Nicholas v. Voiron

568 So. 2d 1139, 1990 WL 161349
CourtLouisiana Court of Appeal
DecidedOctober 11, 1990
Docket90-CA-210
StatusPublished
Cited by8 cases

This text of 568 So. 2d 1139 (Nicholas v. Voiron) 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
Nicholas v. Voiron, 568 So. 2d 1139, 1990 WL 161349 (La. Ct. App. 1990).

Opinion

568 So.2d 1139 (1990)

Beverly NICHOLAS
v.
Joseph P. VOIRON, Jr., Louisiana Refuse Service, Inc., and National Fire and Marine Insurance Company.

No. 90-CA-210.

Court of Appeal of Louisiana, Fifth Circuit.

October 11, 1990.

*1140 Law Offices of Eugene Barriffe, Jr., A Professional Law Corporation, Eugene Barriffe, Jr., Mary Anne Mumme, New Orleans, for plaintiff-appellant.

Lozes & Cambre, David M. Cambre, New Orleans, for defendants-appellees/cross appellants.

Before CHEHARDY, C.J., and GAUDIN and GRISBAUM, JJ.

CHEHARDY, Chief Judge.

Plaintiff Beverly Nicholas instituted this tort action to recover damages for personal injuries she sustained in an August 15, 1985 two-vehicle accident. When the garbage truck traveling in front of her lost control, Nicholas swerved to the right and applied her brakes. Her station wagon skidded, entered a ditch and overturned.

Nicholas sued the garbage truck driver, Joseph P. Voiron, Jr., the owner, Louisiana Refuse Service, Inc., and their insurer, National Fire and Marine Insurance Company. She sought recovery for: property damage, medical expenses, transportation for medical treatment, nursing and housekeeping services, lost wages, lost earning capacity, physical pain and suffering, mental anguish and residual disability.

At bench trial the district court found defendant Voiron 40% at fault and held plaintiff Nicholas 60% comparatively negligent in causing the accident. It awarded Nicholas $15,000 for soft tissue cervical injuries of one year's duration with associated mental anguish. Her recovery was reduced to $6,000 by the percentage of her comparative fault. Nicholas appeals both the liability and quantum verdicts. Defendants have answered the appeal challenging their assessment of fault. We affirm.

FACTS

U.S. Highway 90 east is a two-lane asphalt highway where it intersects with Lapalco Boulevard. In addition there is a 535-foot right-turn lane which accesses Lapalco. To the right of the turn lane is a gravel shoulder. The intersection is governed by a traffic semaphore.

The testimony of plaintiff Nicholas and defendant Voiron as to how the accident occurred is in direct contradiction. Nicholas stated that she was traveling east on U.S. Highway 90 in the right travel lane at 35 to 40 miles per hour just after noon. It was raining heavily; the sky was overcast. In her rearview mirror plaintiff observed the garbage truck overtaking her. The truck moved to the left lane and passed her; Nicholas reduced her speed. The truck cut back into the right travel lane and began to fishtail, skidding from lane to lane. Nicholas was two to three car lengths behind the truck.

*1141 At the Lapalco Boulevard intersection the garbage truck came to an abrupt stop in response to a yellow light. To avoid a rear-end impact, Nicholas steered or swerved her car from the right travel lane into the right-turn lane. There were no vehicles in the right-turn lane at the intersection. Nicholas swerved to the shoulder, her car skidded and entered the roadside ditch.

Nicholas testified that she swerved hard to the right in response to the garbage truck's stop. She felt her car skid. She had no idea how she ended up in the ditch.

Defendant Voiron stated that he was traveling at approximately 35 miles per hour in the right travel lane, following a red and black compact car. He denied having passed Nicholas in the left lane. The light at the Lapalco Boulevard intersection changed quickly. The compact car stopped short in front of the garbage truck. Fearing impact with this car, Voiron maneuvered his truck to the left lane, he hit a bump. The truck began to swerve. He released the brake and down-geared, the truck straightened and came to rest in the right lane at the intersection.

Voiron testified that he looked in the mirror and saw Nicholas' brown station wagon in the left lane approaching him, tail lights first. Nicholas steered her vehicle into the right travel lane, to the right-turn lane, and skidded into the ditch.

After the accident Voiron moved his truck to the shoulder of the highway across the intersection. Voiron denied losing control of his vehicle. He admitted to having at least one slick tire on the garbage truck.

Colonel Joseph Andre was qualified as defendant's expert in traffic safety and accident reconstruction. In his opinion plaintiff's testimony that she was traveling two or three car lengths behind the garbage truck indicated that she was following too closely. He considered the rainy weather and wet road conditions as well as the reduced tread on plaintiff's car tires. Colonel Andre calculated that if plaintiff was traveling 35 miles per hour she required a minimum of seven car lengths or 150 to 175 feet to stop safely behind the garbage truck when it stopped at the intersection.

Plaintiff offered the investigating officer Clennard Ross as an expert in accident reconstruction. Officer Ross had been on the state police force and had investigated 400 collisions prior to this accident. On arrival at the scene he interviewed defendant Voiron, who stated that he was traveling in the right travel lane when he saw the light change. He hit his brakes and swerved toward the left. He eased off of the brake, the truck continued to slide and stopped abruptly at the intersection blocking both travel lanes.

Nicholas stated that she was traveling behind the garbage truck. When the truck started to swerve she hit her brakes and tried to steer to the right to avoid a collision. The truck was blocking both travel lanes so she ran off the road.

At the scene Officer Ross observed grease marks on the wet roadway which he believed were consistent with the garbage truck swerving or skidding. He testified that Voiron had lost control of his vehicle. He did not believe that plaintiff was inattentive or following too closely. He testified that when the garbage truck blocked both travel lanes, Nicholas took the appropriate evasive action by steering to the right. Based on traction marks in the gravel shoulder made by plaintiff's right tires he opined that plaintiff had kept her vehicle under control until her car hit the gravel. The car left the roadway 300 feet short of the intersection.

The trial judge found that Voiron was at fault in causing the accident. He further found that Nicholas had contributed to the accident by failing to keep her vehicle under control in the right-turn lane where she had a sufficient unobstructed distance to stop safely.

LIABILITY

This case is governed by the principles espoused in LSA-C.C. arts. 2315 and 2323. A motorist is obliged to operate his vehicle cautiously and prudently and to keep a proper lookout for hazards. It is *1142 unlawful for the driver of any vehicle to negligently fail to maintain reasonable and proper control while operating his vehicle on the public roads of the state. LSA-R.S. 32:58.

We agree with the district court finding that defendant Voiron breached the duty of reasonable care in operating the garbage truck. The condition of the roadway and of his vehicle required him to drive in a careful and cautious manner. His own testimony supports the conclusion that he failed to maintain proper control of his vehicle and initiated the emergency road situation.

The record also supports a finding of plaintiff Nicholas' comparative negligence. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985).

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Cite This Page — Counsel Stack

Bluebook (online)
568 So. 2d 1139, 1990 WL 161349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicholas-v-voiron-lactapp-1990.