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Cynthia MUHLEISEN v. Kirk BIENVENU and Jefferson Parish Sheriff's Office
This personal injury case arises from a collision between a police car operated by defendant/appellee, Deputy Kirk Bienvenu, Jr., and another vehicle being driven by plaintiff/appellant, Cynthia Muhleisen. After a bench trial, Ms. Muhleisen appeals the dismissal of her claims against defendants, Deputy Bienvenu and Joseph P. Lopinto, III, Sheriff for the Parish of Jefferson.1 For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On April 3, 2010, Deputy Bienvenu with the Jefferson Parish Sheriff's Office and Cynthia Muhleisen were involved in an automobile accident at the intersection of Ames Boulevard and Lapalco Boulevard in Jefferson Parish. When the accident occurred, Deputy Bienvenu was responding to an emergency call regarding a burglary in progress at a nearby playground. As a result of the accident, Mr. Muhleisen filed a petition for damages on July 16, 2010. A bench trial was held on January 27, 2020. The following facts were adduced at trial.
Ames Boulevard is a four-lane north-south road, with two lanes running in each direction, and Lapalco Boulevard is a six-lane east-west road, with three lanes running in each direction. At the intersection of Ames and Lapalco, Lapalco has additional left and right turning lanes in each direction. A traffic light controls the intersection. There are multiple bus stops at the intersection, including one along the right-turn lane of the westbound lanes of Lapalco, near the intersection. Trees are also present near that bus stop. On the day of the accident, there was a traveling fair set up in the parking lot to the right of the westbound lanes of Lapalco and the northbound lanes of Ames.
On April 3, 2010, Deputy Bienvenu was working in the area of Ames and Lapalco when he received a “Code 2” dispatch call that four juveniles were burglarizing a concession stand at a nearby playground. Deputy Bienvenu testified that a Code 2 call is an emergency call in Jefferson Parish.2 Responding as the backup unit, Deputy Bienvenu proceeded southbound on Ames in the left lane traveling around 40 or 45 miles per hour in his marked police car with his emergency lights and siren activated. As he approached the intersection of Ames and Lapalco, his traffic light was red. In response, he bought his car to a stop for “about a second” at the first white stop bar and looked left down Lapalco. When he looked left, he saw that there was a car stopped in the left turning lane, the left lane, and the middle lane. He testified that there were also cars in the right turning lane of Lapalco turning right onto Ames that were blocking his view of the right lane of Lapalco. He testified that he could only see the very front of the right lane when he was stopped at the stop bar. After he came to a stop, he “cleared the lanes on the westbound.” He stated that he could see sufficiently down the right lane to clear it, meaning “[e]nough that [he] felt confident that it was safe to proceed.” He then proceeded into the intersection, where he struck the back right quarter panel of Ms. Muhleisen's vehicle. He testified that he did not see Ms. Muhleisen until she was entering the intersection.
Ms. Muhleisen was driving her 2004 Trail Blazer westbound on Lapalco in the right lane at a rate of 35 or 40 miles per hour. As she approached the intersection of Ames and Lapalco, where she had a green light, she was looking straight ahead and did not notice any cars stopped. The lanes on either side of her were clear. She testified that she never heard emergency sirens. She testified that she noticed the blue police lights as she crossed the northbound lanes of Ames. After questioning regarding her 2010 deposition testimony, Ms. Muhleisen affirmed that she might have seen the flashing blue lights as Deputy Bienvenu was traveling down Lapalco, but she wasn't sure how far from Lapalco he was at the time. She testified that she did not have time to stop or slow down, and as a reflex action, she grabbed her wheel and tried to get out of Deputy Bienvenu's way. A split second later, she was hit, and her car flipped.
A number of witnesses to the accident also testified. Odeal Davis was traveling eastbound on Lapalco in the left lane when she observed the collision between Deputy Bienvenu and Ms. Muhleisen. She testified that she never heard any emergency sirens and did not observe any emergency lights from the police car until after the accident occurred. In her July 6, 2016 deposition, which was introduced into evidence at trial, when she was asked if she saw the police car's flashing lights before the accident, she stated that she “believe[d] his lights were flashing.”
