The opinion
SHAQUANA HARVEY, * NO. 2023-CA-0084
INDIVIDUALLY AND IN HER
CAPACITY AS THE NATURAL *
TUTRIX OF JADEN HARVEY COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
ERIC WAYNE HAMBY, STATE OF LOUISIANA
PLAQUEMINES PARISH *******
SHERIFF'S OFFICE,
THROUGH GERALD A.
TURLICH, JR., SHERIFF, AND
AMERICAN ALTERNATIVE
INSURANCE CORPORATION
APPEAL FROM
25TH JDC, PARISH OF PLAQUEMINES
NO. 64-194, DIVISION “A”
Honorable Kevin D. Conner, Judge
******
Judge Nakisha Ervin-Knott
******
(Court composed of Judge Rosemary Ledet, Judge Dale N. Atkins, Judge Nakisha
Ervin-Knott)
Brett J. Prendergast
ATTORNEY AT LAW
4603 South Carrollton Avenue
New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLEE
Daniel R. Martiny
Jeffrey D. Martiny
James B. Mullaly
MARTINY & ASSOCIATES, LLC
131 Airline Drive
Suite 201
Metairie, LA 70001
COUNSEL FOR DEFENDANTS/APPELLANTS
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH
INSTRUCTIONS
October 4, 2023
NEK
Eric Wayne Hamby (hereinafter “Mr. Hamby”), the Plaquemines Parish
RML
DNA Sheriff’s Office through Gerard A. Turlich, Jr., Sheriff of Plaquemines Parish, and
American Alternative Insurance Corporation (hereinafter collectively “Defendants”)
seek review of the trial court’s October 24, 2022 bench trial judgment that awarded
damages to Shaquana Harvey (hereinafter “Ms. Harvey”), individually and in her
Capacity as the natural tutrix of Jaden Harvey (hereinafter “Jaden”). After
considering the record before this Court, we reverse the trial court’s allocation of
fault and remand for further proceedings consistent with this opinion; reverse the
trial court’s award of La. C.C. art. 2315.6 damages to Ms. Harvey; and in all other
respects, affirm the trial court’s October 24, 2022 judgment.
RELEVANT FACTS AND PROCEDURAL HISTORY
On January 13, 2017, Mr. Hamby was traveling on the Pointe a la Hache Ferry
Access Road in a fully marked Plaquemines Parish Sheriff’s Office vehicle. As he
approached the levee, but before reaching the top of the levee, Mr. Hamby collided
with Jaden, who was operating his dirt bike on the levee and crossing the Pointe a la
Hache Ferry Access Road. At the time of the collision, Jaden was eight years old.
Jaden was taken by ambulance to the hospital and sustained injuries of a fractured
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left femur, splenic hematoma, and forehead laceration, which required him to
undergo a variety of surgical procedures.
Ms. Harvey, individually and as natural tutrix of her minor son, Jaden, filed a
petition for damages on January 4, 2018. Defendants filed an answer to the petition
for damages on March 28, 2018, and specifically pled comparative fault as to Jaden,
but not as to Ms. Harvey, neither individually nor as natural tutrix of Jaden. This
matter proceeded as a bench trial on September 14, 2022, during which four
witnesses testified: Mr. Hamby, Jaden, Ms. Harvey, and Wayne Winkler (hereinafter
“Mr. Winkler”), Ms. Harvey’s expert accident reconstructionist. The deposition of
Ms. Harvey’s expert in orthopedic surgery, Dr. Robert Douglas Bostick, III
(hereinafter “Dr. Bostick”) was also introduced into evidence at trial.
Mr. Hamby’s Testimony
Mr. Hamby testified that he worked for Plaquemines Parish Sheriff’s Office
from 1995 to 2002 as a patrol deputy and from 2014 to 2019 in the IT Department
maintaining and administering the network at Plaquemines Parish Detention
Facility. In his personal experience as a patrol deputy on the Eastbank and Westbank
of Plaquemines Parish, Mr. Hamby testified that he never wrote a ticket to anyone
for riding a motor vehicle on the river levee. Also, he never saw any citations written
by a deputy for a violation of Parish Ordinance 15-12(b).
On the day of the collision, Mr. Hamby explained that he completed his shift
at the Detention Facility and was heading to the Pointe a la Hache Ferry in order to
go to his home in Belle Chase. He was traveling down Highway 15 towards the ferry
landing, and before reaching the top of the levee on the ferry ramp access road, Mr.
Hamby made impact with Jaden on his dirt bike. On cross-examination, Mr. Hamby
explained that he did not see Jaden until he was in front of the vehicle and by that
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time, it was too late to apply brakes. Yet, on direct examination, Mr. Hamby clarified
that once he saw Jaden, he immediately applied brakes and impact occurred shortly
thereafter. Mr. Hamby further testified that Jaden had almost crossed the entirety of
the ferry landing by the time the collision occurred. Additionally, Mr. Hamby noted
that there are no signs on the levee stating motor vehicle usage on the levee is
prohibited.
Jaden’s Testimony
Jaden testified that he was riding his dirt bike on the levee the day of the
collision. He stated that he was returning to his home on Highway 15 traveling from
playing basketball with his friends on Caledonia Lane. Jaden further testified that he
rode his dirt bike on the levee a number of times, and that no one told him he should
not ride his dirt bike on the levee nor did he know that it was illegal for him to ride
his dirt bike on the levee.
