DocketNumber: 18-892
Citation Numbers: 269 So. 3d 911
Judges: Saunders
Filed Date: 4/10/2019
Status: Precedential
Modified Date: 7/29/2022
*914Relators, Riceland Aviation, Inc. (Riceland) and its insurer, United States Aircraft Insurance Group (USAIG), seek writs regarding several evidentiary rulings rendered by the trial court.
STATEMENT OF THE CASE
On February 15, 2013, a plane owned by Riceland and flown by William "Billy" Precht, Jr. (Precht), crashed while spraying herbicide on a field near Jennings. The plane was a total loss, and Precht died in the crash.
Relators contend that the crash was caused by unmarked guy wires supporting a communications tower, LA-5136, owned by Global Tower, LLC; GTP Infrastructure I, LLC; and GTP Investments, LLC (collectively referred to as "GTP"), which was located adjacent to the field. Relators contend that GTP violated Jefferson Davis Parish Ordinance 5.5-107, which requires that all tower guy wires be marked with TANA markers
Hanover Insurance Company (Hanover), as the subrogee of GTP, filed suit against Relators to recover the $ 125,830.00 it paid to GTP for damages to the tower caused by the crash. USAIG filed suit against GTP; Telcom Rentals, Inc.; American Tower Corporation; Hanover; and CNA Insurance Company to recover the $ 560,000.00 in property damages and $ 9,100.00 in expenses to clean up the debris that it paid to Riceland. The two suits were consolidated.
This case has previously been before this court on Relators' writ application regarding the trial court's ruling that excluded the testimony of their expert in visibility studies, Paul Kayfetz, and his visibility study. Hanover Ins. Co. v. Riceland Aviation, Inc. ,
Relators filed two motions in limine. The first motion sought the following pre-trial evidentiary determinations: (1) that Relators would be allowed to offer and introduce evidence of GTP's installation of TANA markers after this incident; (2) that any reference to the National Transportation Safety Board's (NTSB) investigation's conclusion and its accident identification number would be excluded; (3) that any reference to Precht's knowledge or familiarity with the tower, guy wires, or the adjacent property would be excluded; and (4) that any reference to trees/vegetation that existed around the guy wire anchors on the date of the accident but are no longer in existence would be excluded. The second motion sought to exclude the testimonies of Colonel J.F. Joseph (Colonel Joseph), GTP's aviation expert, and Robert D. Bartlett (Bartlett), GTP's expert in accident reconstruction.
*915The motions came for hearing on October 10, 2018. The trial court denied the motion as to numbers (1), (3), and (4) above and denied the motion to exclude the testimony of Colonel Joseph. The motion was granted as to evidence regarding the NTSB's investigation. The argument and ruling on the motion to exclude the testimony of Bartlett was postponed, and this is not included in the writ application.
A written judgment was signed on October 12, 2018. Written reasons for the rulings were issued on October 1, 2018, and October 23, 2018. Relators gave timely notice of their intent to apply for supervisory writs in open court when the rulings were issued and later in writing. The trial court set a return date of November 24, 2018. This writ application was timely filed in accordance with that order.
GTP filed an opposition to the writ application, and Relators filed a reply.
Trial in this matter is scheduled to begin on Tuesday, June 25, 2019. There are no other hearings scheduled.
ON THE MERITS
Relators argue that they are entitled to a de novo review because the trial court committed legal errors. However, the correct standard of review is abuse of discretion. "A trial court has great discretion in evidentiary matters, and its decisions regarding motions in limine are reviewed using the abuse of discretion standard." Sonnier v. State, Dept. of Trans. & Dev. , 18-73, 18-74, 18-75, p. 4 (La.App. 3 Cir. 6/6/18),
Testimony of Colonel Joseph
GTP's aviation expert, Colonel Joseph,
Relators contend that the trial court erred in finding that Colonel Joseph is qualified to testify as an expert in the field of agriculture aviation.
