Markus Chaisson v. Kevin K. Jolivetter

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-176

MARKUS CHAISSON

VERSUS

KEVIN K. JOLIVETTER, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2017-5872 J
HONORABLE ROYALE L COLBERT, JR., DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED.

Kay A. Theunissen
Mahtook & LaFleur
P.O. Box 3605
Lafayette, Louisiana 70502
(337) 266-2189
COUNSEL FOR DEFENDANT/APPELLANT:
Lafayette City-Parish Consolidated Government
Kevin K. Jolivette

J. Clemille Simon
Attorney at Law
P. O. Box 52242
Lafayette, Louisiana 70505
(337) 232-2000
COUNSEL FOR PLAINTIFF/APPELLEE:
Markus Chaisson

SAVOIE, Judge.

After a bench trial, the trial court found in favor of Plaintiff Markus

Chaisson and against Defendants Kevin Jolivette 1 and Lafayette City-Parish

Consolidated Government (LCG), awarding total damages in the amount of

$40,073.00. Defendants now appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an automobile accident that occurred on October 17,

2016, in Lafayette, Louisiana. Defendant Kevin Jolivette, in the course and scope

of his employment with LCG as a city bus driver, was driving along Hammond

Road on his bus route. Plaintiff Markus Chaisson was driving in the opposite

direction on Hammond Road. As the vehicles passed each other, their side mirrors

collided.

Markus Chaisson filed suit against Kevin Jolivette and LCG, claiming that

Mr. Jolivette crossed the center dividing line of the road and entered his lane. Mr.

Chaisson alleged that he was forced to take an evasive maneuver in order to avoid

a head on collision, causing him to strike the mailbox located at 901 Hammond

Drive.

The matter proceeded to trial on November 21, 2021. The trial court found,

“[I]n consideration of the testimony adduced at trial, the evidence and lack of

evidence presented, the Court finds that the balance tipped in favor of the plaintiff

and renders judgment in favor of the Plaintiff.” The trial court awarded $7,073.00

in past medical expenses and $33,000.00 in general damages for a total damage

award of $40,073.00. Defendants now appeal.

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We note that Defendant Kevin Jolivette’s name is misspelled in the caption of the case.

ASSIGNMENTS OF ERROR

1. The trial court erred in finding the defendants solely liable for the
accident, given the narrow width of the roadway, video evidence,
and the judge’s apparent sole reliance on James Lejeune’s
purported lack of credibility in finding defendants’ liable.

2. The trial court erred in allowing plaintiff’s treating chiropractors,
Dr. Quintin Brisco and Dr. David Barczyk, to provide accident
reconstruction testimony, as neither doctor rendered an expert
report nor was qualified/admitted as an accident reconstruction
expert.

3. The trial court erred in excluding Defendant Exhibit 7 – Google
Earth images accurately representing the location of the accident.

4. The trial court erred by awarding plaintiff $33,000.00 in general
damages, as this award is excessive given plaintiff’s soft tissue
injuries, short and conservative medical treatment, and apparent
medical treatment for a shoulder not injured in this accident.

LAW AND DISCUSSION

I. Standard of Review

The standard of appellate review of factual determinations is
manifest error. Stobart v. State, Dep't of Transp. & Dev., 617 So.2d
880 (La.1993). When reviewing factual determinations for manifest
error, the issue is not whether the trier of fact was right or wrong, but
whether the fact finder’s conclusion was reasonable. Id. If the trial
court’s findings are reasonable in light of the record reviewed in its
entirety, the court of appeal may not reverse, even if convinced that
had it been sitting as trier of fact, it would have weighed the evidence
differently. Id. Additionally, where factual findings are based on
determinations regarding the credibility of witnesses, great deference
is afforded to those factual findings under the manifest error
standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). Factual findings
based on the fact finder’s decision to credit the testimony of one of
two or more witnesses can virtually never be manifestly
erroneous. Id. This rule applies equally to the fact finder’s evaluation
of expert testimony. Lasyone v. Kansas City S. R.R., 00-2628 (La.
4/3/01), 786 So.2d 682.

