Kimberly A. Myrick v. Jeremy M. Jones, Jr.

STATE OF LOUISIANA

(NOT FOR PUBLICATION)

COURT OF APPEAL, THIRD CIRCUIT

12-684

KIMBERLY A. MYRICK

VERSUS

JEREMY M. JONES, JR. AND
STATE FARM INSURANCE COMPANY

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APPEAL FROM THE
SULPHUR CITY COURT
PARISH OF CALCASIEU, DOCKET NO. 40,956-11
HONORABLE CHARLES SCHRUMPF, CITY COURT JUDGE
**********

SYLVIA R. COOKS
JUDGE

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Court composed of Judges Sylvia R. Cooks, Oswald A. Decuir, and Shannon J.
Gremillion.

AFFIRMED.

John E. Ortego & Associates
Timothy A. Maragos
Caffery Plaza, Suite 100
4023 Ambassador Caffery Parkway
Lafayette, LA 70503
(337) 988-7240
ATTORNEY FOR DEFENDANTS/APPELLANTS
Jeremy M. Jones, Jr. and State Farm Ins. Co.

Van C. Seneca, L.L.C.
P.O. Drawer 3747
Lake Charles, LA 70602
(337) 439-1233
ATTORNEY FOR PLAINTIFF/APPELLEE
Kimberly Myrick

Cooks, Judge.

FACTS AND PROCEDURAL HISTORY

On February 4, 2011, Kimberly Myrick (Plaintiff) and Jeremy Jones, Jr.

(Defendant) were driving in opposite directions on Poinciana Lane in Westlake,

Louisiana when their vehicles collided. This street is a narrow, dead-end cul de

sac with a posted speed limit of twenty-five miles per hour. There is no marked

center line. Both parties were driving full-size pickup trucks. Plaintiff was

stopped in her lane of travel with her left turn indicator on, about to make a left-

hand turn into a private driveway. When she first looked up the street to her right,

she did not see any on-coming vehicle. However, when she looked again to her

right as she began to make her left turn she observed Defendant‟s vehicle coming

toward her in her lane of travel at a rate of speed well in excess of the posted speed

limit. As Defendant was proceeding down the street toward Plaintiff, he entered

Plaintiff‟s lane of travel to go around vehicles parked on the roadway then

attempted to swerve back into his lane of travel. With both vehicles in the center

of the street, travelling in opposing directions, Defendant‟s left front headlight

struck Plaintiff‟s vehicle on the left front headlight. Defendant skidded

approximately forty-five feet before the impact, and skidded approximately sixteen

more feet after the impact, coming to a stop with his right front tire in the ditch and

his left tire on the roadway. Plaintiff sustained injuries to her neck, shoulder and

back.

Following a bench trial in Sulphur City Court, the trial court awarded

Plaintiff $6,000.00 general damages for pain and suffering, and special damages in

the amount of $6,739.18 for medical expenses incurred as a result of her injuries.

The trial court found Plaintiff 60 percent at fault and reduced the award

accordingly.

The trial court granted Plaintiff‟s motion for new trial and at the close of the

hearing amended its judgment increasing Defendant‟s fault to 70 percent and

decreasing Plaintiff‟s fault to 30 percent. Additionally, the trial court amended its

award for general damages increasing the award to Plaintiff from $6,000.00 to

$18,000.00. Defendant appeals alleging two assignments of error asserting the

trial court erred in awarding medical expenses and general damages to Plaintiff,

and erred by assigning Defendant 70 percent fault in causing the accident.

LEGAL ANALYSIS

The trial court‟s decision in this case turns wholly on the credibility of the

witnesses who testified and the findings based on the medical records placed in

evidence. Neither side called any expert witness concerning the accident or

concerning the injuries suffered by Plaintiff. We cannot set aside the trial court‟s

findings of fact unless we find they are manifestly erroneous or are clearly wrong.

See Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

Factual determinations in civil cases are reviewed under the manifest
error-clearly wrong standard of review. Rando v. Anco Insulations,
Inc., 08-1163, 08-1169 (La.5/22/09), 16 So.3d 1065. This standard
„precludes the setting aside of the [trial] court‟s finding of fact unless
that finding is clearly wrong in light of the record reviewed in its
entirety.‟ Id. at 1087.

Review of credibility determinations under the manifest error
standard requires that where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact
should not be disturbed upon review, even though the appellate court
may feel that its own evaluations and inferences are as reasonable.
Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164 (La.4/11/07),
974 So.2d 635. Unless documents or objective evidence so contradict
the witness‟s story or the story itself is so internally inconsistent or
implausible on its face that a reasonable fact finder would not credit
the witness‟s story, a fact finder‟s determination that is based on a
credibility determination can virtually never be manifestly erroneous
or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La. 1989).

Hannie v. Guidry, 10-216, pp. 9-10 (La.App. 3 Cir. 10/6/10), 48 So. 3d 396, 403.