Colonel Joseph reviewed reports issued by the NTSB in its investigation of the subject accident, the depositions of fact witnesses in this case, the reports of other experts rendered in this case, and regulations and maps relative to this case. An expert's opinion may be based upon data and facts not admissible in evidence if they are the type that are reasonably relied upon by experts in the subject field. La.Code Evid. art. 703. "In weighing opposing expert opinions, the trier of fact should consider education and experience of the expert in a particular science or field, reasons given in support of opinion and other evidence which supports or detracts therefrom." Arceneaux v. Daggett ,
Relators cite Duhon v. Petroleum Helicopters, Inc. ,
Relators analogize the field of aviation to the fields of law and medicine which have many different disciplines. According to Relators, one cannot be an expert in all disciplines. We note, however, that "the fact that a medical doctor is not a specialist in a particular field applies only to the weight to be given to such testimony, not to its admissibility." Hunter v. Bossier Med. Ctr. , 31,026, p. 14 (La.App. 2 Cir. 9/25/98),
GTP contends that Precht struck a known and fixed obstruction in broad daylight following numerous repetitive and successful passes and that Relators have failed to show "that the instant accident involves some element unique to agriculture aviation that Colonel Joseph is unqualified to address." For example, GTP points out that Relators have not asserted that there is some characteristic of the subject aircraft, a Dromader M-18, or with the chemicals that Precht was spraying, with which Colonel Joseph must be familiar in order to render an expert opinion. According to GTP, this "case involves a professional pilot performing a repetitive duty and striking a known hazard at a low altitude, which fits squarely within the expertise *917of Col[onel] Joseph." For example, GTP points out that Colonel Joseph was a Low Altitude Tactics Instructor (LATI) in the Marine Corps who specifically trained pilots in the procedures and strategies for safe operation of aircraft at low altitudes. Colonel Joseph also wrote the Low Level Tactics Manual-KC-130 for the 4th Marine Aircraft Wing. GTP argues that "Colonel Joseph's experience in the round-the-clock pace of military flight operations gives him an excellent real world perspective on the dawn-to-dusk operations engaged in by Precht at the time of the accident[ ] and the techniques that can be utilized to mitigate the risks posed by fatigue and complacency."
"A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and this includes the determination of how much and what kind of education and/or training adequately qualify an individual as an expert." Tadlock v. Taylor , 02-712, p. 4 (La.App. 4 Cir. 9/24/03),
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert [v. Merrell Dow Pharmaceuticals, Inc. ,509 U.S. 579 ,113 S.Ct. 2786 ,125 L.Ed.2d 469 (1993) ], and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
Id . at 542, (quoting City of Tuscaloosa v. Harcros Chem., Inc. ,
In its written reasons for ruling, the trial court recognized Colonel Joseph as a qualified expert. By Relators' own statement, Colonel Joseph was proffered as an aviation expert. The trial court went on to state that Relators would be allowed to cross examine Colonel Joseph regarding their concerns about his expert testimony.
Relators have retained an agriculture aviation expert, Lemuel Shattuck (Shattuck), who allegedly has over thirty years of experience piloting an aircraft nearly identical to the one involved in the subject accident for the purpose of applying pesticides to fields.
Based on these facts and the cases cited above, we find that Relators have not shown that the trial court abused its discretion in denying its motion in limine to exclude the testimony of Colonel Joseph. Accordingly, the writ application is denied as to this issue.
Subsequent Remedial Measures
"In general, remedial measures taken after an incident of negligent conduct are not admissible in evidence because such evidence would discourage people from taking steps to prevent future harm." Toups v. Sears, Roebuck & Co., Inc. ,
The prohibition against evidence of subsequent remedial measures is designed to bring within the scope of the rule any change, repair or precaution subsequent to an accident. The prohibition covers only measures taken after an event, such as post-accident repairs, installation of safety devices, changes in design, the removal of dangerous conditions, changes in procedure, the dismissal *918of an employee charged with causing an accident, changes in regulations, and changes in labels or instructions.
N. Assurance Co. v. Louisiana Power & Light Co. ,
Relators contend that when GTP made repairs to the tower after this accident, GTP installed two TANA markers on each the tower's three outermost guy wires. Relators want to introduce photographs of the tower since the markers were installed and a post-construction inspection report from Engineered Tower Solutions, PLLC (ETS), which is dated October 13, 2013, eight months after the accident. The report shows that the locations of guy line wire markers were changed per GTP's instructions. Relators contend that such evidence is admissible under La.Code Evid. art. 407 even though evidence of subsequent remedial measures is generally precluded to prove negligence or culpability. Relators contend that, as allowed by La.Code Evid. art. 407, they will use this evidence to: (1) prove feasibility of precautionary measures since GTP and its experts argue that it was not feasible to install the TANA markers; (2) impeach the credibility of GTP and its experts; and (3) prove that GTP had authority and control over the tower. Relators concede, however, that "GTP's ownership and control of the tower is undisputed."
Relators argue that in taking the position that the presence of the TANA markers on the guy wires would not have prevented the accident, GTP has put the feasibility of putting marker balls directly at issue. GTP, on the other hand, argues that: (1) it has never denied that it owns the tower or that it has custody and garde over it; and (2) it has never asserted that adding marker balls was not feasible in that they were impossible to implement or in that they were unreasonably expensive.
In denying Relators' motion in limine with regard to subsequent remedial measures, the trial court found that none of the purposes for which such evidence could be admitted under La.Code Evid. art. 407 existed in this case. The trial court further found that such evidence would create "an unavoidable and undue risk that the jury would imply culpability for the accident" solely because of the addition of the TANA markers.
Impeachment evidence on the issue of credibility is subject to a determination as to whether its probative value is "substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice." La.Code Evid. art. 607(D).
