MADELEINE M. LANDRIEU, Judge.
The plaintiffs, Mary Rodriguez and her daughters, Lisa Rodriguez and Tami Cabrera, appeal the final judgment of the district court finding the defendants free from fault in a boating accident that resulted in the deaths of Jerry Rodriguez, Sr. (the husband of Mary Rodriquez and the father of Lisa and Tami) and his son, Jerry Rodriguez, Jr. For the reasons that follow, we affirm the trial court's judgment.
On December 9, 2007, defendant Perry Alexcee, Jr., was operating a BayStealth boat owned by defendant Mark Walters, Sr., when it collided with a flatboat operated by Mr. Rodriguez, Jr., in Petain Lagoon. In addition to the driver, Mr. Alexcee, there were three passengers on the BayStealth, including its owner, Mr. Walters. The only occupants of the flatboat were Mr. Rodriguez, Jr. (the driver) and his father, both of whom were killed as a result of the collision.
On November 12, 2008, the plaintiffs filed a wrongful death petition against Mr. Alexcee, Mr. Walters and Auto Club Family Insurance Company ("Auto Club"), the insurer of the BayStealth, alleging that the death of the plaintiffs' husband/father, Mr. Rodriguez, Sr., was caused by the negligence of Mr. Alexcee in driving the flatboat. The petition was later amended to include allegations of negligence against Mr. Walters, the owner of the flatboat.
In their sole assignment of error, the plaintiffs argue that the trial court committed manifest error by finding no fault on the part of the defendants in causing the accident. Specifically, they argue that the trial court's failure to apportion fault between the Rodriguezes and the defendants was clearly wrong.
We review this case under the manifest error standard. Under that standard, an appellate court may not set aside a trial court's or a jury's finding of fact in the absence of "manifest error" or unless it is "clearly wrong," and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993). Credibility determinations by the trial court are subject
Senior Agent Roy Pier of Louisiana Department of Wildlife and Fisheries was the officer in charge of the Department's investigation of the accident. He testified that he arrived on the scene roughly one hour after the accident, remained for several hours, and then returned to the scene the next day to complete his investigation. During the course of the investigation, he spoke with all of the occupants of the BayStealth and obtained their written statements. Based on his investigation, he testified that at the time of the collision, the BayStealth was in Petain Lagoon heading toward the Terre-aux-Boeuf cut, and the flatboat was coming from Terreaux-Boeuf going into Petain Lagoon. The BayStealth was on plane (flat in the water), while the flatboat was riding with its bow in the air, which indicated it was proceeding forward with some speed.
Agent Pier stated that Mr. Alexcee was an experienced operator. He testified that Mr. Alexcee had turned to the right when he first noticed the flatboat veering toward him, and then when he noticed that the occupants of the flatboat had not seen him, Mr. Alexcee had turned hard to the right and throttled up. Based upon his interviews of the passengers on the BayStealth, Agent Pier testified that they had yelled and screamed at the people on the Rodriguez boat but had failed to get their attention.
Agent Pier testified that Mr. Alexcee had done everything he could to avoid the collision. The agent found fault on the part of the Rodriguez flatboat, however. According to Agent Pier, the Coast Guard rules state that when two boats are approaching one another and there is a potential problem, each boat is to pull to their right. He concluded that Mr. Alexcee had followed his rule, but Mr. Rodriguez had not. Agent Pier testified that the two causes of the accident were the inattention of the Rodriguezes and their inability to see forward because their vision was obstructed by several objects on the bow of the boat, including a chair and pirogue rack.
Lieutenant Robert Martin of the Louisiana Department of Wildlife and Fisheries, Enforcement Division, was the supervising agent for the investigation of this accident. As part of the investigation, Lieutenant Martin also interviewed the passengers on the boat being operated by Mr. Alexcee. Lieutenant Martin testified that when a collision is imminent, a boat operator "should reasonably do what [he] can to avoid the accident ... regardless of what that action is." In his opinion, Mr. Alexcee had done everything he could do to avoid the accident. Lieutenant Martin concluded that Mr. Rodriguez had been operating the flatboat carelessly, but Mr. Alexcee had not been careless in the operation of his boat.