A review of the record demonstrates much support for the factual
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conclusions reached by the trial court in determining fault, negligence, causation,

and the amount of damages awarded. Plaintiff and her passenger testified

consistent with the investigating officer‟s testimony concerning how the accident

occurred. Defendant admitted he swerved out of his lane to pass around parked

cars as he was approaching Plaintiff‟s vehicle in the roadway. The evidence of 61

feet of skid marks supports the trial court‟s finding that Defendant was travelling

well in excess of the posted 25 mile-per-hour speed limit and that such improper

action was a significant cause of the accident. Likewise, Plaintiff‟s testimony, as

well as her passenger‟s, provides more than a reasonable basis for the trial court‟s

assignment of a percent of fault to her. From her stopped position in the roadway,

Plaintiff proceeded to make a left turn after briefly observing the oncoming vehicle

driven by Defendant and admits she observed it was travelling at a high rate of

speed in excess of the posted 25 mile per hour speed limit. We find no manifest

error in the trial court‟s application of the appropriate statutes important to the

decision in the matter.

First, La.R.S. 32:75 provides:

No vehicle shall be driven to the left of the center of the
highway in overtaking and passing another vehicle proceeding in the
same direction unless such left side is clearly visible and is free of
oncoming traffic for a sufficient distance ahead to permit such
overtaking and passing to be completely made without interfering
with the safe operation of any vehicle approaching from the opposite
direction or any vehicle overtaken. In every event, the overtaking
vehicle must return to the right-hand side of the roadway before
coming within one hundred feet of any vehicle approaching from the
opposite direction.

Plaintiff‟s testimony, along with her passenger‟s testimony, and Defendant‟s

own admissions, demonstrate the reasonableness of the trial court‟s finding that

Defendant entered Plaintiff‟s lane of travel to pass one or more parked vehicles and

was unable to safely return to his lane of travel within the requisite number of feet
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away from Plaintiff‟s oncoming vehicle thereby contributing in large measure to

the collision with Plaintiff‟s vehicle. Additionally, La.R.S. 32:64 provides:

A. No person shall drive a vehicle on the highway within this
state at a speed greater than is reasonable and prudent under
the conditions and potential hazards then existing, having
due regard for the traffic on, and the surface width of, the
highway, and the condition of the weather, and in no event
at a speed in excess of the maximum speeds established by
this Chapter of regulation of the department made pursuant
thereto.

Clearly the record supports the trial court‟s finding Defendant was travelling

well in excess of the posted speed limit, and was travelling at a rate of speed which

was not reasonable on this narrow, dead-end cul de sac in a residential

neighborhood, swerving past parked cars and into the lane of Plaintiff‟s truck about

to make a left-hand turn into a driveway.

Likewise the record contains further evidence which supports the trial

court‟s attributing a greater percent of fault to Defendant. La.R.S. 32:58 provides:

Any person operating a motor vehicle on the public roads of
this state shall drive in a careful and prudent manner, so as not to
endanger the life, limb, or property of any person. Failure to drive in
such a manner shall constitute careless operation.

Based on the testimony and physical evidence introduced at trial, the trial

court could reasonably conclude Defendant was not operating his vehicle in a

“careful and prudent manner” but in fact, carelessly operated his vehicle in a

manner which resulted in injury to Plaintiff and damage to her property.

Similarly, the record supports the trial court‟s assessing a percent of fault to

Plaintiff, the left-turning motorist. La.R.S. 32:104 provides in pertinent part:

No person shall … turn a vehicle to enter a private road or
driveway, or otherwise turn a vehicle from a direct course or move
right or left upon a roadway unless and until such movement can be
made with reasonable safety.

It is true that under our settled jurisprudence in a case involving a left-

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turning driver the other driver may rely on a presumption of the left-turning

driver‟s negligence if he proves that the left-turning driver executed a left-hand

turn and crossed the center-line resulting in a collision. See Thomas v. Champion

Ins. Co., 603 So.2d 765 (La.App. 3 Cir. 1992). The motorist making the left turn

bears a heavy burden to prove how the accident occurred and to prove that it was

not the result of her negligence. Miller v. Leonard, 558 So.2d 79 (La.1991). In

reviewing this record, we cannot say the trial court manifestly erred in concluding

Plaintiff succeeded in showing that the accident occurred largely due to the fault of

Defendant for the reasons mentioned above. In addition to those reasons, we note

the trial court concluded Plaintiff was still in her lane of travel when the accident

occurred and had not yet crossed into the opposing lane of travel on this unmarked

roadway. The skid marks provided evidence upon which the trial court could

reasonably find that the impact occurred just inside Plaintiff‟s lane but that

Plaintiff might have been able to avoid the collision had she not let her foot off the

brake when she realized upon a second glance down the street that Defendant was

proceeding her way quickly and that she would not have time to proceed with her

left turn. The record supports the reasonableness of the trial court‟s assignment of

fault and we find no manifest error in his ruling.

