Rose v. State Farm Mut. Auto. Ins. Co.

468 So. 2d 833, 1985 La. App. LEXIS 9108
CourtLouisiana Court of Appeal
DecidedApril 16, 1985
Docket84 CA 0266
StatusPublished
Cited by6 cases

This text of 468 So. 2d 833 (Rose v. State Farm Mut. Auto. Ins. Co.) 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
Rose v. State Farm Mut. Auto. Ins. Co., 468 So. 2d 833, 1985 La. App. LEXIS 9108 (La. Ct. App. 1985).

Opinion

468 So.2d 833 (1985)

Robert P. ROSE
v.
STATE FARM MUTUAL AUTOMOBILE INS. CO., et al.

No. 84 CA 0266.

Court of Appeal of Louisiana, First Circuit.

April 16, 1985.
Rehearing Denied May 20, 1985.

*835 Thomas H. Watts, Baton Rouge, for plaintiff-appellant, Robert P. Rose.

Carey J. Guglielmo, Baton Rouge, for defendant-appellee State Farm Mut. Auto. Ins. Co., et al.

Before COLE, CARTER and LANIER, JJ.

COLE, Judge.

This is a personal injury action arising out of a vehicular collision. The primary issues on appeal are apportionment of fault and quantum.

FACTS

At approximately 1:15 P.M. on November 29, 1980, plaintiff, Robert P. Rose, was driving his 1979 Dodge van in the center of the three westward lanes of traffic on Interstate 10 in Baton Rouge. Plaintiff was towing a small house trailer. At some point near the Acadian Thruway overpass the van hit a bump and the trailer hitch disconnected. Consequently, the trailer was being pulled only by its safety chains, with the tongue of the trailer striking the pavement causing sparkles. Plaintiff immediately slowed down and came to a gradual halt near the top of the incline.

According to plaintiff, he then turned on his emergency flashers, waited about two minutes until traffic cleared sufficiently and stepped out of the van. Plaintiff stated he observed the left rear light on the trailer flashing at this time. After waving several cars past, plaintiff had his wife pull the van forward slightly to allow the tongue of the trailer to clear the van's bumper. Plaintiff then again went to the rear of the trailer to check traffic. Although traffic was heavy, the center lane was clear as far as plaintiff could see. He went to the front of the trailer, looked back again to check traffic and then stepped between the trailer and the van. However, he was unable to lift the trailer tongue to reconnect it because of the angle of the incline on which the trailer was stopped. Plaintiff estimates he was in this position for approximately seven seconds when the trailer was struck from the rear by a pickup truck driven by Devin Holley. A total period of approximately seven to eight minutes had elapsed since plaintiff stopped his van.

Plaintiff subsequently filed suit against Devin Holley (hereinafter Holley) and his father Michael M. Holley,[1] State Farm Mutual Automobile Insurance Company, liability insurer of the truck driven by Holley, and Treads and Care, Inc., owner of the truck.[2] Following a trial on the merits, the jury found plaintiff's total damages amounted to $47,000.00 and assessed Holley with 20% negligence and plaintiff with 80% negligence. Accordingly, the trial court rendered judgment in favor of plaintiff and against defendants for $9,400.00, 20% of plaintiff's total damages, together with legal interest. Plaintiff was cast for 80% and defendants for 20% of court costs. Plaintiff appeals this judgment.

APPORTIONMENT OF FAULT

La.Civ.Code art. 2323 was amended by Act 431, § 1 of 1979 to permit application of the concept of comparative negligence in those instances where contributory negligence is applicable to a claim for damages. Under this provision an apportionment of fault is made between the plaintiff and defendant and the plaintiff's recovery reduced, rather than defeated, in proportion to his degree of negligence. La.Civ.Code art. 2323 is applicable to the present case. However, plaintiff argues he was not guilty of any negligence and, in the alternative, if so, not in the degree found by the jury. In considering plaintiff's argument, we must examine the actions of each party separately to first determine whether they were negligent and, if so, their comparative percentages of negligence.

*836 We will first examine the conduct of defendant Devin Holley. Holley testified he had been traveling in the center lane for two to three miles prior to the collision. He denies seeing any flashing lights on the trailer. However, he admits not seeing the stopped trailer until he was approximately 25 to 35 yards from it. Although he immediately applied his brakes, he was unable to stop in time to avoid a collision.

On the date of the accident the weather was sunny and clear, with good visibility. Holley does not claim there were any obstructions which prevented his seeing the trailer. Nor does he make any claim he saw the trailer but did not realize it was stopped. Under these circumstances, we find Holley was clearly negligent in failing to maintain the proper lookout required of all motorists.

We now turn to an examination of plaintiff's conduct. Defendants argue plaintiff is responsible for the detachment of the trailer either on the basis of actual negligence or strict liability under Civ.Code art. 2317. However, in this regard we find no evidence of any actual negligence. Plaintiff testified he always checked to ensure everything was connected properly before getting on the road. His wife corroborated this testimony. Additionally, absolutely no evidence was presented to show a specific defect in the trailer hitch. Plaintiff testified he had used the trailer on an extended trip only months before the accident without experiencing any trouble whatsoever. Since the evidence was insufficient to establish the existence of a defect in the trailer hitch, Civ.Code art. 2317 is not applicable to this case as argued by defendants. The cause of the detachment was never adequately established at trial. Certainly, there was no proof the trailer hitch posed an unreasonable risk of injury to anyone or that it caused damage in this instance. See Entrevia v. Hood, 427 So.2d 1146 (La. 1983). We are, therefore, unable to impose legal fault upon plaintiff based upon a defect in the trailer hitch.

Defendants also argue plaintiff should have pulled off the interstate or at least pulled into the right lane. We find no merit in this argument. Plaintiff had little control over the trailer since it was being pulled only by safety chains. Additionally, traffic was heavy. Thus, an attempt to maneuver into another lane would have been extremely dangerous. There was no exit or road shoulder for a considerable distance from the point at which plaintiff stopped. If he had continued further there was a danger the trailer would break loose completely and present an even greater risk to traffic. For these reasons, the action taken by plaintiff in coming to a gradual stop in the center lane was reasonable and prudent.

A motorist disabled on a highway has a statutory duty to remove his vehicle as soon as possible and to protect traffic until that time. La.R.S. 32:141(B). Obviously, these duties must be undertaken in a reasonable manner. However, plaintiff's attempt to rehitch the trailer in order to remove his vehicles was not reasonable. In order to rehitch the trailer it was necessary for plaintiff to place himself between the van and the trailer, which completely blocked his view of approaching traffic. Such a situation is unreasonably dangerous on a multi-lane interstate highway where motorists travel at high speeds, switch lanes frequently and do not normally expect to encounter stopped vehicles. Plaintiff was negligent in undertaking such a course of action, which was below the standard of conduct expected of a reasonably prudent man under like circumstances.

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Bluebook (online)
468 So. 2d 833, 1985 La. App. LEXIS 9108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-state-farm-mut-auto-ins-co-lactapp-1985.