A lawsuit was brought by Ora Watson, individually and as tutrix of her minor child, and six major Watson children, against Earl Creel and his insurer, State Farm Fire and Casualty Insurance Co., for the wrongful death of Ora's husband and the children's father, Doyle Watson. The claim arose out of a hunting accident in which Earl Creel's minor son, Shane, shot and killed the fifty-three year old Watson with a high-powered rifle. A trial jury rendered a verdict in favor of defendants, finding decedent Watson 100% at fault in connection with the accident. The First Circuit Court of Appeal, 459 So.2d 1235, affirmed.
We granted writs in this essentially factual dispute because we perceived the Court of Appeal to have applied an inappropriate standard of review. The Court of Appeal found that the jury's verdict was "based upon a reasonable evaluation of credibility," an applied review standard which seemed quite similar to the "reasonable basis for [a trial court's] finding" test which this Court found insufficient in Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). In fact the appropriate standard is that a finding of fact by the trial court should be upheld "unless it is clearly wrong," or manifestly erroneous. Furthermore, it just seemed so clearly wrong for the lower courts to have determined that the victim of this accidental shooting by a deer hunter was the only party at fault, especially inasmuch as comparative fault, rather than the bar of contributory negligence, prevailed in the law when the shooting took place.
The accident occurred on the Watson farm in Mt. Hermon, a community located in Washington Parish, in the early evening hours of December 29, 1981.
Shane Creel, born October 5, 1969, was just twelve years old and in the seventh grade when he fatally shot Doyle Watson. Although he had owned a "child's model.22" caliber rifle since the age of ten, and had been allowed to shoot since he was nine, Shane had until then merely hunted small game. He had, however, admired his father's Marlin 30-30 rifle,
On this occasion, Shane had been alone either on the stand or near the bales for about two hours before he noticed a moving object which, in the light of dusk, he thought was a deer. In recalling its location in the field, the boy's testimony indicated uncertainty, perhaps because the scope altered his perspective. He stated:
A single shot had been fired, and 461 feet away Doyle Watson sustained a large wound in the right front portion of his head. His death was apparently immediate. Watson was wearing black work boots, a dark baseball cap with a white front displaying an advertisement of some kind, gray work pants, a green-colored camouflaged hunting jacket, and partially visible white insulated underclothing. Although the Creels all wore the "Hunter orange" vests and offered one to Mr. Watson, he declined the offer.
Plaintiffs' attorney sought to establish the negligence of Earl Creel, Shane's father,
We agree with the lower courts to this extent. Watson was not without fault in this accidental shooting. However, the concept of comparative negligence, written into La.Civ.Code Ann. art. 2323,
A pure comparative fault system was adopted in Louisiana in 1979 by Act No. 431. That act became effective only on August 1, 1980.
Clearly, however, the concept of comparative negligence is not applicable when the victim alone is the party at fault. In this case, the jury in response to interrogatories found that Earl Creel was not at fault in causing the accident, that Shane Creel was not at fault in causing the accident,
Upon appellate review Louisiana courts have jurisdiction with regard to both law and facts. La.Const. art. V, § 10(B). However, we have held that
This standard of appellate review was not intended to be applied so as to require upholding the ruling of a trial court simply, "when the evidence before the trier of fact furnishes a reasonable basis for its finding." Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). Instead, a finding of fact by a trial court should be upheld "unless it is clearly wrong." And "appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court." Id. Proper review requires that the appeal court determine from the record that the trial court finding is not clearly wrong or manifestly erroneous.
Here, the jury was clearly wrong, considering all the evidence, in deciding that Earl Creel and his twelve year old son Shane were each without fault in the accidental death of Doyle Watson. It is incomprehensible that no negligence was involved in Earl Creel's arming an untrained twelve year old boy with a high-powered rifle, from which the boy had had occasion to fire previously only two shells, and leaving him alone in the woods to hunt a species of animal which he had never seen. So too, it is incomprehensible that the boy did not share some fault in this tragic accident, for it surely constitutes negligence to fire a rifle at a moving object without ascertaining with certainty that it is not a human being.
The Court of Appeal stated that they were required to uphold the finding of a jury when "based upon a reasonable evaluation of credibility." Shane's testimony about sighting a deer and firing at it after properly identifying his target, the Court of Appeal considered quite positive testimony. And they held that the jury could reasonably have concluded that Shane had exercised reasonable care and had in fact identified a deer before firing. As noted at the outset of this opinion, the Court of Appeal's upholding the jury verdict upon finding it "based upon a reasonable evaluation of credibility" is the application of a standard of review quite similar to the test rejected in Arceneaux, supra. It is not enough to sustain the determination of the district court when "there is some reasonable evidence to support the finding." Rather, the appropriate question is, was that finding clearly wrong or manifestly erroneous. Our answer to this question is that it was clearly wrong.
