Rodney Brack v. Michael A. Ferrington

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-784

RODNEY BRACK, ET AL.

VERSUS

MICHAEL A. FERRINGTON, ET AL.

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APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. C-2003-140-B
HONORABLE PATRICIA C. COLE, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and J. David Painter,
Judges.

REVERSED AND REMANDED.

John E. Jackson
P.O. Box 1239
309 East Sallier Street
Lake Charles, LA 70602
Counsel for Plaintiffs-Appellants:
Rodney Brack, et al.

Nahum D. Laventhal
3421 N. Causeway Boulevard, Suite 800
Metairie, LA 70002
Counsel for Defendants-Appellees:
Michael A. Ferrington, et al.

PAINTER, Judge.

Following the trial court’s grant of a judgment notwithstanding the verdict

(JNOV) in their favor, Plaintiffs, Rodney Brack, individually and on behalf of his

minor daughter, Savannah Brack, and Shannon Brack, appealed and sought a reversal

of that portion of the JNOV finding Brack twenty percent at fault in causing the

accident as well as an increase in the amount of damages awarded. Defendants,

Michael Ferrington, Wisner Minnow Hatchery, and Nationwide Agribusiness

Insurance Company, answered the appeal. For the following reasons, we reverse the

trial court’s JNOV and remand the matter for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 2002, Plaintiff, twenty-four year old Rodney Brack, was driving

a loaded logging truck on Louisiana Highway 112. Defendant, nineteen year old

Michael Ferrington, was driving an eighteen wheeler for Wisner Minnow Hatchery

on Louisiana Highway 377. Ferrington had missed his turnoff and was attempting

to turn around at the “T” intersection of Highway 112 and Highway 377. On his first

attempt, Ferrington swung too wide and had to back to correct his turn. Ferrington

was stopped in the roadway when he saw Brack’s logging truck approach. Brack,

who was coming out of a curve in the roadway, was traveling at approximately fifty

miles per hour and did not believe he could stop in time to avoid hitting Ferrington’s

truck. Brack attempted go around Ferrington’s stationary truck, but his logging truck

flipped over as it hit the shoulder of the road. State Trooper Patrick Bell issued a

citation to Ferrington for failure to yield. Brack was not ticketed.

Immediately following the accident, Brack was taken by ambulance to

Beauregard Hospital in DeRidder. After x-rays were taken and his cuts were stitched,

Brack was released with instructions to follow up with his own physician. Brack had

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two prior lumbar surgeries, namely a L5-S1 diskectomy in September of 1998 and a

lumbosacral fusion with pedicle screw instrumentation in March of 1999.

Brack, individually and on behalf of his minor daughter, Savannah, and

Brack’s wife, Shannon, filed suit against Ferrington, Wisner Minnow Hatchery, Inc.

(Ferrington’s employer), and Nationwide Agribusiness Insurance Company (the

employer’s insurer). American Interstate Insurance Company, the workers’

compensation carrier for Greg Brister Logging, the business for which Brack was

hauling logs, intervened to recover monies paid to or on behalf of Brack.

Prior to trial, the parties stipulated that Ferrington was in the course and scope

of his employment at the time of the accident and that his employer was vicariously

liable for his actions. The parties also stipulated that Nationwide Agribusiness

Insurance Company was the insurer of Ferrington’s employer and provided coverage

for this accident. The parties further stipulated that American Interstate Insurance

Company had paid $41,050.88 in indemnity benefits and $45,705.63 in medical

benefits.

Following a four day trial, the jury deliberated for several hours but became

deadlocked. The trial court dismissed the jury, and Plaintiffs subsequently filed a

motion for JNOV pursuant to La.Code Civ.P. art. 1811. The trial court granted the

motion and assessed eighty percent of the fault to Ferrington and twenty percent of

the fault to Brack. The trial court also made the following awards to Plaintiffs: (1)

pain and suffering, $150,000.00; (2) past medical expenses, $45,705.63; (3) future

medical expenses, $155,833.00; (3) past lost wages, $50,438.00; (4) future lost

wages, $96,564.00; (5) loss of consortium to Shannon Brack, $15,000.00; (6) loss of

consortium to Savannah Brack, $2,500.00. The trial court also awarded intervenor,

American Interstate Insurance Company, $41,050.88 in indemnity benefits and

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$45,705.63 in medical benefits, with a preference and priority for future workers’

compensation indemnity benefits and medical expenses. The judgment provided that

the awards for special and general damages were to be reduced by the percentage of

fault attributable to Brack and that the award to intervenor was also to be reduced by

the percentage of fault attributable to Brack.

Plaintiffs now appeal, seeking to have Brack found free from fault in causing

the accident, to have the award for future medical expenses increased, and to have the

award for future lost wages increased. Defendants answer the appeal and seek to

have the judgment of liability reversed or modified.

