Owen v. Smith

16 So. 3d 1274, 2009 La. App. LEXIS 1497, 2009 WL 2517079
CourtLouisiana Court of Appeal
DecidedAugust 19, 2009
Docket44,493-CA
StatusPublished
Cited by2 cases

This text of 16 So. 3d 1274 (Owen v. Smith) 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
Owen v. Smith, 16 So. 3d 1274, 2009 La. App. LEXIS 1497, 2009 WL 2517079 (La. Ct. App. 2009).

Opinion

WILLIAMS, J.

| defendants, Antonia Martez Smith and the City of Shreveport, appeal a trial court’s judgment, finding that Smith and plaintiff, Stacy Renee Owen, were both at fault in causing an automobile collision. The trial court allocated 75% fault to Smith and 25% fault to plaintiff. For the reasons that follow, we affirm.

FACTS

On April 23, 2002, a vehicle being driven by plaintiff, Stacy Renee Owen, collided with a garbage truck, which was owned by the City of Shreveport (“the City”) and operated by Antonia Martez Smith. Plaintiff was traveling north on Hearne Avenue in Shreveport, Louisiana; Smith was traveling west on Marquette Street. Plaintiff alleged that Smith disobeyed the red traffic signal at the intersection of Hearne and Marquette; Smith claimed that plaintiff ran the red light. 1

After a bifurcated bench trial with regard to the issue of liability, the trial court found that both plaintiff and Smith were at fault. The court stated:

The crux of the case is who had the green light. Both claim it. The plaintiff doesn’t remember. She suffered some head trauma in the accident we note. There is an independent witness who unequivocally says that the plaintiff had the green light.
*1276 [[Image here]]
We think it’s clear at the time of the accident the plaintiff wasn’t paying a lot of attention.... Of course her lack of memory is explainable by the head injury.
The truck driver seems equally credible and he says that he had the green light. It’s difficult to break these kinds [of] “ties” ... if you will.
|2But we think predominantly based on the testimony of the independent witness that the evidence narrowly preponderates that the plaintiff had the green light. The independent witness’ demeanor impresses us, and nothing about her impressed us negatively.
However, we would be remiss if we didn’t add that the point of impact and the nature of the impact indicate that the plaintiff was partly at fault for not paying attention. We think if she had been paying attention that perhaps this accident could have been avoided to some extent, or maybe not as quite as traumatic.

The court then allocated 25% fault to plaintiff and 75% fault to Smith. Smith and the City appeal.

DISCUSSION

Defendants contend the trial court committed legal error by failing to require plaintiff to prove her case by a preponderance of the evidence. Defendants argue that since the court found that Smith was an “equally credible” witness, then the evidence was evenly balanced and plaintiff did not prove her case by a preponderance of the evidence.

The burden is on the plaintiff to prove the negligence of the defendant by a preponderance of the evidence. Miller v. Leonard, 588 So.2d 79 (La.1991); Stone v. Bullard, 43,996 (La.App. 2d Cir.1/28/09), 2 So.3d 1241; Hughes v. Scottsdale Ins. Co., 35,043 (La.App. 2d Cir.8/22/01), 793 So.2d 537. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Cangelosi v. Our Lady of the Lake Regional Med. Ctr., 564 So.2d 654 (La.1989).

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. The particular facts and circumstances of |8each individual case determine the extent of the duty and the resulting degree of care necessary to fulfill that duty. Comier v. T.H.E. Ins. Co., 98-2208 (La.9/8/99), 745 So.2d 1. A plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Id.; Berry v. State, Dept. Of Health and Human Resources, 93-2748 (La.5/23/94), 637 So.2d 412.

Causation is a question of fact, and is, therefore, subject to the manifest error standard of review. Green v. K-Mart Corp., 2003-2495 (La.5/25/04), 874 So.2d 838; Mart v. Hill, 505 So.2d 1120 (La.1987). Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, Dept. of Transp. & Dev., 617 So.2d 880 (La.1993).

On review, an appellate court must be cautious not to reweigh the evi *1277 dence or to substitute its own factual findings just because it would have decided the case differently. Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216. A reviewing court must give great weight to factual findings of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even |4though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts. Id.

LSA-R.S. 32:232 provides, in pertinent part:

Whenever traffic is controlled by traffic-control signals exhibiting colored lights, or colored lighted arrows, successively one at a time or in combination, only the colors green, red and yellow shall be used, except for special pedestrian signals carrying a word legend, and said lights shall indicate and apply to drivers of vehicles and pedestrians as follows:
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(3) Steady RED indication:
(a) Vehicular traffic facing a steady circular red signal shall stop at a clearly marked stop line, or if none, then before entering the crosswalk on the near side of the intersection, or if none, then before entering the intersection, and shall remain standing until an indication to proceed is shown....

A vehicle facing a green circular signal may proceed through the intersection but “shall yield the right-of-way to other vehicles ... lawfully within the intersection ... at the time such signal is exhibited.” LSA-R.S. 32:232(l)(a). A motorist favored with a green signal when approaching an intersection cannot depend exclusively on the favorable light. Rather, the motorist has a duty to watch for vehicles already in the intersection when the light changed; this duty does not extend to looking for traffic that has not yet entered the intersection. Lewis v. Smith, 40,590 (La.App.

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Cite This Page — Counsel Stack

Bluebook (online)
16 So. 3d 1274, 2009 La. App. LEXIS 1497, 2009 WL 2517079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owen-v-smith-lactapp-2009.