Joshua Thompson v. Boyce G. Cagle

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 15-416

JOSHUA THOMPSON

VERSUS

BOYCE G. CAGLE, ET AL.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 245,430
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
David Kent Savoie, Judges.

AFFIRMED.

Andrew P. Texada
Stafford, Stewart & Potter
P. O. Box 1711
Alexandria, LA 71309
(318) 487-4910
COUNSEL FOR DEFENDANTS/APPELLEES:
Boyce G. Cagle
Dove Digital Services, Inc.
State Farm Mutual Automobile Ins. Co.

L. Lyle Parker
Christina S. Slay
Bernetta Y. Bryant
Bolen, Parker, Brenner, Lee & Englesman, Ltd.
A Professional Law Corporation
P. O. Box 11590
Alexandria, LA 71315-1590
(318) 445-8236
COUNSEL FOR PLAINTIFF/APPELLANT:
Joshua Thompson

SAVOIE, Judge.

This matter involves the Plaintiff-motorist’s appeal of the jury’s finding of

zero liability on the part of the Defendant-motorist involved in an automobile

accident with the Plaintiff, as well as the trial court’s order prohibiting the Plaintiff

from presenting evidence of a related traffic citation issued to the Defendant, and

prohibiting the investigating officer from providing opinion testimony as to fault.

For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The subject car accident took place at approximately 8:00 p.m. on

September 7, 2011, at the intersection of U.S. Highway 71 (MacArthur Drive), and

Sterkx Road in Alexandria, Louisiana. Plaintiff Joshua Thompson was driving his

mother’s 2008 Hyundai Sonata southbound on Hwy. 71, and he intended to turn

left at the intersection onto Sterkx Road. According to Mr. Thompson, as he

entered into the left turn lane, he came to a stop because the traffic light controlling

the intersection was red. The light then turned to green, and he proceeded to turn

left. Mr. Thompson testified that he did not recall whether the light was a green

turn arrow, or a green circle, but that he made sure he could safely proceed through

the intersection before turning.

Meanwhile, Defendant Boyce Cagle was driving a 2006 GMC Sierra

northbound on Hwy. 71 in the outside lane closest to the shoulder of the highway.

He testified that, as he approached the intersection of Hwy. 71 and Sterkx Road

traveling the posted speed limit of fifty miles per hour, he saw the light turn from

green to yellow. According to Mr. Cagle, he did not have time to stop when the

light turned yellow, so he continued into the intersection. He testified that the light

remained yellow when he entered into the intersection.

Officer Jerrod King investigated the scene of the accident, but did not

witness the accident. He testified that, based on the location of the damage of

vehicles, he determined that Mr. Thompson’s and Mr. Cagle’s vehicles collided in

the intersection in Mr. Cagle’s lane of travel. Both Mr. Thompson and Mr. Cagle

testified that neither saw the other’s vehicle prior to impact.

Mr. Thompson alleges he sustained injuries to his right hand and right knee,

and more serious injuries to his left shoulder that required multiple surgeries.

On September 5, 2012, Mr. Thompson filed suit against Mr. Cagle, State

Farm Mutual Automobile Insurance Agency, and Dove Digital Services, Inc., Mr.

Cagle’s alleged employer at the time of the accident. The Defendants submitted an

answer denying liability and asserting affirmative defenses.

On December 1, 2014, Defendants submitted a Motion in Limine seeking to

exclude evidence concerning a traffic citation issued to Mr. Cagle in connection

with the subject accident. The motion was heard on February 2, 2015, the day

before trial, and was granted.

On February 3, 2015, prior to the start of trial and outside of the jury’s

presence, counsel raised the issue of admissibility of Officer’s King’s opinion

testimony concerning fault in the accident. The trial court ruled that the

investigating officer was precluded from testifying regarding who was at fault in

the accident, and further stated “[h]e can only testify with regards to what his

investigation at the scene was, but not the conclusion of the accident.”