Jaden explained that as he was riding on the levee, he did not observe any
signs regarding the speed limit for motorized vehicles. Although his dirt bike did not
have a speedometer, Jaden estimated that he was traveling at twenty miles per hour
based on the wind. Jaden further testified that right before the collision, he looked to
his right and saw Mr. Hamby’s vehicle, but it was too late for him to stop his dirt
bike. Jaden explained that he was almost to the other side of the ferry landing when
he collided with Mr. Hamby’s vehicle and noticed Mr. Hamby’s vehicle was
traveling at a faster speed than his dirt bike.
As a result of the collision, Jaden testified that he was taken to the hospital in
an ambulance and sustained injuries to his left leg, which required surgery. Jaden
also explained that he has scarring on his legs, suffers with leg pain when
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participating in prolonged activities, and experiences “popping and clicking” in his
hip.
Ms. Harvey’s Testimony
Ms. Harvey testified that she has lived her entire life in Plaquemines Parish in
the Davant/Phoenix area, and as a child, she would ride her bike on the levee in order
to get from one area to the other area on the Eastbank of Plaquemines Parish. Ms.
Harvey explained that she often saw people riding on the levee with motor vehicles,
such as bikes and ATVs, but did not know there was an ordinance prohibiting the
use of motor vehicles on the levees, except for vehicles involved with levee
maintenance and protection. She noted that there were no signs on the levee that
indicated motor vehicle usage was prohibited.
Ms. Harvey further testified that on the day of the collision, Jaden asked
permission to go to the trailer park in Calendonia Lane to play with friends. She
explained that Jaden had gone to play with friends in Calendonia Lane many times,
and that he would ride his dirt bike on the levee in order to get to the trailer park.
Ms. Harvey testified that she allowed Jaden to ride his dirt bike on the levee, but he
could not ride on the highway because it was too dangerous. She explained that
Jaden’s brother and cousin returned to the house and informed her that Jaden was hit
by a car. Ms. Harvey did not have a vehicle at the time, so she asked her neighbor
for a ride to the collision scene.
When she arrived at the scene, Ms. Harvey testified that she saw Jaden in the
back of the ambulance with a bloodied face wearing a neck brace, and his pant legs
were cut open. She rode in the ambulance to the hospital with Jaden and could hear
that he was in extreme pain. Ms. Harvey explained that the medical treatment Jaden
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received as a result of the collision, including his leg surgery, has resulted in a
noticeable limp, and Jaden is now scared to push himself athletically.
Mr. Winkler’s Testimony
Mr. Winkler, Ms. Harvey’s expert accident reconstructionist, testified that
during his time as a trooper with the Louisiana State Police, he frequently patrolled
the area near the levee and often observed individuals riding ATVs and dirt bikes on
the levee. He testified that he never took any enforcement action nor did he observe
any members of the Plaquemines Parish Sheriff’s Office taking any enforcement
action against individuals riding on the levee. Mr. Winkler explained that from his
own experience, it was customary for locals to ride on the levee because the levee
was optimal to ride ATVs and dirt bikes because of the lack of shoulders and roads
available to accommodate such riding activities.
Mr. Winkler explained that his opinion of the collision was based upon his
review of the following: statements crash report; color copies of photographs; GPS
data from Mr. Hamby’s vehicle; documents exchanged through discovery; the
investigating trooper’s dashcam video with audio; the deposition transcripts of Mr.
Hamby, Jaden, and Ms. Harvey; a reconstruction of the incident using an exemplar
dirt bike conducted in December 2020; and inspection of the collision scene on
December 21, 2020.
During his site examination, Mr. Winkler observed large signs posted for the
ferry that read the speed limit for the on-ramp and levee parking area was five miles
per hour. Using the GPS data from Mr. Hamby’s vehicle, Mr. Winkler explained
that Mr. Hamby was traveling at sixteen miles per hour about halfway up the ferry
on-ramp, and when the collision occurred, he was traveling about ten miles per hour.
Mr. Winkler calculated that Mr. Hamby was thirty-eight to forty-four feet from
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impact when he saw Jaden, reacted, and applied his brakes, but was unable to stop
before striking Jaden because he was traveling at sixteen miles per hour instead of
ten or five miles per hour. Further, Mr. Winkler conducted a reconstruction of the
collision utilizing an exemplar dirt bike driven by Jaden whereby he told Jaden to
ride the dirt bike at the same speed he rode his dirt bike the day of the collision.
Based on Jaden’s speed on the exemplar dirt bike, Mr. Winkler determined that
Jaden was traveling at thirteen miles per hour on his dirt bike the day of the collision.
Mr. Winkler opined that based on where Jaden was located at the time he observed
Mr. Hamby’s vehicle, Jaden was unable to stop his dirt bike in order to avoid the
collision. Mr. Winkler further opined that if Mr. Hamby would have been traveling
at ten miles per hour or less, instead of sixteen miles per hour, he would have been
able to stop prior to impact and the collision would not have occurred.
At the close of trial, the trial court took the matter under advisement and gave
the parties an opportunity to submit post-trial memoranda. On October 24, 2022, the
trial court issued a judgment and reasons for judgment. In its judgment, the trial court
found both Mr. Hamby and Jaden negligent in causing the collision and apportioned
sixty-five percent (65%) fault to Defendants and thirty-five percent (35%) fault to
Ms. Harvey, as natural tutrix of Jaden. The trial court awarded special damages in
the amount of $8,209.00 for Jaden’s medical expenses and general damages in the
amount of $200,000.00 for Jaden’s past, present, and future pain and suffering; loss
of enjoyment of life; emotional distress and mental anguish; and permanent scarring.
Additionally, the trial court awarded La. C.C. art. 2315.6 damages in the amount of
$10,000.00 to Ms. Harvey, individually.