Relators contend that GTP violated Jefferson Davis Parish Ordinance 5.5-107 which requires that all tower guy wires be marked with TANA markers. After *919the accident, GTP installed the TANA markers. Relators contend that GTP cannot have it both ways in arguing that it did not have to comply with the ordinance but add the marker balls in case it did have to comply. GTP argued that the federal regulations regarding the marking of obstructions to aviation preempted the parish ordinance. Relators presented no argument to show how this evidence is probative to the issue of GTP's lack of compliance with the ordinance at the time of this accident.
"Evidence of subsequent remedial measures is not considered prejudicial where it relates to the alleged contributory negligence of plaintiff, and where the trial court is careful to point out to the jury that the evidence is not to bear on the general negligence of the defendant." Scurlock Marine, Inc. v. W.W. Patterson Co. , 95-528,
In Tilden v. Blanca, LLC ,
In Rimkus v. Northwest Colorado Ski Corp. ,
Colonel Joseph testified that the presence of TANA markers would not have prevented this accident because the loss of situational awareness overcomes any kind of marking. Relators claim that the unmarked guy wires caused and/or contributed to the accident and state that GTP claims that Precht's actions caused the loss of the aircraft such that causation is directly at issue. While these assertions may be true, Relators have not shown how the evidence that the TANA markers were installed after the accident impeaches the testimony of Colonel Joseph or proves that Precht's actions did not cause or contribute to the accident.
For the foregoing reasons, we find that the trial court did not abuse its discretion in ruling that evidence that GTP installed *920TANA markers after the accident is inadmissible and that the writ application should be denied in this respect.
Precht's Knowledge of and Familiarity with the Area
Relators contend that the trial court erred in refusing to exclude any reference to Precht's familiarity with the tower, the tower's guy wires, or the field where the accident occurred. According to Relators, they must prove that the unmarked guy wires presented an unreasonable risk of harm. An unreasonable risk of harm is one that is "of such a nature to constitute a dangerous condition which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances." Rose v. Liberty Mut. Fire Ins. Co. , 15-1184, p. 2 (La.App. 3 Cir. 5/18/16),
GTP asserts that the tower is 500 feet tall, is painted red and white, has flashing lights affixed to it, and has been in existence and marked on aviator charts for decades.
The accident allegedly occurred on Precht's third pass. Relators' own agriculture aviation expert, Shattuck, admitted that Precht "was certainly aware of where that wire was." GTP contends that the evidence is undisputed that Precht knew where the subject guy wires were located.
In denying this motion, the trial court noted that it found "that all towers are a danger to any and all pilots and that the guy wires are apparent and obvious." Realtors contend that these findings by the trial court encroach on the jury's function as fact finder, are fatally flawed, and are inconsistent with Broussard ,
Broussard ,
For these reasons, we find that the trial court did not abuse its discretion in refusing to exclude evidence of Precht's knowledge of the tower and the guy wires. Accordingly, the writ application is denied with respect to this issue.
*921Evidence Regarding Trees at the Guy Wire Anchors at the time of the Accident
Relators also sought to exclude any reference to trees or vegetation at the base of the guy wires at the time of the accident. These trees were removed by GTP following the accident.
Relators contend that evidence of the existence of the trees and whether they were used as topographical features for navigation is irrelevant to the issue of whether the unmarked guy wires presented an unreasonably dangerous condition and that the rationale of Broussard ,
GTP contends that there was a twenty-five to thirty foot tree growing at the base of the guy wire that was struck by Precht and that Relators' own expert, Shattuck, admitted that trees, shrubs, and other landmarks are typically used by crop-dusting pilots to create a "footprint" of their areas of operations.
The trial court denied this motion for the same reasons it denied the motion to exclude evidence of Precht's familiarity with the tower.
Again, we find that Broussard ,
For this reason, we deny the writ application as to this issue, finding no abuse of discretion in the trial court' ruling.
WRIT DENIED. We find no abuse of discretion in the trial court's rulings.
TANA markers are the orange spheres commonly seen on power lines and guy wires.
Colonel Joseph is the Deputy Director of Aviation, Chief Pilot, and Director of Flight Services for the Texas Department of Transportation and is a senior member of the Aviation Accident Mishap Board.
Relators concede that in its written reasons for ruling, the trial court did not identify the particular field in which Colonel Joseph was qualified. GTP points out that Relators did not attach the transcript of the hearing.
Duhon ,
"The feasibility of performing precautionary measures is not a central issue in this case, nor was it controverted, it is therefore of little relevance." Burk v. Illinois Cent. Gulf R. Co. ,
Relators argue that the trial court did not give any analysis of the facts or of the balancing of the prejudicial effect of admitting the evidence against its probative value. While this is true, that the transcript of the hearing is not provided such that it is unknown whether such an analysis was performed by the trial court.