Mr. Alexcee testified that he was the one operating the boat that day because he
Mr. Walters testified that he owned the BayStealth. At the time of the collision, Mr. Walters was seated in the front left captain's chair. He confirmed that his nephew, Mr. Alexcee, was driving the boat that day because Mr. Walters himself was not familiar with the area in which they were fishing. Mr. Walters said he was fixing his fishing reel when he noticed that Mr. Alexcee pulled the throttle back to slow down. Mr. Walters first saw the flatboat after Mr. Alexcee throttled back for the second time. Mr. Walters stated that Mr. Alexcee throttled down a third time, then throttled up and turned to the right. He did not recall seeing anyone on the flatboat because the flatboat was "riding high." However, Mr. Walters recalled everyone on his boat shouting at the people in the flatboat in order to get their attention. He stated that he never saw the flatboat attempt to change direction. Mr. Walters knew Mr. Alexcee to be an experienced operator and had not observed Mr. Alexcee operating the boat improperly or recklessly or dangerously that day.
Mr. Scott testified that he was sitting next to Mr. Alexcee, who was standing at the steering column. He stated that he told Mr. Alexcee that the flatboat looked like it was coming towards them, but could not recall the distance between the two boats. At that time, Mr. Alexcee "gunned it and turned it to the right." Mr. Scott further testified that he knew that the passengers on the flatboat did not see them because the bow of the flatboat was high in the air and that would have obstructed their view. In his opinion, Mr. Alexcee did everything he could possibly do to avoid being hit by the flatboat.
Mr. Howard testified that he was sitting on a chair in the front of the boat at the time of the collision. He stated that he noticed the flatboat after they rounded a curve. He testified that the flatboat was going fast, and it looked like it was up in the air. He stated that the occupants of the flatboat were not looking in the direction of the BayStealth, and the passengers of the BayStealth were unable to get their attention.
Charles Clark testified as an expert on behalf of the plaintiffs. The court accepted him as an expert in the areas of boat accident reconstruction, boating safety, and the navigational rules of the road. Mr. Clark was familiar with the scene of the accident. After reviewing the photographs of the two boats, Mr. Clark determined that both boats appeared to be in compliance with safety regulations.
Mr. Clark opined that the speed of the BayStealth was 25-30 miles per hour, and the speed of the flatboat was less than 15 miles per hour. He opined that once Mr. Alexcee saw the flatboat, there was time for him to take action before a collision became imminent. He stated that because the flatboat was "coming through the cut
Based upon the testimony of the occupants in the BayStealth, Mr. Clark believed the BayStealth was in the best position to avoid the collision. He concluded that the cause of the collision was Mr. Alexcee's "inability to interpret what he was seeing as the actions of the flatboat."
Commander David Cole testified as an expert on behalf of the defendants in the areas of boating accidents and reconstruction, Coast Guard navigational rules of the road, regulatory analysis, casualty and accident investigation, and marine safety. Commander Cole testified that, in his opinion, Mr. Alexcee did everything he could possibly do to avoid the collision and that his actions were "entirely within the dictates of the Rules of the Road, within the dictates of prudent marine seamanship." Commander Cole agreed that the Rodriguezes could not see the BayStealth due to an obstructed view. He stated, however, that the fact that the bow of the flatboat was up and its occupants were looking for a fishing spot would not provide them with an exception to any of the rules, particularly the "Lookout Rule," which provides that every vessel has to maintain an adequate lookout by sight and hearing at all times. Commander Cole stated that absent communication between two potentially colliding vessels, the rules never authorize a vessel turning to the left instead of to its right. Commander Cole further testified that the impact to the two vessels indicated that the flatboat hit the left side of the BayStealth. Commander Cole specifically disagreed with Mr. Clark's opinion that the BayStealth should have turned left into the open water. Commander Cole stated that this maneuver would put have put the BayStealth crossing the bow of the flatboat, which is strictly prohibited by the rules, as one boat is not supposed to cross the bow of another under any circumstances. Commander Cole agreed with the Wildlife and Fisheries Department investigation that the sole cause of the accident was the inattention and obscured view of the Rodriguezes, which constitutes a violation of the Lookout Rule. He concluded that Mr. Alexcee had done everything he could to avoid the collision, and that there was no fault on the part of anyone other than those in the flatboat.
In its Reasons for Judgment, the trial court stated:
This record contains ample evidence to support the trial court's conclusion that the accident was caused solely by the fault of Mr. Rodriguez, Jr., who breached his duty to keep a proper lookout and to take action to avoid the collision. In view of this evidence, we find no manifest error in the trial court's finding that the defendants were free from fault.
It is apparent from the record of these proceedings that the Rodriguezes were never aware of the presence of the BayStealth vessel. There is no evidence to indicate that anyone on the Rodriguez flatboat either heard or saw the other vessel before crossing its path. Mr. Alexcee, therefore, was forced to interpret what action the flatboat would take. It is uncontroverted that Mr. Alexcee did see the flatboat and did take action under exigent circumstances in an attempt to avoid the collision, although his chosen course of action ultimately proved unsuccessful. Even if we might have decided this case differently had we been sitting as the triers of fact, we cannot conclude that the trial court's findings are unreasonable or manifestly erroneous based upon the record. See Rosell v. ESCO, supra.
