Panfilo Carrillo v. Billy W. David

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-14

PANFILO CARRILLO

VERSUS

BILLY W. DAVID, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-661-13
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AMENDED AND AFFIRMED AS AMENDED.

Jennifer A. Jones
Jones Law Firm
Post Office Box 1550
Cameron, LA 70631
(337) 775-5714
COUNSEL FOR PLAINTIFF-APPELLANT:
Panfilo Carrillo

Wilbert Saucier, Jr.
Saucier Law Firm
2220 Shreveport Highway
Pineville, LA 71360
(318) 473-4146
COUNSEL FOR PLAINTIFF-APPELLANT:
Panfilo Carrillo

Harold J. Eisenman, P.C.
2603 Augusta Drive, Suite 1025
Houston, TX 77057
(713) 840-7180
COUNSEL FOR PLAINTIFF-APPELLANT:
Panfilo Carrillo

Michael R. Sistrunk
Matthew J. Garver
Lou Anne Milliman
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch
195 Greenbriar Boulevard, Suite 200
Covington, LA 70433
(504) 831-0946
COUNSEL FOR DEFENDANTS-APPELLANTS:
Billy W. David
The Town of Welsh
Southern Insurance Company

PICKETT, Judge.

The plaintiff and defendants appeal the trial court’s judgment denying their

motions for judgment notwithstanding the verdict (JNOV). As discussed below,

we amend the jury’s award of damages for past pain and suffering and affirm the

remainder of the judgment.

FACTS

On October 6, 2012, Billy W. David, a police officer for the Town of Welsh,

entered Interstate Highway 10 traveling east via an entrance ramp in Welsh in

response to a call for assistance on the westbound lanes of the highway. Officer

David entered the highway traveling east to access a median crossing situated

approximately three miles east of the entrance ramp. He needed to cross the

median to provide assistance to a westbound traveler.

Upon entering the highway, Officer David traveled directly from the

entrance ramp to the left lane of the eastbound traffic. Officer David’s car entered

the left lane where Lee Celestine was driving a Toyota Camry. Mr. Celestine blew

his horn to warn Officer David of his presence, but Officer David did not heed the

warning. To avoid a collision between the two cars, Mr. Celestine steered the

Toyota to the left. Due to the narrow width of the left shoulder, the tires on the left

side of the Toyota left the paved portion of the highway. The embankment of the

median has a steep slope, and when the left tires of the Toyota left the highway,

Mr. Celestine lost control of the Toyota which traveled into the median.

Mr. Celestine was unable to regain control of the Toyota. It then reentered the

eastbound lanes of the highway and came to a stop with the front half of the car in

the left lane perpendicular to the highway.

Mr. Celestine testified that when the Toyota stopped, he looked up and saw

an eighteen-wheeler coming at the car. The eighteen-wheeler hit the front right

bumper, causing the rear portion of the Toyota to whip back and hit the truck near

the driver’s door. The Toyota then spun into the median again and where it came

to rest.

Mr. Celestine’s sister, Della Butler, was in the front passenger seat of the

Toyota. Ms. Butler’s description of the accident mirrored Mr. Celestine’s

description. Their testimonies indicate the Toyota was hit by the eighteen-wheeler

only seconds after it came to rest on the highway.

Before Officer David entered the highway, Panfilo Carrillo was driving a

eighteen wheeler in the right eastbound lane of the highway. As he approached the

overpass before the entrance ramp, Mr. Carrillo observed Officer David on the

entrance ramp. He testified that he moved to the left lane behind the Toyota as a

courtesy to the officer. He continued to travel in the left lane and observed Officer

David’s vehicle nearly collide with Mr. Celestine’s Toyota. Mr. Carrillo testified

that he took his foot off the accelerator when Officer David’s vehicle approached

the Toyota in the left lane then applied his brakes when he saw the Toyota coming

back toward the highway. He further testified that he hit his brakes hard

approximately twenty yards or less before striking the Toyota.