On November 23, 2022, Defendants filed a timely motion for suspensive
appeal, which was signed on November 29, 2022. Ms. Harvey timely answered
6
Defendants’ appeal, asserting that the assessment of any fault to her, either
individually or as natural tutrix was error by the trial court.
STANDARD OF REVIEW
“Appellate courts review findings of fact made by the trial court judge using
the manifestly erroneous or clearly wrong standard of review.” Keller v. Monteleon
Hotel, 2009-1327, p. 2 (La. App. 4 Cir. 6/23/10), 43 So.3d 1041, 1042 (citing Rosell
v. ESCO, 549 So.2d 840, 844 (La. 1989)). “[W]here 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.” Id. (internal citation omitted). “Where
there are two permissible views of the evidence, the factfinder's choice between them
cannot be manifestly erroneous or clearly wrong.” Id.
In order for an appellate court to reverse a trial court's finding of fact, an
appellate court is required “to find that the findings are not supported by
a reasonable factual basis and that the record demonstrates that the findings are
clearly wrong.” Id. (citing Stobart v. State through Dep't of Transp. and Dev., 617
So.2d 880, 882 (La. 1993)). Ultimately, the appellate court must determine whether
the “factfinder's conclusion was a reasonable one.” Id., 2009-1327 at p. 2, 43 So.3d
at 1042-43.
DISCUSSION
In their four assignments of error, Defendants assert (1) the trial court erred
when it relied on the testimony of Wayne Winkler as a purported expert; (2) the trial
court erred when it made unreasonable factual findings and misapplied the law
finding Mr. Hamby liable for the accident on January 13, 2017; (3) alternatively, the
trial court erred in its allocation of fault; and (4) the trial court erred when it found
7
that Ms. Harvey was entitled to damages for emotional distress under La. C.C. art.
2315.6.
In her answer to Defendants’ appeal, Ms. Harvey maintains that the
assignment of any fault against her, either individually or as natural tutrix, was an
error. In her appellee brief, Ms. Harvey specifically asserts: (1) the trial court erred
in allocating fault to Jaden based upon the actions of Ms. Harvey when Defendants
failed to plead her fault in their answer; (2) the trial court erred in allocating fault to
Jaden based upon the actions of Ms. Harvey when Defendants failed to prove her
negligence; and (3) the trial court’s allocation of fault to Jaden was excessive.
Assignment of Error Number One: The trial court erred when it relied on the
testimony of Wayne Winkler as a purported expert.
In their first assignment of error, Defendants assert that the trial court erred
when it relied on the testimony of Wayne Winkler as a purported expert. This
assignment of error pertains to evidentiary issues. “A trial court's ruling on . . .
evidentiary issues will not be disturbed unless a clear abuse of discretion is shown.”
Jones v. Peyton Place, Inc., 1995-0574, pp. 11-12 (La. App. 4 Cir. 5/22/96), 675 So.
2d 754, 763 (citation omitted); see also Sanford v. City of New Orleans, 2003-0883,
p. 13 (La. App. 4 Cir. 1/21/04), 866 So.2d 882, 890; Tadlock v. Taylor, 2002-0712,
p. 7 (La. App. 4 Cir. 9/24/03), 857 So.2d 20, 27. Importantly, an assignment of error
cannot be predicated upon a ruling admitting evidence unless there is a timely
objection to the evidence. See La. C.E. art. 103; Leard v. Schenker, 2006-1116, p. 3
(La. 6/16/06), 931 So.2d 355, 357.
The standard for determining whether a witness is qualified to testify in a
matter as an expert is governed by Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by the Louisiana
8
Supreme Court in State v. Foret, 628 So.2d 1116, 1121 (La. 1993), and applied to
La. C.E. art. 702. As this Court observed in Hooper v. Travelers Ins. Co., 2010-1685,
2011-0220, p.4 (La. App. 4 Cir. 9/28/11), 74 So.3d 1202, 1204-05:
Daubert set forth some non-exclusive factors for courts to consider in
making a determination as to whether an expert's testimony was
relevant and reliable. Those factors include but are not limited to: (1)
the testability of the technique or scientific theory; (2) whether the
theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error; and (4) whether the technique
had gained ‘general acceptance.
Review of a trial court's decision to admit or exclude testimony from a witness
offered as an expert is reviewed under an abuse of discretion standard. Id., 2010-
1685, 2011-0220 at p.6, 74 So.3d at 1205; see also Cheairs v. State Dep't. of Transp.
and Dev., 2003-0680 (La. 12/3/03), 861 So.2d 536.
Defendants maintain that Mr. Winkler’s methodology used to render his
expert opinion is unscientific and unreliable. This Court notes that Daubert and
Foret deal with the admissibility of expert testimony and not the weight that is to be
given to such testimony. Likewise, La. C.E. art. 702 also addresses the admissibility
of expert testimony. The record is void of a Daubert or any other motion attempting
to challenge Mr. Winkler’s methodology in his expert testimony prior to trial.
Furthermore, during trial, when given the opportunity to cross-examine Mr. Winkler
for the purpose of having him qualified as an expert, Defendants’ counsel failed to
do so and objected to Mr. Winkler being qualified as an expert solely based on not
knowing the content of his testimony. The only other objection made by defense
counsel during Mr. Winkler’s testimony was a hearsay objection as Mr. Winkler
attempted to testify to what he learned about the local customs of individuals riding
on the levee while patrolling as a state trooper. Counsel for Defendants neither
objected to the admissibility of Mr. Winkler’s testimony nor raised the issue of
9
whether the evidence met the Daubert standards. Therefore, we find that Defendants
failed to properly preserve their Daubert challenge with respect to Mr. Winkler and
cannot raise the issue for the first time on appeal.