Two experts in boating accident reconstruction, boating safety, and the rules of the road for vessels testified. The plaintiffs' expert, Mr. Clark, opined that Mr. Alexcee's inability to properly interpret the intentions of the Rodriguez flatboat and his subsequent alteration of course caused the collision. The defendants' expert, Commander Cole, opined that the accident occurred because Mr. Rodriguez breached his duty to maintain an adequate lookout and to take action to avoid any impending collision, whereas Mr. Alexcee complied with this duty. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State Through Dept. of Transp. and Development, 617 So.2d 880, 883 (La. 1993).
In addition to the experts, two officers of the Department of Wildlife and Fisheries testified as to the conclusion they had reached based upon their investigation of the boating accident. Their conclusions were that Mr. Rodriguez had caused the collision due to his inattention and obscured view, and that Mr. Alexcee had done everything he could do to avoid the collision and had not violated any of the applicable rules of the road.
Based on the totality of the evidence, we cannot say that the trial court was clearly wrong in finding that Mr. Rodriguez was solely at fault.
Accordingly, for the reasons stated, we affirm the judgment of the district court.
JENKINS, J., Dissenting with Reasons.
I respectfully dissent from the majority's opinion affirming the trial court's judgment. Rather, I find that the law when applied to the facts reveals that the trial court manifestly erred in its application of the "Rules of the Road,"
Although the majority was of the opinion that the record contained ample evidence to support the trial court's conclusion that Mr. Rodriguez was solely at fault for causing the accident which killed both him and his father, it is my opinion that this ruling is not supported by the plain language of the law. While the experts disagreed regarding the interpretation and application of the Rules, all of the experts agreed that the respective duties of the boaters in this case were governed by the Rules of the Road. However, I find that a plain reading of the rules renders the trial court's finding absolving the defendants of any responsibility for the accident so implausible, internally inconsistent, and in contrast to the plain language of the Rules that it should be reversed.
The manifest error or clearly wrong standard demands great deference for the trial court's findings; nevertheless it is this Court's duty on appeal to review the record in its entirety for errors of fact and errors of law. La. Const. Art. V. §§ 5(C) and 10(B); Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. It has long been held that a "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed." U.S. v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746, 766 (1948). See also, Stobart v. State, Through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La.1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).
Therefore, while it is true that questions of credibility — including that of experts — are for the factfinder and should not be disturbed upon review, that is not the case when an expert's opinions are patently unsound. Lirette v. State Farm Ins. Co., 563 So.2d 850 (La.1990). In certain situations, documents or objective evidence may so contradict a witness' story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness' story; in these cases we may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989).
I therefore begin my examination by reviewing the evidence and the law in the context of the duty-risk negligence analysis to determine whether or not the trial court committed manifest error in finding the flatboat solely responsible for the collision. Under this analysis, four questions should be considered:
Lazard v. Foti, 02-2888, p. 3 (La.10/21/03), 859 So.2d 656, 659; Mart v. Hill, 505 So.2d 1120, 1122 (1987). If the answer to any of the elements of the duty-risk analysis is negative, then a party may be found free from fault. Williams ex rel. Williams v. Jones, 09-839, p. 5 (La.App. 5 Cir. 2/23/10), 34 So.3d 926, 930 (citing Lazard, 859 So.2d at 659).
The cause-in-fact element is generally a key determination in the duty-risk analysis. Vargas v. Continental Cuisine, Inc., 04-1029, p. 5 (La.App. 4 Cir. 3/30/05), 900 So.2d 208, 211; Boykin v. Louisiana Transit Co., Inc., 96-1932, p. 8 (La.3/4/98) 707 So.2d 1225, 1230. It tests whether the accident would or would not have happened "but for" the defendant's substandard conduct. Boykin, 707 So.2d at 1230. However, in cases involving "concurrent causes" of an injury, "the proper inquiry is whether the conduct in question was a substantial factor in bringing about" the accident or injury. Perkins v. Entergy Corp., 00-1372, 00-1387, 00-1440, p. 8 (La.3/23/01), 782 So.2d 606, 611. The Louisiana Supreme Court has applied the test by determining that "each of the multiple causes played so important a role in producing the result that responsibility should be imposed upon each item of conduct, even if it cannot be said definitively that the harm would not have occurred `but for' each individual cause." Id., at pp. 8-9, 782 So.2d at 612 (quoting Graves v. Page, 96-2201, p. 9 (La.11/7/97), 703 So.2d 566, 570). A factor used in determining whether a cause is a substantial factor includes "whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm." LeJeune v. Allstate Ins. Co., 365 So.2d 471, 475 (La.1978) (quoting Restatement of Torts, 2d, Section 433(b)).
