Monceaux v. Jennings Rice Drier, Inc.

590 So. 2d 672, 1991 La. App. LEXIS 2966, 1991 WL 236323
CourtLouisiana Court of Appeal
DecidedNovember 13, 1991
Docket90-519
StatusPublished
Cited by30 cases

This text of 590 So. 2d 672 (Monceaux v. Jennings Rice Drier, Inc.) 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
Monceaux v. Jennings Rice Drier, Inc., 590 So. 2d 672, 1991 La. App. LEXIS 2966, 1991 WL 236323 (La. Ct. App. 1991).

Opinion

590 So.2d 672 (1991)

Ray G. MONCEAUX, et ux., Plaintiffs-Appellees,
v.
JENNINGS RICE DRIER, INC., et al., Defendants-Appellants.

No. 90-519.

Court of Appeal of Louisiana, Third Circuit.

November 13, 1991.

*673 Privat & Regan, Thomas K. Regan, Crowley, for plaintiffs-appellees.

Rose P. Wooden, Asst. Atty. Gen., Baton Rouge, for defendants-appellants.

Before GUIDRY, DOUCET and KNOLL, JJ.

DOUCET, Judge.

This is an appeal from an award of damages in wrongful death and survival actions. Johanna K. Monceaux was killed when her car hit a disabled rice truck parked on the shoulder of U.S. Interstate Highway 10 (I-10) in Acadia Parish.

The facts are not, for the most part, in dispute. At approximately 7:19 p.m. on December 8, 1984, Fred Loewer, owner/manager of Jennings Rice Drier, Inc., contacted Jefferson Davis Parish Sheriff's Deputy Michael Billedeaux. He requested that Billedeaux contact the proper authorities to inform them that the truck would be left on the side of I-10 overnight. The dispatcher for the Jefferson Davis Parish Sheriff contacted the Acadia Parish Sheriff's Office and asked that a State Trooper be sent to check on the truck. Louisiana State Trooper Lester Bernard was reached by radio and informed of the situation. He gave permission to leave the truck and stated that he would check on it while he was on that end of the parish. He never did this. The truck, which according to the evidence was painted in a dark color, remained on the side of the road unmarked by flares or reflectors.

At about 11:00 p.m. on December 8, 1984, Johanna Monceaux left her place of employment, Wal-Mart, in Crowley, La. Along with several girl friends, she drove around Crowley until approximately 3:00 a.m. on December 9, 1984. During that time she drank 2 or 3 cans of beer. At about 3:00 a.m., she left Crowley and drove west on I-10 towards Egan, where she lived with her parents. Calvin Vincent, a truck driver, was following Ms. Monceaux and witnessed the occurrences leading up to her death. According to Mr. Vincent, Ms. Monceaux appeared to doze off just before the Egan exit. Her vehicle swerved off across the shoulder of the road. The wheels on one side of the vehicle went off the shoulder. Mr. Vincent stated that Johanna appeared to regain control of the vehicle. She brought it back onto the shoulder. However, as she attempted to re-enter the roadway, she struck the unlighted, unmarked rice truck. Mr. Vincent stopped to render aid. He tried, with the help of two others, to pull her out of her car. She was pinned under the dashboard. He saw a flame under the hood and ran to his truck for a fire extinguisher. At that point Johanna Monceaux's car burst into flames and she was killed.

As a result, Ray and Joan Perry Monceaux, the parents of Johanna Monceaux filed wrongful death and survival actions against, among others, Jennings Rice Drier, Inc., Fred Loewer, Charles Troutman, who was the driver of the truck, and the Louisiana State Police through the Department of Public Safety. Prior to trial, settlement was reached with Jennings Rice Drier, Inc., Fred Loewer, and Charles Troutman.

The matter was tried before a judge on November 3, 1989. The court rendered *674 judgment apportioning the fault for the accident 25% to Johanna Monceaux, 30% to Fred Loewer, and 45% to the State, Department of Public Safety. The court further awarded $225,000 in damages to each parent and set damages for Johanna Monceaux's conscious pain and suffering at $10,000.00

The State appeals questioning the correctness of the trial court's determination of liability on the part of the State, the apportionment of fault, and the quantum of damages for wrongful death.

LIABILITY

In order to determine whether liability exists, it is necessary to apply a "duty-risk" analysis, asking:

1) Was the act or omission complained of a cause-in-fact of the harm?

2) Did the defendant owe a duty to protect this plaintiff from this type of harm arising in this manner?

3) Did the defendant violate the duty?

Accordingly, we must first consider whether the failure of Officer Bernard to inspect the parked truck was a cause-in-fact of the accident.

"An act of omission is considered to be a cause-in-fact of harm to another if it was a `substantial factor' in bringing about the accident. Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1970); Lejeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978). Restatement of Torts 2d, Sections 431-33 (1965). As noted in the restatement, factors which may be considered in determining whether the actor's negligence is a substantial factor include `whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm ...'
The `substantial factor' test is akin to the `but for' test (i.e. the accident would not have happened but for the defendant's negligence), except that where more than one party's negligence would have caused the accident absent the other party's negligence, Dixie, supra, and Lejeune, supra, hold both to be causative.
As succinctly stated by the Louisiana Supreme Court in Lejeune, supra:
`As Prosser [on Torts, Section 41 at pp. 237-38 (4th Ed.1971)] notes, the "but for" test (that the accident would not have happened but for the defendant's negligence), while it explains the greater number of cases, does not serve as an adequate test for the present situation: `If two causes occur to bring about an event, and either one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed ...' In such cases it is quite clear that each cause has in fact played so important a role in producing the result that responsibility should be imposed upon it; and it is equally clear that neither can be absolved from that responsibility upon the ground that the identical harm would have occurred without it, or there would be no liability at all. Id., p. 239.'"

Trahan v. State, Department of Transportation and Development, 536 So.2d 1269, 1272 (La.App. 3rd Cir.1988), writ denied, 541 So.2d 854 (La.1989).

The trial judge found that, while Ms. Monceaux was negligent in dozing off, Trooper Bernard was also negligent in failing to inspect the disabled truck as he had been requested to do, and had agreed to do. The State would have us ignore the substantial factor rule by looking no further than the negligence of Johanna Monceaux.

The accident might have occurred even had Trooper Bernard inspected the truck and seen to it that it was properly marked. However, it is also true that the accident might not have happened except for the combined negligence of Ms. Monceaux, Officer Bernard, and the owner of the truck.

"The mere possibility that the accident would have occurred despite the required precautions does not break the chain of causation." *675 Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298, 304 (1962). The negligence of each was a substantial factor in the accident. Accordingly, the negligence of each was a cause-in-fact.

Having established that the negligence of Officer Bernard was a cause-in-fact of the accident, we must determine whether Officer Bernard owed a legal duty to the traveling public which encompassed the risk to which the plaintiff was exposed in this case.

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590 So. 2d 672, 1991 La. App. LEXIS 2966, 1991 WL 236323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monceaux-v-jennings-rice-drier-inc-lactapp-1991.