STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2023 CA 0718 MICHAEL CANE AND JOHN CANE

VERSUS CHARLES O' BRIEN AND UNITED SERVICES AUTOMOBILE ASSOCIATION Judgment Rendered:

Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge

State of Louisiana Suit Number C679294 Honorable Donald R.Johnson, Presiding 

### FEB 2 3 2024

Jason L. Melancon Counsel for Plaintiffs/Appellants Robert C. Rimes Michael Cane and John Cane R. Lee Daquanno, Jr. Baton Rouge, LA Claire E. Sauls Counsel for Defendants/2, dAppellants Michael M. Thompson Charles O' Brien and United Service Hannah C. Catchings Automobile Association Baton Rouge, LA

BEFORE: GUIDRY, C.J., CHUTZ, AND LANIER, JJ.GUIDRY, C.J.



### In this personal injury action, plaintiffs, Michael Cane and John Cane, appeal 

### from atrial courtjudgmentdenyingtheirmotion formistrial and renderingjudgment in conformity with thejury's verdict and from atrial courtjudgment denying their motion for JNOV, alternatively, motion for new trial/additur. Defendants, Charles O' Brien and United Services Automobile Association ( USAA), have appealed, challenging the trial court' s granting of plaintiffs' motions for directed verdict on 

### the affirmative defenses offorce majeure and sudden emergency. For the reasons that follow, we vacate the trial court' sjudgments and remand. FACTS AND PROCEDURAL HISTORY 

### On October 23, 2018, sometime after 10:00 p.m., Michael Cane was driving
a 2006 Honda Civic westbound in the inside lane of Interstate 10 in Ascension 

### Parish; his brother,John Cane, was riding in the front passenger seat. The interstate was dark, and the road surface was wet due to intermittent rainfall. 

### While driving 

### in the inside lane, with his cruise set at 70 mph, Michael saw a deer approximately forty yards ahead in the left shoulder close to the interstate. After noticing the deer, Michael remained in the inside lane and slowed to 60 mph; however, when Michael 

### was approximately twenty to thirty feet from the deer, it began moving into the interstate. Michael' s vehicle hit the deer, which then went over the hood of Michael' s vehicle. 

### Michael then slowed down, almost to a stop, and activated his hazard lights. Prior to the deer entering the road, a white Dodge Durango, driven by Saed 

### Amleh,was traveling behind the Cane vehicle and a red Mercedes SLK250, driven by Charles O' Brien, was traveling behind the Durango. Seeing the Cane vehicle moving slowlyorstopped inthe roadway,Amleh swerved tothe rightand ultimately 

### leftthe roadway on the right side ofthe interstate. Once the Amleh vehicle moved 

### from the inside lane, and approximately five seconds after Michael turned on his

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### hazard lights, the Cane vehicle came into O' Brien's view. O' Brien applied his

brakes, but his vehicle impacted the Cane vehicle. Thereafter, on February 6, 2019, Michael and John filed a petition for 

### damages, naming O' Brien and his insurer, USAA, as defendants, asserting that Michael and John sustained severe personal injuries as a result of O' Brien' s 

### negligence infailing to seewhathe should have seen, failingto observethe roadway conditions, failing toyield, and failing to maintain control ofhis vehicle. The matter proceeded to a five-dayjury trial on August 22-26, 2022. At the conclusion ofthe presentation ofevidence, plaintiffs moved for a directed verdict on 

### defendants' affirmative defenses offorce majeure and sudden emergency, and the trial court granted the plaintiffs' motions as to both affirmative defenses. 

### Thejury subsequently returned a verdict in favor of plaintiffs and against defendants. 

### Counsel for plaintiffs requested a polling ofthe jury, and the trial court instructed the court clerkto readeach question onthejuryverdictform and instructedthejurors
to answer " yes" or " no" as to whether they voted " yes" or " no" on that question. However, when the court clerk arrived at question number 4 on the verdict form, 

### which askedthejuryto assign apercentage offaultto each ofthe three parties listed on the form, the clerk read the question as written, and each juror responded with a percentage offault for each party. Based on these individual responses, there were not nine oftwelve jurors in agreement on the percentages to be assigned. 

### Atthe conclusion ofpolling,plaintiffs' counsel indicatedthathe hada motion, and the trial court stated that it would take up all motions outside ofthe presence of 

### the jury. The trial court thereafter discharged the jury. Plaintiffs' counsel then 

### moved for a mistrial, because there were not nine members ofthejury who agreed to all ofthe allocations offault for each ofthe three parties. The trial court directed that the motion for mistrial be reduced to writing and that the merits ofthe motion

3be heard at a later date. On September 8, 2022, plaintiffs filed a memorandum in

support ofthe motion for mistrial. 

