Second Circuit Affirms Notice Case Regarding Fallen Tree

It is well established that an appeal court gives deference to a trial court’s finding of fact (ruling) unless the court was clearly wrong or acted in extreme error. In other words, even if the appellate court is convinced that they would have decided upon the evidence differently, the trial court’s findings cannot be reversed if it was reasonable that it could rule in the manner it did. Moreover, if there are two permissible rulings that could be determined, the trial court’s choice between the two cannot be found manifestly erroneous or clearly wrong.

On March 29, 2009, plaintiff Franklin Scott (“Mr. Scott”) was driving his tractor/trailer rig carrying saltwater west on Keatchie-Marshall Road in Caddo Parish (“Caddo”) where he failed to observe and avoid a fallen tree blocking the road. Mr. Scott’s truck slid 350 feet after the collision and hit several other trees before stopping. Among other injuries resulting in the crash, Mr. Scott suffered a “serious injury” to his neck.

Mr. Scott filed a personal injury suit in District Court against Caddo, property owners Roger and Marilyn Connell (“property owners”) and State Farm Fire and Casualty Company (“State Farm”) for failure to maintain the road from potentially hazardous conditions. After weighing the oral testimony of several witnesses, the District Court found in favor of Caddo. Mr. Scott appealed.

On appeal, the Second Circuit disagreed with Mr. Scott’s assertion that the trial court “erred” because it relied on “incompetent, inadmissible evidence” regarding the practices and procedures of the neighboring Parish’s highway departments. Caddo called the Public Works Directors of the Bossier and Webster Parish highway departments to establish that Caddo’s practices were proper as demonstrated by other Parishes. The court held that both witnesses were knowledgeable and that their testimony was relevant given the similar conditions and hazards of the neighboring Parishes.

In addition, Mr. Scott argued that the trial court erred in finding that Caddo lacked constructive notice of the dead tree before it fell on the road. However the Second Circuit reaffirmed the trial court’s conclusion. In order to establish that a Parish breached its duty to maintain road safety, a plaintiff must prove that: (1) a hazardous condition existed; (2) the state had actual knowledge of the condition; and (3) the state failed to take corrective action within a reasonable time. Mr. Scott claimed that the fallen tree’s bright red needles and lack of bark was a clear indicator that the tree was in imminent danger of falling and that Caddo’s Highway Department should have noticed its condition. Aided by the expert testimony of two foresters provided by each party, the trial court concluded that the tree could not have been easily spotted from the road given the foliage surrounding it and the amount of bark located around its base. Further, the court questioned Mr. Scott’s expert witness’s reliance on Google Earth photographs and his lack of knowledge regarding how government entities inspect roadways. The Second Circuit determined that the trial court properly acted within its discretion in weighing the witness’ testimony.

Finally, on the issue of whether Caddo had policies in place to identify and remove hazardous trees, both the trial court and Second Circuit found that it did. The court considered the testimony of several witnesses employed by Caddo who admitted that there were no written policies for maintaining Parish roadways. However, they were able to describe monthly inspections and the process followed when removing dangerous hazards. The Second Circuit did not second guess the trial court’s conclusion that the town properly inspected the roadway and determined that the trial court was in the best position to judge the credibility of the witnesses.

Accordingly, the Second Circuit affirmed the decision.

The take-away from this case is that the trial court is given wide discretion by appeals courts in its consideration of the evidence. Appellate lawyers should properly manage the expectations of their clients in personal injury cases by fully describing the difficulty of winning an appeal unless it is factually obvious that the trial court was clearly wrong or manifestly erroneous in their ruling.

If you have been injured call the Berniard Law Firm today to speak with an experienced attorney about appealing your case immediately.