Mr. Carrillo explained that he did not expect the Toyota to return to the

highway after it entered the median. He also explained that he could only reduce

his speed when he saw the Toyota reentering the highway because it was

impossible for him to stop his truck in time to avoid a collision. He did not believe

he had time to look in his mirrors and attempt to change lanes before the collision.

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After the accident, Mr. Carrillo pulled over to the right shoulder of the highway

and waited for the police to arrive on the scene.

Officer David was not aware that he had caused an accident. When he

looked in his rear view mirror, he saw the Toyota in the median and pulled to the

right shoulder of the highway to render assistance. The jury viewed the video from

Officer David’s front dash camera that showed his actions when he entered the

highway. Officer David called the Louisiana State Police and an ambulance.

Louisiana State Police Trooper Steven Vincent investigated the accident; he cited

only Officer David in connection with the accident.

Mr. Carrillo filed suit against Officer David, the Town of Welsh, and

Southern Insurance Company, the Town’s insurer, seeking damages for injuries he

sustained in the accident.1 After a trial, the jury awarded Mr. Carrillo the following

damages:

Past medical expenses $ 30,493.04

Future medical expenses $ 0

Past Pain & Suffering $ 25,000.00

Future Pain & Suffering $ 25,000.00

Past Loss of Enjoyment of $ 0
Life

Future Loss of Enjoyment of $ 0
Life

Past Loss of Income & $ 5,000.00
Earning Capacity

Future Loss of Income & $ 0
Earning Capacity

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Ms. Butler also filed suit against the defendants, Mr. Carrillo, and his employer, seeking
damages for injuries she sustained in the accident. She settled her claims before trial and
dismissed her lawsuit.

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Mr. Carrillo and the defendants filed motions for JNOV. In his motion for

JNOV, Mr. Carrillo sought awards for future medical expenses and past and future

loss of enjoyment of life. He also sought an increase in his awards for past and

future pain and suffering. In their motion, the defendants sought an assessment of

fault to Mr. Carrillo. The trial court refused to grant the relief sought by the

parties in their motions on the basis that the jury’s verdict is supported by the

evidence. The parties now appeal the trial court’s denial of their motions for

JNOV.

ASSIGNMENTS OF ERROR

Mr. Carrillo assigns the following three errors with the trial court’s

judgment:

1. In the accident which forms the subject of this case, the
Plaintiff/Panfilo Carrillo’s treating physician testified that, to a
reasonable degree of medical certainty, Mr. Carrillo sustained
three herniated discs and would require spinal surgery in the
future. Mr. Carrillo testified that he was willing to undergo
surgery, yet the jury made no award for future medical expenses,
and the trial court declined to grant Plaintiff’s [m]otion for
[JNOV] as to this element of damages. Was this error?

2. The Plaintiff/Appellant Mr. Carrillo testified that he had
experienced pain every day since his accident of October 6, 2012.
Yet the jury awarded only $25,000 for past pain and suffering and
$25,000 for future pain and suffering, and the trial judge declined
to grant Plaintiff’s [m]otion for [JNOV] as to this element of
damages. Was this error?

3. In the face of the above-referenced testimony, the jury made no
award whatsoever for past or future loss of enjoyment of life, and
the trial judge declined to grant Plaintiff’s [m]otion for [JNOV] as
to this element of damages. Was this error?

The defendants assign one error with the trial court’s judgment:

1. The trial court erred in failing to assess any fault for the accident to
Mr. Carrillo, because Mr. Carrillo acknowledged that he was
following another vehicle too closely, the accident would not have

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occurred but for his actions, and defendants’ accident
reconstruction expert opined that Carrillo breached his duty of care
which led to the accident at issue.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 1811 authorizes a party to move

for JNOV. “[A] JNOV is warranted when the facts and inferences point so

strongly and overwhelmingly in favor of one party that the trial court believes that

reasonable persons could not arrive at a contrary verdict.” Joseph v. Broussard

Rice Mill, Inc., 00-628, p. 4 (La. 10/30/00), 772 So.2d 94, 99. Only if the evidence

points so strongly in favor of the moving party that reasonable persons could not

reach different conclusions should a JNOV be granted. Id. JNOV is not proper

when there is merely a preponderance of evidence in favor of the mover. Id. If the

evidence is such that “reasonable and fair-minded persons in the exercise of

impartial judgment might reach different conclusions,” JNOV should be denied.

