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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 19

FROM : CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 9th day of March, 2007 , are as follows:

BY JOHNSON, J. :

2006-C- 0999

CALVIN RABALAIS AND MERION RABALAIS v. LLOYD A. NASH, JR., ET AL. (Parish of Avoyelles) For the foregoing reasons, we reverse the ruling of the court of appeal and reinstate the judgment of the trial court. REVERSED AND JUDGMENT OF TRIAL COURT REINSTATED CALOGERO, C.J., dissents and assigns reasons. VICTORY, J., additionally concurs for the reasons assigned by Weimer, J. KNOLL, J., dissents and assigns reasons. WEIMER, J., additionally concurs and assigns reasons.

03/09/2007

SUPREME COURT OF LOUISIANA NO.2006-C-0999 CALVIN RABALAIS AND MERION RABALAIS VERSUS LLOYD A. NASH, JR., ET AL ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF AVOYELLES

JOHNSON , Justice
This is a personal injury case involving an emergency vehicle that was returning to the scene of a fire. As a result of his injuries, Calvin and Merion Rabalais sued Lloyd A. Nash, the City of Marksville through the Marksville Fire Department, and the fire department's insurance carrier, American Alternative Insurance Corporation.1 The trial jury found Mr. Rabalais to be 100% at fault for the accident. Mr. Rabalis filed a timely Motion for Judgment Notwithstanding the Verdict and/or Motion for New trial. The trial court subsequently denied this combined motion. Rabalais appealed this ruling. The court of appeal affirmed in part and reversed in part the jury's finding. Rabalais v. Nash, Jr., et al, 05-0937(La. App.3Cir. 3/29/06), 926 So. 2d 683. Defendants filed this writ of certiorari, which we granted, to determine the applicability of the Louisiana Emergency Vehicle Statute, LSA-R.S. 32:24(B). Rabalais v. Nash, Jr., et al.,06-0999(La. 6/30/06) 933 So. 2d 130. Under the

Mr. Rabalais filed a supplemental petition for damages, adding Mr. Earl Guillory , his employer, Avoyelles Glass of Bunkie, Inc., and its insurer State Farm Inusrance Company. Prior to the trial, on joint motion of Mr. Rabalais and defendants, State Farm Mutual Auto Insurance Company, Avoyelles Glass of Bunkie, Inc., and Mr. Guillory, were dismissed as defendants, leaving Lloyd Nash, the City of Markville Fire Department and American Alternative Insurance Company as defendants.

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circumstances, we find that LSA-R.S. 32:24, is applicable and that Nash's actions are covered by the statute. FACTS AND PROCEDURAL HISTORY On June 12, 2002, the Marksville Fire Department responded to a fire at the Jen-Re Plastics Plant, which is located on the west side of Highway One, or Tunica Drive, in Marksville, Louisiana. The fire was one of the largest in the history of Avoyelles Parish and because of the size and intensity, the fire department requested the assistance of seven neighboring fire departments from Mansura, Hesser, Bunkie, Fifth Ward, Moreuville, Brouilette and Pineville. There were reports that the smoke from the fire could be observed in Morganza, Louisiana, which is approximately 40 to 45 miles away, and that the smoke could be seen as far away as the LSU Campus in Alexandria, Louisiana. Because of this huge fire at the Jen-Re Plastics Plant, the traffic on Highway One, north bound, was mostly stopped or moving bumper to bumper. Mr. Rabalais was attempting to make a left hand turn onto Highway One, which is at this point, a two lane north-south highway, with a turning lane in between the two lanes of traffic. Mr. Rabalais was leaving the parking lot of Glenn's Auto Repair Shop, which is located on the west side of Highway One, approximately one half-mile north of the Jen- Re Plastics Plant. Mr. Rabalais testified that he intended to travel north to Wal-Mart, which required crossing the southbound lane of traffic, the turning lane, and then turning left into the northbound lane of Highway One. Mr. Earl Guillory, a motorist in the southbound lane of traffic, one of the named defendants herein, testified that he was stopped just before the driveway to Glenn's Auto Repair Shop, creating a gap in the line of stopped cars for Mr. Rabalais to pass through. According to Guillory, Mr. Rabalais was stopped at the end of the