I agree with the majority that the accident was caused, at least in part, by the decision of Mr. Rodriguez to turn left into the Petain Lagoon. But for the flatboat's turn left, the collision would not have occurred. Nevertheless, the duty-risk analysis requires Mr. Alexcee's conduct to also be examined to determine whether or not his conduct, too, was a legal cause of the accident. I find that it was.
A careful review of the evidence leads to the inevitable conclusion that the decision of Mr. Alexcee to veer the BayStealth to the right of the lagoon set in motion a series of continuous forces which could and did result in the plaintiffs' harm in this case. The preponderance of the testimony was that the BayStealth was located approximately 40 to 50 feet from the shoreline of the lagoon when Mr. Alexcee first spotted the flatboat turning left out of the cut. It was undisputed that the flatboat was closer to the shoreline than the BayStealth upon initial sighting. Based on Mr. Alexcee's initial assumption that the flatboat would head straight across the lagoon and turn left to pass port-to-port, Mr. Alexcee throttled down two or three times while steering closer to the right, his starboard side of the lagoon. This action brought him in closer proximity to the flatboat and placed the two vessels on a collision course. This fact is corroborated by the testimony of all three passengers who each testified that they first noticed the flatboat ahead after Mr. Alexcee began throttling down and hugging the shoreline. Accordingly, Mr. Alexcee's decision to veer from his initial course of travel, and instead
In addition, to the extent that Mr. Alexcee claims that the accident occurred because Mr. Rodriguez turned left into the port side of the BayStealth, this testimony conflicts with Mr. Alexcee's prior testimony as well as the testimony of other witnesses because from all other accounts, the flatboat maintained its general left-turning course at all times prior to the collision. Rather, the overwhelming majority of the evidence suggested that it was Mr. Alexcee's decision to steer right and hug the shoreline that would have caused the flatboat to collide with the port side of the BayStealth.
Therefore, the actions of each vessel were a cause-in-fact of the collision.
The next inquiry involves the question of duty and asks whether the plaintiffs have any law — statutory, jurisprudential, or arising from general principles of fault — to support their claim. Faucheaux v. Terrebonne Consolidated Govt., 92-0930 (La.2/22/93), 615 So.2d 289, 292. Whether or not a duty exists is a question of law for the court to decide based upon the facts and circumstances of the case as established in the evidence of record. Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 633. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318, 322. As previously stated, the parties agree that the respective duties of the boaters were governed by the Rules of the Road. Generally speaking, the Rules of the Road are applicable to "all vessels upon the inland waters of the United States."
I will begin by examining the duties which plaintiffs claim the BayStealth breached. I will then examine the duties the defendants claim the flatboat breached. Lastly, I will examine the relationship, if any, between the duties invoked under the Rules of the Road.
The plaintiffs argue that the defendants are liable for their damages because Mr. Alexcee failed to properly interpret the actions of the flatboat, and thereafter reacted inappropriately. Rules 7 and 8 of the Inland Navigation Rules
The plaintiffs specifically claim that Mr. Alexcee violated Rule 8 by failing to make a major course alteration, to stop his engine, or to go in reverse. Rule 8, governing the action required to avoid a collision, comprehensively states:
Based on the evidence submitted at trial, it is clear that Mr. Alexcee attempted to comply with Rule 8 by taking positive action as soon as he observed the flatboat coming out of the bend. In addition, the testimony is undisputed that he, in fact, slackened his vessel's speed in an attempt to avoid a potential collision. At the same time, however, Mr. Alexcee arguably breached the duties imposed by Rule 8 to avoid small alterations of course or speed; to alter his course based on consideration
Nevertheless, it is evident to me that the scope of the duties and the extent to which they can be considered a cause-in-fact of the plaintiffs' injuries cannot be considered in a vacuum. Rather, it is immediately apparent upon reading Rule 8 in its entirety that the duty imposed under Rule 8 must be considered in the connection with other applicable Rules of the Road. For instance, subsection (f) which prescribes the early action that should be taken to allow for safe passage, distinguishes between the duties imposed upon each ship under this Rule. In particular, reference is made to the duties of the vessel "required not to impede ... passage" versus the duties of the vessel whose passage "is not to be impeded." In addition, subsection (a) states that any action taken to avoid a collision must be made with due regard to the observance of good seamanship.