In lieu of their live testimony, the depositions of Perrilyn Harris and Garyiece Taylor were admitted into evidence. Perrilyn Harris testified that she was traveling southbound on Ames and was stopped at the red light at Lapalco. She became aware of Deputy Bienvenu when she saw his flashing lights in her rearview mirror and when she saw other cars behind her getting over. She did not recall hearing a siren. As Deputy Bienvenu approached the intersection, he “may have tapped his brakes a little bit to slow down” but did not come to a complete stop at the intersection. She testified that Ms. Muhleisen was already in the intersection when Deputy Bienvenu hit the “tail end of her.”
Garyiece Taylor testified that he was sitting at a bus stop located along the south bound lane of Ames and the east bound lane of Lapalco in front of a Burger King when he witnessed the collision of Ms. Muhleisen and Deputy Bienvenu. He saw the emergency lights of the police vehicle, but did not hear any sirens. When he first saw the police car, it was traveling approximately 35 or 40 miles an hour. He testified that it seemed like Deputy Bienvenu tried to stop, but he kept going and never hit his brakes.
The deposition of Calvin Thomas was introduced as a trial exhibit for the defense. Mr. Thomas testified that he was traveling south on Ames in the right lane when Deputy Bienvenu passed him on his left. He was alerted to his presence by the police car's lights and siren. He testified that as Deputy Bienvenu was approaching the intersection, he “slowed just about all the way down,” but did not stop since his light turned green. He testified that all the cars at the intersection had stopped except Ms. Muhleisen's car.
Mike James, Jr. testified as an expert in accident reconstruction and human factors for Ms. Muhleisen. He stated that as Ms. Muhleisen approached the intersection, she had some visibility obstructions to her right in the form of signs, a trash bin, some vegetation, and a bus stop. Based on his analysis, he determined that Deputy Bienvenu's speed at impact was between 14 and 18 miles per hour. He testified that it was more likely than not that Deputy Bienvenu was going 15 miles per hour at impact. Ms. Muhleisen's speed at impact was between 35 and 39 miles per hour. In his analysis, he assumed Deputy Bienvenu came to stop based on his own testimony. Mr. James testified that in order to make Ms. Muhleisen's vehicle flip, Deputy Bienvenu must have been traveling around 15 miles per hour at impact. He testified that Deputy Bienvenu could not have reached the rate of 15 miles an hour by “simply coming to a stop and taking his foot off the brake,” and would have had to undergo a “moderate acceleration.”
Michael Sunseri testified for the defense as an expert in accident reconstruction. He agreed with Mr. James's testimony regarding Ms. Muhleisen's rate of speed at impact. However, based on his momentum calculations, he determined that Deputy Bienvenu was traveling between two-and-a-half and six miles per hour at impact.
On August 14, 2020, the trial court rendered judgment in favor of defendants and dismissed Ms. Muhleisen's claims with prejudice. In its reasons for judgment, the trial court found that La. R.S. 32:24 applied to Deputy Bienvenu, and Ms. Muhleisen failed to meet her burden of proof that Deputy Bienvenu's actions rose to the level of reckless disregard or gross negligence. This appeal followed.
On appeal, Ms. Muhleisen asserts the following assignments of error:
1. The trial court erred in its interpretation of La. R.S. 32:24(B)(2) when it granted Deputy Bienvenu immunity under the statute.
2. The trial court erred when it did not require Deputy Bienvenu to prove his entitlement to the affirmative defense afforded by La. R.S. 32:24.
3. The trial court erred in its interpretation of La. R.S. 32:24(D) when it found that Deputy Bienvenu was not grossly negligent.
LAW AND STANDARD OF REVIEW
The factual findings of a trier of fact may not be disturbed by an appellate court absent manifest error. Arabie v. CITGO Petroleum Corp., 10-2605 (La. 3/13/12), 89 So.3d 307, 312, citing Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La. 1979). An appellate court must find, from review of the entire record, that there is a reasonable factual basis for the findings of the trier of fact, and must determine that the record shows the findings of fact are not manifestly erroneous or clearly wrong. Arabie, 89 So.3d at 312, citing Arceneaux, 365 So.2d at 1333; see also Stobart v. State, Dep't of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). If the findings of the trier of fact are reasonable, when the record is reviewed in its entirety, an appellate court may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990); Marange v. Custom Metal Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253, 1259. When there are two permissible views of the evidence, the findings of the trier of fact cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883; Rosell, 549 So.2d at 844.