Id. at 99. When considering a motion for JNOV, “the trial court should not

evaluate the credibility of the witnesses, and all reasonable inferences or factual

questions should be resolved in favor of the non-moving party.” Id. Appellate

courts review the denial of a JNOV to determine whether the record reveals legal

error or whether the trier of fact committed manifest error. Hutto v. McNeil-PPC,

Inc., 11-609 (La.App. 3 Cir. 12/7/11), 79 So.3d 1199, writ denied, 12-402 (La.

4/27/12), 86 So.3d 628, cert. denied, __ U.S. __, 133 S.Ct. 428 (2012).

DISCUSSION

Mr. Carrillo stated at the scene of the accident that he was not injured.

However, he began experiencing severe pain in his lower back the day after the

accident. Mr. Carrillo also experienced neck pain, but it was not as severe as his

back pain. He sought medical treatment on October 8, 2012, the Monday after the

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accident at a medical clinic. The medical clinic referred him to the Bruce

Chiropractic Rehabilitation Clinic, where he received treatment approximately

twice a week until February 2013, when he was released from the clinic’s care.

Mr. Carrillo was treated with massage, heat, stretching exercises, and other

treatments aimed at relieving his pain.

Dr. Mitchell McKean treated Mr. Carrillo at the Bruce Chiropractic

Rehabilitation Clinic and ordered MRIs of his neck and lower back which were

performed on October 20, 2012. Dr. Sandeep Amesur, the radiologist who read the

MRI films, opined that they showed a central disc herniation at C3-4 and C4-6

with an element of borderline central stenosis at each level and a circumferential

disc bulge at L2-3. Dr. McKean referred Mr. Carrillo to Dr. Stephen Esses, an

orthopedic surgeon who limits his practice to the treatment of spines, for a

consultation. Dr. Esses first saw Mr. Carrillo on November 19, 2012. He

examined Mr. Carrillo and reviewed his MRIs. He ordered an epidural steroid

injection to relieve Mr. Carrillo’s back pain which Mr. Carrillo received on

February 13, 2013. The injection relieved Mr. Carrillo’s pain, and Dr. McKean

discharged Mr. Carrillo from his care on March 14, 2013. Dr. McKean instructed

Mr. Carrillo to continue his home exercises and to return for further treatment if his

pain worsened or changed in any way.

On April 26, 2013, Mr. Carrillo was in another accident with an automobile.

Mr. Carrillo testified that there was only a slight scraping of his truck and the other

vehicle when the driver of the other vehicle entered the roadway he was traveling

and immediately attempted to make a U-turn. He further testified that the accident

did not aggravate his back pain or cause any of the injuries and that he did not need

to seek medical attention as a result of the accident.

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Mr. Carrillo returned to Dr. Esses on October 7, 2013. At that time, he had

normal range of motion in his neck but complained that his February 2013 steroid

injection provided only temporary relief of his lower back pain. He explained that

after the temporary relief waned, his lower back pain progressively worsened and

that he also had pain radiating into both of his legs, as well as numbness in his

lower legs. Mr. Carrillo reported to Dr. Esses that he experienced difficulty

walking and that he could not walk one city block without pain.

Dr. Esses ordered another MRI of Mr. Carrillo’s back. The MRI was

performed on November 1, 2013. Dr. Amesur reviewed the MRI; he identified a

circumferential disc bulge at L2-3 and a “[r]ight far lateral/right foraminal disc

herniation at L4-L5” that has “[p]ossible contact with the exiting right L4 nerve.”

On December 6, 2013, Mr. Carrillo received a second epidural steroid injection in

his lower back. He returned to Dr. Esses on April 20, 2014, and reported that the

injection relieved his back pain only temporarily. Dr. Esses informed Mr. Carrillo

that the only other treatment he can offer him is surgery, but only Mr. Carrillo can

determine whether he needs the surgery.

