Dotie v. Safeway Insurance Co. of Louisiana

87 So. 3d 942, 2012 WL 832791, 2012 La. App. LEXIS 331
CourtLouisiana Court of Appeal
DecidedMarch 14, 2012
DocketNo. 46,840-CA
StatusPublished
Cited by3 cases

This text of 87 So. 3d 942 (Dotie v. Safeway Insurance Co. of Louisiana) 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
Dotie v. Safeway Insurance Co. of Louisiana, 87 So. 3d 942, 2012 WL 832791, 2012 La. App. LEXIS 331 (La. Ct. App. 2012).

Opinion

WILLIAMS, J.

| defendants, Sharon M. Kissie, and her insurer, Safeway Insurance Company of Louisiana, appeal a trial court’s judgment, finding that Kissie was solely at fault in causing an automobile collision. Defendants also appeal the trial court’s award of property damages to plaintiff in the amount of $1,825. For the reasons that follow, we amend the judgment of the trial court to reduce the allocation of fault assessed to defendant to 75% and to assess plaintiff, Omeka Dotie, with 25% of the fault in causing this accident. We affirm the trial court’s judgment as amended.

FACTS

On July 1, 2008, at approximately 10:18 p.m., a two-vehicle collision occurred on Legardy Street in Shreveport, Louisiana. Plaintiff, Omeka Dotie, was operating her vehicle when she collided with a vehicle [945]*945driven by defendant, Sharon M. Kissie.1 Plaintiff filed a lawsuit against the defendant and her insurer, Safeway Insurance Company of Louisiana (“Safeway”).

The issue of liability was hotly contested at trial. Both vehicles were traveling south on Legardy Street. Defendant testified that she was in the process of executing a right turn into her driveway when she was struck by plaintiffs vehicle. She further testified that the entire front end of her vehicle was in the driveway when the collision occurred.

Plaintiff testified that defendant was initially traveling in front of her; then, without any warning, defendant veered into the left lane and came to a complete stop. Plaintiff stated that the two vehicles collided when defendant suddenly swerved in front of her and attempted to execute a right | ?turn from the left lane.

Janet Dotie, plaintiffs mother, testified that she was a passenger in plaintiffs vehicle at the time of the accident. She stated that the two vehicles were traveling on Legardy when defendant veered into the left lane and came to a complete stop. Plaintiff initially came to a stop, but when defendant did not move, plaintiff proceeded. Dotie testified that defendant suddenly turned in front of plaintiff, causing the collision.

Antonio Bell, plaintiffs brother-in-law, also testified at trial. According to Bell, he was walking to a store when he witnessed “a piece” of the accident. He saw defendant’s vehicle “parked” on the wrong side of the road. Bell testified that defendant attempted to execute a right turn “right in front of’ plaintiff. He also stated that he observed plaintiffs vehicle as it went into a ditch. He stated that he walked up to plaintiffs vehicle and “checked on” plaintiff and her mother; he then walked back to the store.

Shreveport Police Department Corporal John Flores investigated the accident and testified at trial. He testified that defendant’s vehicle sustained damage from the middle of the passenger door to the rear of the vehicle; the entire front end of plaintiffs vehicle was damaged. The officer opined that defendant caused the accident while attempting to execute “a wide turn.”

After hearing the trial testimony, the trial court concluded that defendant was 100% at fault in causing the accident. The court awarded damages to plaintiff as follows: $1,825 for property damage; $3,978 for medical expenses and $5,250 in general damages.

Defendant and her insurer appeal.

^DISCUSSION

Liability

Defendant contends the trial court was manifestly erroneous in concluding that she was at fault in causing the motor vehicle accident. She argues that the physical evidence supports her testimony, and plaintiff was solely at fault. Alternatively, defendant contends the trial court erred in failing to apportion a percentage of the fault in causing the accident to plaintiff. She argues that at least 75% of the fault should have been allocated to plaintiff.

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. The particular facts and circumstances of each individual case determine the extent of the duty and the resulting degree of care necessary [946]*946to fulfill that duty. Cormier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So.2d 1; Owen v. Smith, 44,493 (La.App.2d Cir.8/19/09), 16 So.3d 1274. A plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Id.; Berry v. State, Dept. Of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412.

In a civil suit, the burden is on the plaintiff to prove the negligence of the defendant by a preponderance of the evidence. Miller v. Leonard, 588 So.2d 79 (La.1991); Owen, supra; Stone v. Bullard, 43,996 (La.App.2d Cir.1/28/09), 2 So.3d 1241. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Cangelosi v. Our Lady of the Lake Regional Med. Ctr., 564 So.2d 654 (La.1989); Owen, supra.

Causation is a question of fact, and is, therefore, subject to the manifest error standard of review. Green v. K-Mart Corp., 2003-2495 (La.5/25/04), 874 So.2d 838; Mart v. Hill, 505 So.2d 1120 (La.1987). Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Dept. Of Transp. & Dev., 617 So.2d 880 (La.1993).

On review, an appellate court must be cautious not to reweigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216; Owen, supra. A reviewing court must give great weight to factual findings of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only |sto a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id.

Individual drivers have a duty to operate, control and use their automobiles reasonably, and to maintain a proper lookout for hazards which might pose an unreasonable risk of harm. Patrick v. State Farm Mut. Auto. Ins. Co., 42,197 (La.App.2d Cir.5/16/07), 957 So.2d 894, writ denied, 2007-1452 (La.10/12/07), 965 So.2d 400; McElroy v. Wilhite, 39,393 (La.App.2d Cir.5/18/05), 903 So.2d 627. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable having due regard for the speed of such vehicle, and the traffic upon and the condition of the highway. LSA-R.S. 32:81 (A).

In the instant case, the court heard the testimony of several live witnesses.

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87 So. 3d 942, 2012 WL 832791, 2012 La. App. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dotie-v-safeway-insurance-co-of-louisiana-lactapp-2012.