Silva v. Calk

708 So. 2d 418, 1997 WL 772481
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
Docket30085-CA
StatusPublished
Cited by26 cases

This text of 708 So. 2d 418 (Silva v. Calk) 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
Silva v. Calk, 708 So. 2d 418, 1997 WL 772481 (La. Ct. App. 1997).

Opinion

708 So.2d 418 (1997)

Kelly J. SILVA, Plaintiff-Appellee,
v.
Dolon CALK, et al., Defendant-Appellant.

No. 30085-CA.

Court of Appeal of Louisiana, Second Circuit.

December 10, 1997.

*419 Nelson, Hammons & Self by Hutton W. Sentell, Shreveport, for Defendant-Appellant.

Hicks & Hubley by Craig O. Marcotte, Shreveport, for Plaintiff-Appellee.

*420 Before STEWART, GASKINS and PEATROSS, JJ.

GASKINS, Judge.

The plaintiff-in-reconvention, Dolon Calk, appeals from a trial court judgment granting a motion for involuntary dismissal in favor of the defendant-in-reconvention, Kelly J. Silva. For the following reasons, we affirm the trial court judgment.

FACTS

On November 14, 1994, Ela Calk, wife of Dolon Calk, was involved in an automobile accident with Kelly Silva. Mrs. Calk was proceeding west on Southfield Road in Shreveport and Ms. Silva was eastbound on Southfield in a pickup truck, with her parents as passengers. Southfield is a four lane road with a grassy median. Traffic on Southfield at the intersection is not controlled by a stop sign or a traffic light. There is a left turn lane for cars turning from Southfield onto Anniston. Mrs. Calk turned left from Southfield onto Anniston, in front of Ms. Silva. Ms. Silva's father called out to her to watch out immediately before the impact. Ms. Silva collided with the Calk vehicle near the right rear door and knocked the Calk car into a stop sign on Anniston. Mrs. Calk suffered two broken ribs, bruising and muscle spasms in her back. She was taken by ambulance to a local hospital. Ms. Silva and her passengers did not require immediate medical attention.

On November 13, 1995, Ms. Silva filed suit against Mr. and Mrs. Calk and their insurer, State Farm Mutual Automobile Insurance Company for damages arising from the accident. Ms. Silva asserted the negligence of Mrs. Calk as the cause of the accident and alleged that because she was operating the vehicle with the permission of Mr. Calk, he was solidarily liable with his wife for damage caused to Ms. Silva. On November 20, 1995, more than one year after the accident, but only a few days after the suit was filed, Mrs. Calk died from causes unrelated to the accident.

On January 17, 1996, Dolon Calk filed a reconventional demand against Ms. Silva and her insurer, also State Farm, claiming that Mrs. Calk began her turn into the intersection while the Silva truck was half a block away, that Ms. Silva should have been able to see Mrs. Calk enter the intersection and should have stopped prior to striking the Calk vehicle. Mr. Calk contended that the accident occurred on a clear day and there were no obstructions to prevent Ms. Silva from seeing Mrs. Calk enter the intersection. Mr. Calk claimed that Ms. Silva was operating her vehicle at an unsafe and excessive speed, that she failed to maintain a proper lookout, that she failed to yield when Mrs. Calk preempted the intersection and that she failed to apply her brakes. Mr. Calk alleges that Ms. Silva operated her vehicle in a careless and reckless manner. Mr. Calk sought recovery for property damage, Mrs. Calk's medical bills, her pain and suffering and for Mr. Calk's loss of consortium. He sought judgment against Ms. Silva "for a sum that will fairly and adequately compensate him for the losses that he and his wife sustained as a result of the accident described herein."[1] Ms. Silva's claim against the Calks and State Farm was settled prior to trial, leaving only those issues raised by Mr. Calk for consideration.

On December 30, 1996, the parties entered into a joint stipulation of facts. The parties agreed that Mr. Calk's vehicle was damaged in the accident and that State Farm paid $5,805 under the collision provision of the Calk's policy. They also stipulated that Mrs. Calk received medical treatment in the Highland Hospital emergency room and that $651 for this expense and $304 in doctor bills were paid by State Farm. The parties further stipulated that the accident had no connection with Mrs. Calk's death in November, 1995. The parties agreed to admit photographs of the vehicles and the scene of the accident as well as Mrs. Calk's medical records and her physician's notes and written report.

*421 On January 8, 1997, the matter came before the trial court for a hearing solely on the issues raised by Mr. Calk in his reconventional demand. The joint stipulation of facts was admitted along with the photographs and documentary evidence discussed above. Ms. Silva was then called to testify by Mr. Calk. She stated that the accident occurred shortly after noon on a clear day and that there was nothing obstructing her view of the road ahead. She said that she did not apply her brakes because she did not see the Calk vehicle until it was right in front of her. Ms. Silva stated that her father called out for her to watch out just before the impact. Ms. Silva also stated that she was driving at about 30 m.p.h. at the time of the accident. The speed limit in the area is 35 m.p.h.

