Keeth v. STATE, EX REL. DEPT. OF PUBLIC SAFETY & TRANSP.

618 So. 2d 1154, 1993 WL 142012
CourtLouisiana Court of Appeal
DecidedJune 18, 1993
Docket24,720-CA
StatusPublished
Cited by72 cases

This text of 618 So. 2d 1154 (Keeth v. STATE, EX REL. DEPT. OF PUBLIC SAFETY & TRANSP.) 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
Keeth v. STATE, EX REL. DEPT. OF PUBLIC SAFETY & TRANSP., 618 So. 2d 1154, 1993 WL 142012 (La. Ct. App. 1993).

Opinion

618 So.2d 1154 (1993)

Buddy KEETH, et ux., Plaintiffs-Appellants,
v.
STATE of Louisiana, Through the DEPARTMENT OF PUBLIC SAFETY AND TRANSPORTATION, Defendants-Appellees.

No. 24,720-CA.

Court of Appeal of Louisiana, Second Circuit.

May 5, 1993.
Application Dismissed June 18, 1993.

*1157 Sockrider, Bolin & Anglin by James E. Bolin, Jr., Shreveport, for plaintiffs-appellants.

Richard Ieyoub, Atty. Gen. by S.P. Davis, Shreveport, for defendants-appellees.

Before SEXTON, HIGHTOWER and VICTORY, JJ.

SEXTON, Judge.

Plaintiff, Buddy Keeth, appeals the trial court's judgment rendered in his favor which found him 25 percent at fault and allegedly awarded him inadequate damages for personal injuries he received in an automobile accident caused by the defendants, Louisiana State Trooper James Pepper and the state of Louisiana, through the Department of Public Safety and Corrections. We reverse in part, amend in part, and affirm as amended.

FACTS

On November 20, 1990, at approximately 1:00 p.m., Louisiana State Trooper James Pepper was traveling from Homer to Shreveport on U.S. Highway 79 South. He was flagged down by Jeff Taylor, who wanted to talk to him about a traffic matter. The officer then proceeded to make a U-turn and he parked his car on the shoulder of U.S. Highway 79 North where Taylor was also parked on the shoulder of the road.

Meanwhile, Buddy Keeth was traveling at a speed of 55 miles per hour on U.S. Highway 79 South. As he crested and topped the hill approximately seven miles *1158 south of Homer, Mr. Keeth saw the trooper's car parked on the northbound shoulder of the roadway some 400 to 500 feet away. At that point, U.S. Highway 79 has two southbound lanes and one northbound lane. Mr. Keeth was driving in the inside lane, which is the lane closest to the northbound lane and the lane for ordinary traffic.

When Mr. Keeth was approximately 150 feet away, the state trooper's car suddenly pulled into the northbound lane of traffic and started to make a U-turn. Mr. Keeth immediately applied his brakes, but he was unable to avoid the collision. The accident occurred in the inside southbound lane as Mr. Keeth's vehicle slammed broadside into the passenger side of the state trooper's vehicle.

Officer Pepper testified that before he pulled back onto the road, he glanced in his rearview mirror and saw a northbound 18-wheel truck approximately 500 yards back. Officer Pepper then glanced ahead and saw no traffic approaching in the southbound direction. He looked back into his rearview mirror to check the 18-wheel truck again, and then proceeded out onto the highway and made his U-turn. Officer Pepper first noticed plaintiff's vehicle when he heard the brakes and tires squealing.

Mr. Keeth sustained multiple injuries from the accident. He was hospitalized at Schumpert Medical Center from November 20, 1990, until January 25, 1991, 28 days of which were spent in the intensive care unit. Mr. Keeth was later hospitalized again for surgery to his shoulder. Mr. Keeth has undergone substantial rehabilitation and physical therapy since being released from the hospital.

Mr. Keeth and his wife, Brenda, subsequently filed suit for damages against Officer Pepper and the state of Louisiana, through the Department of Public Safety and Corrections. On June 25, 1992, after a trial on the merits, the trial court found that Officer Pepper was negligent in not making sure the way was clear before commencing his U-turn and that the plaintiff was negligent in not maintaining control of his vehicle in order to stop before the collision or to take evasive action to avoid the collision. Officer Pepper and the state of Louisiana were assessed 75 percent of the fault and plaintiff was assessed the other 25 percent. The trial court awarded the following damages to Buddy Keeth:

1) Past and future medical expenses..........................................$255,000
2) Past and future physical pain, suffering, mental anguish, disability,
     enjoyment of life and disfigurement.....................................$250,000
3) Loss of wages: past and future............................................$225,000

Any other demands by the plaintiff were denied. Brenda Keeth was awarded $5,000 for loss of consortium and $3,200 for loss of earnings. A final judgment was signed on July 10, 1992, and it is from this judgment that plaintiff now appeals.

COMPARATIVE NEGLIGENCE

On appeal, plaintiff contends the trial court erred in assessing him 25 percent fault. Plaintiff contends the sudden emergency doctrine should apply in the instant case, and he should not be faulted for applying his brakes instead of taking another course of conduct to avoid the accident. Defendants assert that Mr. Keeth had the last clear chance to avoid the collision and he failed to take any action other than jamming on his brakes. Defendants also contend that plaintiff failed to mitigate his damages because he was not wearing his shoulder seat belt when the accident occurred. Accordingly, defendants contend that plaintiff should be assessed a higher percentage of fault.[1]

*1159 Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own safety and protection, that standard being that of a reasonable man under like circumstances. Harris v. Pineset, 499 So.2d 499 (La.App. 2d Cir. 1986), writs denied, 502 So.2d 114 (La.1987), and 502 So.2d 117 (La.1987). LSA-C.C. Art. 2323 provides that a plaintiff whose negligence contributes to his own injuries for which he seeks damages shall have his claim reduced in proportion to his degree of fault. The determination and apportionment of fault are factual matters, and the trial court's findings in this regard should not be disturbed by a reviewing court unless they are erroneous. Baugh v. Redmond, 565 So.2d 953 (La.App. 2d Cir.1990).

In assessing comparative fault, the trial court must consider the nature of each party's conduct and the extent of the causal relationship between the conduct and the damages claimed. Relevant factors concerning the nature of each party's conduct include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985).

The record evidence in the instant case reveals that on November 20, 1990, Buddy Keeth was traveling at 55 miles per hour in his proper lane of travel on U.S. Highway 79 South. As he crested the hill approximately seven miles south of Homer, Mr. Keeth noticed two vehicles parked on the opposite shoulder of the road approximately 500 feet away. When Mr. Keeth was approximately 150 feet away from the vehicles, the state trooper's vehicle, without warning and unexpectedly, started to make a U-turn and block plaintiff's lane of traffic. Mr. Keeth immediately applied his brakes, but he was unable to avoid hitting the state trooper's vehicle.

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Bluebook (online)
618 So. 2d 1154, 1993 WL 142012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keeth-v-state-ex-rel-dept-of-public-safety-transp-lactapp-1993.