Gutierrez v. Keller

108 So. 3d 303, 2012 La.App. 4 Cir. 0987, 2013 WL 175477, 2013 La. App. LEXIS 59
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 2012-CA-0987
StatusPublished
Cited by1 cases

This text of 108 So. 3d 303 (Gutierrez v. Keller) 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
Gutierrez v. Keller, 108 So. 3d 303, 2012 La.App. 4 Cir. 0987, 2013 WL 175477, 2013 La. App. LEXIS 59 (La. Ct. App. 2013).

Opinion

ROLAND L. BELSOME, Judge.

|, Plaintiffs, Leon and Vicki Gutierrez, appeal the trial court’s dismissal of their claims against defendants, Christopher Keller and the City of New Orleans. We find that the trial court was not manifestly erroneous or clearly wrong and affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs filed a petition for damages allegedly suffered on July 8, 2006, at the intersection of North Rampart Street and Saint Ferdinand Street, where they were involved in an automobile accident with a “sprint” unit operated by defendant, Christopher Keller.1

[305]*305At the time of the incident, Mr. Keller was a paramedic employed with the City of New Orleans in the process of responding to a code call for assistance. With him as a guest passenger was Dr. Christiane Ei-sele. While traveling south on St. Ferdinand Street, with his lights and sirens activated, Mr. Keller approached a stop sign at the intersection of North Rampart Street and noticed that his view was obstructed by an illegally parked cargo van. He stopped at the stop sign and | ¡.inched forward onto North Rampart Street in order to determine whether it was safe to cross the intersection. By the time he obtained a visual, Mr. Keller observed the Gutierrez vehicle. Believing that his unit would be struck, he attempted to clear the intersection as he had no time to reverse. Mr. Gutierrez, who was traveling eastbound on North Rampart Street, applied his break in attempt to avoid the collision. However, rather than turn away from the “sprint” unit, he turned into it. Keller’s unit sustained minor damage to the rear while the front portion of the Gutierrez vehicle had received minor damage.

After a bench trial, the trial court entered judgment in favor of the defendants, dismissing the plaintiffs’ claims with prejudice. The trial court found that the plaintiff-driver, Mr. Gutierrez, failed to recognize and yield to the “sprint” unit that had activated its lights and sirens. It further found that Mr. Gutierrez had the last clear chance to avoid the accident; however, rather than turn his vehicle away from the “sprint” unit, he turned his vehicle toward it. From the judgment dismissing their claims, the plaintiffs filed the instant appeal.

STANDARD OF REVIEW

It is well-settled in Louisiana that under the manifest error standard of review, a factual finding cannot be set aside unless the appellate court determines that it is manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126, p. 5 (La.7/6/06), 935 So.2d 646, 650 (citing Smith v. Louisiana Dept. of Corrections, 1993-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); and Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). Accordingly, to reverse a factfinder’s determinations, an appellate court must review the record in its entirety and find |anot only that a reasonable factual basis does not exist, but also that the record establishes the factfinder is clearly wrong or manifestly erroneous. Id.

Likewise, an appellate court cannot reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, 279. Where there are two permissible views of the evidence, the factfinder’s determinations cannot be manifestly erroneous or clearly wrong; however, where documents or objective evidence so contradict the witness’s story, a court may find manifest error. Salvant, 2005-2126 at p. 5, 935 So.2d at 650 (citing Rosell, supra at 844-45). Conversely, where such factors are not present, and a factfinder’s determination is based on its decision to credit the testimony of one or more witnesses, “that finding can virtually never be manifestly [306]*306erroneous or clearly wrong.” Id.; see also Rosell, supra.

DISCUSSION

Plaintiffs argue that the trial court committed manifest error when it found no negligence on behalf of defendants, Keller and the City of New Orleans. In support of this argument, plaintiffs contend that: 1) Keller was the disfavored driver; and 2) the immunity provisions that apply to emergency vehicles are not applicable to this case.

Duty of Motorist at a Stop Sign

In support of their assignment of error, the plaintiffs first argue that Mr. Keller was the disfavored driver since he had the stop sign and failed to make certain that it was safe to cross the intersection. They further assert that they could not avoid the accident.

14Mr. Keller’s travel was controlled by a stop sign at the intersection of St. Ferdinand and North Rampart Street. La. R.S. 32:123 sets forth the duty of a motorist confronted with a stop sign. After stopping, the statute mandates that a driver “yield the right-of-way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.” La. R.S. 32:123(B).

Louisiana courts have consistently held that a driver confronted with a stop sign at an intersection must bring his vehicle to a stop, appraise the traffic, and make sure the way is clear before he enters the intersection. McElroy v. Wilhite, 39,393, 39,394, p. 3 (La.App. 2 Cir. 5/18/05), 903 So.2d 627, 631. A driver must also look for and then evaluate oncoming traffic before proceeding. Id., 39,393 at p. 4, 903 So.2d at 631. The duty also includes looking a second time before entering. Id.; see also Continental Ins. Co. v. Duthu, 235 So.2d 182 (La.App. 4 Cir.1970). Moreover, in Louisiana, if a motorist fails to see what he should have seen, the court examines his subsequent conduct on the premise that he did see what he should have seen. Fernandez v. General Motors Corp., 491 So.2d 633, 636-37 (La.1986).

Stopping, therefore, does not fully discharge the duty of a driver negotiating an intersection such as the one presented in the case sub judice. Rather, Mr. Keller had a duty not only to stop at the sign, but to make sure after having stopped that it was safe to proceed further through the median and across the eastbound lanes of travel on North Rampart. See Klaveness v. Massey, 1999-867, p. 4 (La.App. 5 Cir. 2/16/00), 756 So.2d 538, 542. See also Atwood v. State Farm Auto. Ins. Co., 1995454, pp. 3-4 (La.App. 5 Cir. 12/13/95), 666 So.2d 1187, 1190 (duty to keep a proper lookout).

Un contrast to the above-cited duty of the motorist confronted with a stop sign, the duty of the motorist traveling on the favored street is quite minimal as noted in Fernandez v. Gen. Motors Corp., supra, wherein the Supreme Court stated:

A motorist on a right-of-way street is entitled to assume that motorists on the disfavored street approaching a stop sign will obey the traffic signal and will stop, look and yield the right of way to traffic proceeding on the favored street. Of course, once a right-of-way motorist in the exercise of ordinary vigilance sees that another motorist has failed to yield the right of way, a new duty evolves on the right-of-way motorist to take reasonable steps to avoid an accident if there is time enough to afford him a reasonable opportunity to do so. (Citations omitted.)

Fernandez v. Gen. Motors Corp., 491 So.2d at 636.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ritchey v. State Farm Mutual Automotive Insurance Co.
228 So. 3d 272 (Louisiana Court of Appeal, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
108 So. 3d 303, 2012 La.App. 4 Cir. 0987, 2013 WL 175477, 2013 La. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gutierrez-v-keller-lactapp-2013.