Maria M. Munar v. State Farm Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-611

MARIA M. MUNAR

VERSUS

STATE FARM INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2004-5784
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

James E. Diaz
Attorney at Law
406 Audubon Blvd.
Lafayette, LA 70503
(337) 233-6200
Counsel for Secondary Plaintiff/Appellant:
Maria M. Munar

Kenneth Wayne Jones, Jr.
Cynthia Gatlin Sonnier
Attorney at Law
P. O. Box 53290
Lafayette, LA 70503-3290
(337) 593-9062
Counsel for Defendant/Appellant:
Lafayette City-Parish Consolidated Government

Staci Knox Villemarette
Cloyd, Wimberly & Villemarette, L.L.C.
P. O. Box 53951
Lafayette, LA 70505-3951
(337) 289-6906
Counsel for Defendants/Appellees:
State Farm Insurance Company
Kurt W. Schmersahl, Jr.

EZELL, JUDGE.

This is an appeal arising from an auto accident involving a pedestrian. The

Lafayette City-Parish Consolidated Government (LCG) appeals the decision of the

trial judge in this bifurcated trial, finding that it breached a duty to the pedestrian,

Maria Munar, and was fifteen percent at fault for the accident. Mrs. Munar appeals

the decision of the jury, assessing her with seventy-five percent of the liability. For

the following reasons, we reverse the decision of the trial court in part, affirm in part,

and render judgment.

Mrs. Munar is a permanent resident of the United States who originally hails

from the nation of Columbia. She was sixty-nine years old at the time of the accident.

Because she is not fluent in English, she was taking English lessons at VITA in

downtown Lafayette. To get to the lessons, she rode the Lafayette Transit Bus from

Acadiana Mall down Johnston Street, one block past Jefferson Street, to the

designated bus stop located on the Southeast side of the intersection of Johnston and

Convent Street. She would normally disembark at the bus stop, then walk back down

Johnston to the Jefferson intersection and cross Johnston at the traffic light

controlling the intersection, because a pedestrian protection device controlled the

crosswalk, allowing her to cross safely.

On January 29, 2004, Mrs. Munar again followed this pattern to attend her

English lessons. However, when she rang the bell to exit the bus at her usual stop,

the bus driver, for some unknown reason, failed to stop at the designated spot. After

crossing the intersection of Johnston and Convent Street, the bus driver stopped in

the middle of the next block, roughly one hundred and fifty feet past the desired bus

stop. Mrs. Munar disembarked from the bus without incident or complaint, the bus

pulled away, and she began to walk back toward the intersection of Johnston and

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Convent, on her way to the Jefferson intersection. After walking half a block back

to Convent, Mrs. Munar stopped for approximately thirty seconds to check to see if

the intersection was clear for her to cross. She saw Kurt Schmersahl approaching

from her left, but felt she had time to get across the intersection. As she stepped into

the street, she was bumped by Mr. Schmersahl as he executed a right turn from

Convent onto Johnston. Mrs. Munar fell to the ground, suffering injuries to her right

leg and left wrist.

Mrs. Munar filed this suit against Mr. Schmersahl and the LCG as a result of

the accident. She claimed LCG breached its duty to her as a passenger by dropping

her off at a spot other than a designated bus stop. The trial judge in this matter

agreed, finding that LCG was fifteen percent at fault for her injuries, and assessed

damages in the amount of $39,047. The trial judge submitted the remaining eighty-

five percent of the fault to the jury. After hearing testimony from several sources,

including both parties and an independent witness, the jury found that Mrs. Munar

was seventy-five percent at fault for the accident and that Mr. Schmersahl was ten

percent at fault. However, the jury found that no injuries were sustained and awarded

no damages. Mrs. Munar filed a motion for a judgment notwithstanding the verdict

(JNOV) on the issues of liability and damages. The trial judge denied the motion as

to liability but granted a JNOV as to damages. He found that Mrs. Munar had

suffered the $39,047 in damages he had previously awarded in his part of the

bifurcated trial against LCG, subject to reduction based on comparative fault. Costs

of the trial were apportioned at seventy-five percent to Mrs. Munar and ten percent

to Mr. Schmersahl. LCG was exempt from paying any court costs in this matter.