Hebert v. State Farm Fire and Casualty Company, 21-10, pp. 2-3 (La.App. 3 Cir.

8/4/21), 325 So.3d 1090, 1093, writ denied, 21-1358 (La. 11/17/21), 327 So.3d 992.

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II. Assignment of Error Number One – Sole Liability

Defendants first complain that the trial court erred in finding Defendant

solely liable for the accident. Defendants further complain about the trial court’s

reliance on James Lejeune’s lack of credibility in finding the Defendant’s solely

liable. James Lejeune was the LCG investigator assigned to investigate this

accident. He arrived at the scene within thirty minutes after the accident.

The law states that vehicles must be driven on the right side of the roadway.

See La.R.S. 32:71. “Drivers of vehicles proceeding in opposite directions shall

pass each other to the right, and upon roadways having width for not more than

one line of traffic in each direction each driver shall give to the other at least one-

half of the main traveled portion of the roadway as nearly as possible.” La.R.S.

32:72. The trial court found that both Mr. Chaisson and Mr. Jolivette had a duty to

give each other as much room as possible while traversing the street.

The trial court heard testimony from Officer Gustavo Sanchez who was

employed by the Lafayette Police Department at the time of the accident and

investigated this accident. Officer Sanchez testified that the accident occurred on a

narrow roadway with no center stripe or any markings at all. Based on his

investigation, from what he was told on scene, and the damage to the vehicle,

Officer Sanchez determined that Mr. Chaisson was travelling in his designated lane

of travel, and the bus was driving left of center. Specifically, Officer Sanchez

determined that Mr. Chaisson could not have positioned his truck further to the

right without driving off the roadway and into a ditch. As a result of the accident,

Officer Sanchez issued a citation to the driver of the city bus for careless operation.

The court heard the testimony of Mr. Jolivette. He admitted that he could

have positioned his bus further to the right than he did without going off of the

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roadway when passing Mr. Chaisson’s vehicle. Mr. Chaisson testified that, in

order to avoid a head on collision with the city bus, he slammed on his brakes and

turned to the right; however, because there was a ditch to his right, he couldn’t

move over far enough to miss the bus. He also hit a mailbox after being impacted

by the bus.

Regarding Mr. Lejeune’s testimony, the trial court stated:

[Mr. Lejeune] testified that he arrived on the scene within thirty
minutes of the accident. He then stated that he approached the
Plaintiff who did not cooperate with him. He further stated that he
took a statement from a “white Caucasian female” passenger on the
bus. The LCG investigator testified that the female told him that the
bus was not to the left of the lane, but [it] was indeed as far right as
possible. When asked the name of the female he could not produce
the name, despite the fact that all of the passengers on the bus wrote a
statement. The Court further noted that there was only one Caucasian
female on the bus at the time of the accident.

The LCG investigator further wrote in his initial report that the
bus came to a stop at the corner of Antelope Court and Hammond.
When queried where he got that information he stated he was told the
same by the passengers. He further stated that he learned the
information was false – however, he did not correct his report nor
reevaluate his opinion as to causation.

Finally, the LCG investigator stated that the videos which were
placed into evidence “clearly” showed the bus to the right of the
center line and not to the left as stated by the Plaintiff. The Court
found his statements to be outrageously false especially considering
that he could not point to any location on any of the films that showed
the position of the bus. Furthermore, when counsel pointed out that
all of the cameras were pointed toward the inside of the bus he refused
to admit the simple mistake.

Ultimately, the trial court found the testimony of James Lejeune to be

“highly un-credible.” Defendants argue that the trial court’s sole reliance on James

Lejeune’s testimony constitutes reversible error. Defendants come to the

conclusion that the trial court solely relied on the investigator’s testimony based on

a single sentence found in the written reasons. The trial court states: “Indeed,

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prior to the false statements by the LCG investigator, this matter was akin to a

football game with two minutes left and LCG was ahead by three points with the

ball.” Reading the written reasons in their totality, it is clear the trial court did not

solely rely on James Lejeune’s testimony when determining liability in this matter.