### On September 9, 2022, however, the trial court signed ajudgment, filed by the defendants overthe plaintiffs' objection,which was in conformity with thejury

verdict. Thereafter, because the trial court had signed ajudgment, the plaintiffs filed
a motion to convert their oral motion for mistrial to a motion for new trial and for expedited consideration. 

### Plaintiffs also filed a motion for JNOV or alternatively, motion for new trial/additur. 

### Following a hearing on all motions, the trial court signed a judgment on October 21, 2022, 

### ordering that the judgment executed by the trial court on September 9, 2022 is null and is vacated. The trial court further denied plaintiffs' 

### motion formistrial, enteredjudgmentconsistentwiththejuryverdictform submitted bythejury,and denied as mootplaintiffs' motion to converttheirmotion formistrial to a motion for new trial. 

### The trial courtalso denied all remaining pending motions, reserving the rights ofthe parties to re - file any such motions. Thereafter, on October 26, 2022, plaintiffs filed a motion for JNOV, or alternatively, motion for new trial/additur and a hearing was set for November 28, 2022. 

### Following the hearing, the trial court signed ajudgment on December 19, 2022, in favor of defendants and denied plaintiffs' motion for JNOV, or alternatively, motion for new trial/additur. Plaintiffs now appeal from the trial court' s October 21, 2022 and December 19, 2022 judgments. Defendants also 

### appeal from the trial court's granting of plaintiffs' motion for directed verdict on defendants' affirmative defenses of force majeure and sudden emergency. DISCUSSION Polling the Jury 

### Plaintiffs assert that the trial court erred in denying their motion for mistrial/motion for new trial, when polling ofthejury revealed that there were not

4nine oftwelve jurors who agreed on the percentages offault to be assigned to each

party.

### There is no statutory or codal authority in Louisiana providing forjury polls in civil cases, but the right has been recognized in civil cases jurisprudentially. Acostay. Pendleton Memorial Methodist Hospital, 545 So. 2d 1053, 1058- 59 ( La. App. 4th Cir.), writs denied, 551 So. 2d 637, 638 ( La. 1989). 

### Polling ofthejury is 

### the process whereby the trial judge asks each juror after the verdict is announced whether it is his or her verdict. Chicago Property Interests LLC v. Broussard, 15- 0299, p. 11 ( 

### La. App. 4th Cir. 10121/ 15), 177 So. 3d 1074, 1082, writ denied, 15- 2117 ( La. 1125/ 16), 185 So. 3d 748. 

### The principal purpose ofpolling thejury is to ascertain that all votes were counted correctly and that a sufficient numbervoted in 

### favorofa verdict as required by law. See Chicago Property Interests LLC, 15-0299 

### at p. 11, 177 So. 3d at 1082 and Acosta, 545 So. 2d at 1059. In a civil case, nine of twelvejurors or five of six jurors must vote for a verdict in order for it to be legal. La. C.C. P. art. 1797(A) and ( B). 

### Ifthe polling reveals that the number ofvotes is 

### insufficient to sustain a verdict, thejudge may, in his discretion, order thejury to redeliberate, declare a mistrial, or grant a new trial. Acosta, 545 So. 2d at 1059. The correct procedure for oral polling ofajury is forthejudge or clerk to call eachjuror, one at a time, announce to thejuror the verdict returned and askthejuror, Is this your verdict?" The juror can only respond " yes" or " no" to each interrogatory. 

### The same procedure should be employed when thejury is polled in writing. Acosta, 545 So. 2d at 1059. 

### In the instant case, after the jury verdict was read to the court, plaintiffs' counsel requested that thejury be polled. The trial court noted that the concept of polling states that eachjuror will answer specifically as to each question whether or notthat is his or hervote as to each question. The trial court then instructed the court 

### clerk to read each question on the jury verdict form and instructed the jurors to

5answer " yes" or " no" as to whether they voted " yes" or " no" on that question.

However, when the court clerk arrived at question number 4 on the verdict form, 

### which asked thejuryto assign apercentage offault to each ofthe three parties listed on the form, the clerk read the question as written, and each juror responded with a 

### percentage offault for each party. Based on these individual responses, there were not nine oftwelvejurors in agreement on the percentages to be assigned. 

### The court clerkcontinuedto poll thejury. Question 6, relatingto damages for Michael, asked how much it will take to compensate Michael for his injuries for certain items of damages. The court clerk read the question as written, and each juror responded with an individual dollar amount for past and future medical

expenses. The trial court then asked the court clerk to read each sequence of damages and the amount as listed on the verdict form and then askthejuror to voice

a poll position. All twelve jurors were in agreement as to the amount of damages for Michael. The trial court then proceeded to questions 7 and S, which related to damages for John. Question S asked how much it will take to compensate John for his injuries for certain items of damages. The court clerk read the question as written, and each juror responded with an amount for each item of damages. There were several jurors who noted that their individual amounts differed from what the 

### jury agreed on,butthey statedthatthey did agree to the amount listed on the verdict form. The trial court then stated that he was " of the opinion that the jurors have 

### adequately polled as to their individual vote and their final vote" and asked for any further motions forthe court. Plaintiffs' counsel indicated that he had a motion, and the trial court stated that it would take up all motions outside ofthe presence ofthe 

### jury. 

### The trial court thereafter discharged the jury, and plaintiffs' counsel then moved for a mistrial, because there were not nine members ofthejury who agreed to the allocations offault for each ofthe three parties.