The issue to be determined is not whether the finder of fact was right or wrong, but whether the trier of fact's conclusion was reasonable. Stobart, 617 So.2d at 882; Housley v. Cerise, 579 So.2d 973, 976 (La. 1991); Sistler, 558 So.2d at 1112. A trier of fact's reasonable evaluations of credibility and inferences of fact should not be reversed, even if the appellate court sitting as the fact finder would have weighed the evidence differently. Rosell, 549 So.2d at 844.
At the time of the accident, La. R.S. 32:24, governing emergency vehicles, provided:
A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
In Lenard v. Dilley, 01-1522 (La. 1/15/02), 805 So.2d 175, 180, the Louisiana Supreme Court found that this statute set forth two alternate standards of care, depending on the circumstances present:
If, and only if, an emergency vehicle driver's actions fit into subsections A, B and C of [La. R.S.] 32:24, will an emergency vehicle driver be held liable only for actions which constitute reckless disregard for the safety of others. On the other hand, if the emergency vehicle driver's conduct does not fit subsections A, B and C of [La. R.S.] 32:24, such driver's actions will be gauged by a standard of “due care.”
“Due care” is synonymous with ordinary negligence. “Reckless disregard,” however, connotes conduct more severe than negligent behavior. “Reckless disregard” is, in effect, “gross negligence.” Gross negligence has been defined by this court as “the want of even slight care and diligence. It is the want of that diligence which even careless men are accustomed to exercise.” State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942). “Reckless disregard” or “gross negligence” is the standard to be applied if the emergency vehicle driver's actions fit [La. R.S.] 32:24(A) through [La. R.S.] 32:24(C). Otherwise, the standard is ordinary negligence.
With regard to drivers of other vehicles, upon the approach of an emergency vehicle, La. R.S. 32:125 provides, in pertinent part:
A. Upon the immediate approach of an authorized emergency vehicle making use of audible and visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
* * *
C. This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
Ms. Muhleisen argues in her first assignment of error that the trial court erred when it found that Deputy Bienvenu slowed or stopped “as may be necessary for safe operation” after proceeding through the red light in accordance with La. R.S. 32:24(B)(2). Ms. Muhleisen contends that in its reasons for judgment, the trial court found that Deputy Bienvenu's view of Ms. Muhleisen was obstructed by traffic on Lapalco, bus stops, and a traveling fair, and that neither was aware of the other until seconds before the accident. The trial court also found that Deputy Bienvenu would not have been able to see Ms. Muhleisen's lane of traffic clearly until he actually entered the intersection. Ms. Muhleisen argues that based on these factual findings, Deputy Bienvenu did not slow down or stop as “may be necessary for safe operation” in accordance with La. R.S. 32:24(B)(2) since it was not possible to do so if he could not see the first lane of travel he had to enter to safely cross the intersection. She argues that in order for his driving to be considered “safe operation,” it was necessary for him to ascertain or be in a position to ascertain that the intersection was clear before proceeding. When Deputy Bienvenu accelerated into a lane of traffic that he could not confirm was clear of traffic, instead of waiting for the traffic to clear or the light to turn green, he violated La. R.S. 32:24(B)(2).
In her second assignment of error, Ms. Muhleisen argues that Deputy Bienvenu did not meet his burden of proof under La. R.S. 32:24(B)(2). She argues that immunity under La. R.S. 32:24 is an affirmative defense, and thus, Deputy Bienvenu had the burden of proving that his actions were in accord with the safe operation of his vehicle. Ms. Muhleisen points out that in its reasons for judgment, the trial court states that “the Court cannot say that Deputy Bienvenu's actions were not in accord with the safe operation of his vehicle under subsection B.” She argues the trial court's ruling does not overcome Deputy Bienvenu's burden to show that he was entitled to immunity. She argues that based on these written reasons, it is clear that the court cannot say that it is more likely than not that Deputy Bienvenu's actions were in accord with the safe operation of his vehicle under La. R.S. 32:24(B)(2). As a result, he is not entitled to immunity and is subject to the ordinary negligence standard.
