Barrios v. Safeway Insurance Co.

97 So. 3d 1019, 2011 La.App. 4 Cir. 1028, 2012 WL 965670, 2012 La. App. LEXIS 375
CourtSupreme Court of Louisiana
DecidedMarch 21, 2012
DocketNo. 2011-CA-1028
StatusPublished
Cited by7 cases

This text of 97 So. 3d 1019 (Barrios v. Safeway Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrios v. Safeway Insurance Co., 97 So. 3d 1019, 2011 La.App. 4 Cir. 1028, 2012 WL 965670, 2012 La. App. LEXIS 375 (La. 2012).

Opinions

TERRI F. LOVE, Judge.

11 This is a tort suit for damages resulting from the loss of a pet dog that was killed in a pedestrian-motorist accident. The defendant, Safeway Insurance Company of Louisiana, appeals the trial court’s judgment that found their insured, Darrell Cuti, was solely at fault and awarded the dog’s owners, Ellen Dobson Barrios and Austin “Sonny” Barrios, Jr., $5,000.00 each in damages. We find that the evidence supports the assessment of fault against Mr. Cuti and that the trial court did not abuse its discretion in its award of damages. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 19, 2009, at approximately 7:30 p.m., the front end of the vehicle being operated by Mr. Cuti struck Sonny and Ellen Barrios’ seventeen-year old son, Matthew Barrios, and their twelve-year old Labrador retriever, Yellow. As a result of the accident, Matthew Barrios sustained personal injuries, and Yellow died on the scene.

The accident occurred on Main Street in Belle Chasse, Louisiana. Main Street is a residential two-way street without sidewalks. The posted speed limit on |2Main Street is fifteen miles per hour. At the time of the accident, Matthew Barrios was walking Yellow with a leash on Main Street in an easterly direction. Mr. Cuti’s [1021]*1021vehicle was also traveling on Main Street in an easterly direction. Thus, Matthew Barrios was walking with his back facing Mr. Cuti’s oncoming vehicle.

At the accident scene, Mr. Cutí gave a statement to the investigating officer in which he admitted to speeding (driving thirty to thirty-three miles per hour in a fifteen miles per hour zone) and failing to keep a proper look-out (looking away from the roadway). According to the police report, Mr. Cutí admitted to the officer that “he looked away from the road for a second and when he looked back, he struck a pedestrian.” The pedestrian, Matthew Barrios, was unable to give a statement to the officers. There were apparently no witnesses to the accident.

Matthew Barrios commenced this suit against, among others, Mr. Cuti’s insurer, Safeway, seeking to recover for his own personal injuries. He filed a supplemental and amending petition that added his parents as plaintiffs in their capacity as owners of the dog. His parents asserted a claim for their mental anguish and property damage resulting from the loss of their dog. Before trial, Matthew Barrios’ personal injury claim was settled. His parents’ claim for the loss of their dog proceeded to trial.

The only issues tried were the “negligence of the parties and the valuation of damages for the loss of Yellow.” The parties stipulated to submit the matter on briefs, deposition testimony, and exhibits. The depositions of Matthew, Ellen, and Austin Barrios were introduced. Mr. Cutí died of unrelated causes before being | .¿deposed. Following the bench trial on briefs, the trial court found Mr. Cutí was solely at fault and awarded Sonny and Ellen Barrios each $5,000.00 for “the value of [their] lost pet and the mental anguish which [they] suffered” due to Mr. Cuti’s negligence. This appeal by Mr. Cuti’s insurer, Safeway, followed.

STANDARD OF REVIEW

In Garcia v. Louisiana Department of Transportation and Development, this Court followed the standard of review for appellate courts as articulated in Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993):

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). This court has announced a two-part test for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court; and
2) The appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120,1127 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.

00-0930, pp. 3-4 (La.App. 4 Cir. 5/16/01), 787 So.2d 1142,1145.

| ¿FAULT ALLOCATION

Safeway’s first assignment of error argues that the trial court erred in finding its insured, Darrell Cutí, at fault and in not assessing any fault on the part of Matthew Barrios. Safeway claims that Matthew Barrios was at fault because he was in the middle of Mr. Cuti’s lane of travel and [1022]*1022because he violated Louisiana Revised Statute 32:216. That statute discusses the duty of pedestrians to walk only on the left side of the highway facing traffic. In pertinent part, that statute states:

Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the highway or its shoulder, facing traffic which may approach from the opposite direction.

The trial court has a great deal of discretion when allocating fault. Clement v. Frey, 95-1119, 95-1163, p. 5 (La.1/16/96), 666 So.2d 607, 609. Factual findings cannot be disturbed in the absence of manifest error. Stobart v. State of Louisiana, Through the DOTD, 617 So.2d 880 (La.1993). The issue to be resolved by this court is not whether the trial court was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Id.

In allocating fault, the trial court found that Mr. Cutí breached his duty as a driver to maintain a careful lookout and to drive within the legal limit. See Parker v. Continental Insurance Co., 341 So.2d 593 (La.App. 2 Cir.1977). It determined that Mr. Cutí did not maintain a careful lookout and was driving fifteen to twenty miles over the speed limit prior to striking Matthew Barrios and Yellow. The trial court reasoned that the accident likely could have been avoided if Mr. Cutí had maintained a careful lookout and had driven within the legal speed limit of 15 miles per hour. Mr. Cutí admitted to speeding and to looking away prior to the accident.

LThe trial court declined to place any fault on the part of Matthew Barrios. It noted that he was on the far right side of the roadway and that he wore light blue jeans and a gray sweatshirt. The trial court stated its reasons for judgment that walking with a dog on the side of the lit roadway in the evening was not negligent. These findings by the trial court contradict Safeway’s claim that a violation of La. R.S. 32:216 was a cause in fact of the accident.

There is sufficient evidence in the record to support the trial court’s conclusion that Mr. Cuti’s conduct was the sole cause of the accident. Considering the record, we cannot say that the trial court’s assessment of sole negligence against Mr. Cutí was manifest error. We find no merit in this assignment of error.

DAMAGES

Safeway’s second assignment of error alleges that the trial court erred in awarding total damages of $10,000.00 to Ellen and Sonny Barrios for the loss of their dog.

In Louisiana, a domestic animal is considered corporeal movable property.

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97 So. 3d 1019, 2011 La.App. 4 Cir. 1028, 2012 WL 965670, 2012 La. App. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrios-v-safeway-insurance-co-la-2012.