Following a three day trial, a jury ultimately concluded that Mr. Cagle was

neither entirely, nor partially, negligent in causing the accident. The trial judge

signed a written judgment dismissing Plaintiff’s claims against the Defendants on

February 23, 2015.

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On March 4, 2015, Mr. Thompson presented an ex parte motion to the trial

court seeking to supplement the record in connection with the hearing on

Defendants’ motion in limine with the deposition of the Officer King. The trial

judge signed an order granting the motion on the same day.

Mr. Thompson has appealed the judgment, contending that the trial court

erred in excluding evidence of the citation issued to Mr. Cagle as well as the

investigating officer’s opinion testimony regarding fault in the accident. In addition,

Mr. Thompson argues on appeal that the jury was manifestly erroneous in finding

no fault or negligence on the part of Mr. Cagle.

ANALYSIS

Admissibility of Evidence of Traffic Citation:

In his first assignment of error, Mr. Thompson argues that the trial court

erred in granting Defendants’ Motion in Limine and excluding evidence of a traffic

citation issued to Mr. Cagle by the investigating officer.

We review a trial court’s ruling on a motion in limine for abuse of discretion.

Noel v. Noel, 15-37 (La.App. 3 Cir. 5/27/15), 165 So.3d 401, writ denied, 15-1121

(La. 9/18/15), _ So.3d _ . As we recognized in Johnson v. Smith, 11-853, p. 10

(La.App. 3 Cir. 3/14/12), 86 So.3d 874, 881-82:

It has long been held that the mere charge of a traffic violation is
inadmissible in a civil proceeding to prove negligence because
citations are often untrustworthy; they are merely the opinion of the
officer; their payment is often the result of expediency or compromise;
and they erode the rule against hearsay. See Ruthardt v. Tennant, 215
So.2d 805, 252 La. 1041 (La.1968). This is particularly true where
there is no court appearance and no written plea of guilty. See
Maricle v. Liberty Mut. Ins. Co., 04–1149 (La.App. 3 Cir. 3/2/05), 898
So.2d 565.

In Maricle v. Liberty Mut. Ins. Co., 04-1149 (La.App. 3 Cir. 3/2/05), 898

So.2d 565, we held that mere payment of a traffic citation without a corresponding

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written plea of guilty in accordance with La.R.S. 32:641 does not constitute a

guilty plea to a traffic offense and does not render evidence of a traffic citation

admissible.

Mr. Thompson attempts to distinguish these cases based on Mr. Cagle’s

payment of the citation over the phone via credit card. However, there is no

indication in La.R.S. 32:641 that voluntary payment of a traffic citation over the

phone equates to an admission of guilt. Therefore, the trial court correctly excluded

evidence of the traffic citation.

Exclusion of Officer’s Opinion Testimony Regarding Fault:

Mr. Thompson also asserts that the trial court erred in precluding Officer

King, the investigating officer, from offering opinion testimony concerning who

was at fault in causing the accident, either as an expert witness under La.Code Evid.

art. 702, or as a lay witness under La.Code Evid. art. 701.

However, Officer King’s excluded testimony was not proffered in

accordance with La.Code. Civ.P. art. 1636, which states in pertinent part:

A. When the court rules against the admissibility of any evidence, it
shall either permit the party offering such evidence to make a
complete record thereof, or permit the party to make a statement
setting forth the nature of the evidence.

B. At the request of any party, the court may allow any excluded
evidence to be offered, subject to cross-examination: on the record
during a recess or such other time as the court shall designate; or by
deposition taken before a person authorized by Article 1434 within
thirty days subsequent to the exclusion of any such evidence or the
completion of the trial or hearing, whichever is later. When the record
is completed during a recess or other designated time, or by deposition,
there will be no necessity for the requesting party to make a statement
setting forth the nature of the evidence.

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In Whitehead v. Kansas City Southern Railway Company, 99-896, p. 11

(La.App. 3 Cir. 12/22/99), 758 So.2d 211, 218-219, writ denied, 00-209 (La.

