Hull v. Colman

446 So. 2d 470, 1984 La. App. LEXIS 8161
CourtLouisiana Court of Appeal
DecidedFebruary 9, 1984
DocketNo. CA 1044
StatusPublished
Cited by2 cases

This text of 446 So. 2d 470 (Hull v. Colman) 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
Hull v. Colman, 446 So. 2d 470, 1984 La. App. LEXIS 8161 (La. Ct. App. 1984).

Opinion

CIACCIO, Judge.

This suit arose out of an automobile collision in a grocery store parking lot. Plaintiff, the driver of one car, sued the driver of the other car, Rayfield Colman, DeJoie Cab Company (Colman was on duty, driving his cab) and North-West Insurance Company. Defendants filed a third party demand against Schwegmann Giant Super Markets, Inc. Plaintiff filed a supplemental petition wherein he added Schwegmann as a defendant.

After trial the jury returned a verdict which found both drivers and Schwegmann negligent, found that defendant Colman had the last clear chance to avoid the accident, and awarded plaintiff $140,000 in damages. After the trial judge inquired of the jury the basis of its verdict, he ordered the jury to redeliberate. Although we find no precedent permitting such a procedure, in the absence of objection by any party, the jury resumed its deliberations and returned an identical verdict except that the award for damages was reduced to $75,000. DeJoie Cab Company was granted a directed verdict at the close of plaintiffs case.

Schwegmann filed a motion to dismiss which the trial court granted. Then, in accordance with the verdict, the trial judge rendered judgment in favor of the plaintiff and against Colman and Northwest for $25,000 (the limits of the insurance policy) and in favor of the plaintiff, and against Colman individually for $50,000. DeJoie Cab Company and Schwegmann were dismissed on the basis of their respective motions for directed verdict and to dismiss.

Defendants Colman and Northwest have appealed raising issues on a question of evidence, application of the doctrine of last clear chance, and the excessiveness of the damage award in general and in consideration of a second accident in which plaintiff was involved. Plaintiff has appealed the dismissal of Schwegmann.

After a careful review of the record, we find the doctrine of last clear chance inapplicable to the facts of this case. Defendant Colman, therefore, may not be held liable for plaintiffs damages. Further, we [472]*472find that in light of the jury verdict, Schwegmann was properly dismissed.

Plaintiff and defendant Colman had parked their cars across from each other on opposite sides of a two-way driveway in the parking lot of a Schwegmann store. The parking lanes were perpendicular to the driveway and were staggered so that one lane would not be directly across from the lane on the opposite side of the driveway.

The collision occurred when both drivers simultaneously backed from their parking spots into the driveway. The rear ends of the cars came into contact approximately five feet on plaintiff's side of the center line of the driveway.

Plaintiff testified that as he walked to his car he saw Colman and a passenger placing groceries into the cab. Plaintiff entered his car and began backing out when he stopped to allow a car to pass along the driveway between his car and Colman’s cab. After the car passed, plaintiff testified that “before I could look around again I was hit by the cab.”

Colman testified that he loaded his cab with a passenger and her groceries. He then entered his car, looked in the rearview mirror, turned around and looked through the rear window, and began backing up. He testified that the collision occurred after he had stopped backing and had placed the car’s transmission in drive; that he was stopped at the time of the collision and had not yet begun to move forward. Colman testified that plaintiff backed into the cab and that the collision caused the passenger to be thrown forward against the front seat.

The passenger did not testify.

The jury, responding to special interrogatories, found that both plaintiff and Colman had been negligent. The jury also answered affirmatively that Colman had the last clear chance to avoid the accident. The jury was not asked whether plaintiff had an opportunity t.o avoid the accident.

The concept of “last clear chance” applies to plaintiffs as well as defendants. Reliance upon “last clear chance” necessarily assumes that both parties were negligent. If either party becomes aware of an apparently imminent collision, that party is required to take every reasonable measure available to avoid the collision. Whichever party sues first, so as to make himself plaintiff, does not dictate who was required to take reasonable steps to avoid the collision. Both parties have a duty to avoid the collision, if possible.

If neither party is aware that a collision is imminent, then, in practical terms, neither party is going to take any steps to avoid it. The law, however, inquires whether a party should have been aware of the danger and whether the collision could have been avoided if the party had been aware. Where both parties have had an opportunity to avoid the collision and neither did so because each failed to timely discover the other, neither may recover. Under these circumstances both are at fault for failure to see the other and neither has had a last clear chance. Glatt v. Hinton, 205 So.2d 91 (La.App. 4th Cir.1967), writ refused, 251 La. 861, 206 So.2d 712 (1968); see also, George v. Bertrand, 262 So.2d 398 (La.App.3d Cir.1972); Gendusa v. Rabel, 212 So.2d 854 (La.App. 4th Cir.1968); Kraft v. U. Koen & Company, 188 So.2d 203 (La.App. 4th Cir.1966); Emco Insurance Company v. Employers Mutual Liability Insurance Company of Wisconsin, 150 So.2d 338 (La.App. 1st Cir.1963).

The jury found both plaintiff and defendant Colman negligent. The evidence supports this finding. Both drivers were inattentive and negligently backed into the driveway without first ascertaining that such a manuever could be accomplished safely. Neither driver was aware that their paths of travel would intersect until the collision occurred. Each driver should have been aware, and could have easily made himself aware, of the situation and could have taken steps to avoid the accident.

Plaintiff argues that Colman had more rearview mirrors which provided him [473]*473better rear visibility and that Colman had more room to maneuver so that he may have been able to back out without crossing the center line of the driveway. Even accepting these arguments as true, plaintiffs own negligence is not diminished and we find that plaintiff, if he had been attentive and seen what he should have seen, could have avoided the accident. Plaintiff had as much opportunity to avoid the accident as did Colman.

Having determined that “last clear chance” is inapplicable to the facts of this case, plaintiff is barred from recovery against Colman because of plaintiffs contributory negligence (this incident occurred prior to this State’s adoption of comparative negligence).

Plaintiffs contributory negligence also prevents his recovery against Schweg-mann. The jury found plaintiff and Schwegmann negligent. A judgment in accordance with the jury’s verdict would dismiss plaintiff’s claim against Schwegmann. The proper result was obtained, therefore, when the trial court dismissed plaintiff’s claims against Schwegmann, as this result was in accord with the verdict of the jury.

Plaintiff argues that Schwegmann should be held strictly liable under La.C.C. Art. 2317. Plaintiff argues further that contributory negligence is not a bar to recovery against a defendant held strictly liable, and so he should recover against Schwegmann.

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Related

Lovell v. Lovell
490 So. 2d 330 (Louisiana Court of Appeal, 1986)
Hull v. Colman
447 So. 2d 1070 (Supreme Court of Louisiana, 1984)

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Bluebook (online)
446 So. 2d 470, 1984 La. App. LEXIS 8161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hull-v-colman-lactapp-1984.