Initially, we note that it is well settled that the trial court's reasons for judgment, oral or written, form no part of the judgment. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So.3d 507, 572. Appellate courts review judgments and not reasons for judgment. Judgments are often upheld on appeal for reasons different than those assigned by a trial court. The written reasons for judgment are merely an explication of the trial court's determinations. They do not alter, amend, or affect the final judgment being appealed. Id. In the instant case, while there may be some inconsistency in the trial court's reasons for judgment, upon our review of the entire record, we find that the record contains sufficient evidence to support the conclusions reached by the trier of fact that Deputy Bienvenu's actions satisfied La. R.S. 32:24(A), (B)(2), and (C).3
Deputy Bienvenu testified that after receiving the Code 2 dispatch call, he turned on his emergency lights and siren and traveled south down Ames in the left lane at around 40 or 45 miles an hour. As he approached the intersection of Lapalco, he brought his car to a stop for “about a second” at the first white stop bar. When he looked left down Lapalco, there were cars in the right turning lane from westbound on Lapalco onto Ames that were blocking his view of the right lane of Lapalco. However, he testified that he could see sufficiently down the right lane to clear it, meaning “[e]nough that [he] felt confident that it was safe to proceed.” He further testified:
Q. ․ With that said, given the fact that you were crossing this busy intersection with as many lanes as we discussed, the fact that you had a fair, you had all these businesses and you could not see all the way down the right-hand westbound lane and you could see cars stopped at the middle and the center and you had cars blocking your view in the turning lane, okay, despite all that, do you think one second or less was enough to stop before you went out into the intersection?
Q. And what do you base that on?
A. I acted as I felt was safe. I acted in accordance with our policy and our procedures and within my training. I'm required not to stop but to slow down and I stopped anyway. All other cars on that road had yielded to my lights and siren. What I could see into that right lane there were no cars in the immediate threat zone and I proceeded.
In Janise v. Acadian Ambulance Serv., Inc., 17-1100 (La. App. 3 Cir. 4/25/18), 244 So.3d 541, the court considered whether the requirements of La. R.S. 32:24(B)(2) were met. In Janise, the defendant testified that while responding to an emergency call, he approached an intersection at which he had a red light. Id. at 544. He stated that he stopped his vehicle at the intersection and saw multiple cars in the lane closest to him and a large truck in the middle lane, which was partially blocking his view of the far left lane. He testified he could still see some of the lane, the “entry part,” and could see there was no car stopped there. After making this observation, he started crossing the intersection, “creeping across” going “five to ten miles per hour.” A witness to the accident testified that the defendant “crawled” slowly through the intersection. Id. at 549. The court found that based on this testimony, the jury's determination that the defendant proceeded through the red light after slowing or stopping as necessary for safe operation in accordance with La. R.S. 32:24(B)(2) was reasonable. Id. at 549-50.
In the present case, Deputy Bienvenu testified that he stopped at the intersection before proceeding. Though some of the witnesses testified that he did not stop, both Ms. Harris and Mr. Thomas testified that he slowed down. He also testified that there were cars in the right turn lane obstructing his view. Like Janise, however, when questioned about proceeding through the intersection given his obstructed view, he testified that he observed that cars in the other lanes had yielded to him, and he did not see a car in the part of the right lane that was visible. Thus, he proceeded into the intersection. Regarding his speed, Mr. James testified that Deputy Bienvenu was most likely traveling at a rate of 15 miles per hour at impact. Mr. Sunseri testified that Deputy Bienvenu was traveling between two-and-a-half and six miles per hour at impact. We find, as the trial court noted in its written reasons, that neither rate of speed indicated that Deputy Bienvenu was operating his vehicle in an unsafe manner.
In support of her argument, Ms. Muhleisen relies on Spears v. City of Scott, 05-230 (La. App. 3 Cir. 11/2/05), 915 So.2d 983, writ denied, 05-2478 (La. 3/31/06), 925 So.2d 1259, where the Third Circuit found that the defendant was grossly negligent in violation of La. R.S. 32:24(B)(2). In Spears, the defendant was responding to an emergency call in his unmarked vehicle. Id. at 987. The court noted that the trial court found that the defendant “punched” it after coming to a rolling stop at the intersection and that he did not continue to monitor traffic as he entered the intersection against a red light. The court stated that the defendant knew the westbound drivers could not see his vehicle that was behind a bread truck. Id. at 991. Further, though he approached the intersection with caution, he abandoned that caution once he entered the intersection. Id. at 991-92. The court found that the defendant's failure to continue monitoring the traffic, coupled with his acceleration into the intersection, constituted gross negligence. Id. at 992.
