Johnson v. Johnson

128 So. 3d 627, 13 La.App. 3 Cir. 719, 2013 WL 6488273, 2013 La. App. LEXIS 2540
CourtLouisiana Court of Appeal
DecidedDecember 11, 2013
DocketNo. 13-719
StatusPublished
Cited by2 cases

This text of 128 So. 3d 627 (Johnson v. Johnson) 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
Johnson v. Johnson, 128 So. 3d 627, 13 La.App. 3 Cir. 719, 2013 WL 6488273, 2013 La. App. LEXIS 2540 (La. Ct. App. 2013).

Opinions

PETERS, J.

liThe plaintiffs, Ananias Johnson and Theresa Johnson (the Johnsons), appeal a trial court judgment dismissing their suit for damages for the wrongful death of their son, Tertius Johnson. For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

Tertius Johnson (Tertius) died as a result of injuries he sustained in a February 17, 2006 automobile accident which occurred in Iberia Parish, Louisiana. The accident occurred at the intersection of U.S. Highway 90 (Highway 90) and Hu-bertville Road at approximately 6:30 p.m. when the 1993 Mercury automobile driven by Tertius collided with a tractor-trailer driven by Robert Johnson, Jr. (Robert). Highway 90 at the accident location is a four-lane highway running generally east and west with a median separating the lanes. Hubertville Road runs generally north and south and intersects Highway 90 at a right angle. No traffic controls other than a stop sign are located at the intersection, but it is undisputed that traffic on Hubertville Road is required to yield to traffic on Highway 90. Although there are no street lights at the intersection, Highway 90 at that point is generally flat and open, and distance vision in both directions [629]*629is significant. The speed limit on Highway 90 at the intersection is sixty-five miles per hour.

On July 5, 2006, the Johnsons brought a survival action and wrongful death suit against Robert; his employer, First Fleet, Inc.; the owner of the tractor-trailer rig, Suntrust Leasing Corporation; and United States Fidelity and Guaranty Company to recover their damages. The two-day trial on the merits began on May 14, 2012, and the evidence presented at trial raises few contested facts.

| ¡.Immediately before the accident, Terti-us was traveling west on Highway 90, and Robert was approaching the intersection from the north, intending to turn east onto Highway 90. Robert testified that he stopped at the intersection and looked at both the westbound and eastbound lanes before pulling into the median on the highway. He testified that it was dusk, but not dark, when he stopped at the intersection, and he observed lights in the westbound lane “four or five football fields” away. He then proceeded to the median in anticipation of completing his turn. When he reached the median, he was forced to wait on eastbound traffic on Highway 90 before making his left turn. During that time, the westbound lane of Highway 90 was blocked by his trailer with the only warning to oncoming traffic being the reflective tape on the side of the trailer. Robert testified that he had been stopped in the median for seven to ten seconds when Tertius’ vehicle struck the rear wheels of his trailer.

Also, immediately before the accident, Roger Manshack was driving west on Highway 90 approaching the Hubertville Road intersection when Tertius passed him and another vehicle at a high rate of speed. He testified that he and the driver of another vehicle were driving side-by-side when he observed a vehicle in his rear view mirror approaching at a high rate of speed. According to Mr. Manshack, Terti-us passed between the two vehicles down the center of the highway as both had to maneuver their vehicles to the shoulder to avoid a collision. He caught up with Terti-us when he was forced to stop for a red light, but when the light changed, Tertius accelerated to a high rate of speed and left Mr. Manshack behind again. Mr. Man-shack testified that Ross Armand, the passenger is his vehicle, dialed 911 to report Tertius’ unsafe driving, but as they continued west on Highway 90, he observed the crash. Mr. Manshack testified that he saw the trailer blocking the | ^highway, but that Tertius was traveling so fast “he never seen the truck.” He noted that after the impact, he observed two other vehicles go around the crash site without stopping.

Tertius was transported to a local medical facility where he was pronounced dead while still in the emergency room. Blood samples were taken, and subsequent tests of those samples established that Tertius had a blood-alcohol concentration of 0.11 percent by weight based on grams of alcohol per one hundred cubic centimeters of blood. Additionally, the blood samples tested positive for the presence of marijuana, codeine, and valium. The level of codeine was forty-nine, or nineteen points above the therapeutic level for that substance; and the level of valium was 100, or fifty-one points above the therapeutic level for that substance. The physical evidence at the scene of the accident established without dispute that Tertius was traveling in excess of eighty miles per hour as he approached Robert’s trailer. Additionally, Ralph Ward of Jeanerette, Louisiana, testified that Tertius passed him on Highway 90 shortly before the accident and, if he had had a cell phone, he would have called 911 because of Tertius’ speed. Mr. Ward came upon the scene of the accident almost [630]*630immediately after it occurred, but did not witness the accident.

At trial, both sides offered expert testimony. Michael Gillen, a Baton Rouge, Louisiana accident-reconstruction expert, testified for the Johnsons. According to Mr. Gillen, the width and opening length of the median was such that Robert did not have to leave the trailer blocking the westbound lane of Highway 90. Instead, he could have maneuvered his tractor-trailer rig at an angle such that its entire length could fit within the median opening, although in doing so Robert |4would prevent anyone eastbound on Highway 90 from making a left turn onto Hubertville Road.

With regard to Tertius’ part in the accident, Mr. Gillen testified that he attempted to calculate his perception reaction time (PRT). He suggested that this four-step process requires a recognition that an approaching driver must first perceive that something is presenting a danger and identify what the danger is. He must then go through the emotional process of deciding what to do and actually do it. After assuming that the reflectors on the side of the trailer met the standards of the Highway Regulatory Act requiring 600 feet of visibility, he concluded that a driver traveling sixty-five miles per hour would not be able to stop under normal braking conditions, but would have time if he slammed on his brakes. He also noted that the successful stopping range would vary depending on other conditions, including whether the oncoming driver had his high or low beam headlights on. At eighty-one miles per hour, his estimation of Tertius’ approaching speed, he stated that it would be impossible to avoid the accident if the first recognition of the reflectors occurred 600 feet from potential impact, but had Tertius been using low beams, recognition would come at a much closer distance. Mr. Gillen suggested that he found no evidence to suggest that Tertius’ substance impairment played a part in the accident. He suggested that the response time could have just as easily been reduced by other distractions such as adjusting the radio or looking in the rear view mirror.

On cross examination, Mr. Gillen acknowledged that neither Tertius’ intoxication nor the presence of the other substances in his system played a part in his analysis. When he was played a 911 tape of a telephone call from a passenger in another vehicle who had witnessed Tertius driving erratically to the point of) ^nearly running someone off the highway almost immediately before the accident, he testified only that he was of the opinion that Tertius had been changing lanes on the highway. When faced with the 911 scenario, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
128 So. 3d 627, 13 La.App. 3 Cir. 719, 2013 WL 6488273, 2013 La. App. LEXIS 2540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-lactapp-2013.