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driveway, then he"shot right out in front of me" and "all I seen was a truck, zoom." Because the traffic was so congested on the southbound lane of Highway One directly in front of the auto repair shop, Mr. Rabalais' vision of traffic in the turning lane was obscured by the line of stopped vehicles. According to Mr. Rabalais , Mr. Guillory signaled to him that it was okay to pull out of the driveway. Mr. Rabalais testified that at the time his vehicle was entering the turning lane he looked to his right in anticipation of his lefthand turn into the northbound lane of Highway One. He admitted that he never looked to his left to see whether any cars were coming from the left before he entered the turning lane. Just as Mr. Rabalais was attempting to make his lefthand turn, defendant Nash, a Captain with the Marksville Fire Department, was traveling south in the center turning lane of Highway One, returning to the Jen-Re Plastics Plant fire in a Marksville Fire Department pick-up truck. The pickup truck driven by Nash was painted red, marked with the fire department name and insignia, and had a bank of emergency lights on top of the cab. Nash testified that he had activated the truck's emergency lights and sirens. Gretchen Laborde and Lee Bordelon, two motorists stopped on Highway One, both testified to Nash's use of emergency lights and sirens. Firefighter Mark Bordelon was driving a fire engine pumper truck and was following behind Nash. Mr. Rabalais traveled directly into Nash's path in the center turning lane, where the vehicles collided. Mr. Rabalais was rendered unconscious and sustained serious injuries as a result of this collision. The court of appeal affirmed in part, and reversed in part, the ruling of the trial court. The court of appeal reasoned that there were no facts or evidence in the record to support the jury's finding that the applicability of the Louisiana Emergency Vehicle Statute, LSA-R.S. 32:24, was appropriate. The court of appeal found

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manifest error, and after de novo review, reversed the decision of the trial court and allocated 50% fault to Nash and the Marksville Fire Department and 50% fault to Mr. Rabalais. Further, the court of appeal awarded the following damages: Mr. Rabalais $62,500.00 in general damages and $17,667.53 in past medical expenses, and to Mrs. Merion Rabalais $12,500.00 for loss of consortium. LAW AND ANALYSIS It is well-settled that a court of appeal 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. Blair v. Tynes, 621 So.2d 591, 601 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). To reverse a fact-finder's determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987). Where the jury's findings are reasonable, in light of the record viewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court's ruling is manifestly erroneous, or clearly wrong. Blair, supra. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact-finder's conclusion was a reasonable one. See Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Where there are two permissible views of the evidence, the fact-finder's choice cannot be manifestly erroneous or clearly wrong. Stobart, supra. Even though an appellate court may feel its own evaluations and inferences

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are more reasonable than the fact-finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, where conflict exists in the testimony. Rosell,supra; Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, supra. In Lenard v. Dilley, 01-1522(La.1/15/02), 805 So. 2d 175, this Court addressed the standard of care set forth in subsection D of Louisiana's emergency vehicle statute stating that: LSA-R.S.32:24(D) sets out two standards of care for an emergency vehicle driver depending on the circumstances of the case. If, and only if, an emergency vehicle driver's actions fit into subsections A, B and C of LSA-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 LSA-R.S. 32:24, such driver's actions will be gauged by a standard of "due care."

The failure of "due care" is synonymous with ordinary negligence. "Reckless disregard,"however, connotes conduct more severe than negligent behavior. "Reckless disregard" is, in effect, "gross negligence." Louisiana courts have frequently addressed the concept of gross negligence. Gross negligence has been defined as the "want of even slight care and diligence" and the "want of that diligence which even careless men are accustomed to exercise." Ambrose v. New Orleans Police Department Ambulance Service, 93-3099c/w 93-3110 and 933112(la 7/5/94),639 So. 2d 216; State v. Vinzant, 200 La. 301, 7 So.2d 917

(La.1942). Gross negligence has also been termed the "entire absence of care" and

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the "utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others." Hendry Corp. v. Aircraft Rescue Vessels, 113 F. Supp. 198 (E.D.La.1953) (applying Louisiana law). Additionally, gross negligence has been described as an "extreme departure from ordinary care or the want of even scant care." W. Page Keeton, et. al., Prosser & Keeton on the Law of Torts,

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