Averna v. INDUSTRIAL FABRICATION AND MARINE SERVICE

562 So. 2d 1157, 1990 La. App. LEXIS 1450, 1990 WL 71736
CourtLouisiana Court of Appeal
DecidedMay 31, 1990
Docket89-CA-1244
StatusPublished
Cited by17 cases

This text of 562 So. 2d 1157 (Averna v. INDUSTRIAL FABRICATION AND MARINE SERVICE) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Averna v. INDUSTRIAL FABRICATION AND MARINE SERVICE, 562 So. 2d 1157, 1990 La. App. LEXIS 1450, 1990 WL 71736 (La. Ct. App. 1990).

Opinion

562 So.2d 1157 (1990)

Nathalie A. AVERNA
v.
INDUSTRIAL FABRICATION AND MARINE SERVICE, INC., et al.

No. 89-CA-1244.

Court of Appeal of Louisiana, Fourth Circuit.

May 31, 1990.

*1159 Gregory P. Di Leo, New Orleans, for plaintiff.

Mark C. Suprenant, Michael C. Darnell, New Orleans, for defendants.

Before LOBRANO and ARMSTRONG, JJ., and HUFFT, J. Pro Tem.

ARMSTRONG, Judge.

Defendant, Industrial Fabrication and Marine Service, Inc. ("Industrial"), appeal the trial court's judgment finding it liable for an automobile collision involving one of its drivers and ordering it to pay plaintiff's damages. Plaintiff appeals the quantum of general damages.

On May 22, 1985, in the morning hours, on Airline Highway near the Palmetto Street overpass, Kenneth Williams was operating a tractor trailer owned by Industrial. He was coming into the city in the second lane from the curb when he attempted to change to the lane closest to the curb and in so doing collided with the vehicle being operated by the plaintiff, Nathalie Averna. Miss Averna lost control of her vehicle and spun in front of the defendant's tractor and finally came to rest on the neutral ground.

It was stipulated that Kenneth Williams was operating within the course and scope of his employment with Industrial Fabrication & Marine Services, Inc., and that Colony Insurance Company provided insurance coverage to the defendants to the extent of the policy limits of $500,000.00.

As a result of the collision, Averna's injuries resulted in three separate surgeries: a two level fusion of protruding cervical discs C4-5 and C5-6 levels, carpal tunnel surgery of Averna's right wrist, and *1160 removal of a painful and voice threatening contact granuloma of the right arytenoid; a complication resulting from the anethesia tube placed in Averna's throat during the cervical fusion.

Averna also suffered from an aggravation by trauma of a spondylolisthesis of the low back which contributed to her total body disability. The fusion surgery performed by Dr. Stuart Phillips, Averna's treating orthopedic surgeon, has failed at one level. Averna is restricted on a permanent basis from heavy lifting, looking all the way up and all the way back, working with her arms over her head, pushing with her wrist, bending, stooping and prolonged sitting. She suffers discomfort at the graft site where bone was taken from her hip in completion of the cervical fusion surgery. She required treatment for depression from a psychologist.

After hearing all of the testimony and evidence, the trial court rendered judgment in favor of Averna and against defendants, jointly, severally and in solido as follows: general damages in the sum of $135,000.00; future lost wages or impairment of earning capacity in the sum of $90,000.00; loss of fringe benefits in the sum of $75,000.00; loss of household services in the sum of $5,000.00; past lost wages in the sum of $24,273.00; past medical expenses in the sum of $19,258.17; and hospitalization in the sum of $1,691.87, all with legal interest from the date of judicial demand until paid and for all costs of proceedings.

On appeal, Industrial raises five assignments of error. In its first assignment of error Industrial argues that the facts and circumstances of the case are such that if the trial court could not find Averna at fault for the accident then there was sufficient evidence to find Averna comparatively negligent for the accident. Industrial argues that of the five witnesses who testified concerning the accident only Averna and defendant Williams had actual knowledge of the collision. Stoddard Nathanson "heard the accident" and claims to have observed facts prior to the accident but did not actually see the collision. Walter McClendon has knowledge of facts prior to the accident but did not actually see the beginning of the collision. Industrial points out that the testimony of those witnesses who testified on behalf of Averna is riddled with discrepancies and there is an issue relating to the credibility and truthfulness of Averna in giving her testimony.

All of the witnesses who testified were viewed by the trial court which is in a better position to judge their credibility than the appellate court which does not see or hear the witnesses. Fontenot v. Fontenot, 546 So.2d 322 (La.App. 3d Cir.1989). The trial court's finding that the plaintiff was free of any negligence was a factual determination within the trial court's great discretion which should not be disturbed in the absence of manifest error. Brightman v. Regional Transit Authority, 543 So.2d 568 (La.App. 4th Cir.1989). Nor should the appellate court disturb these factual findings when the evidence before the trier of fact furnished a reasonable basis for the trial court's finding. Petersen v. State Farm Auto. Ins. Co., 543 So.2d 109 (La. App. 3d Cir.1989); Kelley v. Great Atlantic and Pacific Tea, 545 So.2d 1099 (La. App. 5th Cir.1989), writ denied 550 So.2d 629 (La.1989).

The findings of Officer Frisard, the investigating officer, corroborate Averna's testimony and that of the witnesses she offered at trial; that Averna was adjacent to the cab of the 18-wheeler when it changed lanes, causing this two-car collision.

Under La.R.S. 32:79, which has the same language as Section 38-90 of the Traffic Ordinances of the City of New Orleans, a clear case of liability can be made against the defendants. Section 38-90 reads as follows:

Whenever any roadway has been divided into two or more clearly marked lanes of traffic, the following rules, in addition to all others consistent herewith shall apply.
a. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

*1161 A motorist who attempts to change lanes on a multiple lane highway must ascertain before turning that the maneuver can be made safely without endangering normal overtaking or oncoming traffic. The greater burden of care is required for the motorist changing lanes than is demanded of a driver proceeding at a lawful rate on a straight line in a marked lane. Raymond through Raymond v. Deaton, 423 So.2d 724 (La.App. 1st Cir.1982); Deumite v. West Bank Contractors, 343 So.2d 289 (La.App. 1st Cir.1977); Ellis v. Coleman, 309 So.2d 716 (La.App. 4th Cir.1975).

Moreover, when there is a change of lanes by a motorist immediately preceding an accident, the burden of proof is on the motorist changing lanes to show that it first ascertained that his movement could be made safely. Trabeaux v. Sanchez, 279 So.2d 793 (La.App. 4th Cir.1973); Kennedy v. Mitchell Engineering, 518 So.2d 1128 (La.App. 4th Cir.1987), writ denied 523 So.2d 231 (La.1988) and 523 So.2d 232 (La. 1988). Defendants could not meet this burden of proof at trial.

Nor can we say that the trial court erred in assessing no fault to Averna. Defendants offered testimony that Averna was speeding and racing through traffic. This testimony was given by Walter McClendon, a long time friend of defendant Williams who happened to be travelling on Airline Highway on the date of the accident. McClendon did not see the events that immediately led up to the accident. The trial court heard this testimony and was able to weigh it along with all the other evidence presented at trial. We find no error in the trial court's assessment of liability.

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Bluebook (online)
562 So. 2d 1157, 1990 La. App. LEXIS 1450, 1990 WL 71736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/averna-v-industrial-fabrication-and-marine-service-lactapp-1990.