Miller v. Keal

694 So. 2d 569, 1997 WL 251758
CourtLouisiana Court of Appeal
DecidedMay 7, 1997
Docket29564-CA
StatusPublished
Cited by10 cases

This text of 694 So. 2d 569 (Miller v. Keal) 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
Miller v. Keal, 694 So. 2d 569, 1997 WL 251758 (La. Ct. App. 1997).

Opinion

694 So.2d 569 (1997)

Victoria E. MILLER and Bryan Miller, Plaintiffs-Appellants,
v.
T.L. KEAL and United Services Automobile Association, Defendant-Appellees.

No. 29564-CA.

Court of Appeal of Louisiana, Second Circuit.

May 7, 1997.
Rehearing Denied June 12, 1997.

*570 Patricia N. Miramon, Shreveport, for Plaintiffs-Appellants.

Jack E. Carlisle, Jr., J. Martin Lattier, Shreveport, for Defendants-Appellees.

Before NORRIS, STEWART and GASKINS, JJ.

STEWART, Judge.

Victoria and Bryan Miller appeal the trial court's judgment finding Mrs. Miller 70% at fault, awarding special damages in the amount of $14,321.74 and general damages in the amount of $17,800.00, dismissing Mr. Miller's loss of consortium claim, and assessing the Millers with 70% of court costs. T.L. Keal and United Services Automobile Association answered the appeal and assigned as error the trial court's assessment of fault.

FACTS

On December 14, 1994, at approximately 3:00 p.m., Mrs. Miller and T.L. Keal were *571 involved in an automobile collision. Ms. Miller exited the south parking lot of Portico Shopping Center, crossed the westbound lanes of Bert Kouns and pulled into the center turning lane so that she could turn into the eastbound lanes of traffic. Her vehicle was struck nearly head on from the west by an automobile driven by T.L. Keal. The impact of Mr. Keal's vehicle caused Mrs. Miller's car to collide with a third automobile. As a result of the collision, Mrs. Miller's head, left shoulder, and arm where thrown against the driver's side window.

When the accident occurred, traffic was backed up in the westbound lanes at the traffic light at the intersection of Bert Kouns and Youree Drive. Mr. Keal had entered the westbound turning lane approximately 500 feet before the intersection. Shreveport Police cited Mr. Keal with a violation of a Shreveport City Ordinance prohibiting driving over a "divided space" between a divided roadway that is not open to traffic by appropriate marking.

Mrs. Miller and her husband filed suit against Mr. Keal and his insurer. Trial was held on June 24, 1996. The court rendered a written judgment on June 26, 1996. The Millers appeal. Mr. Keal and USAA answered the appeal.

DISCUSSION

Assignment of Error #1: The trial court erred in assessing 70% of fault to Victoria Miller.

The Millers first contend that the trial court erred in assessing 70% fault to Mrs. Miller in causing the accident. They argue that the evidence clearly established that Mr. Keal was traveling at an excessive speed and using the westbound turning lane inappropriately and that his negligence was the sole cause of the accident. The Millers assert that the testimony of Sergeant Kenneth Jackson, who was called as an expert in the field of accident investigation, of Lawrence Reddix and Vincent Mangum, two eyewitnesses, and the testimony of Mr. Keal himself supports their argument.

Further, the Millers argue that Mr. Keal bears the burden of proving that Mrs. Miller was comparatively negligent, citing Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983). Additionally, they contend that the trial court's conclusion that Mrs. Miller had a duty to exit the parking lot "safely and without causing an accident" and that she did not have the right of way was erroneous. The Millers assert that the trial court recognized that the accident would not have occurred but for Mr. Keal's driving where prohibited by law. They conclude that the assessment of 70% of fault to Mrs. Miller has no factual or legal basis.

In answer to the Millers' appeal, Mr. Keal and USAA also assign as error the trial court's assessment of fault. He asserts that Mrs. Miller was solely at fault in causing the accident or, alternatively, that his percentage of fault should be reduced. Mr. Keal and USAA argue that photographic evidence and testimony established that Mr. Keal was not at fault in causing the accident and that no evidence was presented to show that Mr. Keal was driving at an excessive speed. Further, Mr. Keal and USAA assert that Mr. Keal did not violate the Shreveport City Ordinance and, even if Mr. Keal is found to have violated the ordinance, that such a violation still must be shown to be a legal cause of an accident in order to be actionable, citing Baughman v. State through DOTD, 28,369 (La.App. 2 Cir. 5/8/96), 674 So.2d 1063.

An appellate court may not set aside a trial court's finding of fact in the absence of manifest error or unless the finding is clearly wrong. Lewis v. State through DOTD, 94-2730 (La. 4/21/95), 654 So.2d 311; Stobart v. State through DOTD, 617 So.2d 880 (La.1993); Lebeaux v. Newman Ford, Inc., 28,609 (La.App. 2 Cir. 9/25/96), 680 So.2d 1291. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Lewis v. State through DOTD, supra; Stobart v. State through DOTD, supra; Lebeaux v. Newman Ford, Inc., supra.

In apportioning fault, the trial court must consider "both the nature of the conduct of each party at fault and the extent of the causal relationship between the conduct *572 and the damages claimed." Theriot v. Lasseigne, 624 So.2d 1267 (La.App. 3 Cir.1993) at 1275. See also Watson v. State Farm Fire and Casualty Insurance Company, 469 So.2d 967 (La.1985).

A trial court's findings regarding percentages of fault are factual and will not be disturbed on appeal unless clearly wrong. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Baughman v. State through DOTD, supra. The Louisiana Supreme Court stated that "In reviewing determinations of proportionate fault, we have previously compared the respective degrees of duty of the various parties and the degree of causation in the parties' breach of their respective duties." Socorro v. City of New Orleans, supra at 942.

The Millers argue that Mr. Keal should be assessed 100% fault due to his violation of Shreveport, Louisiana Code Section 90-228, which provides:

Whenever any street or highway in the city has been divided into two roadways by leaving an intervening space, or by a physical barrier, or by a clearly indicated section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the righthand roadway and no vehicle shall be driven over, across or withing any such dividing space, barrier or section, except through an opening in such physical barrier or dividing section or space or at a crossover or intersection properly established.

Although violation of a statute or ordinance constitutes negligence per se, to be actionable the negligence must also be a legal cause of the accident. Baughman v. State through DOTD, supra; Poland v. Glenn, 623 So.2d 227 (La.App.2d Cir.1993). Actionable conduct is both a cause in fact of the injury and a legal cause of the harm incurred. To satisfy the cause in fact requirement, the finder of fact must determine that the injury would not have been sustained "but for" the conduct of the party allegedly negligent. To be a legal cause of the harm, there must be a "substantial relationship" between the conduct and the harm incurred. Baughman v. State through DOTD, supra; Poland v. Glenn, supra.

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Bluebook (online)
694 So. 2d 569, 1997 WL 251758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-keal-lactapp-1997.