From these decisions, Mrs. Munar and LCG appeal. Mr. Schmersahl answers,

seeking additional attorney fees for work done on appeal. We shall address the

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claims of LCG first.

LCG

On appeal, LCG asserts three assignments of error: that the trial court erred in

finding that the bus driver owed a duty to Mrs. Munar, as a passenger, at the time of

the accident; in finding a breach of that duty; and in finding that any breach was the

cause of the accident. Because we agree with LCG that it no longer had any duty to

Mrs. Munar as a passenger at the time of the accident, we need not address the other

two assignments of error.

In contracting to transport passengers for hire, public carriers undertake grave

obligations. Gill v. Doe, 479 So.2d 36 (La.App. 4 Cir.1985). It is well-settled that

although a common carrier is not the insurer of the safety of its fare-paying

passengers, it nevertheless is required to exercise the highest degree of care. As such,

when an injury to a passenger occurs, the burden shifts to the defendant carrier to

show that it was entirely free of even the slightest negligence contributing to the

resulting injury. King v. King, 253 La. 270, 217 So.2d 395 (1968). This doctrine

“applies in all circumstances where a passenger suffers an injury when boarding,

traveling aboard, or disembarking a common carrier’s vehicle.” Amos v. St. Martin

Parish Sch. Bd., 00-808, p. 3 (La.App. 3 Cir. 12/6/00), 773 So.2d 300, 302 (citations

omitted). However, as noted by this court in Teer v. Continental Trailways, Inc., 341

So.2d 1306, 1308 (La.App. 3 Cir.1977):

[O]nce a passenger freely disembarks at his chosen destination free from
harm, his status as passenger, and the public carrier’s contract to
transport for hire, cease. At that point the public carrier only owes such
person the duty of ordinary care--it is under no duty to warn the former
passenger of “a danger which is apparent, obvious and known to every
person in good mind and sense” (Deason v. Greyhound Corp., 106
So.2d 348 (La.App. 1 Cir., 1958), nor to personally transport, convey,
or assist the former passenger in crossing a street or highway.

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In this case, it is undisputed that Mrs. Munar alighted safely from the bus.

Further, she securely walked one hundred fifty feet from the place where she alighted

to the intersection of Convent and Johnston, where she testified she waited over thirty

seconds before entering the road. She claims the duty extended because the LCG bus

driver’s manual stated that a bus driver is to drop passengers off at bus stops only.

However, the same manual states that if a stop is missed, the driver is to drop the

passenger off at the next stop, or the next safe spot. As noted above, Mrs. Munar was

let off at a safe location, where she exited the bus without incident or complaint. In

fact, she testified that being dropped off in that spot did not bother her at all. We find

Mrs. Munar’s claims to be completely devoid of any merit and that LCG’s duty to her

as a passenger ended at the time she safely disembarked from the bus. The trial

court’s decision, holding LCG fifteen percent at fault for Mrs. Munar’s accident is,

accordingly, reversed.

Maria Munar

Mr. Munar also appeals, asserting six assignments of error. She claims that the

trial court erred in not admitting evidence of other accidents involving Mr.

Schmersahl; that the jury erred in its apportionment of fault; that the trial court erred

in not granting a JNOV on the issue of liability; that the jury failed to award damages;

that the trial court awarded inadequate damages; and that the trial court erred in its

apportionment of costs. The fourth assignment of error, concerning the failure of the

jury to award damages, was rendered moot by the JNOV granted by the trial court on

that issue. Because Mr. Schmersahl has not appealed the JNOV, we need not address

that assignment of error.

Mrs. Munar first claims that the trial court erred in failing to admit evidence

concerning other auto accidents in which Mr. Schmersahl was involved. In McIntosh

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v. McElveen, 04-1041, pp. 9-10 (La.App. 3 Cir. 2/2/05), 893 So.2d 986, 994, writ

denied, 05-528 (La. 4/29/05), 901 So.2d 1069 (citations omitted), a panel of this court

observed that a “trial court is accorded vast discretion concerning the admission of

evidence, and its decision will not be reversed on appeal absent an abuse of that

discretion.” Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of the person “in order to show that he acted in conformity therewith.”