Shane's testimony regarding the sighting of the deer was quite equivocal.
Although the accident might have been avoided had Mr. Watson worn the "Hunter orange" vest or called out to Shane on entering the field, it seems equally likely that an experienced hunter, such as Earl Creel, would have correctly interpreted the moving object as a man rather than a deer. We believe that Earl Creel's negligence in either failing to provide his young son with a supervised experience in sighting large game through a scope and firing this high-powered rifle, or closely supervising him on this occasion was a cause in fact of Mr. Watson's accidental death. We also believe that causation for the accident must be attributed to Shane as well as to his father. The twelve year old must share some responsibility for this death in view of his own negligence in firing a dangerous weapon at a man he presumed to be a deer.
Having determined that the jury's allocation of 100% fault to the plaintiff was against the weight of the evidence, and was clearly wrong, we are empowered by La.Code Civ.Pro.Ann. art. 2164 to "render any judgment which is just, legal, and proper upon the record on appeal."
In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.
Our consideration of these factors suggest that the majority of the fault must rest with the Creels. The causal relation between negligently firing a dangerous weapon and/or negligently failing to instruct or supervise a minor child in the use of the weapon, and plaintiff's death, is a direct one. On the other hand, plaintiff's failure to wear Hunter orange or signify his presence may have contributed to the youth's fatal error in identifying his target. But it was not as directly related to the plaintiff's demise as was the conduct of the Creels.
Furthermore, the factors suggested in evaluating the conduct of the parties indicate that a lesser degree of fault should be attributed to plaintiff. His conduct, at least in walking along the field road within the boy's rifle range, was inadvertent. His failure to don the bright hunting vest, however, was a conscious action which necessarily involved adverting to, or consciously considering the risk, or possible danger. Nevertheless, plaintiff's omissions at worse had only an indirect causative impact on the accident. In contrast, none of the actions of Shane or his father Earl Creel can be considered inadvertent. They were aware that the high-powered rifle was deadly and that it was imperative to discern a target with certainty before firing. In a similar vein, the risk of firing or failing to train and supervise the firing of such a weapon had a direct potential for fatal consequences. And, in considering possible mitigating factors, the Creels had no higher motive than sport when their acts of negligence occurred, and their actions were not dictated by any emergency or other circumstance which could lessen the fault attributed to this poor judgment. Finally, with regard to capacity, the age and experience of Watson and Earl Creel would require a greater imposition of fault on them for their negligent conduct, in comparison to that of the twelve year old youth, Shane.
After weighing the factors discussed hereinabove, we apportion the fault as follows. To plaintiff, we assign 20% of the fault in this fatal accident. We find further that Earl Creel and his son, Shane Creel, were each also at fault, and the degree or percentage of negligence attributable to them was 40% each.
There remain in this lawsuit issues concerning quantum which are still to be resolved and which we determine should appropriately be decided by the Court of Appeal. This includes the assessment of damages for each of the plaintiffs, as well as reduction thereof by virtue of 1) Doyle Watson's percentage of contributing fault, and 2) the possible reduction attendant to plaintiffs' having settled prior to trial with Farm Bureau Insurance Company.
The judgments of the district court and the Court of Appeal are therefore reversed; the case is remanded to the Court of Appeal for further consideration and for entry of judgment consistent with law and with the views expressed herein.
Watson was hunting deer on his own privately owned farm. Nonetheless, since his property was not legally posted, he was technically in violation of the statute. However, this court in Breithaupt v. Sellers, 390 So.2d 870 (La.1980), decided, when contributory negligence was the prevailing law, that a hunter/victim in violation of R.S. 56:143 (the Hunter orange requirement) was not necessarily contributorily negligent, that causation was for the factfinder, and that thus a directed verdict had improperly been granted.
Thus, although Shane is not a party to this suit, "the factfinder may assign a percentage of fault to every person involved in the accident, presumably including those persons who have been released by the plaintiff." M. Chamallas, "Comparative Fault and Multiple Party Litigation in Louisiana, 40 La.L.Rev. 373, 374 (1980).
For a recent case of this court where art. 1812 was discussed, see Lemire v. New Orleans Public Service, Inc., 458 So.2d 1308 (La.1984).