Bush v. Mid-South Baking Co.

194 So. 3d 1170, 2016 WL 3031634
CourtLouisiana Court of Appeal
DecidedMay 26, 2016
DocketNos. 15-CA-540, 15-CA-732
StatusPublished
Cited by3 cases

This text of 194 So. 3d 1170 (Bush v. Mid-South Baking Co.) 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
Bush v. Mid-South Baking Co., 194 So. 3d 1170, 2016 WL 3031634 (La. Ct. App. 2016).

Opinion

STEPHEN J. WINDHORST, Judge.

|Jn this suit for damages, plaintiff Shone Bush, appeals from the trial court’s judgment allocating fault and awarding damages. We affirm the judgment of the trial court.

' On April, 3, 2010, Mr. Bush was a guest passenger in a red Camaro driven by Todd Williams. Todd Williams drove to the parking lot of a McDonald’s Restaurant in Marrero, Louisiana.’ As Todd Williams was proceeding in the lane of travel to a parking place, he struck a gate/ramp extended from the rear of the defendant’s delivery truck, sustaining damage to the upper quadrant of the driver’s side windshield, frame and dashboard.

Both Mr. Bush and Todd Williams filed suit for. damages against Mid-South Baking Company, LLC, owner of the truck, and its insurer,., Continental. .Insurance Company (“Mid-South”). After a trial on the merits, the court found in favor of the plaintiffs, and allocated fault at 75% to Todd -Williams and 25% to Mid-South. The trial court awarded damages to Mr. Bush in the amount of $33,511.50 and to Todd Williams in the amount of $2;376.25. Mr. Bush appeals from the trial court’s decisions on both liability and damages. Todd Williams did not appeal.

DISCUSSION

In its oral reasons for judgment, the trial court stated that it found that the car was travelling at a low rate of speed and that it was daylight and there were no weather impediments regarding Todd Williams’ ability to see the gate/ramp. The 1 atrial court further stated that even though the evidence supported a finding that the truck drivers did not follow company policy, in placing orange cones, the gate/ramp was a fairly apparent object that should have been seen prior to the impact.

With regard to damages, the trial court found that Mr. Bush’s treatment from [1173]*1173April 6, 2010 to October 25, 2010 was related to the accident; however his subsequent treatment and recommendations regarding surgery were not causally related to the accident. Accordingly, the court awarded general and special damages for injuries treated only during the time period between April 6, 2010 and October 25, 2010.

This Court’s standard of review was stated in Aderholt v. Metro Sec., Inc., 14-880 (LaApp. 5 Cir. 03/25/15), 169 So.3d 635, 642, as follows:

It is well settled that 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, 844 (La.1989). In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test. First, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court. Second, the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). In essence, this test means a reviewing court must do more than simply review a record for some evidence which supports the trial court’s finding; it must determine that the record, as a whole, establishes the trial court was justified in its conclusion. Royal Oldsmobile Co. v. Heisler Properties, L.L.C., 12-608 (La. Ap. 5 Cir. 5/16/13), 119 So.3d 84, 94.
Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous. Where the factfinder’s conclusions are based on determinations regarding the credibility of the witnesses: the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s - understanding and belief in what'was said. Rosell v. ESCO, 549 So.2d at 844; Aleman v. Allstate Ins. Co., 04-948 (La.App. 5 Cir. 1/11/05), 894 So.2d 382, 384.

^LIABILITY

The trial court assessed liability for the accident at 25% to defendant Mid-South and 75% to Todd Williams, as driver of the red Camaro. In his first assignment of error, Mr. Bush contends that .the trial court erred, in its assessment of'the percentages of fault against the parties.

Comparative negligence is determined by the reasonableness of the party’s behavior'' under the circumstances. Williams v. Walgreen La. Co., 14-716 (La. App. 5 Cir. 02/25/15), 168 So.3d 812, 826-827, writ denied, 15-0610, 15-0613 (La.06/01/15), 171 So.3d 262. The factfin-der’s allocation of comparative negligence is a factual matter which will not be disturbed on appéal unless it is clearly wrong or manifestly erroneous. Id. In determining whether the trier of fact was clearly wrong in its allocation of fault, an appellate court is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985), including: (1) whether the conduct was inadvertent 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 actors; and (5) any extenuating factors which might require the actor to proceed with haste, without proper thought. Prejeant v. Gray Ins. Co., 15-87 (La.App. 5 Cir. 09/23/15), 176 So.3d 704, 709.

[1174]*1174The testimony at trial established that, at the time of the accident, there was daylight and the weather conditions were good. Todd Williams testified that he was driving at five miles per hour, attempting to get to a parking space opposite the truck. He stated that he did not see the truck’s gate/ramp, and that he did not see any cones or reflective tape before he hit the gate/ramp. Todd Williams further testified that there was insufficient room for him to pass the truck without hitting [fithe gate/ramp. Todd Williams testified that he was paying attention and was not on his cell phone at the time of the accident.

Mr. Bush testified that the car was trav-elling at ten to fifteen miles per hour. Mr. Bush testified that he saw the truck, but did not see the lift gate/ramp protruding from the rear, nor did he see cones or lights marking the protruding ramp. Mr. Bush also stated that Todd Williams did not have enough room to go around the truck’s ramp. Mr. Bush stated that, at the time of the accident he saw two truck drivers; one was standing inside the back cargo area and the other was standing in front of the restaurant. Mr. Bush testified that he saw the gate/ramp immediately before the accident, and he grabbed Todd Williams. Mr. Bush also stated that Todd Williams was not on his cell phone at the time of the accident.

The deposition of Randy Williams, one of two drivers in the truck that day, was entered into evidence. He was driving at that time, and Fred Houston was in the passenger seat. Randy Williams parked the truck at the place designated by McDonald’s. He placed one orange cone by the gate/ramp, and was in the process of getting ready to place the second cone, while Mr. Houston was delivering baked goods to the restaurant. A red Camaro drove past him, almost hitting him, and ran over the cone prior to striking the gate/ramp. Mr. Houston, who was inside the trailer when the accident occurred, talked to the driver. Randy Williams stated that he heard the driver tell Mr. Houston that he, the driver, was on his cell phone and did not see the gate/ramp.

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194 So. 3d 1170, 2016 WL 3031634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-mid-south-baking-co-lactapp-2016.