It is important to note, however, that there is a crucial difference between
questioning the methodology employed by an expert witness and questioning the
application of that methodology or the ultimate conclusions derived from that
application. Only a question of the validity of the methodology employed
brings Daubert into play. Tadlock v. Taylor, 2002–0712, p.5 (La. App. 4 Cir.
9/24/03), 857 So.2d 20, 26.
In the instant case, Defendants not only question the validity of Mr. Winkler’s
methodology, which brings Daubert into play, but they also assert that Mr.
Winkler’s testimony is unreliable because he attributed no duty to Jaden, assigned
Jaden no fault for the accident, and totally disregarded Jaden’s deposition and trial
testimony that he did see Mr. Hamby yet never attempted to brake. “The weight
given expert testimony is dependent upon the expert's professional qualifications
and experience, and the facts upon which the opinion is based.” Duran v. Silva,
2019-0748, p.12 (La. App. 4 Cir. 3/25/20), 293 So.3d 1135, 1143 (citing Tuft v. Tuft,
51,293 (La. App. 2 Cir. 1/18/17) (unpub.), 2017 WL 4341309, *6). “After weighing
and evaluating expert and lay testimony, the trial court may accept or reject the
opinion expressed by any expert.” Id.
“Whether a duty is owned is a question of law.” Rando v. ANCO Insulations,
Inc., 2008-1163, 2008-1169, p. 27 (La. 5/22/09), 16 So.3d 1065, 1086 (citing
Lemann v. Essen Lane Daiquiris, Inc., 2005-1095, p.8 (La. 3/10/06), 923 So.2d 627,
632-33); Burch v. SMG Schindler Elev. Corp., 2014-1356-1358, p. 6 (La. App. 4
Cir. 4/7/16), 191 So.3d 652, 658. Mr. Winkler did not voice an opinion as to whether
10
Jaden had a duty. Rather, Mr. Winkler testified that based on his investigation, if Mr.
Hamby was traveling at five or ten miles per hour, as opposed to sixteen miles per
hour, he would have been able to stop and avoid the accident. The trial court relied
on this element of Mr. Winkler’s testimony in finding Mr. Hamby negligent.
Given the great deference given to the fact-finder regarding its assessment of
expert testimony on appellate review, we find the assignment of error related to the
expert testimony of Mr. Winkler is without merit. The trial court did not abuse its
discretion in admitting the testimony.
Assignment of Error Number Two: The trial court erred when it made
unreasonable factual findings and misapplied the law finding Mr. Hamby liable
for the accident on January 13, 2017.
In their second assignment of error, Defendants assert that the trial court erred
when it made unreasonable factual findings and misapplied the law finding Mr.
Hamby liable for the accident on January 13, 2017. Under Louisiana’s duty-risk
analysis, the determination of liability in a negligence case requires proof of five
separate elements:
(1) whether the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) whether the defendant's
conduct failed to conform to the appropriate standard (the breach
element); (3) whether the defendant's substandard conduct was a cause-
in-fact of the plaintiff's injures (the cause-in-fact element); (4) whether
the defendant's substandard conduct was a legal cause of the plaintiff's
injuries (the scope of liability or scope of protection element); and (5)
whether the plaintiff was damaged (the damages element).
Hanks v. Entergy Corp., 2006-477, pp. 20-21 (La. 12/18/06), 944 So.2d 564, 579
(citation omitted). A negative answer to any of the inquiries of the duty/risk analysis
results in a determination of no liability. Id., 2006-744 at p. 21, 944 So. 2d at 579.
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a. Duty Element
“The threshold issue in any negligence action is whether the defendant owed
the plaintiff a duty, which is a question of law.” Id. (citing Lemann v. Essen Lane
Daiquiris, Inc., 2005-1095, p. 8 (La. 3/10/06), 923 So. 2d 627, 633). In deciding
whether to impose a duty in a particular case, the court must make a policy decision
in light of the unique facts and circumstances presented. Lemann, 2005-1095 at p. 8,
923 So. 2d at 633 (citation omitted). The inquiry is whether the plaintiff has any law
(statutory, jurisprudential, or arising from general principles of fault) to support the
claim that the defendant owed him a duty. Id; citing Faucheaux v. Terrebonne
Consol. Gov’t, 1992-930 (La. 2/22/93), 615 So. 2d 289, 292.
Defendants assert that Mr. Hamby did not owe a legal duty of care to Jaden
and that the trial court imposed a duty not recognized under the law because Jaden
was recklessly operating his dirt bike on the levee at the time of the accident.
Defendants cite to Alexander v. Parish of St. John the Baptist, 2009-840, (La. App.
5 Cir. 3/23/10), 33 So. 3d 999, in order to support their position that Mr. Hamby did
not owe a legal duty to Jaden. However, Alexander is factually distinguishable from
the matter before the Court. In Alexander, the issue was whether a parish owed a
duty in constructing and maintaining a pipeline over a levee to individuals who were
illegally operating ATVs on the levee. The trial court granted the parish’s motion
for summary judgment stating, “The Parish did not owe a duty to this plaintiff . . .
The conduct engaged in by plaintiff is one [to] which the Parish's duty does not
extend because she was not acting reasonably under the circumstances . . . .”
Alexander, 2009-840 at p. 4, 33 So.3d at 1002. On appeal, the Louisiana Fifth Circuit
never considered Alexander on the merits, but instead affirmed the trial court
12
because the appellant therein failed to supply the appellate court with an appropriate
record for review. Alexander, 2009-840 at p. 9, 33 So.3d at 1005-1006.