### From our review ofthe record,we find thatthe trial court procedurally erred



### in the manner in which it polled thejury. When the court clerk read question 4, 

### ratherthan asking eachjuror ifthe percentages listed on the verdict form represented their vote, the court clerk read the question as written, and eachjuror responded with their own individual responses. The trial court seemingly recognized the 

### complication presented by strictly reading the questions as written and, during the polling for question 6 relating to damages for Michael, instructed the court clerkto read each item of damages and its amount and then ask each juror to voice a poll 

### position. Whenthe court clerkproceededto question 8 relating to damages forJohn, the court clerk read the question as written and each juror responded with their individual answers. However, the fewjurors whose answers differed from that on 

### the verdict form expressed that while their individual numbers were different,they were in agreement with the verdict. Unfortunately, while the trial court seemingly 

### corrected the manner ofpolling, orthejurors clarified their responses, with respect to the damages portion of the verdict form, this was not done with respect to the 

### polling forquestion 4 relating to allocations offault. Furthercompounding this procedural error,the trial court discharged thejury 

### priorto hearing and considering any motions filed by the parties. Accordingly, we find that when plaintiffs presented the trial court with their motion for mistrial due 

### to jury polling revealing nine oftwelve jurors did not agree on the allocations of fault to be assigned to each party, there was no other remedy at that point to afford plaintiffs relief. See Quinn v. State, through the Department ofTransportation and Development, 09-0085, p. 5 ( La. App. 1st Cir. 12123109) 2009VVL4981911, writ denied, 10- 0358 ( La. 4123110), 34 So. 3d 268 ( unpublished opinion) (stating that a motion for mistrial is appropriate when it is determined that it is impossible to reach 

### aproperjudgment because ofsome erroror irregularity andthere is no other remedythat would provide reliefto the moving party). As such, the trial court abused its



### discretion in subsequently failing to grant plaintiffs' motion formistrial.' Directed Verdict 

### Defendants also appeal from the trial court's granting ofplaintiffs' motion fordirected verdict on defendants' affirmative defenses of force majeure and sudden emergency. 

### Generally, a motion fordirected verdict is appropriately granted in ajurytrial when, after considering all evidentiary inferences in the light most favorable to the 

### movant's opponent, it is clearthatthe facts and inferences are so overwhelmingly in 

### favorofthe moving partythat reasonable men could notarrive at acontraryverdict. Rabalais v. St.Tammany Parish School Board,06-0045, 06-0046, p. 6 (La.App. 1st Cir. 1113106), 950 So. 2d 765, 769, writ denied, 06-2821 ( La. 1/ 26/07), 948 So. 2d 177, However, ifthere is substantial evidence opposed to the motion, i.e., evidence ofsuch quality and weight that reasonable and fair-mindedjurors in the exercise of impartial judgment might reach different conclusions, the motion should be denied, and the case submitted to thejury. 

### Wright v. Bennett, 04- 1944, p. 15 ( La.App. 1st Cir. 9128105), 924 So. 2d 178, 187. 

### Evaluations ofcredibilityhave no place in a decision on a motion fordirected

verdict. 

### Making credibility evaluations is one ofthe primary duties ofthejury,and the trial judge may not take this duty from thejury unless the party opposing the motion has failed to produce sufficient evidence upon which reasonable and fairminded persons could disagree. Walkerv.Louisiana Health Management Company, 

### 94- 1396, pp. 8-9 (La.App. 1 st Cir. 12/ 15/95), 666 So. 2d 415, 421, writ denied, 96- 0571 ( La. 4119196), 671 So. 2d 922.

1 As previously noted,the trial court set plaintiffs' motion for mistrial for hearing. Following the submission ofmemorandum and preparation ofa transcript ofthejury polling, the trial court held a hearing and denied plaintiffs' motion.

### A trial judge has much discretion in determining whether or not to grant a

motion for directed verdict. The standard of review for the appellate court is whether, viewing the evidence submitted, reasonable people could not reach a contrary verdict. 