DISCUSSION

We first consider Defendants argument that it was improper for the trial court

to grant a JNOV in Plaintiffs’ favor as to liability. Louisiana Code of Civil Procedure

Article 1811(B) provides, in pertinent part, that: “If no verdict was returned, the court

may render a judgment or order a new trial.” In Bowie v. Young, 01-715, p. 12

(La.App. 3 Cir. 3/20/02), 813 So.2d 562, 570-71, writ denied, 02-1079 (La. 6/21/02),

819 So.2d 335, this court noted:

In describing the circumstances under which a JNOV is appropriate, the
Louisiana Supreme Court has explained that the procedure is to be used
only when the facts and circumstances favor one party so
overwhelmingly that reasonable men could not arrive at a contrary
verdict. Anderson v. New Orleans Public Service, 583 So.2d 829. It is
inappropriately used in cases in which the evidence merely
preponderates in favor of the moving party. Id. Also, we are mindful
that the motion must not be granted if there is evidence in opposition
that is of such quality and weight that it would permit “reasonable and
fairminded men in the exercise of impartial just” to reach different
conclusions. Id. at 832. Finally, the court cautioned that, in weighing
whether a JNOV is appropriate, the court should not weigh witness
credibility and should resolve all reasonable inferences/factual questions
in favor of the non-moving party. Id. See also Davis v. Wal-Mart
Stores, Inc., 00-0445 (La.11/28/00); 774 So.2d 84.

On review, an appellate court employs a two-part inquiry when
considering whether a JNOV is appropriate. Davis, 99-0445; 774 So.2d

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84. First, applying the same criteria as the trial court, the appellate court
must determine if the trial court erred in granting the motion. Id. Next,
if the appellate court determines that the standard was correctly applied
to the jury verdict at the trial level, the appellate court must then review
the JNOV granted using the manifest error standard of review. Id.

We also note that “[a]lthough the trial judge's discretion is limited in applying

this standard, in cases where virtually no factual dispute exists and no credibility

determinations by the fact-finder are required, questions of existence of a duty,

violation of that duty, and victim fault are legal questions, and within the province of

the trial judge to decide.” Millet v. Cormier, 95-953, p. 11-12 (La.App. 3 Cir.

3/27/96), 671 So.2d 1101, 1108, writ denied, 96-1026 (La. 5/31/96), 673 So.2d 1036

(citing Pitts v. Bailes, 551 So.2d 1363 (La.App. 3 Cir.), writs denied, 553 So.2d 860

(La.1989) and 556 So.2d 1262 (La.1990)).

In this case, Defendants argue that, while the trial court had authority to grant

or deny a JNOV in this case, it was incorrect in granting Plaintiffs’ motion because

Plaintiffs did not sustain their burden of proof on the issue of liability. Defendants

contend that it was error to grant the JNOV in Plaintiffs’ favor because the “evidence

in equipoise mandated a defense verdict.” Defendants rely upon the case of Miller

v. Leonard, 588 So.2d 79 (La.1991) where the Louisiana Supreme Court held that,

in a case where the evidence is truly balanced and neither the plaintiff nor the

defendant, who also filed a reconventional demand, satisfied its burden of proof, the

court is not required to find for one party or the other but can dismiss both claims.

Despite the holding in Miller, we note that the trial court’s function is “to resolve

disputes, even if the resolution is difficult.” Chargois v. Guillory, 97-439, p. 6

(La.App. 3 Cir. 10/29/97), 702 So.2d 1068, 1071. We further note, as we did in

Chargois, that “it is not practical and only remotely possible to accord exactly equal

weight to the evidence on each side.” Id. at 1071 (quoting United Services Auto.

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Ass’n v. Travelers Ins. Co., 255 So.2d 418, 420 (La.App. 4 Cir. 1971)). However, we

do not agree with the defense that the trial court should have dismissed Plaintiffs’

claims.

In granting the JNOV in this case, the trial court stated:

Mr. Ferrington testified that when he first began his turnaround
maneuver he swung too wide to turn left and had to back up to make
adjustments. He testified that all of this was taking a “few minutes.”
Mr. Wayne Winkler, the defense’s accident reconstruction investigator,
testified that there was no sudden emergency created by Mr. Ferrington
because Mr. Ferrington’s truck should have been visible to Mr. Brack
from a distance of 600 feet – as Mr. Brack was coming out of the curve.
Mr. Winkler stated that Mr. Brack had plenty of time to stop his vehicle.

....

Mr. Brack relied on the doctrine of “sudden emergency.”
According to the doctrine of “sudden emergency,” when confronted with
imminent peril, without sufficient time to consider and weight all of the
circumstances or best means to avoid an impending danger, a party is
not negligent if he fails to adopt what subsequently may appear to have
been the better method. In this case, Mr. Brack chose to attempt to go
around Mr. Ferrington. Mr. Brack wrecked. According to Mr. Brack,
because of the weight of his loaded logging truck, he did not believe he
could stop in time to avoid hitting Mr. Ferrington’s truck if he remained
in his lane of travel.