4/7/00), 759 So.2d 767, a panel of this court stated:

A party need not make a formal objection at the time a trial court rules
on the admissibility of the evidence, but need only make known the
action he desires of the court and his grounds therefor. La.Code Civ.P.
art. 1635. After ruling evidence inadmissible, the trial court shall
permit the party seeking its introduction to proffer the evidence or
make a statement as to the nature of the evidence. La.Code Civ.P. art.
1636. The trial court’s rulings on the admissibility of evidence are
reviewable on appeal without the necessity of further formality. Id.
However, if a party fails to proffer excluded evidence, an appellate
court cannot analyze it and its admissibility, and that party is
precluded from complaining of the excluded testimony. Broussard v.
Olin Corp., 546 So.2d 1301 (La.App. 3 Cir.1989).

On appeal, Mr. Thompson refers to Officer King’s discovery deposition

taken prior to trial in support of his argument. However, counsel never sought to

introduce Officer King’s deposition into evidence, it was not accepted into

evidence, and it was not considered by the trial court in connection with its ruling

on the admissibility of Officer King’s testimony. Therefore we cannot consider it

on appeal.

The fact that Mr. Thompson filed Officer King’s deposition into the record

pursuant to an ex parte motion nearly a month after the conclusion of trial, and

after a final judgment had been signed, does not render the deposition properly

admitted into evidence. See Greenfield v. Lykes Bros. S.S. Co., p. 7, 02-1377

(La.App. 1 Cir. 5/9/03), 848 So.2d 30, 33, where the court held that documents

filed into the record one month after trial were not reviewable because “the

documents were never properly offered, introduced, or admitted into evidence.

Accordingly, neither the trial court nor the appellate court can consider these

documents.”

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Moreover, Officer King’s discovery deposition filed via an ex parte motion

to supplement the record cannot be considered as Officer King’s proffered

testimony. Counsel did not request during trial to proffer the excluded testimony

via a discovery deposition taken prior to trial, and discovery deposition testimony

is not specifically contemplated by La.Code Civ.P. art. 1636(B) as a means to

submit excluded testimony for consideration on appeal. In addition, “[w]e are

aware of no principle that would require the trial court to allow a proffer after

judgment is rendered in a case.” R & B Falcon Drilling USA, Inc. v. Lafourche

Parish School Board, 06-64, p. 7 (La.App. 1 Cir. 11/3/06), 950 So.2d 696, 701.

Because there was no proffer of Officer King’s excluded testimony, the trial

court’s exclusion of his testimony is not properly before us for review.

Allocation of Fault:

Mr. Thompson also asserts that the jury was manifestly erroneous in failing

to allocate Mr. Cagle with any percentage of fault.

A court of appeal will not set aside a trial court’s finding of fact
in the absence of manifest error or unless it is clearly wrong. Rosell v.
ESCO, 549 So.2d 840 (La.1989). If the trial court’s findings are
reasonable after reviewing the record, we will not reverse the trial
court even if we may have decided differently had we been sitting as
the trier of fact. Id. Further, reasonable credibility evaluations and
inferences of fact cannot be manifestly wrong when there are
conflicting testimonies. Id. “[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.” Stobart v. State,
through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993).

The trier of fact’s determination of fault apportionment is
afforded deference and much discretion. Soileau v. Smith True Value
and Rental, 11–1594 (La.App. 3 Cir. 1/30/14), 130 So.3d 1060, writ
denied, 14–435 (La. 4/17/14), 138 So.3d 627. Accordingly, we review
fault allocation using the same manifest error/clearly wrong standard
of review. Id.

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Edwards v. Geico Indem. Co., 14-606, pp. 5-6, (La.App. 3 Cir. 3/18/15), 167 So.3d

957, 961-962. “[A]llocation of fault is the finding of an acceptable range and any

allocation by the trier of fact within that range cannot violate the manifest error

standard of review.” Id. at 962.

The duty of a left-turning motorist at an intersection was discussed in Baker

v. State Farm Mutual Auto Insurance Company, 49,468, pp. 5-7 (La.App. 2 Cir.

