Babineaux v. Tollie Freightways, Inc.

628 So. 2d 1327, 1993 La. App. LEXIS 3821, 1993 WL 503805
CourtLouisiana Court of Appeal
DecidedDecember 8, 1993
Docket93-492
StatusPublished
Cited by8 cases

This text of 628 So. 2d 1327 (Babineaux v. Tollie Freightways, Inc.) 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
Babineaux v. Tollie Freightways, Inc., 628 So. 2d 1327, 1993 La. App. LEXIS 3821, 1993 WL 503805 (La. Ct. App. 1993).

Opinion

628 So.2d 1327 (1993)

Deborah V. BABINEAUX, Plaintiff-Appellant,
v.
TOLLIE FREIGHTWAYS, INC., et al., Defendants-Appellees.

No. 93-492.

Court of Appeal of Louisiana, Third Circuit.

December 8, 1993.

*1328 Gerald Charles de Launay, Warren A. Perrin, John V. Ghio, Lafayette, for Deborah V. Babineaux.

Raymond C. Jackson III, Lafayette, for Tollie Freightways, Inc., et al.

Before DOMENGEAUX, C.J., and STOKER and THIBODEAUX, JJ.

THIBODEAUX, Judge.

Plaintiff, Deborah V. Babineaux, was injured when, while traveling in a southerly direction on University Avenue in Lafayette, Louisiana during the morning of November 8, 1989, she drove her pickup truck into the rear wheels of the trailer portion of an 18-wheel truck driven by Eddie Arthur Johnson. Ms. Babineaux filed suit against Tollie Freightways, Inc., the owner of the 18-wheeler and Mr. Johnson's employer; Edison Insurance Company, Tollie's insurer; and, Mr. Johnson, the driver of the 18-wheeler. The trial judge awarded total damages of $100,000.00 to Ms. Babineaux and reduced it by 25% for her comparative negligence.

Ms. Babineaux appeals, claiming that the trial judge was clearly and manifestly erroneous in finding her 25% at fault in connection with the accident and clearly and manifestly erroneous in failing to allow her economic expert, Dr. Bruce C. Payne, to testify on her behalf on the issue of lost earning capacity. For the following reasons, we affirm.

FACTS

On the morning of November 8, 1989, Ms. Babineaux was heading south on University *1329 Avenue. As she approached the area of a truckstop, an 18-wheel truck driven by Mr. Johnson, heading north, began making a left-hand turn from the northbound lane of University Avenue proceeding into the truckstop. When the truck turned into Ms. Babineaux's path, she attempted to slow down and veered into the left lane. Despite Ms. Babineaux's efforts, she was unable to avoid colliding with the rear wheel trailer portion of the truck driven by Mr. Johnson.

Ms. Babineaux was the only trial witness who testified regarding the cause of the accident. On direct examination, Ms. Babineaux testified that she saw the truck begin to turn left into the truck stop while crossing the inside and outside north lanes of traffic. The 18-wheeler appeared to be traveling slowly, so she started to slow down thinking that the truck driver would have enough time to make it across the street. When she first saw the truck attempting to turn left, she started to slowly apply her brakes and that she never took her eyes off of the truck. Since Ms. Babineaux was on the outside lane, she swerved to the inside lane so that if the 18-wheeler did not make it completely across both lanes, she would still avoid contact with it. Ms. Babineaux further testified that as she got closer to the 18-wheeler and noticed that it was not out of her lane of travel, she slammed on her brakes to avoid hitting the truck. She claimed that at no time before she hit the truck did she stop pressing on her brakes which, from start to impact, she pressed with steadily increasing pressure.

On cross-examination, Ms. Babineaux stated that she did know how far away she was from the 18-wheeler when she first saw Mr. Johnson attempt to make a left turn into the truck stop. She admitted that on the morning of November 8, 1989, the weather was misty and that she did not immediately apply her brakes upon seeing the 18-wheeler attempt the left turn because she assumed the truck would have enough time to get across the highway and into the truck stop. Her cross-examination further revealed that because the 18-wheeler was "way down the road," had she slammed on her brakes when she initially saw the truck turning left and entering the northbound inside left lane while she was traveling in the outside lane, the accident would not have happened. Her rationale for failing to slam on her brakes at that point was that it did not make sense to do so when she was "that far away" because she would have stopped in the middle of the road. She further explained that he was "far enough away" at that time so she did not feel that she needed to slam on her brakes.

The trial judge assessed Ms. Babineaux with 25% of the fault. In doing so, he stated:

"At trial, plaintiff could not pinpoint how far away defendant's truck was when she first saw it enter into her lane to make the left turn. Plaintiff testified that she lightly applied her brakes as soon as she saw the truck begin to make its turn. She kept her eyesight on the truck, and as she got closer to the truck, she swerved to the left and slammed on her brakes ... Under cross examination, plaintiff admitted that if she had slammed on her brakes when she first saw the truck begin its turn, the accident would never have happened. Plaintiff claims that to immediately slam her brakes after the truck began its turn did not make sense because she would have stopped far from the point of impact. However, she also admitted that she was far enough away from the truck that she did not need to slam on her brakes to stop in time. Implicit in this admission is that plaintiff had the chance to prevent this accident, and she failed to exercise due care under the circumstances."

Included in the trial judge's award of $100,000.00 in damages was an amount for Ms. Babineaux's loss of earning capacity. The witnesses who testified as to that element of damage were Dr. Shepard, the orthopedic surgeon who treated Ms. Babineaux after the accident, and Ms. Karen Keller, an expert in the field of vocational rehabilitation. Dr. Shepard's testimony consisted of discussing her physical limitations by use of specific disability ratings. Ms. Keller assessed Ms. Babineaux's lost wage earning capacity based *1330 upon Dr. Shepard's disability assessments, an achievement test administered to Ms. Babineaux, her interview with Ms. Babineaux, and her knowledge of the labor market. Ms. Keller concluded that Ms. Babineaux's earning capacity had been damaged and that due to her injuries, she suffered a significant decrease in her access to the labor market. The trial judge accepted the testimony of Ms. Keller that Ms. Babineaux suffered a decrease in earning capacity. The trial judge did not allow Dr. Bruce C. Payne, an economist and head of the Department of Economics and Finance at the University of Southwestern Louisiana, to testify. The trial judge sustained the objection to his testimony by defense counsel, stating that he did not know how an economist could aid the court and that the testimony of Ms. Keller was sufficient.

APPORTIONMENT OF FAULT

Ms. Babineaux contends that the doctrine of sudden emergency is applicable to this case. The trial judge, she argues, did not make a finding that her actions were unreasonable, but simply found that she could have acted differently under the circumstances. Therefore, the trial judge erred in failing to apply the sudden emergency doctrine.

Tollie, on the other hand, asserts that there was no sudden emergency because, from Ms. Babineaux's own testimony, when she initially saw the 18-wheeler making its left turn, she was so far away from the truck that it would not have made any sense for her to slam on her brakes. In short, Tollie contends that the trial judge was correct in concluding that if Ms. Babineaux was sufficiently far away from the 18-wheeler that she did not feel the need to slam on her brakes, then she had plenty of time to slow her vehicle down to avoid the accident.

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Cite This Page — Counsel Stack

Bluebook (online)
628 So. 2d 1327, 1993 La. App. LEXIS 3821, 1993 WL 503805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/babineaux-v-tollie-freightways-inc-lactapp-1993.