### Walker, 94- 1396 at p. 9, 666 So. 2d at 421. Moreover, the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the claims. Wri ht, 14- 1944 at p. 15, 924 So. 2d at 187. The affirmative defense offorce majeure, or Act of God, is defined as " an unusual, sudden and unexpected manifestation of the forces of nature which man

cannot resist." Guyv.Howard Hughes Co 

### oration, 18-0413, p. 5 ( La.App.4th Cir. 12119118), 262 So. 3d 327, 330. 

### For the defense to apply, two circumstances must exist: (1) theaccident is directly and exclusivelydueto natural causes without human 

### intervention; and (2) no negligent behavior by the defendant has contributed to the

accident. 

### Smith v. GreatAmerican Insurance Company, 20-377, p. 4 (La.App. 5th Cir. 5126121), 325 So 3d 495, 499. 

### Additionally, under the sudden emergency doctrine, there is an exception to the general rule that a following motorist is presumed negligent ifhe collides with 

### the rearofa leading vehicle. The doctrine provides that a following motorist will be adjudged free from fault ifthe following motorist is suddenly confronted with an 

### unanticipated hazard created by a favored vehicle, which could not be reasonably avoided, unless the emergency is brought about by the following motorist' s own negligence. 

### Ly v. State Through the Department of Public Safety and Corrections, 633 So. 2d 197, 201 ( 

### La. App. 1st Cir. 1993), writ denied, 93- 3134 ( La. 2125194), 634 So. 2d 835. 

### In the instant case, in granting plaintiffs' motions fordirected verdict,the trial court stated that "[ tjhe issues are close—these issues and facts are close. It' s not a 

### bright light in my mind andjudgment based upon what I have listened to all week and heard. Over objection, the court grants each motion. That is, the court grants

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### the motion on force majeure -and sudden emergency." From our review of the



### evidence and testimony in the record, it is clearthat a deer entered the interstate and moved into the path of the Cane vehicle. 

### Defendants presented testimony from 

### several witnesses that the accident at issue happened quickly, within seconds. 

### Additionally, O' Brien stated that he was traveling at a standard distance behind the 

### vehicles in front ofhim and that,when the vehicle in frontofhim abruptly swerved to the right and he was confronted withthe Cane vehicle stopped in the roadway, he 

### applied his brakes as hard as he could, but he could not avoid hitting the Cane

vehicle. 

### Furthermore, Cody McClelland testified that it all happened quickly and people hit brakes and slammed into each other and that several vehicles left both 

### sides ofthe roadway. Courtney Cavalier also testified that out ofnowhere, avehicle 

### hit something and then it was " like a giant, live pinball machine" where cars were going everywhere. Plaintiffs also presented witness testimony and testimony from the 

### investigating officer which differed from the testimony offered by defendants. 

### However,we find,from ourde novo review ofthe record,thatthejurywas presented with conflicting testimony regarding the actions of the parties following the deer 

### entering the roadway, and as noted bythe trial court,the facts and issues were close. Furthermore, as previously noted, 

### credibility determinations cannot be made in deciding a motion for directed verdict. Accordingly, we find that considering all evidentiary inferences in the light most favorable to the defendants, that reasonable and fair-minded jurors in the exercise of impartial judgment might reach different 

### conclusions regarding the affinnative defenses of force majeure and sudden 

### emergency, and therefore, the trial court abused its discretion in granting plaintiffs' motion for directed verdict. 

### As such, due to the reversible errors of the trial court in failing to grant 

### plaintiffs' motion formistrial and in granting plaintiffs' motions for directedverdict,

10we vacate the trial court' s October 21, 2022 and December 19, 2022judgments and

remand this matter forfurther proceedings consistentwith this opinion. See Baldwin 

### v. Board ofSupervisors forthe University ofLouisiana System, 08-2359 (La.App. 1st Cir. 6130/09), 2009VVL1879476 * 14, writs denied, 09- 1917 ( La. 12118109), 23 So. 3d 947 and 09- 1919 ( La. 1211$ 109), 23 So. 3d 948, cert denied, 560 U.S. 926, 130 S. Ct. 3330, 176 L. Ed. 2d 1222 (2010). Motion to File Materials forJudicial Notice On November 30, 2023, plaintiffs filed a Motion to File Materials forJudicial 

### Notice of Legal Duty, which requested that, in considering the legal duties ofthe parties, this court takejudicial notice ofthe Louisiana Class D & E Driver' s Guide. This motion was referred to the merits of the appeal for consideration. Therefore, because we have found several procedural, reversible errors, which necessitate remand ofthis matterto the trial court, we denythe plaintiffs' motion. CONCLUSION Forthe foregoing reasons, we vacate the October 21, 2022 and December 19, 2022 judgments ofthe trial court and remand this matter for further proceedings consistent with this opinion. Additionally, 

### we deny plaintiffs' motion to file 

### materials forjudicial notice. All costs ofthis appeal are assessed equally among the parties. JUDGMENTS VACATED AND REMANDED; MOTION TO FILE MATERIALS FOR JUDICIAL NOTICE DENIED.

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