In his trial deposition, Dr. Esses opined that Mr. Carrillo suffered a soft-

tissue injury in his neck and three herniated discs at L2-3, L3-4, and L4-5 in his

lumbar spine as a result of the accident. He testified that the neck injury was

resolved by February 2013. He then explained that the bulge of the L2-3 disc was

not degenerative because there were no other degenerative changes, such as

decreased disc space height, decreased signal intensity, or a radial annular tear,

present at that level. Dr. Esses further explained that a disc herniation would not

necessarily show on an MRI two weeks after an accident because it can involve a

process that occurs over time.

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Dr. Esses presented an animated representation of a spine that, in his

opinion, represented the condition of Mr. Carrillo’s lower spine. He explained that

Mr. Carrillo’s lower back pain and the pain or numbness in his legs that worsened

when he walked was indicative of neural claudication which is almost always the

result of irritation of or pressure on the nerves from the back to the lower legs.

Dr. Esses opined that the MRI and Mr. Carrillo’s complaints and symptoms

indicate pressure on nerves at one or more levels in his back. At the least, he

believed there was irritation or inflammation of those nerves.

In Dr. Esses’s opinion, Mr. Carrillo will need surgery in five to ten years as

a result of the damage caused by the accident to the discs at L2-3, L3-4, and L4-5.

He explained that Mr. Carrillo will require a one to three level discectomy and

possibly a fusion. He recommended that Mr. Carrillo hold off having a fusion as

long as possible because it is a more complicated surgery that requires a much

longer recovery and changes the biomechanics of the back permanently. Dr. Esses

testified that the least complicated surgery, a microdiscectomy, will cost

$45,000.00 and the most complicated surgery, which includes a fusion, will cost

$150,000.00. He also detailed the limitations Mr. Carrillo can expect if he has any

of the surgeries he discussed.

Dr. Everett Robert, a neurosurgeon, examined Mr. Carrillo and his medical

history at the request of the defendants to render a second opinion regarding

injuries Mr. Carrillo suffered as a result of the accident. Seventy percent of

Dr. Robert’s practice pertains to treatment of the spine. Dr. Robert opined the

MRIs of Mr. Carrillo’s back showed no objective evidence of damage related to

the accident. He testified that the L2-3 disc identified in the October 20, 2013 MRI

was a degenerated disc that was not related to the October 6, 2013 accident. He

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explained that the darkness of the L2-3 disc shown on the first MRI represents

change that takes years to occur and could not have occurred in the two weeks

between the accident and the MRI. He also stated that all of Mr. Carrillo’s discs

showed degenerative changes which are to be expected in a man of his age.

Dr. Robert further explained that a central herniation at L2-3 could not be

responsible for Mr. Carrillo’s back pain and leg numbness because the herniation

was too small and does not contact the nerve roots. He determined the herniation

at L4-5 was not consistent with Mr. Carrillo’s bilateral leg pain and numbness

because the herniation was to the far right lateral side of the disc on the right;

therefore, it could not be causing numbness in Mr. Carrillo’s left leg.

During his deposition, Dr. Robert reviewed and compared for the jury

animated versions of Mr. Carrillo’s two MRIs. He explained that the two MRIs

were essentially the same and that the condition of Mr. Carrillo’s lumbar spine had

not changed between the October 20, 2012 MRI and the November 1, 2013 MRI.

Counsel for Mr. Carrillo asked Dr. Robert if he could explain why his

opinion was so different from Drs. Esses and Amesur’s opinions. Counsel also

questioned if Dr. Robert had both of Mr. Carrillo’s MRIs or possibly just two

copies of the first MRI. Dr. Robert admitted he did not know why his opinion was

so different from the other doctors’ opinions; however, he identified a number of

differences, e.g., the dates and times, and the contents of Mr. Carrillo’s stomach,

between the two MRI films to establish that he viewed both of the MRIs and not

two copies of the same MRI. Ultimately, Dr. Robert testified that in his opinion

Mr. Carrillo is not a surgical candidate. He opined that complaints of back pain

and leg pain as described by Mr. Carrillo indicate joint and nerve root problem, not

a disc problem.