In the case sub judice, there are specific duties owed by an individual, such as
Mr. Hamby, operating a vehicle. First, Mr. Hamby owed a duty under La. R.S.
32:64(A), which provides:
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 and 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 or regulation of the department made pursuant thereto.
Second, Mr. Hamby owed a general duty owed by all motorists to observe what
should be observed. Mart v. Hill, 505 So.2d 1120, 1123 (La. 1987). The trial court
imposed upon Mr. Hamby the two duties that are always owed by a motorist.
Accordingly, we find that the trial court did not err in concluding that Mr. Hamby
owed a legal duty of care to Jaden.
b. Breach Element
The “breach of a duty is a question of fact.” D.C. v. St. Landry Par. Sch. Bd.,
2001-1304, p.22 (La. App. 3 Cir 3/7/01); 802 So. 2d 19, 22, citing Mundy v. Dept.
of Health & Human Resources, 620 So.2d 811 (La. 1993). “Generally, breach of a
duty is the failure to exercise reasonable care under the circumstances.” Id., 802 So.
2d. at 22 (quoting FRANK L. MARAIST & THOMAS C. GALLIGAN,
LOUISIANA TORT LAW § 6-1, at 139 (1996)).
In this case, Defendants argue that Mr. Hamby did not breach any alleged duty
and acted reasonably under the circumstances. First, Defendants contend that there
was no reason for Mr. Hamby to look to his left as he approached the top of the
levee. Defendants maintain that Mr. Hamby’s attention was properly focused on the
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road ahead of him and the oncoming traffic and other potential hazards to his right
side. However, the evidence demonstrates that pedestrian and motor vehicle travel
on the levee was customary for the area. Mr. Hamby testified that he traveled the
stretch of road from the Detention Center to the ferry landing hundreds of times, and
during those trips, he observed pedestrians walking on the levee. He also testified to
seeing motor vehicles, bicyclists, and ATVs driving on the top of the river levee.
Additionally, Mr. Winkler testified that based on his experience as a state trooper in
the area, it is customary for individuals to ride ATVs and dirt bikes on the levee.
Moreover, Ms. Harvey, a life-long resident of Plaquemines Parish, testified that she
has seen people riding on the levee with motor vehicles, such as bikes and ATVs, all
of the time.
Defendants further aver that Mr. Hamby’s view to the left was obstructed by
a guardrail, trash can, and a tractor. Mr. Winkler acknowledged these obstructions;
however, he also testified that based on the photographs taken on the day of the
collision, Mr. Hamby would have a clearer view to his left at about forty-seven feet
from impact. Second, Defendants assert that Mr. Hamby had no duty to look to his
left under the circumstances. Yet, this assertion is unsupported by the law and facts
previously discussed. Based on the evidence in the record, Mr. Hamby should have
been on the lookout for individuals riding motor vehicles on the levee. Last,
Defendants assert that any argument to the court that Mr. Hamby exceeded the speed
limit by traveling sixteen miles per hour is fraudulent. However, Mr. Hamby testified
that at the top of the levee, there is a sign stating that the maximum speed limit on
the ferry access road is five miles per hour. Furthermore, the trial court determined
that the steepness of the access road and inability to see over the levee until reaching
14
its top required Mr. Hamby to drive at a reasonable speed, and that sixteen miles per
hour was not a reasonable speed for that location.
We find that the trial court’s determination regarding Mr. Hamby’s breach of
duty is supported by the record and is not clearly wrong. Thus, we conclude that the
trial court was not manifestly erroneous in finding Mr. Hamby breached his duty of
care.
c. Cause-in-Fact Element
In Perkins v. Entergy Corp., the Louisiana Supreme Court stated the following
on the issue of cause-in-fact:
Generally, the initial determination in the duty/risk analysis is cause-
in-fact. Boykin, 707 So.2d at 1230. Cause-in-fact usually is a “but for”
inquiry, which tests whether the accident would or would not have
happened but for the defendant's substandard conduct. Id. Where there
are concurrent causes of an accident, the proper inquiry is whether the
conduct in question was a substantial factor in bringing about the
accident. Id. at n. 10; Jones v. Hawkins, 1998–1259, 1998–1288, p. 7
(La.3/19/99), 731 So.2d 216, 220; Rick v. State, Dept. of Transp. and
Development, 93 1776, 93–1784, p. 8 (La.1/14/94), 630 So.2d 1271,
1275; Dixie Drive It Yourself System v. American Beverage Co., 242
La. 471, 137 So.2d 298 (1962). To satisfy the substantial factor test, the
plaintiff must prove by a preponderance of the evidence that the
defendant's conduct was a substantial factor bringing about the
complained of harm. Dabog v. Deris, 625 So.2d 492, 493 (La.1993).
This court has made several different inquiries when applying the
substantial factor test. For example, the court has stated that when there
are multiple causes, clearly cause-in-fact exists when the plaintiff's
harm would not have occurred absent the specific defendant's conduct.
Graves v. Page, 1996–2201, p. 9 (La.11/7/97), 703 So.2d 566, 570.
Perkins v. Entergy Corp., 2000-1372, p.8 (La. 3/23/01), 782 So. 2d 606, 611-612.
Defendants maintain that the “but for” cause of Jaden’s injuries was his actions of
illegally operating his dirt bike on the levee, and that Jaden’s actions were the
substantial factor in causing the collision. However, Defendants fail to cite any
15
evidence in the record that would show that the trial court manifestly erred in its
determination of cause-in-fact.