In the present case, there is no evidence that Deputy Bienvenu “punched” it through the intersection here. Mr. James testified that Deputy Bienvenu would have had to undergo a “moderate acceleration” to reach the rate of 15 miles per hour at impact. Further, there is no evidence that Deputy Bienvenu “abandoned caution” when he entered the intersection.
Having reviewed the record in its entirety, we cannot conclude that the trial court was manifestly erroneous or clearly wrong in finding that Deputy Bienvenu met the requirements of La. R.S. 32:24(B)(2). Considering the testimony presented at trial, we find that the trial court was reasonable in its finding in this regard.
Ms. Muhleisen argues that the trial court's written reasons for judgment show that Deputy Bienvenu was unable to meet his burden of proving his entitlement to the immunity afforded by La. R.S. 32:24. She argues that a sentence in the trial court's written reasons for judgment shows that Mr. Bienvenu did not meet his burden of proof under La. R.S. 32:24(B)(2). The sentence reads: “Therefore, the Court cannot say that Deputy Bienvenu's actions were not in accord with the safe operation of his vehicle under subsection B.” First, as previously noted, appellate courts review judgments and not reasons for judgment. Wooley, 61 So.3d at 572. Further, as we have found supra, the record supports a finding that Deputy Bienvenu met the requirements of La. R.S. 32:24(B)(2). Accordingly, we find no merit to this argument.
ASSIGNMENT OF ERROR NUMBER THREE
In her third assignment of error, Ms. Muhleisen argues that the trial court erred when it found that Deputy Bienvenu was not grossly negligent. She argues that Deputy Bienvenu had a duty to not proceed into the intersection until he was in a position to see that it was safe. She argues that based on the record and the trial court's factual finding, Deputy Bienvenu would not have been able to see Ms. Muhleisen's lane of traffic clearly until he actually entered the intersection, and thus, Deputy Bienvenu was grossly negligent when he “blindly” drove into the intersection.
Gross negligence has been defined as the “want of even slight care and diligence.” Lenard, 805 So.2d at 180. Gross negligence has also been termed the “entire absence of care” and the “utter disregard of prudence, amounting to complete neglect of the rights of others.” Rabalais v. Nash, 06-0999 (La. 3/9/07), 952 So.2d 653, 658.
Upon review, we find that the record supports a finding that Deputy Bienvenu's actions did not constitute reckless disregard or gross negligence. The evidence and testimony presented show that Deputy Bienvenu was responding to an emergency call, with his police lights activated. As he approached the intersection, he was not operating his car in an unsafe manner. He testified that he stopped at the intersection and looked to his left to clear the lanes. He observed that all the other cars had yielded and could see that in the right west-bound lane of Lapalco there were no cars in his “immediate threat zone.” He then proceeded into the intersection with “moderate acceleration.” We find that there is no evidence that Deputy Bienvenu proceeded through the intersection with the “entire absence of care.” In light of the record before us, we find no manifest error in the trial court's factual determination that Deputy Bienvenu's actions did not rise to the level of gross negligence.
For the reasons assigned herein, the judgment of the trial court is affirmed.
1. Ms. Muhleisen improperly named the Jefferson Parish Sheriff's Office as a defendant in her original petition. She subsequently filed a First Supplemental and Amending Petition wherein she named Newell Normand, in his capacity as Sheriff for the Parish of Jefferson, as a defendant. The parties later stipulated that Joseph Lopinto, III, as Sheriff for the Parish of Jefferson, is the proper party defendant elected subsequent to the filing of this suit in place of Newell Normand.
2. Kerry Najolia, who testified as an expert in police training, policy, and procedures for the defense, stated that a Code 2 call is an emergency call. According to the “Department Vehicle Policy and Procedure for the Jefferson Parish Sheriff's Office,” revised on December 15, 2009, a Code 2 call is considered “priority,” and it is noted that the responding officers are to “[p]roceed promptly, observe traffic laws (if necessary to disregard traffic laws you must use siren or lights) (R.S. 32:24).”
3. In this appeal, Ms. Muhleisen only argues that the trial court erred in finding that the requirements of La. R.S. 32:24(B)(2) were satisfied.
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Docket No: NO. 20-CA-430
Decided: June 30, 2021
Court: Court of Appeal of Louisiana, Fifth Circuit.
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