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Intervening Accident

Mr. Carrillo contends the jury’s awards for past and future pain and

suffering are abusively low and urges that the awards constitute error because the

jury improperly considered his involvement in the April 2013 accident when

making these awards. Citing Clement v. Citron, 13-63 (La.App. 3 Cir. 6/19/13),

115 So.3d 1260, Mr. Carrillo argues the jury’s reliance on the defendants’ assertion

that his involvement in a second motor vehicle accident on April 26, 2013, account

for his increased complaints of pain and additional medical treatment constitutes

legal error. Accordingly, he contends we must review the trial court’s denial of his

motion for JNOV de novo.

In Clement, this court reiterated that a defendant’s attempt “to cast doubt on

the causal link between the subject accident and the plaintiff's injuries” by simply

establishing that the plaintiff was involved in a second accident and suggesting that

the second accident is responsible for the plaintiff’s injuries is “insufficient to

deflect causation.” Id. at 1266. This court held in Turner v. Nationwide Insurance

Co., 503 So.2d 734, 737 (La.App. 3 Cir. 1987), that “conjecture and possibility is

insufficient to prove an intervening cause; such intervening cause must be proven

by a preponderance of the evidence.”

Mr. Carrillo testified in detail about the pain in his lower back and the pain

radiating from his back down his legs and into his feet. He also testified that he

could not let his pain stop him from working because he had a family to support.

Mr. Carrillo received two steroid injections for his back pain but did not take over-

the-counter or prescription pain medication until it was prescribed for him by his

family physician approximately six months before trial. He did not seek regular

10

medical treatment for his back pain for one and one-half years after being released

by Dr. McKean in 2013.

Dr. Robert controverted Dr. Esses’s opinion that Mr. Carrillo suffered three

herniated discs as result of the October 2012 accident. Each doctor used

demonstrative evidence to support his opinion. Dr. Esses used a diagram of a back

with three herniated discs that he stated represented his opinion of what

Mr. Carrillo’s second MRI showed to explain to the jury that Mr. Carrillo had three

herniated lumbar discs that were causing his back pain and the pain radiating down

his legs. Dr. Robert used the actual MRI film of Mr. Carrillo’s back to detail his

opinion that no disc in Mr. Carrillo’s back was herniated. Mr. Carrillo notes that

Dr. Robert admitted it was possible he could have been given the wrong film of

Mr. Carrillo’s second MRI. He did not, however, present any evidence at trial to

establish that Dr. Robert had the wrong MRI film and that his opinion was

erroneous for that reason.

As the trier of fact, the jury had to make credibility determinations when

considering the testimony of each witness, including expert witnesses. Sportsman

Store of Lake Charles, Inc. v. Sonitrol Sec. Sys. of Calcasieu, Inc., 99-201 (La.

10/19/99), 748 So.2d 417. It was the jury’s prerogative to accept or reject, in

whole or in part, expert opinions. Lirette v. State Farm Ins. Co., 563 So.2d 850

(1990.

We need not address Mr. Carrillo’s argument on this issue because the jury

could have concluded from Dr. Robert’s testimony that no discs in Mr. Carrillo’s

back were herniated and that he will not require any surgery as a result of the

October 6, 2012 accident. Therefore, the record does not establish that the jury

11

based any damage awards on the fact that Mr. Carrillo was involved in a second

accident in April 2013.

Future Medical Expenses

Mr. Carrillo assigns error with the jury’s failure to award him future medical

expenses. He contends that because Dr. Esses testified he had three herniated discs

and would require surgery in the future and he testified that he is willing to

undergo surgery, the trial court erred in declining to award him future medical

expenses.

To be entitled to an award of future medical expenses, Mr. Carrillo had to

prove more probably than not that the expenses were necessitated by the accident,

“the probable cost of these expenses[,]” and that “these expenses will be

incurred[.]” Guidry v. Allstate Ins. Co., 11-517, p. 8 (La.App. 3 Cir. 12/21/11), 83

So.3d 91, 99, writ denied, 12-225 (La. 3/30/12), 85 So.3d 121.