Therefore, I pretermit a full discussion of whether or not defendants breached a duty under Rule 8 which could be said to have been the legal cause of plaintiffs' harm under the facts and circumstances of this case, pending a review of related Rules of the Road implicated by the facts of this case.
At trial, the defendants argued that Mr. Rodriguez was solely at fault, in part, because he breached his duty under Rule 5, also known as the "look-out rule."
Mr. Alexcee and the other passengers on the BayStealth testified that the men on the flatboat were not paying attention to where they were going. While Mr. Howard was the only one who recalled actually seeing the men, the others testified that the flatboat was riding high in such a manner as to block them from the view of the men on the BayStealth. They also testified that they attempted to yell out to the men on the flatboat, but heard no response. In addition, Mr. Howard specifically testified that he saw the Rodriguezes looking in the opposite direction as they were coming out of the curve in their direction.
Based on the testimony presented at trial, the trial court was not clearly wrong in finding that there was sufficient evidence at trial to show that the operator of the flatboat breached its duty under the look-out rule.
The defendants also argued that Mr. Rodriguez was solely at fault because he did not keep to the right of the lagoon. At trial, plaintiffs' expert, Mr. Clark, countered that the "stay-right" rule only applies when two vessels are meeting in a
Because it is unclear whether or not the trial court found that the duty to stay right emanated from Rule 9, Rule 14, or from an all-encompassing general rule to stay right, as argued by the defense, in order to determine whether or not the trial court committed manifest error in finding that the flatboat violated a duty to stay right, this Court should examine the Rules of the Road in their entirety to properly ascertain the scope of the duty to stay right and its application to the facts of this case. In other words, is there a general duty, as the defendants argued, to always turn right absent an agreement to the contrary?
For the reasons discussed below, it appears that no such general, all-encompassing rule exists. Rather, the duty to stay right is found in Rules 9 and 14 of the Inland Navigation Rules.
Rule 9, also referred to as the "Narrow Channels" rule, states in pertinent part:
At trial, the plaintiffs argued that Rule 9's stay-right rule did not apply because there was no judicial determination that the Petain Lagoon was, in fact, a narrow channel. Defendants' expert, Commander Cole disagreed, stating, "That's irrelevant. The Narrow Channel Rule says that vessels should stay at the right-hand side of the channel whenever possible." (Emphasis added).
Courts have traditionally found that whether or not a body of water can be considered a narrow channel is a mixed question of law and fact based not only on the physical dimensions of the body of water, but also the character of navigational use. See e.g., Marine Transp. Lines v. M/V Tako Invader, 37 F.3d 1138, 1142-43 (5th Cir.1994); Canal Barge Co., Inc. v. China Ocean Shipping Co., 770 F.2d 1357, 1362 (5th Cir.1985). Moreover, under the plain language of this rule, the duty to stay right would apply where there is evidence that (1) a vessel is located in a narrow channel or fairway and is (2) proceeding along the course of that narrow channel or fairway. In addition, a vessel bound by this rule should only proceed as close to their starboard shoreline "as is safe and practicable."
Assuming that the trial court found there to be sufficient evidence to show that the lagoon could be considered a "narrow channel,"
Nevertheless, the Rules of the Road must be read in conjunction with one another.
(Emphasis added). Thus, to the extent that court found that Mr. Rodriguez breached a duty to "stay right" and pass the BayStealth port-to-port under Rule 8, that finding would be in direct conflict with the rule prohibiting a vessel from crossing the bow of another.
It is therefore necessary to determine whether the trial court could have found that the Mr. Rodriguez breached a duty to stay right and pass on the port side of the BayStealth under Rule 14. Rule 14, the "head-on situation" rule, states in pertinent part:
Notably, an application of the plain language of Rule 14 to the facts and circumstances of this case leads to the same dilemma. That is, in order for the flatboat to have entered the lagoon to pass on the port side of the BayStealth, it would have had to cross in front of the BayStealth, a maneuver prohibited under Rule 9(d), and which defendants admit was prohibited.
More importantly, the facts do not support a finding that the vessels were traveling along reciprocal courses immediately prior to the collision as required by Rule 14. Instead, the testimony indicates that the flatboat was entering the lagoon from the cut located on the right side of the BayStealth, while the BayStealth was already traveling along the course of the lagoon.
