Fontenot v. Liberty Mutual Insurance

228 So. 2d 327, 1969 La. App. LEXIS 5724
CourtLouisiana Court of Appeal
DecidedNovember 25, 1969
DocketNo. 2855
StatusPublished
Cited by2 cases

This text of 228 So. 2d 327 (Fontenot v. Liberty Mutual Insurance) 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
Fontenot v. Liberty Mutual Insurance, 228 So. 2d 327, 1969 La. App. LEXIS 5724 (La. Ct. App. 1969).

Opinion

MILLER, Judge.

Mrs. Carrie White Fontenot seeks damages for personal injuries, and Rallen Fon-tenot, her husband, claims special damages in connection with his wife’s accident and medical treatment, against Liberty Mutual Insurance Company as liability insurer of the vehicle driven by Glenn Jory.

The accident occurred at about 6:30 a. m. on August 31, 1967 just north of Crowley near the intersection of Louisiana Highway 13 and Interstate 10. At that point, La. 13 is a four lane highway with two southbound lanes separated from two northbound lanes by a slightly elevated median. Both vehicles were proceeding south at about 35 to 40 miles per hour, with Mrs. Fontenot in the inside or left lane and Mr. Jory in the right lane. When Jory eased into the left lane for the purpose of making his left turn to enter the 1-10 ramp to go to Lafayette, the left rear bumper of his vehicle struck the right front fender of the Fontenot vehicle, causing only slight damage. In an effort to avoid the Jory vehicle, Fontenot turned left and drove up on the median. Both parties stopped and on finding that neither seemed to be injured, decided not to report the accident to the police. Mr. Jory told Mrs. Fontenot to have the damage repaired and send the bill to him.

The trial judge held that Jory was negligent, but rendered judgment in favor of defendant, Liberty Mutual, finding that Mrs. Fontenot was contributorily negligent. Plaintiff appealed.

The contested issues on appeal are (1) the finding that Mrs. Fontenot was guilty of contributory negligence which was a proximate cause of the accident, and (2) in the event this finding was erroneous, the extent of damages suffered by plaintiffs.

Jory did not make a sudden turn into the left lane, but rather eased over into the left lane. Before starting this maneuver, he looked in his rear view mirror but failed to see any overtaking traffic. He surmised that Fontenot must have been in his “blind spot.” He testified that when he was only a foot or two into the left lane, he felt a slight bump, and immediately pulled back to his right. His negligence is not subject to question. Blanchard v. Hardware Mutual Casualty Company, 153 So.2d 517 (La.App. 1st Cir. 1963).

The trial court’s finding of contributory negligence was explained in the oral opinion handed down at the conclusion of the trial, as follows:

“Plaintiff testified that she was driving her car on the inside, or the left hand lane of the highway in question, and, by her admissions, she said she did not see the defendant’s automobile until just as it turned into her vehicle causing the accident. While this court is well aware of the rule of law that says a vehicle making a left turn is imposed with a great degree of care, at the same time the burden of responsibility of care is not completely removed from the driver of the
[329]*329following, or the overtaking vehicle who happens to be in the other lane of traffic.”

While there is a great deal of testimony to substantiate the conclusion that Fontenot did not see Jory’s vehicle until “just as it turned into her vehicle”, there is testimony by Mrs. Fontenot to the contrary. Mrs. Fontenot and Mr. Jory had known each other for many years. She testified in answer to the question “When is the first time that you saw Mr. Jory’s car?”, “That I can remember, is when he started to hit me.”

“Q. You didn’t see him before, just as he was about to hit you, is that correct ?
“A. As for him, just as he — I realized that he was going to turn into me, and I recognized Mr. Jory. I tried to get out of his way and I didn’t.”
* * * * * *
“Q. You didn’t see him?
“A. I can’t remember seeing him, except at the time I recognized him when he started to turn in front of me. I realized that was Mr. Jory.”

Plaintiff explains this testimony by stating that Mrs. Fontenot was not then referring to the first time she saw the Jory vehicle, but rather was referring to the time when she first recognized Mr. Jory.

At other times she testified that she had noticed the car in front of her before it began to enter her lane of traffic. Tr. 158, 195, 202, and 254.

When Jory eased into the left lane, Fon-tenot was in a position where she could not avoid the accident. As Jory stated, she was in his blind spot. She did everything she could do by turning up on the neutral ground median. It is certain that she was looking at Jory’s automobile closely enough to recognize the driver at the time he began his turn. At no other point was lookout or lack of it, pertinent to this case. Fontenot was looking when she should have been looking and was still unable to avoid Jory who was oblivious to her presence.

A motorist has the duty to keep a lookout to see dangerous situations as soon as they become visible and to avoid perceived dangers if he can, but he is not held to anticipate improper turns by other motorists. See Bankston v. Baton Rouge Bus Co., 58 So.2d 232 at 235, 6 (La.App. 1st Cir. 1952); Vigilant Insurance Co. v. Lumbermen’s Mutual Cas. Co., 85 So.2d 87 (La.App. 1st Cir. 1955); Rottman v. Beverly, 183 La. 947, 165 So. 153 (1935). See also Blashfield, Automobile Law and Practice (2d ed) § 112.7, pp. 625-626; Kennedy v. Frierson, 142 So.2d 838. (La.App. 2nd Cir. 1962).

It is well established that under the “emergency doctrine” when one is confronted with a sudden peril requiring instinctive action, he is not, in determining his course of action, held to the exercise of the same degree of care as when he has time for reflection * * Blashfield, Automobile Law and Practice (2d ed.) § 102.26, p. 194; Jackson v. Indiana Lumbermen’s Mutual Insurance Co., 175 So.2d 349 (La.App. 2nd Cir. 1965).

QUANTUM

Mrs. Fontenot’s claims are based on two conditions which she seeks to relate to the accident. First, she sustained a cervical strain of moderate severity. Secondly, on February 29, 1968, she was diagnosed as having a carpal tunnel syndrome, a condition which brings about numbness to the inside of the hand and fingers as a result of constriction of the “tunnel” in the wrist, through which nerves pass to the hand.

After the accident, Mrs. Fontenot proceeded to her work as a registered nurse employed by the American Legion Hospital in Crowley. Some two hours later, she developed a severe headache, dizziness, and vomiting, with severe pain in her neck. Dr. Joe Holden, a general practitioner of Crowley, examined her, took x-rays (which were [330]*330negative), gave her pain medication, put a cervical collar on her and put her to bed in the hospital. Later that day, he permitted her to return to her home in Eunice. She returned to work at the Hospital about 10 days later and worked regularly until March of 1968. She wore a cervical collar for several weeks.

She gave up her work at the Hospital because she didn’t have any strength in her right hand, and didn’t want to impose on the other nurses by having them do her work. She then worked for a Nursing Home at the same salary, for a period of four or five weeks, to cover for a friend who had to take maternity leave. Since that time, Mrs. Fontenot has done some part time private duty as a Registered Nurse.

Dr. Holden was the treating physician. He had treated her earlier for a back injury, a thyroid condition and for some heart trouble.

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228 So. 2d 327, 1969 La. App. LEXIS 5724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fontenot-v-liberty-mutual-insurance-lactapp-1969.