Harbin v. Ward

147 So. 3d 213, 2013 La.App. 1 Cir. 1620, 2014 WL 3610748, 2014 La. App. LEXIS 1417
CourtLouisiana Court of Appeal
DecidedMay 29, 2014
DocketNo. 2013 CA 1620
StatusPublished
Cited by13 cases

This text of 147 So. 3d 213 (Harbin v. Ward) 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
Harbin v. Ward, 147 So. 3d 213, 2013 La.App. 1 Cir. 1620, 2014 WL 3610748, 2014 La. App. LEXIS 1417 (La. Ct. App. 2014).

Opinion

McClendon, j.

| ¡¿Defendants, an insurer and its insured, appeal a trial court judgment assigning its insured with sole fault for causing an accident. Defendants also seek review of the amounts awarded to the plaintiff for medical specials and general damages. For the reasons that follow, we amend the judgment to assign 25% fault to the plaintiff, and affirm the judgment, as amended.

FACTS AND PROCEDURAL HISTORY

On October 28, 2010, Ms. Gertrude Ward was exiting a gas station and attempting to make a left turn into the northbound lanes of South Range Avenue in Denham Springs. To reach the northbound lanes, Ms. Ward had to cross three lanes of southbound traffic. Ms. Ward was able to traverse the first two lanes, but did not see a Livingston Parish school bus, which was being operated by Joan Delatte within the third lane of travel, until she entered the lane being occupied by the school bus. The school bus struck the side of Ms. Ward’s vehicle.

Ms. Leah Harbin, who was driving a 2009 Kia Rio, was traveling behind the school bus in the third lane of travel. Following the collision between the school bus and Ms. Ward’s vehicle, Ms. Harbin’s vehicle ran into and partially underneath the school bus. As a result of the accident, Ms. Harbin sought medical treatment for airbag and seatbelt burn, as well as for injuries to her left shoulder, back, and neck.

On September 28, 2011, Ms. Harbin filed suit against Ms. Ward and Ms. Ward’s automobile liability insurer, National Automotive Insurance Company.1 Following trial, the trial court found Ms. Ward 100% at fault for causing the three vehicle wreck and the subsequent injuries to Ms. Harbin. In assessing all fault for the accident against Ms. Ward, the trial court reasoned:

In the present case [Ms. Ward] attempted to traverse three lanes of traffic without control lights or signs at which time [Ms. | sWard] was struck by a bus. This unexpected course of events gave [Ms. Harbin] little or no time to respond to the hazardous condition enveloping the roadway. Unable to avoid colliding with the bus, [Ms. Harbin] was put in the precise situation as contemplated by the Sudden Emergency Doctrine as it relates to the following driver statute. [217]*217Further, as established above, it was the negligence of [Ms. Ward], rather than [Ms. Harbin], that was the proximate cause of the hazardous condition. Therefore, the Sudden Emergency Doctrine shields [Ms. Harbin] from any allocation of fault rendering [Ms. Ward] solely liable for the resulting damages.

Ms. Ward and her insurer, National Automotive Insurance Company, were cast in judgment, in solido, for $18,068.14, plus judicial interest from the date of demand.

Ms. Ward and National Automotive Insurance Company (hereinafter collectively referred to as “National Automotive”) have appealed, assigning the following as error:

1. The trial court erred in determining that Ms. Ward’s actions precipitating the first accident excused Ms. Harbin’s fault for the subsequent rear-end collision.
2. The trial court erred in applying the Sudden Emergency Doctrine to excuse Ms. Harbin from liability for her own negligence.
3. The trial court erred in not considering the comparative fault of Ms. De-latte and in not finding Ms. Delatte was comparatively at fault.
4. The trial court erred in not reducing special and general damages based upon the intervening accident and two-month setback.

DISCUSSION

Liability

In reviewing a trial court’s findings of fact, appellate courts employ a “manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted). Where there is a 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 more reasonable. Id. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, if a trial court |4applies incorrect principles of law and such errors are prejudicial, the appellate court is required (if it can) to render judgment on the record applying the correct law and determining the essential material facts de novo. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La.App. 1 Cir. 8/29/07), 970 So.2d 564, 571, writ denied, 07-2228 (La.1/11/08), 972 So.2d 1168 (citing Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 735).

For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 275-76.

All motorists owe a general duty to observe what should be observed. Mart v. Hill, 505 So.2d 1120, 1123 (La. 1987). Additional duties arise depending on the motorist’s movements on the roadway in relation to other vehicles. Relevant hereto are the duties and presumptions associated with a motorist entering a highway and with a following motorist.

[218]*218First, LSA-R.S. 32:124 provides that the driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. The driver entering a highway has the primary duty to avoid a collision. Walley v. Vargas, 12-022 (La.App. 1 Cir. 9/21/12), 104 So.3d 93, 105. Unusual, extreme, and high care toward favored traffic is required of such a motorist under the case law. Id.

Second, with regard to the following motorist, the law has established a rebuttable presumption that a following motorist who strikes a preceding | ^motorist from the rear has breached the standard of conduct prescribed by LSA-R.S. 32:81A and is therefore liable for the accident.2 Johnson v. Magitt, 12-0200 (La.App. 1 Cir. 9/21/12), 111 So.3d 11, 12. The rule is based on the premise that a following motorist whose vehicle rear-ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances. Johnson, 111 So.3d at 13. While a following motorist may assume that the vehicle in front is being driven with care and caution, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the lead vehicle under circumstances which should be reasonably anticipated. Leonard v. Favaloro, 05-206 (La.App. 5 Cir. 10/6/05), 916 So.2d 1191, 1192, and Bertrand v. Henry, 01-348 (La.App. 3 Cir.

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Cite This Page — Counsel Stack

Bluebook (online)
147 So. 3d 213, 2013 La.App. 1 Cir. 1620, 2014 WL 3610748, 2014 La. App. LEXIS 1417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harbin-v-ward-lactapp-2014.