Lastly, to the extent that the defendants argue the existence of a general "stay right rule" or that Mr. Alexcee had the right to veer to his right due to existence of an in extremis situation, that argument still lacks merit. While some courts have found that good seamanship may require that all vessels keep right and pass port-to-port, that duty must still take into account the phrase, "when it is safe and practicable." See Skibs A/S Siljestad v. S/S Mathew Luckenbach, 215 F.Supp. 667, 682 (S.D.N.Y.1963); see also, Maritrans, 800 F.Supp. 133, 140. Mr. Alexcee testified that immediately upon spotting the flatboat exiting the cut from his right, he immediately started navigating toward the right shoreline. He further testified that he "hit the mud" (presumably very shallow water) before the collision even took place. It would be a stretch to conclude that such a maneuver was safe or practicable and it is doubtful that the flatboat would have expected the 23-foot vessel to be traveling through the lagoon at a distance so close to the shore. Additionally, it would not have been "safe and practicable" for the flatboat to have crossed the BayStealth to pass port-to-port.
Since vessels are clearly prohibited from crossing each other's bows, this review then begs the question: did the flatboat have a duty to stop and wait for the BayStealth to pass before attempting to turn left into the lagoon? Moreover, are there any rules that specifically govern the situation where two vessels are approaching each other from intersecting bodies of water, as was the situation here?
To answer these questions, it is necessary to consider Rules 15, 16, and 17,
This rule seems more applicable to the facts in this case because the undisputed evidence is that the flatboat was in the process of turning into the lagoon from an intersecting channel, or "cut" on the BayStealth's right side.
Applying Rule 15 to the facts herein, at the time when Mr. Alexcee first noticed the flatboat turning out of the cut, the flatboat was located to the starboard side of the BayStealth. Therefore, the BayStealth had the duty to "keep out of the way" and if possible "avoid crossing ahead" of the flatboat. According to the terminology used by defense expert, Commander Cole, the flatboat would have then been the "privileged vessel." Furthermore, under Rule 16, the BayStealth, as the "give-way" vessel, had a duty to "keep out of the way of" the flatboat and to "so far as possible, take early and substantial action to keep well clear."
Lastly, Rule 17 states in pertinent part, "Where one of two vessels is to keep out of the way, the other shall keep her course and speed."
An application of these crossing rules to Rules 7, and 8, discussed above, further supports the conclusion that the BayStealth should have slowed or stopped, while maintaining its course, rather than steering closer to its starboard side of the lagoon. Moreover, any deviation in course would more prudently have been to its left, since there was ample sea room to that side of the BayStealth and because that alternate maneuver would not have led to the close-quarters situation which resulted. I also find it particularly interesting that defendants' expert, Commander Cole, admits that the BayStealth would have had a duty to slow, stop or reverse, if this were, in fact a "crossing situation," although he denied that a crossing situation existed.
Finally, the defendants argue that they are immune from liability for their actions because this was an in extremis situation and under the rules, once a collision is imminent, all rules go away and the parties may take any action necessary to avoid a collision without fear of being held responsible for making a bad decision.
Thus, while vessels may deviate from the rules when necessary to avoid danger, such action does not result in automatic exoneration if the operator of a vessel makes a decision that still results in collision. The Florida District Court's recent explanation of the in extremis rule in Tassinari v. Key West Water Tours, L.C, 2007 WL 1760923, p. 2 (S.D.Fla.6/18/07) (unpublished) is particularly helpful to this discussion:
(Emphasis added). Accordingly, it is significant that Mr. Alexcee was duty-bound to take earlier action as the give-way vessel to avoid the collision, and was not justified in assuming that the flatboat would cross his path to pass port-to-port.
For the reasons stated above, I believe that the BayStealth, as the give-way vessel, breached a duty to properly interpret the actions of the flatboat and react accordingly by altering its course to avoid a close-quarters situation and/or by stopping or reversing. In addition, to the extent that the trial court found that the flatboat breached a duty to "stay-right" because it should have crossed the path of the BayStealth and passed port-to-port, that ruling was also clearly erroneous.
This court has explained the scope of duty in Chaisson v. Avondale Industries, Inc., 05-1511, p. 24 (La.App. 4 Cir. 12/20/06), 947 So.2d 171, 188, as follows:
I find that the duty of Mr. Alexcee to properly interpret the actions of the flatboat in a crossing situation and to act accordingly was meant to protect the men on the flatboat from the harm that befell them. Unfortunately, both men on the
Having found that both vessels breached duties imposed upon them pursuant to the Rules of the Road, the next step is to consider the factors to be applied in assigning the parties' respective degrees of fault. In an action for injury or loss, the comparative fault of all persons contributing to an injury must be determined, including those suffering injury or loss. La. Civ.Code art. 2323. To determine the apportionment of fault, a court should consider the conduct of each actor and the extent of the causal relation between their conduct and the damages. The factors to be considered include: (1) 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. In addition, as evidenced by concepts such as last clear chance, the relationship between the negligent conduct and the harm to the plaintiff should be considerations in determining the relative fault of the parties. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985).
