Gibson v. Barmore

134 So. 3d 1229, 2014 WL 726564, 2014 La. App. LEXIS 474
CourtLouisiana Court of Appeal
DecidedFebruary 26, 2014
DocketNo. 48,870-CA
StatusPublished

This text of 134 So. 3d 1229 (Gibson v. Barmore) 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
Gibson v. Barmore, 134 So. 3d 1229, 2014 WL 726564, 2014 La. App. LEXIS 474 (La. Ct. App. 2014).

Opinion

PITMAN, J.

1 Appellants, Daphne Barmore and Safeway Insurance Company, appeal the trial court’s ruling that Ms. Barmore was 75 percent at fault and Appellee James Gibson was 25 percent at fault for an automobile accident. Mr. Gibson also appeals the trial court’s assignment of comparative fault and the award of general damages. For the following reasons, we affirm.

FACTS

On the morning of February 8, 2012, Mr. Gibson was driving his Toyota Camry north on Kingston Road in Shreveport. At the same time, Ms. Barmore was backing her Pontiac Grand Prix out of her driveway onto Kingston Road, and the automobiles collided.

On March 5, 2012, Mr. Gibson filed a petition for damages, claiming that Ms. Barmore was at fault for the accident because she “failed to maintain proper lookout and violently collided” with his vehicle. Mr. Gibson alleged that he sustained injuries as a result of the collision and claimed damages of extreme physical pain and suffering, mental anguish and anxiety, loss of enjoyment of life, emotional distress, medical expenses, lost wages, interest and costs.

On April 10, 2012, Ms. Barmore and her insurer, Safeway, filed an answer, recon-ventional demand and third party demand. They argued that Ms. Barmore was not negligent and not at fault for the collision. In the alternative, Ms. Barmore argued that Mr. Gibson was guilty of comparative negligence.1

[1231]*1231| ¾A bench trial was held on March 26, 2013.

Mr. Gibson testified that, on February 8, 2012, he left his house at approximately 7:25 a.m. to drive to work. He stated that the weather was clear and the sun was up. He explained that he came to a stop at the corner of Williamson Way and Kingston Road and then turned left onto Kingston Road. He testified that, while he was driving north on Kingston Road, Ms. Bar-more’s car “basically started coming out of her driveway and was still in reverse and I had to basically just kind of lockup my brakes to stop the car and kind of veer off the road to miss her and hit the right rear part of her car.” Mr. Gibson explained that the front left side of his car collided with the right rear side of Ms. Barmore’s car. Mr. Gibson stated that the rear windshield of Ms. Barmore’s car was not defrosted when she backed out of her driveway. He further testified that Ms. Barmore’s car was “probably 95%” in the northbound lane of Kingston Road at the time of the collision and that she drove approximately 15 feet forward after the collision. He explained that the area of Kingston Road where the accident occurred is a flat road with no hills or curves and that the distance from the intersection of Williamson Way and Kingston Road to the location of the accident is approximately 75 yards.

Mr. Gibson stated that he was driving approximately 25 miles per hour when the accident occurred.

| ¡¡Mr. Gibson testified that Officer Rodney Medlin of the Shreveport Police Department came to the scene and wrote a police report, which Mr. Gibson reviewed. He explained that Officer Medlin’s report stated that Ms. Barmore’s vehicle was in drive when the collision occurred, but Mr. Gibson recalled that her vehicle was still in reverse when the collision occurred. Mr. Gibson testified that Officer Medlin’s testimony that Mr. Gibson was looking down or at his cell phone prior to the accident was not correct.

Mr. Gibson testified that he suffered injuries as a result of the accident, including pain in his right shoulder. He first went to Velocity Care and then to his family doctor at Willis-Knighton. Mr. Gibson stated that X-rays were taken of his shoulder and that he was prescribed pain medication. Mr. Gibson testified that the pain lasted several months and that his exercise routine was limited because of the pain. On cross-examination, he stated that, in April 2012, he competed in a Tough Mudder competition, which is a 12-mile obstacle course.

Ms. Barmore testified that, on the morning of February 8, 2012, she turned on her car to warm it up and defrost the windows while waiting for her children’s school bus [1232]*1232to arrive. She stated that, after her children got on the school bus, she began to back out of the driveway to drive to work. She explained that she always parks her car on the far left of her driveway and that the driveway is two car-lengths long. She further testified that she stopped halfway down the driveway to look both ways and that she saw Mr. Gibson approaching the stop sign at the intersection of Williamson Way and Kingston Road. She explained that she continued to back onto Kingston |4Road into the northbound lane; and, as soon as she put her car in drive, the collision occurred. She said that she drove her car a few feet forward and then stopped and got out of the car to speak to Mr. Gibson. She testified that Mr. Gibson told her, “I was on my phone on a conference call and I looked up and there you were.”

On rebuttal, Mr. Gibson testified that Ms. Barmore’s statement that he said he had been on a conference call at the time of the accident is not accurate and that he did not say that to Ms. Barmore.

In his deposition, Officer Medlin testified that he was the investigating officer on the scene of the accident. He explained that the sun was up and the weather was clear. He noted that the distance from the stop sign on the corner of Williamson Way and Kingston Road to the location of the accident is approximately 75 yards and that the road is straight and flat with no obscurements. He stated that, when he arrived at the scene, both cars were in the northbound lane and Ms. Barmore’s car was north of her driveway. He recounted both parties’ statements about what happened. He explained that Ms. Barmore said she “backed out of her driveway, looked both ways to make sure it was clear. She ... had just started traveling northbound” when the accident occurred. He stated that Mr. Gibson said “he turned off of Williamson Way and was traveling northbound, looked up and Ms. Barmore was in front of him. He tried to dodge it and didn’t have time to.” He stated that neither party reported injuries. In his police report, Officer Medlin wrote that Mr. Gibson was following too closely and was inattentive. Officer Medlin also testified that he overheard Mr. Gibson mention to his mother, who arrived at the scene of the accident, that he had |Bbeen “messing with his cell phone and something about his breakfast.... And he said he looked up, and Ms. Barmore was out in front of him. He tried to swerve over and struck her on the rear passenger’s side.”

On March 27, 2013, the trial court filed written reasons for judgment, noting that it had read the deposition of Officer Med-lin and also had gone to the location of the accident. The trial court found that Mr. Gibson “carried his burden of proof as to the fault and thus liability of Daphne Bar-more, however, with a comparative fault assignment to James Gibson of 25%.” The trial court determined that the medical care of Mr. Gibson was “warranted and reasonable” and granted medical special damages as prayed for by Mr. Gibson. Considering the months of shoulder and back pain endured by Mr. Gibson, the trial court set general damages in the amount of $5,500, with all damages subject to the apportionment of fault. Court costs were assessed to Ms. Barmore and Safeway. The trial court filed its judgment on April 23, 2013.

On May 16, 2013, Ms. Barmore and Safeway Insurance Company filed a petition and order for suspensive appeal.

DISCUSSION

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Bluebook (online)
134 So. 3d 1229, 2014 WL 726564, 2014 La. App. LEXIS 474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gibson-v-barmore-lactapp-2014.