La.Code Evid. art. 404(B). Even if the evidence is independently relevant, it “may

be excluded if its probative value is substantially outweighed by the dangers of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time.” La.Code Evid. art. 403. While Mr. Schmersahl did

have other accidents on his record, the trial judge found that a pattern of habit did not

arise, so the prior accidents could not be used to show he was inattentive at the time

of the accident that is the basis of this suit, as their admission would prejudice the

jury against Mr. Schmersahl. The record does not demonstrate abuse of the trial

judge’s discretion in denying the introduction of the evidence Mrs. Munar sought.

Therefore, this assignment of error is without merit.

Next, Mrs. Munar claims the jury erred in its apportionment of fault. Again,

we disagree. It is well established that an appellate court cannot overturn the factual

findings of a trial court unless, after careful review of the record as a whole, the

appellate court finds that the factual conclusions of the trier of fact were manifestly

erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate

standard of review is both constitutionally based and jurisprudentially refined.

This state’s appellate review standard, which is constitutionally
based and jurisprudentially driven, is that a court of appeal may not
overturn a judgment of a trial court absent an error of law or a factual
finding which is manifestly erroneous or clearly wrong. Accordingly,
appellate courts are charged with a duty to affirm the trial court’s
decision absent an error of law or a factual finding which is manifestly

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erroneous or clearly wrong.

Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

If there is conflict in the testimony, the appellate court cannot substitute its own

judgment. The appellate court can only review the record as a whole to ensure that

the judgment of the trial court was reasonable. “[T]he issue to be resolved by a

reviewing court is not whether the trier of fact was right or wrong, but whether the

factfinder’s conclusion was a reasonable one.” Id. at 882.

[I]f the trial court or jury 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. . . .[W]here there are two permissible
views of the evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong.

Rosell, at 844.

The record shows that the jury heard conflicting testimony from both the

parties. Additionally, neither the testimonies of the independent witness or the police

on the scene truly synced with either party. There did, however, exist a reasonably

factual basis for the jury to come to its conclusion that Mrs. Munar was mostly to

blame for the accident. Both Mr. Schmersahl and the police reported that he was

beyond the stop sign, already into his turn, and entering Johnston when he struck Ms.

Munar. The location of Mr. Schmersahl’s truck after the accident placed Mrs. Munar

outside of the crosswalk. Furthermore, Mrs. Munar testified that she saw Mr.

Schmersahl coming, but still entered the roadway despite that fact. We can find no

error in the finding of the jury that Mrs. Munar was seventy-five percent at fault for

the accident. However, as we have ruled that LCG can not be held at fault, fifteen

percent of the fault remains. We find that this additional percentage of fault should

be assessed between the parties at five percent to Mrs. Munar and ten percent to Mr.

Schmersahl. Accordingly, we render judgment finding Mrs. Munar eighty percent at

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fault for the accident and Mr. Schmersahl twenty percent liable.

Mrs. Munar next claims that the trial judge erred in failing to grant a JNOV as

to the jury’s determination on liability. The criteria applicable to our review of the

denial of Mrs. Munar’s motion for JNOV was set forth by the Louisiana Supreme

Court in Peterson v. Gibraltar Savings and Loan, 98-1601, 98-1609, pp. 5-6 (La.

5/18/99), 733 So.2d 1198, 1203, rehearing in part, (La. 9/3/99), 751 So.2d 820:

JNOV is warranted only when the facts and inferences, viewed in
the light most favorable to the party opposing the motion, is so strongly
and overwhelmingly in favor of the moving party that reasonable men
could not arrive at a contrary verdict; the motion should be granted only
when evidence points so strongly in favor of the moving party that
reasonable men could not reach different conclusions, not merely when
there is a preponderance of evidence for the mover. Anderson v. New
Orleans Public Service, Inc., 583 So.2d 829 (La.1991); Scott v. Hospital
Service District No. 1, 496 So.2d 270 (La.1986). Refusal to render a
judgment notwithstanding the verdict (JNOV) can only be overturned
if it is manifestly erroneous. Delaney v. Whitney National Bank,
96-2144, 97-0254 (La.App. 4 Cir. 11/12/97), 703 So.2d 709[,] writ
denied, 98-213 (La.3/20/98), 715 So.2d 1211.