I find it to be extremely significant that Mr. Alexcee was at all times aware of the presence of the flatboat and attempted to take action to avoid the collision. There is no evidence to suggest that he was at any time, unaware of the danger; rather by insisting on port-to-port passage, he breached his duty under the plain language of the Rules of the Road in attempting to avoid the danger. In addition, by hugging closer to the shoreline, in the direction that the flatboat was already headed, there is no doubt the BayStealth significantly increased the risk of collision and it was arguably this maneuver which placed the two boats on a collision course.
Nevertheless, the evidence also supports a finding that Mr. Rodriguez's inattentiveness played a significant role in the collision. In fact, there is no evidence to indicate that the flatboat, at any time, changed courses or tried to steer out of the path of the BayStealth to avoid the collision. I also find that the risk taken by the BayStealth would arguably have been minimized had they been able to get the attention of the flatboat. At that point, the men on the flatboat could have more clearly signaled their intentions to the BayStealth.
Because I find it to be significant that Mr. Alexcee was ultimately trying to avoid a collision, and was forced to act in haste and without a lot of time to properly assess the situation, I find that his fault was considerably less than the fault Mr. Rodriguez, who was seemingly unaware of the danger due to his apparent failure to maintain a proper lookout. However, I would not find — as did the majority — that the actions of Mr. Rodriguez superseded the fault of Mr. Alexcee such that the trial
Based on the foregoing, I believe that the trial court manifestly erred in attributing 100% of fault to Mr. Rodriguez based on the flatboat's failure to stay right and keep a proper lookout. Instead, a portion of the fault should have been assigned to the defendants for Mr. Alexcee's failure to properly interpret the actions of the flatboat and to react accordingly. When there is a finding that the trial court made a "clearly wrong" allocation of fault, this Court "should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion." Clement v. Frey, 95-1119, 95-1163, pp. 7-8 (La.1/16/96), 666 So.2d 607, 610-11. I would therefore find that the lowest reasonable percentage of fault that the trial court could have assessed to the defendants was 30%.
The parties stipulated to the fact that the BayStealth was owned by defendant, Mark Walters. The parties also stipulated that Mr. Walters had a policy of insurance provided by Auto Club Family Insurance Company that was in full force and effect at the time of the collision and that provided material coverage to him at all material times. Consequently, I would find that Mr. Alexcee, Mr. Walters, and the defendant insurance company are solidarity liable for any damages due to the plaintiffs as a result of the negligent operation of the BayStealth as a matter of law.
Mr. Walter's liability stems from La. R.S. 34:851.18 which states, in pertinent part:
At trial, Mr. Walters admitted that he gave Mr. Alexcee permission to operate the vessel because he was more familiar with the area where they were fishing. Mr. Walters is therefore solidarity liable with Mr. Alexcee for any damages to the plaintiffs because they are both obligated for the same damage. Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383, 1388 (La.1993).
Mr. Alexcee and his insurer argue that La. R.S. 34:851.18 is inapplicable to the facts of this case because it is a penal, or criminal statute. Because there is nothing in the plain language of Section 851.18 to indicate that it is penal in nature, this argument is without merit. In fact, the statute speaks in simple terms of liability for negligence occasioned by the operator's violation of state laws or the failure to use ordinary care, which was the case here. Instead, the defendants seem to be basing their position that Section 851.18 is criminal on the penal provisions found in La. R.S. art. 34:851.4, which governs the careless operation of vessels, rather than ordinary negligence.
That solidary liability should be applied to the facts of this case pursuant to La. R.S. 34:851.18, is also supported by well-established maritime law. Although under Louisiana Civil Code article 2324, solidary liability is usually limited to the situation where defendant debtors have conspired with one another to commit a willful or intentional act, that is not the rule in cases applying maritime law. It is well-settled that joint and several liability applies in maritime and admiralty cases when there has been a judgment against multiple defendants.
Appellate courts are authorized to render any judgment which is just, legal and proper where the trier of fact is clearly wrong in failing to do so and where the record contains sufficient proof of damages.
