 Cir.),

writ denied, 600 So.2d 665 (La.1992).

Review of the record reveals that Mr. Whitehead was married twice and had

children during each marriage. He had three children during his first marriage:

Brenda, Eddie, and Ricky, and two children during his second marriage: Allen and

Kathy. The first marriage ended in a bitter divorce. Mr. Whitehead’s first wife did

not allow him to visit his children, and for many years his attempts to visit were

quashed. However, as the children grew older, Mr. Whitehead devised plans to see

them and eventually, he was able to reestablish a relationship with them. Brenda was

approximately forty-six years old when her father died. She had lived with her father

and his second wife for a period of time as a young adult and continued her

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relationship with her father into adulthood and described their relationship as good.

She testified about having her father to her home for holidays. Brenda also testified

that after Mr. Whitehead’s death she experienced some problems with depression.

Ricky was four years old when his parents divorced. His father reestablished

their relationship when Ricky was eleven or twelve years old. At that time, Ricky

was living with his grandparents and saw his father almost nightly. They enjoyed

playing board games, like canasta, chess, and checkers. He testified that he continued

to see his father regularly and that they had a good relationship. Eddie was two years

old when his parents divorced. He and his father were able to begin seeing each other

again when he was in the seventh grade. Eddie also testified that he saw his father

quite often during his last years and that he and his father played chess, dominoes,

and cards together.

Brenda, Ricky, and Eddie’s relationship with their father may not have been

as strong and close as some adult children’s relationships with their parents.

However, they were certainly not “estranged” from their father when he died. The

evidence establishes that Mr. Whitehead and these children developed the close

relationships their mother denied them when they were young. They may not have

seen their father daily, weekly, or even monthly, but they were in regular contact with

him and visited him.

Allen and Kathy were luckier than Brenda, Eddie, and Ricky, as they grew up

with their father. Mr. Whitehead worked in Singapore for a period of time, and Allen

and Kathy testified to the trips they took together during those years. Their testimony

also established that their relationship with their father was good and continued until

his death.

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We find the trial court’s awards of $10,000.00 per child abusively low and

increase their awards to $25,000.00 each.

Mr. Whitehead’s children also assign as error the trial court’s failure to award

them Mr. Whitehead’s funeral expenses. Funeral expenses are one element of a

wrongful death claim as are loss of love and affection, loss of services, and loss of

support. There is no requirement that funeral expenses be awarded in addition to

wrongful death damages. We find no error with the trial court’s failure to make a

separate award for funeral expenses.

Survival Damages

Mr. Whitehead’s children assign as error the trial court’s failure to award

survival damages. They contend the evidence establishes that he suffered pain before

he died as a result of his injuries. Survival damages “for pain and suffering are

properly awarded if there is a scintilla of evidence of any pre-death pain or suffering

by the victim.” Id. There is no evidence that Mr. Whitehead suffered pain before his

death. The testimony of the emergency medical technicians who treated Mr.

Whitehead at the accident scene is that he was alive when they arrived at the scene;

however, he was unconscious: he did not move or attempt to communicate with

them. The only evidence of consciousness is that he wobbled his head when asked

whether he could open his car door. There is no testimony that he was in a state of

consciousness such that he was aware of any pain caused by his injuries.

Accordingly, we find no error with the trial court’s denial of survival damages.

Polygraph Examination Results

Defendants’ last assignment of error is the trial court’s refusal to admit the

results of a polygraph examination of Officer Williams by LSP. In Evans v. DeRidder

Municipal Fire and Police Civil Service Board, 01-2466 (La. 4/3/02), 815 So.2d 61,

cert. denied, 537 U.S. 1108, 123 S.Ct. 884 (2003), the supreme court held that
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polygraph examination results are admissible in an appeal of a Civil Service Board

ruling in a Civil Service employee disciplinary proceeding. The court stated in a

footnote that it was not ruling on whether such results are admissible in a civil

proceeding. For the following reasons, we do not address this issue.

Defendants identify four issues which were addressed in the polygraph

examination: 1) whether Officer Williams’ headlights were on as he drove toward

Mr. Whitehead; 2) whether the light bulb filament wires of the headlights on Officer

Williams’ police unit had been clipped after the accident; 3) whether Officer Williams

went to his police unit at the wrecker yard; and 4) whether Officer Williams

recognized Officer Hollins as he pursued him.

The trial court concluded that Officer Williams had his headlights on as he

pursued Officer Hollins. Items 1, 2, and 3 above are all pertinent to that issue.

Because this issue was resolved in Defendants’ favor, any error in the trial court’s

refusal to admit the polygraph examination results into evidence was harmless in this

regard. See Richardson v. State, 98-918 (La.App. 3 Cir. 12/9/98), 726 So.2d 417,

writ denied, 99-483 (La. 4/1/99), 742 So.2d 561.

Officer Williams testified at trial that he lied to LSP about the description of

the car he was pursuing and the identity of the driver. He admitted that he “did not

tell [LSP] that [he] knew it was Ricky Hollins” because Officer Hollins is a fellow

officer. Officer Williams also testified that he lied in his deposition when he stated

he did not know who he was chasing until Trooper Sandifer told him it was Officer

Hollins. In light of this testimony, the polygraph examination results regarding

Officer Williams’ recognition of Officer Hollins as the speeder he was chasing were

immaterial. This assignment is without merit.

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Disposition

The trial court’s assessment of fault is reversed and fault is assessed 100% to

Defendants; the judgment is amended to provide that Defendants are solidarily liable

to the Whiteheads; the general damage award of $600,000.00 to Ms. Smith is

affirmed; the award of future medical expenses in favor of Ms. Smith is reversed; the

wrongful death damages in favor of Mr. Whitehead’s children are amended to

$25,000.00 per child; the failure to make a separate award for funeral expenses is

affirmed and the refusals to award survival damages and to admit polygraph

examination results are affirmed. All costs are assessed to Defendants.

REVERSED IN PART; AFFIRMED IN PART; AMENDED IN PART;
AND RENDERED.

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