As discussed above, the record does not establish that the jury’s decision to

give greater weight to Dr. Robert’s opinion than to Dr. Esses’s opinion is

unreasonable. It was for the jury, not this court, to evaluate the testimony of

Mr. Carrillo, the medical evidence, and the opinions of Drs. Robert and Esses to

determine whether Mr. Carrillo proved his claim for future medical expenses.

Reasonable persons could reach the same conclusion the jury reached.

Accordingly, we cannot say the trial court erred in denying Mr. Carrillo’s motion

for JNOV on this issue.

Pain and Suffering

Mr. Carrillo next argues that the jury’s awards of $25,000.00 for past pain

and suffering and $25,000.00 for future pain and suffering constitute error in light

of his continuous complaints of pain and suffering.

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The jury’s determination of the amount to award in damages is a finding of

fact. Rando v. Anco Insulations Inc., 08-1163, 08-1169 (La. 5/22/09), 16 So.3d

1065. On appellate review, the initial inquiry regarding an award of damages is

whether the award for the particular injuries and their effects upon the particular

injured person is a clear abuse of the trier of fact’s great discretion. Id. Only if a

detailed analysis of the facts shows the award to be an abuse of discretion can the

award be considered either excessive or insufficient. Id. We review the jury’s

exercise of discretion, not decide the damage award we believe would be

appropriate. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert.

denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).

Mr. Carrillo suffered a soft tissue injury to his neck and back pain as a result

of the accident. The neck injury resolved in six months, but Mr. Carrillo continued

to suffer back pain. Considering the period of time between the date of the

accident and the trial, as well as the fact that Mr. Carrillo’s back pain was so severe

for a period of time that he required regular chiropractic treatment and could not

work, we conclude the jury committed manifest error in awarding Mr. Carrillo

only $25,000.00 for past pain and suffering. Accordingly we increase the award to

$50,000.00.

We find no inconsistency between the jury’s failure to award future medical

expenses but awarding future pain and suffering. The evidence is such that the

jury could have concluded: (1) Mr. Carrillo’s profession as a truck driver would

cause him to suffer back pain related to the injuries he suffered in the October 2012

accident in the future, but those injuries do not require surgery and/or (2) not all

future pain and suffering will be related to the October 2012 accident.

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For these reasons, we increase the jury’s award of past pain and suffering to

$50,000.00. We cannot say, however, the jury abused its discretion in awarding

Mr. Carrillo $25,000.00 for his future pain and suffering.

Loss of Enjoyment of Life

Loss of enjoyment of life “refers to the detrimental alterations of the

person’s life or lifestyle or the person’s inability to participate in the activities or

pleasures of life that were formerly enjoyed.” McGee v. A C & S, Inc., 05-1036,

p. 5 (La. 7/10/06), 933 So.2d 770, 775.

As noted by the defendants, Mr. Carrillo testified that his back pain and the

radiating pain down his legs did not affect his life or lifestyle. He explained that

because his employment as a truck driver required him to work six days a week, he

did not have any hobbies before the accident and that, before and after the

accident, when he was not working, the only activity he engaged in was watching

television. He did not complain that his injuries had a negative impact on his

family life. Mr. Carrillo did testify, however, that his injuries caused him to

change jobs because he could not drive long distances as he had before the

accident due to the pain in his back and legs increasing the longer he drove. That

change allowed him to be home at night with his family rather than traveling.

With only this evidence supporting his claims for past and future loss of

enjoyment of life, we cannot say the jury abused its discretion in not awarding

Mr. Carrillo damages for past and future loss of enjoyment of life.

Assessment of Fault

In their sole assignment of error, the defendants contend the trial court erred

in failing to grant its motion for JNOV and assess Mr. Carrillo with fault.

Mr. Celestine, Ms. Butler, and Mr. Carrillo described to the jury how the events

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unfolded on October 6, 2012, and the jury was able to view how those events

occurred on Officer David’s dash camera video.