1/21/15), 162 So.3d 405, 409-410 (citations omitted):

The driver of a vehicle within an intersection intending to turn
to the left shall 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. No
person shall . . . 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. La.R.S. 32:104(A). Judicial
interpretations of La.R.S. 32:104(A) have made it clear that a left-
turning motorist has a strong duty of care.

Before attempting a left turn, a motorist should ascertain
whether it can be completed safely. This duty includes . . . keeping a
proper lookout for both oncoming and overtaking traffic in order to
ascertain that the left turn can be made with reasonable safety.

Because a left turn is one of the most dangerous maneuvers for
a driver to execute, there is a presumption of negligence on a left-
turning motorist involved in a motor vehicle accident . . . when the
other party can prove that the turning motorist executed a left hand
turn and crossed the center line at the time of impact. In a vehicular
collision case, the [oncoming driver] may take advantage of a
presumption of the [left-turning motorist’s] negligence when the
[oncoming driver] proves that the [left-turning motorist] executed a
left hand turn and crossed the center line at the time of the impact.
The burden rests heavily on the motorist who desires to make a left
hand turn to explain how the accident occurred and to show that he or
she is free from negligence.

Likewise, jurisprudence has established that an oncoming
driver has a right to assume that the left-turning motorist will obey the
law in allowing [him] to continue in [his] proper lane of travel and
will yield to [his] right-of-way.

. . . [N]otwithstanding the presumption of negligence attributed
to a left-turning driver, a favored motorist can still be assessed with

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comparative fault if [his] substandard conduct contributed to the cause
of the accident.

In addition, La.R.S. 32:232 in pertinent part provides the following with

respect to left turning motorists and motorists proceeding straight through an

intersection controlled by a traffic signal:

(1) GREEN indication:

(a) Vehicular traffic facing a circular green signal may proceed
straight through or turn right or left unless a sign at such place
prohibits either such turn. But vehicular traffic, including vehicles
turning right or left, shall stop and yield the right-of-way to other
vehicles . . . lawfully within the intersection . . . at the time such signal
is exhibited.

(b) Vehicular traffic facing a green arrow signal, shown alone or in
combination with another indication, may cautiously enter the
intersection only to make the movement indicated by such arrow, or
such other movement as is permitted by other indications shown at the
same time. Such vehicular traffic shall stop and yield the right-of-
way . . . to other traffic lawfully using the intersection.

....

(2) Steady YELLOW indication:

(a) Vehicular traffic facing a steady yellow signal alone is thereby
warned that the related green signal is being terminated or that a
red signal will be exhibited immediately thereafter and such
vehicular traffic shall not enter the intersection when the red signal
is exhibited.

A driver who is faced with a traffic light that changes to yellow as he

approaches an intersection should not enter into the intersection if, by reasonable

diligence, he can avoid doing so. Dale v. Carrol, 509 So.2d 770 (La.App. 2 Cir.

1987). “[I]f a driver is in the process of entering the intersection as the light

changes to yellow, he has preempted the intersection and is committed to move on

in order to clear the passage for traffic traveling perpendicular to him.” Id. at 776.

See also, McMullan v. Travelers Ins. Co., 311 So.2d 902 (La.App. 2 Cir. 1975),

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writ denied, 313 So.2d 840 (La. 1975), and Cumis Ins. Soc. Inc. v. Christidis, 418

So.2d 730 (La.App. 4 Cir. 1982).

A favored motorist travelling through an intersection controlled by a traffic

signal is not obligated to look to his left or right before entering the intersection,

but must maintain general observation of a controlled intersection. The favored

motorist will be held accountable for an accident only if he could have avoided the

accident with the exercise of the slightest degree of care and fails to do so. Bernard

v. City of Lafayette, 98-1815 (La.App. 3 Cir. 5/5/99), 735 So.2d 804.

At trial, the only evidence presented as to how the accident happened was

the testimony of Mr. Thompson, Mr. Cagle, and Officer King, as well as

photographs of the damage to the parties’ vehicles.