As we have previously held that there existed a reasonable factual basis for the

findings of the jury, it is clear that the evidence did not point so clearly in favor of

Mrs. Munar that the JNOV should have been granted. This assignment of error is

devoid of merit.

Mrs. Munar next claims that the trial judge erred in granting insufficient

damages. The trial judge, both in his part of the bifurcated case against LCG and in

his granting of the JNOV in favor of Mrs. Munar on the issue of damages, found that

Mrs. Munar had suffered damages in the amount of $39,047 as a result of the

accident. This court, in Guillot v. Doe, 03-1754, p. 5-6 (La.App. 3 Cir. 6/30/04), 879

So.2d 374, at 379-80 (footnotes omitted; alteration in original), when discussing the

correct procedure for reviewing damage awards, stated the following:

An appellate court should rarely disturb an award of damages due
to the great and, even, vast discretion vested in the trial court. We can

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disturb such awards, only, when the trial court clearly abused its
discretion.

Reasonable people often disagree over the appropriate measure of
general damages in a particular case. Yet, “[i]t is only when the award
is, in either direction, beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should
increase or reduce the award.”

We should not rely on a comparison of prior awards in cases with
similar medical injuries to decide whether the trial court abused its
discretion. “The primary considerations in assessing damages are the
severity and duration of the injured party’s pain and suffering.”

The trial judge noted in carefully thought out reasons for judgment that Mrs.

Munar had, indeed, proved she sustained injuries as a result of the accident, most

notably to her left wrist and right ankle. She had to be transported from the scene to

the emergency room in an ambulance. However, her injuries turned out to be

relatively minor. She suffered mainly a sprained wrist, contusions, and a chip fracture

on her right foot. The accident also aggravated some pre-existing degenerative

problems in her back and caused her to suffer some loss of enjoyment of life. The

trial court awarded $20,000 in general pain and suffering damages, $7,500 for future

loss of enjoyment of life, and $11,547 in medical expenses. We can not find any

abuse of discretion in this award. This assignment of error is also without merit.

Finally, Mrs. Munar claims that the trial judge erred in assessing her with

seventy-five percent of the court costs. Mr. Schmersahl was taxed with ten percent

of the costs of trial. LCG was exempt from paying any court costs in this matter.

Louisiana Code of Civil Procedure Article 1920 provides, in pertinent part, that “the

court may render judgment for costs, or any part thereof, against any party, as it may

consider equitable.” “The trial court may assess costs against any party in the

proportion it deems equitable, even against the party prevailing on the merits.”

Greene v. Greene, 94-79, p. 4 (La.App. 3 Cir. 10/5/94), 643 So.2d 891, 894. A trial

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court’s assessment of costs can be reversed only upon a showing of an abuse of

discretion. State ex rel. Guste v. Nicholls College Found., 592 So.2d 419 (La.App.

1 Cir. 1991), writ denied, 593 So.2d 651 (La.1992). In this matter, Mrs. Munar was

assessed costs of court in accordance with her seventy-five percent of fault, as

assessed by the jury. While we find that the assessment of trial costs was not an

abuse of the trial court’s discretion, we hereby render judgment assessing trial costs

to reflect the allocation of fault as rendered in this opinion, eighty percent to Mrs.

Munar and twenty percent to Mr. Schmersahl, as necessitated by our findings

pertaining to LCG.

Kurt Schmersahl

Finally, Mr. Schmersahl answers the appeal, seeking attorney fees for

additional work done on appeal. Because he was not entitled to, nor awarded attorney

fees by the trial court, we hereby deny his request.

Decree

The decision of the trial court assessing LCG with fifteen percent of the

liability in this matter is hereby reversed. Judgment is hereby rendered finding Mrs.

Munar liable for eighty percent of the damages she suffered and Mr. Schmersahl

liable for the remaining twenty percent. Judgment is also hereby rendered assessing

costs of the trial at eighty percent to Mrs. Munar and the remaining twenty percent

to Mr. Schmersahl. The judgment of the trial court is hereby affirmed in all other

aspects. Costs of this appeal are assessed against Mrs. Munar.

REVERSED IN PART; AFFIRMED IN PART; AND RENDERED.

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