In its reasons for judgment, the trial court determined that both Mr. Hamby
and Jaden’s actions were substantial factors in causing the collision. Mr. Winkler
testified that Mr. Hamby was traveling at sixteen miles per hour when he collided
with Jaden. Further, Mr. Hamby testified that he did not look to his left side as he
approached the ferry entrance. The trial court recognized that the law prohibited
unauthorized individuals from operating motorized vehicles on the levee and
determined that had not Jaden operated his dirt bike illegally on the top of the levee,
he would not have collided with Mr. Hamby. However, the trial court also
recognized that had Mr. Hamby driven at a reasonable speed and looked both to his
right and left when approaching the ferry entrance, he would not have collided with
Jaden.
On review of the record, we find that a reasonable factual basis exists for the
trial court’s determination that both Mr. Hamby and Jaden’s actions were substantial
factors in causing the collision. Therefore, the trial court did not err in its
determination of cause-in-fact.
d. Scope of Liability/Protection Element
When determining whether the conduct falls within the scope of protection,
the court must assume that a legal duty exists and must question whether the injury
suffered by the plaintiff is one of the risks encompassed by the rule of law that
imposed the duty. Magri v. Jazz Casino Co. L.L.C., 2019-0063, p.8 (La. App. 4 Cir.
6/26/19), 275 So. 3d 352, 358 (citing Chatman v. Southern Univ. at New Orleans,
2015-1179, p. 10 (La. App. 4 Cir. 7/6/16), 197 So.3d 366, 379). “The extent of
protection owed to a particular plaintiff is determined on a case-by-case basis to
16
avoid making a defendant an insurer of all persons against all harms.” Id., 2019-
0063, p.8, 275 So.3d at 358. When determining the limitation of liability that should
be placed on the defendant’s conduct, the proper inquiry is to decide how easily the
risk of injury to the plaintiff can be associated with the duty being enforced. Id.
Defendants assert that the general rule that a motorist should see what he is
reasonably expected to see does not encompass the alleged injury here where Jaden
came out of nowhere, leaving Mr. Hamby no chance to avoid the accident. However,
under the circumstances presented here, we find the risk of colliding with someone
while not looking both ways before crossing the levee and driving a vehicle at a
speed not reasonable for the environment is a foreseeable risk.
Assignment of Error Number Three: Alternatively, the trial court erred in its
allocation of fault.
In their third assignment of error, Defendants assert that, in the alternative to
assignment of error number two, the trial court erred in its allocation of fault.
Defendants contend that the trial court erred in assigning more fault to Mr. Hamby
than Ms. Harvey. Conversely, Ms. Harvey maintains that the trial court erred in
assigning any degree of fault to her.
“Allocations of fault are factual determinations, which are not to be disturbed
by appellate courts in absence of manifest error or unless a particular finding of fact
was “ ‘clearly wrong.’ ” Antippas v. Nola Hotel Group, LLC, 2017-0798, p. 4 (La.
App. 4 Cir. 2/27/19), 265 So.3d 1212, 1216 (citing Aetna Life and Casualty
Company v. Solloway, 25,462 (La. App. 2 Cir. 1/19/94), 630 So.2d 1353, 1356;
Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). “Allocation of fault is not an exact
science, or the search for one precise ratio, but rather an acceptable range.
17
Allocations of fault within such a range cannot be clearly wrong.” Id. (citing Foley
v. Entergy Louisiana, Inc., 2006-0983, p. 32 (La. 11/29/06), 946 So.2d 144, 166).
In their answer to the petition for damages, Defendants state that the sole and
proximate cause of any damages and/or injuries sustained by Jaden were his own
actions and inactions, and that these actions and/or inactions are pled in bar
of/reductions of any recovery in this litigation. Defendants further invoked any and
all immunities and limitations of liability as provided by Louisiana law. Notably,
Ms. Harvey is not mentioned in Defendants’ answer.
Ms. Harvey filed an answer in response to this appeal. In her answer, Ms.
Harvey asserts that the trial court erred in attributing any fault to her, either
individually or as natural tutrix, because Defendants failed to allege comparative
fault by her in their answer. Procedurally, we find that her answer is properly before
this Court. Louisiana Civil Code of Procedure Article 2133 (A) states, in pertinent
part:
An appellee shall not be obliged to answer the appeal unless he desires
to have the judgment modified, revised, or reversed in part or unless he
demands damages against the appellant. In such cases, he must file an
answer to the appeal, stating the relief demanded, not later than fifteen
days after the return day or the lodging of the record whichever is
later. The answer filed by the appellee shall be equivalent to an appeal
on his part from any portion of the judgment rendered against him in
favor of the appellant and of which he complains in his answer.
Ms. Harvey filed an answer seeking to have the trial court’s judgment reversed as it
relates to any allocation of fault against her individually or as natural tutrix.
According to the notice of lodging, the record was lodged on February 3, 2023, and
Ms. Harvey filed her answer on February 7, 2023. Ms. Harvey’s answer to the appeal
was filed less than fifteen days after the lodging of the record. Thus, Ms. Harvey’s
answer is procedurally proper and can be considered by this Court.
18
Addressing the substance of Ms. Harvey’s answer, La. C.C.P. art. 1003
provides:
The answer shall comply with Articles 853, 854, and 863 and,
whenever applicable, with Articles 855 through 861. It shall admit or
deny the allegations of the petition as required by Article 1004, state in
short and concise terms the material facts upon which the defenses to
the action asserted are based, and shall set forth all affirmative defenses
as required by Article 1005. It shall also contain a prayer for the relief
sought. Relief may be prayed for in the alternative.