Mr. Calk then testified that his wife was injured in the accident, suffering two broken ribs and back spasms. He stated that she slept in a recliner for two weeks after the accident and then "lay in bed for another month." During this period, Mr. Calk testified that he performed all household duties. Neither party deposed Mrs. Calk, therefore the record is devoid of her testimony. Mr. Calk rested his case.

Following the presentation of Mr. Calk's case, Ms. Silva moved for a motion for involuntary dismissal. The trial court met with counsel in chambers and then allowed Mr. Calk's attorney to question Ms. Silva again. Ms. Silva testified that, at the time of the accident, she was proceeding east on Southfield, which is a four-lane road. Southfield is the primary road and Anniston is a secondary, two lane road load intersecting with Southfield. Ms. Silva stated that there were two cars in front of her at the intersection of Southfield and Grover, the intersection before Anniston. The intersection at Grover is controlled by a traffic light. Ms. Silva said that one car turned right onto Grover and the other car proceeded in front of her and was about 100 feet ahead of her, but was not obstructing her view of the intersection with Anniston. Regarding Ms. Calk, Ms. Silva stated, "I did not see the vehicle until just prior to the impact when my dad had said something about look out for the vehicle. And I couldn't stop, I couldn't brake. I didn't have time to do anything, the vehicle was right there in front of me."

Mr. Calk's counsel then questioned Ms. Silva regarding the photographs of the vehicles and the scene and then rested his case again. Ms. Silva reasserted her motion for involuntary dismissal, which was granted by the trial court. On January 15, 1997, the trial court signed a judgment granting the dismissal.

Mr. Calk appealed, arguing that the trial court erred in sustaining the motion for involuntary dismissal. He also contends that the trial court erred in failing to recognize applicable presumptions of law in this case.

INVOLUNTARY DISMISSAL

Mr. Calk argues that the trial court erred in sustaining the motion to dismiss where he established through testimonial and documentary evidence a prima facie case of liability against Ms. Silva. He contends that the evidence shows the intersection involved had no traffic light and the accident occurred on a sunny, clear day. Ms. Silva was driving in the outside right lane, eastbound, and there was nothing obstructing her vision. She testified that she did not try to change lanes, did not see Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Roberson v. Chance
182 So. 3d 203 (Louisiana Court of Appeal, 2015)
Baker v. State Farm Mutual Automobile Insurance Co.
162 So. 3d 405 (Louisiana Court of Appeal, 2015)
Settles v. Paul
61 So. 3d 854 (Louisiana Court of Appeal, 2011)
Lowe v. Skyjacker Suspensions
32 So. 3d 340 (Louisiana Court of Appeal, 2010)
Stone v. Bullard
2 So. 3d 1241 (Louisiana Court of Appeal, 2009)
Bartley v. Fondren
999 So. 2d 146 (Louisiana Court of Appeal, 2008)
Locke v. Young
973 So. 2d 831 (Louisiana Court of Appeal, 2007)
Gray v. City of Monroe
930 So. 2d 1148 (Louisiana Court of Appeal, 2006)
Sepulvado v. Time It Lube, Inc.
895 So. 2d 729 (Louisiana Court of Appeal, 2005)
In Re Succession of Gilbert
850 So. 2d 733 (Louisiana Court of Appeal, 2003)
Shelton v. Safeway Insurance Co. of Louisiana
836 So. 2d 1225 (Louisiana Court of Appeal, 2003)
Adams v. Traina
830 So. 2d 526 (Louisiana Court of Appeal, 2002)
Succession of Cooper
830 So. 2d 1087 (Louisiana Court of Appeal, 2002)
Davies v. Johnson Controls, Inc.
830 So. 2d 462 (Louisiana Court of Appeal, 2002)
McGrail v. Lee
814 So. 2d 729 (Louisiana Court of Appeal, 2002)
Hughes v. Scottsdale Ins. Co.
793 So. 2d 537 (Louisiana Court of Appeal, 2001)
Erwin v. State Farm Mut. Auto. Ins. Co.
771 So. 2d 229 (Louisiana Court of Appeal, 2000)
Furlough v. Union Pacific RR Co.
766 So. 2d 751 (Louisiana Court of Appeal, 2000)
Wright v. Pratt
766 So. 2d 668 (Louisiana Court of Appeal, 2000)
Gooden v. BE & K CONST.
764 So. 2d 1206 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
708 So. 2d 418, 1997 WL 772481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-calk-lactapp-1997.