Considering the testimony of Mr. Winkler, since Mr. Ferrington’s
truck was visible at a distance of 600 feet, Mr. Brack could have stopped
his truck timely. However, at that distance, Mr. Brack was still in the
curve, so Mr. Ferrington’s truck was not straight ahead of him. If Mr.
Brack had seen Mr. Ferrington at that distance, it is foreseeable that Mr.
Brack expected Mr. Ferrington to clear the roadway before Mr. Brack
reached him either by completing the turn or backing out of the way.

The Court finds that there are no factual disputes in the case at
hand and no credibility determinations are required. The Court further
finds that the questions concerning the existence of a duty, the violation
of that duty, and victim fault are legal questions and are within the
province of the trial court to decide. Taking all of the evidence at its
face value and considering it in the light most favorable to the non-
moving party, the Court finds that reasonable and fair-minded
persons in the exercise of impartial judgment could have ruled in
favor of the mover. The Court grants the motion for judgment
notwithstanding the verdict and rules as follows.

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The Court finds both parties were at fault in causing the damage
to Mr. [Brack]. The Court assesses fault to the defendant, Michael
Ferrington, in the proportion of 80% and to the plaintiff, Rodney Brack,
in the proportion of 20%.

(Emphasis added.)

“The motion for a JNOV requires a stringent test because it deprives the parties

of their right to have all disputed issues resolved by a jury.” Templet v. State ex rel.

Dept. of Transp. & Dev., 00-2162, p. 5 (La.App. 1 Cir. 11/9/01), 818 So.2d 54, 57.

Under the two-part inquiry described in Davis, we must first determine if the trial

court erred in granting the motion for JNOV on behalf of Plaintiffs, and our initial

inquiry must be whether the facts and inferences point so strongly in favor of a

finding that Ferrington was negligent that no reasonable juror could have reached a

different verdict on the issue. We must apply the same criteria as the trial court. In

so doing, we note that the trial court did not find that reasonable jurors could not

arrive at a contrary verdict and that reasonable men could not reach a different

conclusion other than that Ferrington was negligent. Instead, the trial court found

that “reasonable and fair-minded persons in the exercise of impartial judgment could

have ruled in favor of the mover [Brack].” This is not the standard and necessarily

compels the conclusion that reasonable and fair-minded persons in the exercise of

impartial judgment could also have ruled in favor of the non-movers. As indicated

above, the trial court recognized that there was some evidence to suggest that

Ferrington was not negligent and that Brack could have avoided the accident.

Despite the trial court’s statement otherwise, there were factual disputes, and the trial

court did not view these disputes in the light most favorable to the defense. Here, as

in Templet, 818 So.2d at 59, “[t]he record is replete with evidence of such a

conflicting nature that it is impossible to say that reasonable jurors exercising

impartial judgment could not reach different conclusions.”

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Plaintiffs are also unhappy with the trial court’s allocation of fault in the JNOV

and argue that Brack should have been found free from fault based on the doctrine of

sudden emergency. The doctrine of sudden emergency has been articulated as

follows:

One who suddenly finds himself in a position of imminent peril,
without sufficient time to consider and weigh all the circumstances or
best means that may be adopted to avoid an impending danger, is not
guilty of negligence if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
negligence.

Hickman v. S. Pac. Transp. Co., 262 La. 102, 112-113, 262 So.2d 385, 389 (La.1972).

We agree that the trial court did not correctly apply the doctrine of sudden

emergency, but we find that there was conflicting evidence as to which party created

the sudden emergency. The trial court appears to recognize this based on her finding

that Brack was twenty percent at fault. Thus, the JNOV was improper for this reason

as well.

Therefore, after our review of the record and the trial court’s reasons for

judgment, it is clear that the trial court erred as a matter of law when applying the

standard of review in its grant of the JNOV in Plaintiffs favor. While the trial court

is empowered to render a judgment in cases where no verdict is returned by the jury,

based upon our review of the record as a whole, we must find that the facts of this

case do not support a JNOV because the evidence presented did not rise to the

standard of being so overwhelmingly in Plaintiffs' favor that a JNOV was warranted.

Accordingly, we reverse the trial court’s JNOV.

Because we reverse the JNOV, we do not reach, and need not address, the

remaining issues raised by Plaintiffs and Defendants.

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DECREE

For the foregoing reasons, we find that the trial court erred in granting the

judgment notwithstanding the verdict. Accordingly, we reverse the trial court’s

judgment and remand the matter for a new trial. Costs of this appeal are assessed

equally to the parties.

REVERSED AND REMANDED.

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