Pursuant to La. C.C.P. art. 1005, “The answer shall set forth affirmatively” all
defenses, including comparative fault. “The requirement that contributory
negligence must be affirmatively pleaded has for its purpose the giving of fair notice
of the nature of the defense and preventing surprise.” Austrum v. City of Baton
Rouge, 282 So. 2d 434, 437 (La. 1973) (citations omitted); See also La.C.C.P. art.
1005, listing fault of the plaintiff as an affirmative defense. “The policy underlying
this requirement [of pleading affirmative defenses] is to give the plaintiff fair notice
of a defense and adequate time to prepare an opposition, thus preventing trial by
ambush and unfairly aiding the defendant ‘who knew about the defense even though
the plaintiff was kept in ignorance of the defense.’ Walters v. Metropolitan Erection
Co., 1994-0162, p.7 (La. App. 4 Cir. 10/27/94), 644 So.2d 1143, 1147 citing Rider
v. Fontenot, 463 So.2d 951, 956 (La. App. 3rd Cir.1985).
In the judgment, the trial court allocated fault to Ms. Harvey, as natural tutrix
of Jaden. The trial court did not allocate fault to Ms. Harvey, individually. The trial
court stated in its reasons for judgment that Jaden could not be held personally liable
for comparative negligence due to his age at the time of the collision. The trial court
found Ms. Harvey liable for Jaden’s conduct that contributed to the collision
reasoning that Ms. Harvey instructing Jaden to operate his dirt bike on the levee was
not reasonable given the amount of traffic using the ferry on a regular basis.
19
It is a “well-settled rule that the district court’s oral or written reasons for
judgment form no part of the judgment, and that appellate courts review judgments,
not reasons for judgment.” Wooley v. Lucksinger, 2009-0571, p. 77 (La. 4/1/11), 61
So.3d 507, 572 (quoting Bellard v. American Cent. Ins. Co., 2007-1335, p. 25 (La.
4/18/08), 980 So.2d 654, 671). However, a court of appeal may review the trial
court's reasons for judgment to “gain insight” into the trial court's judgment. Id.,
2009-0571, p. 78, 61 So.3d at 572; See also Double NRJ Trucking, Inc. v. Johnson,
2017-667, p. 7 (La. App. 5 Cir. 5/16/18), 247 So.3d 1125, 1131.
Reviewing the judgment and record before this Court, we find that the trial
court erred in allocating fault to Ms. Harvey, as natural tutrix of Jaden, without
making a determination of negligence on the part of Jaden. As previously stated,
Defendants pled comparative fault of Jaden in their answer to the petition. Further,
Louisiana jurisprudence supports the position that a parent is liable for the damages
of his or her minor child only when the minor child’s negligence is established.
Therefore, in order to allocate fault to Ms. Harvey, as natural tutrix of Jaden, the trial
court must determine whether Jaden, himself, was negligent.
In Faia v. Landry, 249 So.2d 317 (La. App. 4th Cir. 1971), this Court
examined whether a father could be held responsible for the damages caused by his
minor child. The eight and one-half year old minor child in Faia gained entry into
another person’s automobile, started the engine, and drove the vehicle until it
collided with a parked car. Id., 249 So.2d at 318. Two lawsuits were filed against the
minor child’s father for damages sustained as a result of the collision. Id. at 319.
The trial court ruled that the minor child was incapable of being negligent, and since
the minor child was incapable of being negligent, his father could not be held
responsible for the damages caused by his minor child. Id.
20
In examining the issue of a minor child’s negligence, this Court recognized
that children seven years old and younger are not capable of being found negligent,
yet children ten years old and older are capable of being found negligent for their
actions. Id. at 319-320. This Court also recognized the grey area that exists between
the ages of seven and ten and held that for this age group, whether a minor child is
capable of being held negligent is a “factual determination which must be made in
light of the circumstances and facts of each given case.” Id. at 320. When
determining the negligence of a minor child, one must “show to a degree of certainty
by a preponderance of the evidence that the child was capable of being negligent as
well as showing that the child was in fact negligent.” Id.
The Faia court cites to Ates v. State Farm Mutual Automobile Insurance
Company, 191 So.2d 332 (La. App. 3d Cir. 1966), where the court determined that
the minor child was not contributorily negligent. There, the minor child was
involved in a collision with an automobile while riding his bicycle. Id., 191 So. 2d
at 333. On appeal, the defendant-driver asserted that the trial court erred in holding
that, as a matter of law, a nine and one-half year old child is incapable of contributory
negligence. Id. at 334. The Ates court held, “that in exceptional circumstances a child
of nine and a half years is capable of negligence and may therefore be barred from
recovery.” Id. The court further stated that “…the test to be applied to determine the
contributory negligence of small children is ‘a gross disregard of one's safety in the
face of known, perceived and understood dangers.’” Id. When this test was applied
to the facts of the case, the court determined that the minor child was not guilty of
contributory negligence and referenced the fact that the trial judge characterized the
child as an “immature nine year old.” Id. at 335.
21
In the case sub judice, the trial court’s judgment on the issue of negligence as
it relates to Jaden is unclear. The judgment states “…both parties shall be found
negligent in causing the automobile collision, based on the Reasons for Judgment
attached hereto. . .” and further apportions fault to Defendants and Ms. Harvey, as
natural tutrix of Jaden. However, the judgment does not state whether Jaden, himself,
is found negligent in causing the collision. Moreover, in the reasons for judgment,
the trial court erroneously states that Jaden cannot be found liable for comparative
negligence because of his age at the time of the collision. The jurisprudence
establishes that an eight year old can be found to be contributorily negligent
depending on the facts and circumstances of the case, and without a determination
of Jaden’s negligence, Ms. Harvey, as natural tutrix of Jaden, cannot be apportioned
any fault. Accordingly, we find that the trial court erred in allocating fault to Ms.
