Hornage v. White

841 So. 2d 1026, 2002 La.App. 3 Cir. 1117, 2003 La. App. LEXIS 768, 2003 WL 1544178
CourtLouisiana Court of Appeal
DecidedMarch 26, 2003
DocketNo. 02-1117
StatusPublished
Cited by1 cases

This text of 841 So. 2d 1026 (Hornage v. White) 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
Hornage v. White, 841 So. 2d 1026, 2002 La.App. 3 Cir. 1117, 2003 La. App. LEXIS 768, 2003 WL 1544178 (La. Ct. App. 2003).

Opinion

1GREMILLION, Judge.

The defendants, Poston White and Safeway Insurance Company, and Allstate Insurance Company, appeal the judgment rendered in favor of the plaintiff, Gregory K. Homage. For the following reasons, we reverse in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Homage, a passenger in a Toyota pickup owned by Herman Williams and insured by Allstate,1 filed suit for injuries he suffered arising out of a June 1999 accident with an Oldsmobile Cutlass driven by Poston White, that was owned by David Roy and insured by Safeway. The accident occurred in the employee parking lot of Doane Products Company. Following a bench trial in May 2002, the trial court found that Williams and White shared equal responsibility for the accident. It further found that Homage was without fault as he was a guest passenger, and awarded him $50,000 in general damages. Allstate, White, and Safeway timely appealed to this court.

ISSUES

Allstate, White, and Safeway assign as error:

1. The trial court’s finding that White was fifty percent at fault.
2. The trial court’s award of $50,000 to Homage when there was no causal connection between Homage’s medical condition and the accident.

DISCUSSION

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989).

The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973). “The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

The trial court did not assign written reasons for judgment, although at the end of the trial it stated:

The court finds that there was an accident in the parking lot of a local company by two employees during the beginning of the lunch period. The court notes that the testimony reveals that each driver failed to notice the other vehicle in time to avoid the collision as it was not until the vehicles had collided that the parties realized that the other was in that area. No horns were blown by either party. With this in [1029]*1029mind, along with the eagerness of employees to make the most of their lunch period, the court notes that it compares this period of time during the day for most places as a quiet stampede. All right, be that as it may, the court finds that Herman Williams is 50% at fault in causing this accident and that Poston White is 50% at fault also in causing this accident. The passenger, Gregory Hor-nage, is without fault as he was a guest passenger and as such is entitled to recover general damages, and this | ¡¡court awards Mr. Homage a general damage award of $50,000 plus interest on all sums, all costs of court. Further, defendants are given credit for any amounts they’ve already paid. All right.

FAULT ALLOCATION

The trial court assigned White with fifty percent of the fault in causing this accident. The Defendants urge that it was unrefuted that White was at a complete stop when Williams backed his vehicle into him. Homage argues at length regarding the duty of a driver who is backing up his motor vehicle, citing Francis v. Commercial Union Insurance Co., 90-751 (La.App. 3 Cir. 2/12/92), 594 So.2d 1025. Based on our review of the record, we find it was manifestly erroneous for the trial court to assign White fifty percent of the fault in causing this accident. White had safely backed up his vehicle and was at a complete stop when he was hit by the vehicle driven by Williams.

White testified that he successfully backed Roy’s vehicle out of the parking spot, came to a stop, and was in the process of changing gears from reverse to drive when he was impacted by Williams’ vehicle. He stated that, before completing this maneuver, he looked behind the vehicle to make sure no one else was moving. This action placed the Roy vehicle perpendicular to the Williams vehicle; however, White testified that the only portion of the Roy vehicle that was directly behind the Williams vehicle was the front bumper, no deeper than to the front tires. White stated that the rear-passenger bumper of the Williams vehicle impacted the right front fender of the Roy vehicle.

Williams testified that after he and Hor-nage got into his track, he looked into his rearview mirror and then over his right shoulder, but did not see the Roy Lvehiele. He proceeded to back up, and stopped when he impacted the Roy vehicle. He stated that the Roy vehicle was six to eight inches into his lane and that he could not see the vehicle because of a Lincoln Continental that was situated between his truck and the Roy vehicle. He also said that he could not see out of the right side mirror because Homage was in the process of putting on his seatbelt and was blocking his view of the mirror. Williams further stated that he “probably” would have been able to see the Roy vehicle in the right side mirror if his vision had not been obstructed by Homage. In a previous deposition in which he had described the accident, Williams stated:

As I proceeded to release the clutch and move backwards, I could hear, ‘whoa, whoa, whoa,’ and when I looked over my shoulder, I looked in David Roy’s face, and at that point is when I made contact with his car.

However, at trial he denied making these statements.

Mark Lucas, the warehouse supervisor at Doane Products Company, witnessed the accident. He stated that he was around fifteen feet from the accident and observed that the Roy vehicle was at a complete stop when it was impacted by the Williams vehicle. He did state that prior to the impact, he heard Roy “hollering” at Williams in order to get his attention.

[1030]*1030Roy also testified that his vehicle was completely stopped when the Williams vehicle impacted it. He stated that White was in the process of shifting from reverse to drive at the time of the impact.

In Francis, 594 So.2d at 1026, we addressed the duty of a backing motorist as found in La.R.S. 32:281(A), and stated:

La.R.S. 32:281(A) provides that “[t]he driver of a vehicle shall not back the same unless such movement can be made with reasonable | ^safety and without interfering with other traffic”. In Turner v. New Orleans Public Service Inc.,

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Cite This Page — Counsel Stack

Bluebook (online)
841 So. 2d 1026, 2002 La.App. 3 Cir. 1117, 2003 La. App. LEXIS 768, 2003 WL 1544178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hornage-v-white-lactapp-2003.