The defendants point to Mr. Carrillo’s testimony that immediately before the

accident, he was following the Toyota closer than stated in the regulations he is

obliged to follow as a commercial truck driver. The defendants also presented the

testimony of an accident reconstruction expert, Robert Rucoba, to establish that

Mr. Carrillo’s actions were a factor in causing the accident. Mr. Rucoba opined

that if Mr. Carrillo had remained in the right lane of the highway when he saw

Officer David preparing to enter the highway instead of moving to the left lane

behind the Toyota, the accident would not have happened. He also testified that

Mr. Carrillo was following the Toyota too closely when he moved from the right

lane to the left lane and explained that if Mr. Carrillo had not been following so

closely, he could have avoided the accident.

The apportionment of fault is a factual determination which can only be

disturbed if it is clearly wrong or manifestly erroneous. Clement v. Frey, 95-1119,

95-1163 (La. 1/16/96), 666 So.2d 607. The assessment of fault is guided by the

factors set forth in Watson v. State Farm Fire & Casualty Insurance Co., 469

So.2d 967 (La.1985), where the supreme court outlined various factors that

influence the percentage of fault assigned to the parties:

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.

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Our review of the evidence shows the jury did not commit manifest error in

accepting the testimony of the parties involved, over Mr. Rucoba’s testimony, that

the accident happened so quickly the collision of Mr. Carrillo’s eighteen-wheeler

with the Toyota was unavoidable. A jury “may substitute common sense and

judgment for that of an expert witness when such a substitution appears warranted

on the record as a whole.” Green v. K-Mart Corp., 03-2495, p. 5 (La. 5/25/04),

874 So.2d 838, 843.

The evidence establishes Officer David was completely unaware of the

danger he created when he entered the highway and moved directly to the left lane

and that his actions and lack of awareness created a great risk to the motoring

public that could not be completely appreciated by Mr. Carrillo within the few

seconds during which the accident occurred. The evidence further establishes that

Officer David was not responding to an emergency; therefore, his conduct was no

more important or significant than the safe travel of the motoring public. Finally,

Officer David’s capacity to safely enter and travel the highway was significantly

superior to Mr. Carrillo’s capacity to respond to the emergency situation Officer

David created which resulted in the Toyota unexpectedly reentering the highway.

The defendants contend that Mr. Carrillo’s failure to follow the Toyota at a

distance of 700 feet or more was a cause-in-fact of the accident; therefore, he

should be assessed with fault. In Hutto, 79 So.3d at 1213, this court explained the

concept of cause-in-fact:

A cause is a legal [cause-in-fact] if it has a proximate relation to
the harm which occurs. Butler v. Baber, 529 So.2d 374 (La.1988).
“A proximate cause is generally defined as any cause which, in
natural and continuous sequence, unbroken by any efficient,
intervening cause, produces the result complained of and without
which the result would not have occurred.” Sutton v. Duplessis, 584
So.2d 362, 365 (La.App. 4 Cir.1991). If there is more than one cause

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of injury, “a defendant’s conduct is a cause-in-fact if it is a substantial
factor generating plaintiff’s harm.” Rando[, 16 So.3d at 1088].
Causation is an issue of fact subject to the manifest error standard of
review. Id.

We find no error with the jury’s conclusion that Mr. Carrillo’s actions were

not a cause-in-fact of his collision with the Toyota. It was reasonable for the jury

to conclude that Mr. Carrillo’s manner of driving did not contribute in any manner

to the occurrence of the accident. He could not have reasonably anticipated that

Officer David would enter the highway and immediately create a hazard for the

traffic in the left lane. Importantly, there is no evidence Mr. Carrillo could have or

should have anticipated that the Toyota would reenter the highway after it entered

the median. That event was caused solely by Officer David.

For these reasons, we find the trial court did not err in denying the

defendants’ motion for JNOV.

DISPOSITION

For the reasons discussed herein, the judgment of the trial court denying the

motions for judgment notwithstanding the verdict filed by Panfilo Carrillo and

Billy W. David, the Town of Welsh, and Southern Insurance Company is amended

to increase the award of damages for past pain and suffering to $50,000.00; the

judgment is affirmed in all other respects. All costs are assessed to Billy W.

David, the Town of Welsh, and Southern Insurance Company.

AMENDED AND AFFIRMED AS AMENDED.

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

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