Based on the testimony of the witnesses and the evidence in the record, the

trial court made the following findings of fact:

• Hammond Road is an undivided road somewhat narrow in
scope.
• Defendant bus driver admitted his mirror struck the mirror of
the Plaintiff’s vehicle.
• Defendant bus driver stated that it was possible that he was to
the left of the center line.
• Plaintiff stated that at all times he was as far right as possible
without going into the ditch.
• The bus driver apologized to the Plaintiff’s passenger after the
accident.
• The video showed by the City of Lafayette taken from the city
bus appeared to show the passenger side truck tires touching
the driveway of 901 Hammond at time stamp 16:27.33.
• The bus driver testified that the bus had “play” in the steering.
• Defendant bus driver testified that he could have moved further
to the right and avoided the impact.
• None of the passengers on the bus gave a statement regarding
the placement of the bus or the 2011 GMC on the road.

The trial court ultimately determined that “in consideration of the testimony

adduced at trial, the evidence and lack of evidence presented, the Court finds that

the balance tipped in favor of the Plaintiff and renders judgment in favor of the

Plaintiff.” We find the record evidence reasonably supports the trial court’s

conclusion and factual findings. As such, we find the trial court did not commit

manifest error.

III. Assignment of Error Number Two – Treating Chiropractors

In the next assignment of error, Defendants allege that the trial court erred in

allowing Plaintiff’s two treating chiropractors, Dr. David Barczyk and Dr. Quentin

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Brisco, to provide accident reconstruction testimony. Defendants assert that the

doctors were allowed to testify “regarding the mechanism of Chaisson’s injury in

relation to the movement of his vehicle and the effect of his seatbelt.”

Mr. Chaisson counters that Defendants have mischaracterized the doctors’

testimony. Mr. Chaisson maintains that the testimony Drs. Barczyk and Brisco

gave regarding the mechanism was necessary to prove causation.

Defendants specifically complain about the following testimony from Dr.

Brisco:

Q So, the question again, Dr. Brisco, was, could the mechanism of
injury as described to you by Mr. Chaisson, cause the injuries
you diagnosed?

A Yes.

Q Okay. Is it your opinion, more probably than not, that Mr.
Chaisson’s injuries were caused by the bus accident on October
17, 2016?

A Yes.

Dr. Barczyk testified:

Q What was your understanding of the mechanism of injury that
was described to you?

A Well, to be clear, the patient doesn’t give the mechanism of
injury. The patient describes the history of what occurred, and
it’s up to the clinician, or the doctor to determine the
mechanism of injury. So, as he described that, and then he
described his symptoms of back pain, left shoulder pain, neck
pain, and headaches, and after digging into it, as to what
collided and what happened, I determined that the injury
mechanism was aggressive braking, and this avoidance
behavior; swerving in a hurry to avoid greater danger.

Q What is your understanding of what took place inside the truck
when this aggressive braking maneuver took place?

A Well, aggressive braking, you can – hard braking is known to
create – you lose fifteen miles per hour, per second in hard

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braking, so in one second, you can – it’s fifteen miles per hour
changing speed, right, so –

....

A So, with that, there is going to be a deceleration of the vehicle,
quicky, to the extent that the body is kind of decelerated, or
thrusted forward. Dr. Brisco mentioned, essentially, the law of
inertia, which is basic physics that we have in chiropractic
school, and before chiropractic school, is we’re traveling at a
certain speed. If we hit the brakes, our body wants to keep
going that speed until something stops it, and usually what
stops it is the seatbelt, right? And, the seatbelt would stop the
shoulder torso, but the lumbar spine is free to flex and extend.
The pelvis is anchored, but the lumbar spine is not. The
seatbelt goes over the sternum, and mid-clavicle, so your
abdomen is fully able to flex and extend. And then, obviously,
there’s nothing to stop the forward head movement, because the
seatbelt doesn’t do that. But, all this notwithstanding that that
issue, in addition to this aggressive swerve, you had rotation
and lateral flexion, because as you swerve, your body is going
to move to an extent, with rotation and lateral flexion, in
addition to the rapid flexion from the braking. So, you have
this kind of complex injury mechanism that flexion, rotation,
shear, and it can lead to injuries of the soft tissues.