Mr. Thompson testified that he was eighteen years old at the time of the

accident, and that he had obtained his drivers’ license approximately three months

prior to the accident. He testified that prior to the accident, he was stopped in the

turn lane at the intersection of Hwy. 71 and Sterkx Road because the traffic signal

was red, and that when the light turned green, he proceeded to turn left into the

intersection.

Mr. Thompson admitted that he did not know whether he had a circular

green light or a green turn arrow. He testified that he understood a green circular

light meant “to go” and that a green turn arrow meant “to turn,” and that he did not

know whether or not a green circular light meant that he would be protected from

oncoming traffic as he proceeded to turn left. He also testified that he understood

that when he made a left turn, he was required to make sure the way was clear, and

that he did so.

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Mr. Thompson also testified that it was dark at the time of the accident, and

that prior to turning, he could see the headlights of the northbound vehicles

travelling in the same direction as Mr. Cagle approaching the intersection, but that

he could not pinpoint Mr. Cagle’s truck specifically. According to Mr. Thompson,

even though he could see the headlights of the oncoming vehicles, he determined it

was safe to turn left because he could see the red brake lights of the oncoming

vehicles illuminate, which suggested to Mr. Thompson they were coming to a stop.

Mr. Cagle testified that as he was approaching the intersection of Hwy. 71

and Sterkx Road travelling northbound in the outside lane, the light was green. He

stated:

As soon as I noticed it had turned to yellow so didn’t feel that I had
the time to actually just slam on my brakes. So I just proceeded
through. I believe the only other thing that I did see was a vehicle that
was on Sterkx Road at the red light there.

Mr. Cagle further testified that the light was yellow when he entered the

intersection. According to Mr. Cagle, he rarely ever drives faster than the speed

limit, and he assumed he was travelling the speed limit of fifty miles per hour

through the intersection. Mr. Cagle also indicated that as he approached the

intersection, he had a clear line of sight. He admitted that he did not see Mr.

Thompson’s vehicle at all until after impact, and therefore he did not swerve or

apply his brakes in an effort to avoid the accident.

In addition, evidence was presented at trial that indicated that Mr. Cagle’s

truck sustained damage to the front quarter panel, and that Mr. Thompson’s car

sustained damage to the passenger side rear quarter panel. Officer King testified

that, based on the damage to the vehicles, he determined that the impact occurred

in the intersection in Mr. Cagle’s lane of travel, and that Mr. Thompson’s vehicle

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had almost cleared Mr. Cagle’s lane prior to impact. He further indicated that

neither driver appeared to be impaired by drugs or alcohol.

Based on the above evidence and testimony, the record reasonably supports

a finding that Mr. Cagle legally entered the intersection just as it turned to yellow,

while Mr. Thompson had turned left into the intersection when he had a green

circular light. Accordingly, Mr. Cagle was the favored driver traveling through the

intersection and is afforded the benefit of presumption of Mr. Thompson’s

negligence. Therefore, for Mr. Cagle to be allocated any percentage of fault, it was

Mr. Thompson’s burden to prove that Mr. Cagle could have, but failed to, avoid the

accident with the exercise of the slightest degree of care. Bernard, 735 So.2d 804.

Mr. Thompson argues that the jury was required to allocate some percentage

of fault to Mr. Cagle because Mr. Cagle admitted that he did not see Mr.

Thompson’s vehicle until after impact. However, it was dark at the time of the

accident, Mr. Cagle was legally traveling through the intersection at fifty miles per

hour, and there is no evidence in the record that requires a finding that, under the

circumstances, Mr. Cagle should have been able to see Mr. Thompson prior to

impact, or that he could have taken steps to avoid the accident but failed to do so.

The jury’s finding that Mr. Cagle was not negligent is reasonably supported by

record.

CONCLUSION

For the reasons set forth above, we affirm the judgment in favor of the

Defendants dismissing Plaintiff-Appellant Joshua Thompson’s claims with

prejudice. Costs of the appeal are assigned to Appellant.

AFFIRMED.

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This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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