Harvey, as natural tutrix of Jaden, without first determining Jaden’s negligence. In
line with Faia, the trial court needs to evaluate Jaden’s “capabilities or incapabilities
and his appreciation or gross disregard of his safety in the face of known, perceived
and understood dangers” in order to determine if he is above the age of discernment
and can be found contributorily negligent for the collision. See Faia, 249 So.2d at
320. Further, if Jaden is found to be above the age of discernment and capable of
being negligent, the trial court must also determine whether he was in fact negligent.
For these reasons, we reverse and remand for further proceedings consistent with
this opinion.
Assignment of Error Number Four: The trial court erred when it found that Ms.
Harvey was entitled to damages for emotional distress under La. C.C. art. 2315.6.
In their fourth assignment of error, Defendants assert that the trial court erred
when it found that Ms. Harvey was entitled to damages for emotional distress under
22
La. C.C. art. 2315.6. In Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La.1990),
the Louisiana Supreme Court outlined four circumstances under which mental
anguish damages may be recovered. The Legislature codified the Lejeune decision
by enacting La. C.C. art. 2315.6, which provides, in pertinent part:
A. The following persons who view an event causing injury to another
person, or who come upon the scene of the event soon thereafter,
may recover damages for mental anguish or emotional distress that
they suffer as a result of the other person's injury: . . . .
(2) The father and mother of the injured person, or either of them. . . .
B. To recover for mental anguish or emotional distress under this
Article, the injured person must suffer such harm that one can
reasonably expect a person in the claimant's position to suffer
serious mental anguish or emotional distress from the experience,
and the claimant's mental anguish or emotional distress must be
severe, debilitating, and foreseeable. Damages suffered as a result
of mental anguish or emotional distress for injury to another shall be
recovered only in accordance with this Article.
Louisiana Civil Code of Procedure Article 2315.6 requires, in part, that the plaintiff
either view the accident or come upon the accident scene soon after it has occurred
and before any substantial change has taken place in the victim’s condition. In
Trahan v. McManus, 1997-1224, pp. 11-12 (La. 3/2/99), 728 So.2d 1273, 1279-80,
the Louisiana Supreme Court stated:
The Legislature apparently intended to allow recovery of bystander
damages to compensate for the immediate shock of witnessing a
traumatic event which caused the direct victim immediate harm that is
severe and apparent, but not to compensate for the anguish and distress
that normally accompany an injury to a loved one under all
circumstances.
Defendants assert the trial court erred in awarding Ms. Harvey damages for
emotional distress because Mr. Hamby did not intend to harm Jaden and the alleged
distress was not outrageous as to trigger liability under the statute. In asserting this
assignment of error, Defendants confuse the elements for recovery of damages under
23
La. C.C. art. 2315.6 with those elements for the tort of intentional infliction of
emotional distress. First, the trial court undisputedly awarded Ms. Harvey damages
under La. C.C. art. 2315.6 and not intentional infliction of emotional distress.
Second, La. C.C. art. 2315.6 does not require that the tortfeasor who caused physical
injury intended to cause either the physical injury or related mental injury. Whether
Mr. Hamby intended to harm Jaden, or whether his actions were outrageous are
irrelevant to Ms. Harvey’s recovery under La. C.C. art. 2315.6.
The only relevant argument asserted by Defendants is that Ms. Harvey failed
to prove her damages under La. C.C. art. 2315.6. This code article “suggests a need
for temporal proximity between the tortious event, the victim's observable harm, and
the plaintiff's mental distress arising from an awareness of the harm caused by the
event.” Trahan, 1997-1224, p. 11, 728 So.2d at 1279. Recently, in Cosey v. Flight
Academy of New Orleans, LLC, 2022-0538 (La. App. 4 Cir. 1/18/23), 357 So.3d
445, this Court determined that family members failed to establish their physical,
temporal proximity to the airplane crash to support a claim for La. C.C. art. 2315.6
damages. In Cosey, family members of a passenger who died in a plane crash sought
recovery of damages under La. C.C. art. 2315.6 for infliction of mental anguish and
emotional distress after arriving to the crash scene eight hours after the plane crashed
and sank into the water. Id., 2022-0538, p.8, 357 So.3d at 450. The family members
asserted that they met the temporal proximity requirement based on the mental
anguish and uncertainty they experienced for three days between the time of the
crash and confirmation of Mr. Hilliard’s death. Id. at 449. This Court determined
that the family did not meet the temporal proximity requirement as they were notified
and arrived at the crash scene hours after the crash. Id. at 450.
24
Similarly, in the case sub judice, we find that Ms. Harvey lacks the physical,
temporal proximity to the collision to support a claim for damages under La. C.C.
art. 2315.6. The trial court awarded Ms. Harvey $10,000.00 under La. C.C. art.
2315.6 for witnessing Jaden’s severe injuries and pain. While no one disputes that
Ms. Harvey may have suffered emotionally due to Jaden’s injuries, it is undisputed
that Ms. Harvey does not meet the temporal proximity requirement as she did not
witness the collision and arrived at the collision scene after Jaden’s body was already
inside of the ambulance. Accordingly, we find the trial court erred in awarding Ms.
Harvey damages for emotional distress under La. C.C. art. 2315.6.
DECREE
For the foregoing reasons, we reverse the trial court’s allocation of fault and
remand for further proceedings consistent with this opinion; reverse the trial court’s
award of La. C.C. art. 2315.6 damages to Ms. Harvey; and in all other respects,
affirm the trial court’s October 24, 2022 judgment.
AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH
INSTRUCTIONS
25