Collier v. Benedetto

897 So. 2d 775, 4 La.App. 5 Cir. 1025, 2005 La. App. LEXIS 254, 2005 WL 356561
CourtLouisiana Court of Appeal
DecidedFebruary 15, 2005
DocketNo. 04-CA-1025
StatusPublished
Cited by4 cases

This text of 897 So. 2d 775 (Collier v. Benedetto) 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
Collier v. Benedetto, 897 So. 2d 775, 4 La.App. 5 Cir. 1025, 2005 La. App. LEXIS 254, 2005 WL 356561 (La. Ct. App. 2005).

Opinion

MARION F. EDWARDS, Judge.

Defendants appeal from a trial court’s finding of liability and award of general damages in this automobile accident case. Plaintiffs also appeal the trial court’s award of general damages. For the foregoing reasons, the judgment of the trial court is amended, and affirmed as amended.

FACTS AND PROCEDURAL HISTORY

On May 6, 1999, a vehicle driven by Benedetto Dimacco (“Dimacco”)1 was headed northbound on Pirate Drive toward Louisiana Highway 48 in St. Charles Parish. Parked on the shoulder of Louisiana Highway 48, at the intersection of Pirate Drive in front of a convenience store, was a delivery truck owned by Southern Eagle Sales and Services, Inc. (“Eagle”). Dimac-co, unable to clearly see the intersection because of the obstruction presented by Eagle’s truck, inched out into the roadway of Louisiana Highway 48, where he subsequently collided with ^another vehicle driven by Sonia Weal (“Weal”), in which Donald Collier (“Collier”) was a passenger. Both Weal and Collier sustained injuries as a result of the accident. Weal asserted that Eagle’s truck had also blocked her view of Dimacco’s vehicle entering the intersection until immediately before impact.

Weal and Collier thereafter filed suit against Dimacco, Imperial Fire & Casualty Insurance Company and Southern Eagle Sales and Service. After settling their claims against Dimacco, the plaintiffs case proceeded as a bench trial against the remaining defendants on November 3, 2003. The trial court found Eagle to be 90% at fault in causing the accident, and Dimacco 10% at fault. The trial court further awarded $13,878.10 in damages to [777]*777Weal, and $60,786.63 in damages to Collier.

Eagle timely filed the present appeal, and, in their answers, plaintiffs assert that their general damage awards are insufficient.

LAW AND ANALYSIS

On appeal, Eagle raises two assignments of error: 1) That the trial court’s was manifestly erroneous in its apportionment of fault, and; 2) The district court’s award of damages to Collier was an abuse of discretion.

In regard to Eagle’s contention that the trial court erred in its apportionment of fault, we note the standard of review as explained in Watson v. State Farm Fire and Casualty Ins. Co.,2 in which the court held that the standard of appellate review in comparative fault determinations is the same as that for other factual matters, i.e. the manifest error rule. Watson went on to enumerate factors to be weighed in evaluating fault apportionments: l)whether the conduct resulted from inadvertence or involved 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 capabilities of the actor, whether inferior or superior and 5)any extenuating | ¡¡circumstances which might require the actor to proceed in haste, without proper thought.3

In the present case, the trial court gave a detailed explanation in its Reasons For Judgment pertaining to its allocation of fault against Eagle. Most significantly, the trial court found that, in parking its truck on the shoulder of Louisiana Highway 48 and leaving it unattended, Eagle violated LSA-R.S. 32:296, which states in relevant part:

A. No person shall stop, park, or leave standing any unattended vehicle on any state highway shoulder when such stopping or parking on the highway shoulder shall obstruct the flow of traffic or is a hazard to public safety, unless such stopping, parking, or standing is made necessary by an emergency, except:
(1) In those areas designated as parking areas by the Department of Transportation and Development, or ...

Based on a finding that Eagle had violated the above cited statute, the court concluded:

L.R.S. 32:296 prohibits the parking of any unattended vehicle on any state highway shoulder, when that parking on the highway would present a hazard to public safety. The parking of this beer delivery truck on the shoulder of Louisiana Highway 48 by the defendant’s driver-employee, under the circumstances of this case, created a hazard to public safety by obstructing the view of defendant Dimarco as he approached the intersection of Louisiana Highway 48 and additionally the view of the plaintiff, Sonia Weil as she traveled around the curve on Louisiana Highway 48 approaching its intersection with Pirate Drive. But for the obstruction presented by this parked beer delivery truck, I believe defendant Dimarco would have observed the oncoming car driven by the plaintiff, Sonia Weil, stopped his vehicle, then safely entered Louisiana Highway 48 to make his left turn, after the plaintiff had passed.
The above statute placed a duty upon the driver of the beer delivery truck, (not to park on the highway shoulder absent an emergency) the driver violat[778]*778ed this duty, the violation of this duty was the primary cause of this accident.

The trial court further explained that in making its determination of fault, it found no credibility in accident reconstruction photographs presented by either side, or in the testimony of Eagle’s delivery truck driver, David Frish. Concerning | fithe testimony of Dimacco, the court did find his testimony to be credible, based on the fact that his insurance company had previously settled the claim against him, and he was under no pressure to fabricate his story. Dimacco described at trial how by the time he could see clearly around Eagle’s parked truck, he had already entered the roadway. The court also explained that it found the Weil’s testimony, that she could not see Dimacco’s vehicle because of Eagle’s truck, credible as well. Based on the foregoing, the trial court allocated 90% fault to Eagle.

Eagle argues, however, that the trial court erred in not finding that the cause in fact of the accident was Dimacco’s failure to exercise an appropriate degree of care in this case. In support of this contention, Eagle first suggests that Dimacco violated La. R.S. 32:124 in that he failed to yield to oncoming traffic when entering a favored roadway. Eagle then claims that Dimacco breached a duty to “proceed with extraordinary caution” as he proceeded into a favored roadway when his view was obstructed. Finally, Eagle insists that if his view was obstructed, Dimacco could have used alternate routes to enter on to Louisiana Highway 48.

In its Reasons For Judgment, the trial court indicated that it had considered these same argument by Eagle at trial, but concluded:

This contention has some minimum merit. However, plaintiffs also established that the driver of the beer delivery truck could have parked off Pirate Drive, adjacent to the convenience store, and accordingly not have obstructed the view of persons entering Louisiana Highway 48 (River Road) from Pirate Drive. This contention is more meritorious.

The court further found, however, that Dimacco was 10% at fault in causing this accident by not reversing the direction of his vehicle and taking either of the two alternate entry routes to the highway.

In Ruttley v. Lee,4 this Court noted:

7The trier of fact is owed great deference in its allocation of fault and its findings may not be reversed unless clearly wrong. Clement v. Frey,

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897 So. 2d 775, 4 La.App. 5 Cir. 1025, 2005 La. App. LEXIS 254, 2005 WL 356561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collier-v-benedetto-lactapp-2005.