“Generally, the trial court is granted broad discretion on its evidentiary

rulings and its determinations will not be disturbed on appeal absent a clear abuse

of that discretion.” Segura v. Comeaux, 17-285, p. 4 (La.App. 3 Cir. 11/2/17), 279

So.3d 418, 421, writ denied, 17-2027 (La. 2/2/18), 235 So.3d 1109. We find that

this assignment of error lacks merit. Neither Dr. Barczyz nor Dr. Brisco testified

as to how the accident occurred, the location of the accident, the road conditions,

etc. Both doctors explained how the accident affected Mr. Chaisson and caused his

injuries. Said testimony is well within their area of expertise. The trial court did

not abuse its discretion in allowing this testimony.

IV. Assignment of Error Number Three – Defense Exhibit 7

Defendants next complain that the trial court excluded nine Google Earth

images identified as Defense Exhibit 7. The images represent the roadway on

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which the accident occurred. In excluding the images, the trial court stated “[w]e

don’t know who took the picture [or] the date the picture was taken.”

In Walker v. S.G.B.C., LLC, 19-506 (La.App. 3 Cir. 2/5/20), 290 So.3d 700,

writ denied, 20-355 (La. 6/3/20), 296 So.3d 1070, a panel of this court ruled that

Google Earth images may be properly authenticated using witness testimony at

trial. Louisiana Code of Evidence article 901(B)(1) establishes that the testimony

of a witness with knowledge is sufficient to authenticate an item introduced into

evidence. In Walker, the Google Earth images were recognized and identified by

each trial witness. The appellate court found that “the trial court had sufficient

support for its finding that the Google Earth images were authentic.” Id. at 705.

Based on our review of the applicable law and the record, we find that the

trial court erred in finding Mr. Jolivette’s testimony was insufficient to authenticate

the Google Earth images. However, we note that Plaintiff introduced thirty-eight

photographs, and Defendants introduced another thirty-six photographs. These

photographs were taken on the day of the accident, showing the scene after the

accident occurred. Defendants argue the proffered Google Earth images “represent

the stretch of road on which this accident occurred, showing the narrow width of

the road and the areas next to the road[.]” Many of the seventy-four photographs

introduced into the record represent the same. These photographs were taken from

street level and show the roadway from different viewpoints and angles, including

the width of the road.

In Wright v. Bennett, 04-1944, p. 6 (La.App. 1 Cir. 9/28/05), 924 So.2d 178,

183, the first circuit explained:

Louisiana Code of Evidence article 103(A) provides, in part, that
“Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected.” The proper

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inquiry for determining whether a party was prejudiced by a trial
court's alleged erroneous ruling on the admission or denial of evidence
is whether the alleged error, when compared to the entire record, had a
substantial effect on the outcome of the case. If the effect on the
outcome of the case is not substantial, reversal is not warranted. LSA–
C.E. art. 103(A).

Based on the foregoing, we find that the exclusion of the Google Earth

images did not have a substantial effect on this case and amounted to harmless

error. This assignment lacks merit.

V. Assignment of Error Number Four – Damages

In this assignment, Defendants contend that the trial court erred by awarding

Plaintiff $33,000.00 in general damages. In Bouquet v. Wal-Mart Stores, Inc., 08-

309, pp. 4-5 (La. 4/4/08), 979 So.2d 456, 459, the Louisiana Supreme Court

explained:

The standard of review applicable to a general damages award
is the abuse of discretion standard. Anderson [v. Welding Testing
Laboratory, Inc.], 304 So.2d [351,] 353 [(La.1974]; Coco v. Winston
Indus., Inc., 341 So.2d 332, 335 (La.1976). The trier of fact is
afforded much discretion in assessing the facts and rendering an
award because it is in the best position to evaluate witness credibility
and see the evidence firsthand. Duncan [v. Kansas City Southern
Railway Co.], 00–0066, p. 13 [La. 10/30/00,] 773 So.2d [670,]
682[.] “Vast discretion is accorded the trier of fact in fixing general
damage awards.”); Anderson v. New Orleans Pub. Serv., Inc., 583
So.2d 829, 834 (La.1991). An appellate court may disturb a damages
award only after an articulated analysis of the facts reveals an abuse of
discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340
(La.1993); Youn v. Maritime Overseas 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
damages 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. Duncan, 00–0066, p. 13, 773 So.2d at 682–83; Youn, 623 So.2d
at 1260. To determine whether the fact finder has abused its
discretion, the reviewing court looks first to the facts and
circumstances of the particular case. Theriot, 625 So.2d at
1340; Youn, 623 So.2d at 1261.

Only if a review of the facts reveals an abuse of discretion, is it
appropriate for the appellate court to resort to a review of prior similar

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awards. Duncan, 00–0066, p. 14, 773 So.2d at 683; Cone v. Nat’l
Emergency Serv. Inc., 99–0934, p. 8 (La.10/29/99), 747 So.2d 1085,
1089; Youn, 623 So.2d at 1261. In a review of the facts, the test is
whether the present award is greatly disproportionate to the mass of
past awards for truly similar injuries. Theriot, 625 So.2d at 1340; Reck
v. Stevens, 373 So.2d 498, 501 (La.1979). Prior awards, however, are
only a guide. Theriot, 625 So.2d at 1340.

“The issue of whether the amount of damages awarded conflicts with similar

awards only arises once it has been ascertained that the [judge or] jury abused its

discretion in determining the amount of damages awarded.” Miller v. LAMMICO,

07-1352, p. 29 (La. 1/16/08), 973 So.2d 693, 711.

In the present case, Mr. Chaisson presented to the emergency room of

Lafayette General Medical Center, complaining of lower back pain and shoulder

pain. He was prescribed pain medication and told to follow up with his primary

care physician, which he did. Mr. Chaisson’s primary care physician, Dr. Thomas

Voitier, noted that Mr. Chaisson complained of neck and left shoulder pain and

that he would begin physical therapy or chiropractic care soon. Soon after, Mr.

Chaisson attended an appointment with Dr. Brisco at the Bixenman-Richardson

Chiropractic Clinic. Mr. Chaisson treated with Dr. Brisco from December 2016

through April 2017. He complained of pain in his neck, lower back, left trapezius,

and headaches. In June 2017, Mr. Chaisson began seeing Dr. Barczyk with the

Barczyk Chiropractic Group for similar complaints. He continued to treat with Dr.

Barczyk until October 2017.

Mr. Chaisson testified that experienced pain until June 2018. He further

testified that, after the accident, he was not able to stand for long periods of time or

lift anything heavy. His injuries also affected the activities that he enjoyed prior to

the accident such as working out, jogging, trail rides, and riding his four-wheeler.

The trial court determined:

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In this matter the Plaintiff stated that he received injuries from
the force of the seat belt causing him to come to an abrupt, violent
stop. He stated that he injured his left shoulder, lower back, and neck
as a result of the accident.

In support of his claims the Plaintiff produced his two main
treating physicians, Dr. Quentin [Brisco] and Dr. David Barczyk, both
of whom are local chiropractors. Dr. [Brisco] testified that he treated
the Plaintiff for approximately eight months with little to no
improvement. Dr. Barczyk stated he treated the Plaintiff for an
additional four months and was able to bring his symptoms to an
intermittent activity-driven status.

The City of Lafayette offered no rebuttal to the testimony of the
doctors as to causation of the injuries. The City further did not make
an argument for comparative fault. The Court further notes that the
Plaintiff has not received treatment since 2018. The Court finds that
the Plaintiff did not prove the need for future medical treatment.

After reviewing the evidence, we cannot say that the amount of general

damages awarded by the trial court was an abuse of discretion. We find no merit

in the argument that the general damages should be decreased.

DECREE

The judgment of the trial court is affirmed. Costs of this appeal, totaling

$6,980.84, are assessed to Defendants, Lafayette City-Parish Consolidated

Government and Kevin Jolivette.

AFFIRMED.

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