The award of general and special damages to Plaintiff also turns upon

credibility determinations of the trial court. Plaintiff and her daughter‟s testimony

provided more than sufficient basis to support the reasonableness of the trial

court‟s award of damages. Their testimony was supported by the medical records

introduced which gave further indication that Plaintiff had indeed suffered injuries

in this accident. Plaintiff‟s evidence concerning her injuries and medical costs was

un-contradicted by Defendant. It is of no moment that Plaintiff admits she had a

pre-existing condition or that she was receiving social security disability benefits
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due to a previous back surgery prior to the accident. She, and her daughter who

resides with her, testified that Plaintiff was not having any neck or shoulder

problems prior to the accident and that the accident affected a different part of her

back from the previously affected L-4 and L-5 areas. Defendant offered no

evidence to contradict that testimony. The trial court weighed the evidence

presented, including Plaintiff and her daughter‟s un-contradicted testimony

concerning her injuries which she maintained were caused by this accident and

reasonably concluded Plaintiff suffered injuries in this accident and incurred

medical costs concerning those injuries, all as evidenced by the documents entered

into evidence and un-contradicted testimony. We note that the trial court

specifically mentioned in the new trial that he had missed certain medical evidence

when he first rendered judgment, and, having seen such evidence in the new trial,

resolved his prior misgiving about a certain portion of Plaintiff‟s testimony. He

noted upon discovering notations made on the back page of a medical document

that Plaintiff had in fact been truthful in her testimony which he previously

doubted without this corroborating evidence.

Our courts have consistently held “causation is a factual finding that should

not be reversed on appeal absent manifest error.” Detraz v, Lee, 05-1263, p.7

(La.1/1/07), 950 So.2d 557, 561. Plaintiff was entitled to the legal presumption set

forth in Housley v. Cerise, 579 So.2d 973 (La.1991). Plaintiff‟s un-contradicted

testimony and evidence provided a sufficient basis for the trial court to conclude

that the injuries suffered in this accident were not the same as that for which

Plaintiff had been previously operated on. Before this accident Plaintiff did not

have pain in her neck and shoulders and enjoyed more physical activity than after

the accident. Medical records such as those introduced by Plaintiff herein are

sufficient to demonstrate the reasonable possibility of causation between Plaintiff‟s
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claimed injury and the accident at issue. See Arceneaux v. Howard, 633 So.2d 207

(La.App. 3 Cir. 1993). Additionally, Plaintiff may also demonstrate a reasonable

possibility of causation between the accident and her injury by circumstantial

evidence and/or common knowledge. Poland v. State Farm Mututal Automobile

Insurance Company, 03-1417 (La.App. 1 Cir. 6/25/03), 885 So.2d 1144. Plaintiff

and her daughter offered un-contradicted testimony concerning Plaintiff‟s pain

after the accident and Plaintiff introduced un-contradicted medical records of

treatment for pain after the accident. No evidence was introduced which would

call into question the Plaintiff‟s testimony or that of her daughter or raise any

question about the reasonableness of the trial court‟s findings.

As for Defendant‟s assertion that the trial court erred in awarding

$18,000.00 in general damages, we note that Defendant does not assert this amount

is excessive but only asserts that Plaintiff was not entitled to any amount of general

or special damages because she failed to prove causation. Thus Defendant does

not raise the issue of an excessive damage award and we are therefore not

compelled to pass judgment on the propriety of the amount awarded. Suffice it to

say however, there is no argument put forth by Defendant as to why the amount is

excessive and we can find no basis to upset an award left to the vast discretion of

the trier of fact.

The trier of fact is accorded much discretion in fixing general
damage awards. La.C.C. art. 2324.1; Cheramie v. Horst, 93-1168, p.
6 (La. App. 1st Cir. 5/20/94), 637 So.2d 720, 723. The discretion
vested in the trier of fact is great, even vast, so that an appellate court
should rarely disturb an award of general damages. Youn v. Maritime
Overeseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510
U.S. 1114, 114 S. Ct. 1059, 127 L.Ed. 2d 379 (1994).

The role of an appellate court in reviewing a general damage
award is not to decide what it considers to be an appropriate award,
but rather, to review the exercise of discretion by the trier of fact.
Bouquest v. Wal-Mart Stores, Inc., 080309, p. 5 (La. 4/4/08), 979
So.2d 456, 459. It is only when the award is, in either direction,
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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
decrease the award. Youn, 623 So.2d at 1261.

Dudenhefer v. Allsate Insurance Company, et al., 10-1662 (La. App. 1 Cir.

3/25/11) (not designated for publication.)

For the reasons as set forth above, we affirm the trial court‟s judgment and

assess all costs of this appeal against Defendants.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.

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