Mary Rodriguez testified that she had been married to the decedent for 42 years prior to the accident. They had three adult children: Jerry Rodriguez, Jr., age 41; Tammy Rodriguez-Cabrera, age 42; and Lisa Marie Rodriguez, age 29. She testified to a close and loving relationship with her husband and said they would do everything together. The two had never separated during the marriage. At the time of the accident, Mr. Rodriguez had been working with his son doing special event parties. Mrs. Rodriguez had planned to retire at the age of 62; however she continued to work at the age of 65
Ms. Rodriguez testified that her husband would do a lot of things to help out his daughters, especially repairing things. Lisa moved out of the home after graduating and then moved to Texas following Hurricane Katrina when her job transferred her there. She moved back to Louisiana after her father's death to take care of her mom. Lisa testified to having a close relationship with her parents. They helped pay for her to attend LSU and continued to help her out financially when needed. She also explained that she moved back to help her mom because it was the right thing to do and because "family comes first no matter what." She said that there is not a second that goes by when she does not miss her father.
Tammy also testified at trial to a close and loving relationship with her father, whom she said she loved tremendously. She lived at home with her parents until she was 22 years old and they paid for her education. She lived five minutes away from her parents and visited them "all the time." She explained that her father came to visit a lot and helped them with everything, including finances and repairs to their home and car. He was working to repair hurricane-related damage to her bathroom the night before he died and explained that her husband "cannot bring himself to finish where they left on."
Damages for wrongful death are intended to compensate loved ones for their loss following the victim's death. Turner v. Lyons, 03-0186, p. 11 (La.App. 4 Cir. 1/28/04), 867 So.2d 13, 21. Elements of damages for wrongful death include loss of love and affection, loss of services, loss of support, medical expenses and funeral expenses. Id.
After reviewing the record, I would award Ms. Mary Rodriguez $250,000 for the loss of her husband. I would also award Mr. Rodriguez's two adult daughters $125,000 each for their own wrongful death claims. I believe that these amounts are just and fair based on the evidence adduced at trial.
Survival damages provide compensation for the damages suffered by the victim from the time of injury to the moment of his death; they differ from wrongful death damages, which compensate beneficiaries for their own injuries suffered from the moment of the victim's death and thereafter. Warren v. Louisiana Medical Mut. Ins. Co., 07-0492 (La.12/2/08), 21 So.3d 186; Taylor v. Giddens, 618 So.2d 834 (La.1993). Damages for a survival action may include the decedent's pre-impact fear. See Thomas v. State Farm Ins. Co., 499 So.2d 562 (La.App. 2d Cir.1986). Moreover, if there is even a scintilla of evidence showing any pain or suffering by a victim prior to his death, damages are warranted in a survival action. King v. Brown Development, Inc., 43,827 (La. App.2d Cir.2/4/09), 4 So.3d 231.
It is unclear from trial how long Mr. Rodriguez actually survived after the collision occurred, however, the autopsy report submitted as evidence revealed that he sustained multiple lacerations and abrasions to his face, scalp, and extremities; fractured ribs and sternum; lacerations to his aorta and vena cava; a punctured lung; and contusions of his lungs and chest wall. He also fractured his nose and spine. The autopsy also revealed immersion related fluid-filled lungs. It is unclear whether or not this is an indication that he may have died from drowning.
After the two boats collided, Mr. Alexcee and his passengers noticed Mr. Rodriguez in the water but he was not moving. They waded in the water in an attempt to pull Mr. Rodriguez to safety but noticed
Based on the foregoing, I believe that an award of $30,000 would be fair and just to compensate Mr. Rodriguez for damages suffered from the time of impact until his death. While it is unknown exactly how many seconds or minutes he lived following the accident, or whether he died from trauma or from drowning, survival damages have been sustained where a decedent lived for as little as one minute following injury. See e.g., Bourgeois v. Puerto Rican Marine Management, Inc., 589 So.2d 1226 (La.App. 4 Cir.1991).
For the reasons discussed above, I would reverse the trial court's judgment dismissing plaintiffs' claim; award the plaintiffs wrongful death and survival damages totaling $530,000; and apportion fault for this accident at 30% to the defendants who are solidarity liable, and 70% to decedent's son, Jerry Rodriguez, Jr., who is not named as a defendant in this litigation. Accordingly, I would render judgment in favor of plaintiffs, Mary Rodriguez, Tammy Rodriguez-Cabrera, and Lisa Marie Rodriguez and against defendants Perry Alexcee, Jr., Mark Walters, Sr. and Auto Club Family Insurance Company, based on my finding that they are liable in solido for the full sum of $159,000. This amount represents the total damage award to plaintiffs of $530,000, reduced pursuant to defendants' comparative fault of 30%.
BONIN, J., Dissents for the Reasons Assigned by JENKINS, J.
But see, Lind et al. v. United States, 156 F.2d 231, 233 (2nd Cir.1946) ("all navigation rules presuppose that both vessels shall be in sight of each other, and can continually check each other's positions").
