Sims v. State Farm Auto. Ins. Co.

714 So. 2d 132, 1998 WL 237261
CourtLouisiana Court of Appeal
DecidedMay 13, 1998
Docket30602-CA
StatusPublished
Cited by5 cases

This text of 714 So. 2d 132 (Sims v. State Farm 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
Sims v. State Farm Auto. Ins. Co., 714 So. 2d 132, 1998 WL 237261 (La. Ct. App. 1998).

Opinion

714 So.2d 132 (1998)

Lori Ann SIMS, Individually and on Behalf of the minor child, Robert Spencer Heard, Plaintiff-Appellant,
v.
STATE FARM AUTOMOBILE INSURANCE COMPANY, et al., Defendant-Appellee.

No. 30602-CA.

Court of Appeal of Louisiana, Second Circuit.

May 13, 1998.

*134 Tommy J. Johnson, Shreveport, for Plaintiff-Appellant.

Graydon Kitchens, III, Minden, for Defendant-Appellee.

Before WILLIAMS, GASKINS and PEATROSS, JJ.

WILLIAMS, Judge.

The plaintiff, Lori Ann Sims, appeals the trial court's judgment based on the jury's verdict assessing her with 80% fault in the causation of an automobile accident, and 20% fault to the defendants, James Kirkpatrick, Roberson Trucking Company and State Farm Mutual Automobile Insurance Company ("State Farm"). The jury awarded $20,000 to plaintiff for general damages and $6,900 in medical expenses. For the following reasons, we amend and affirm as amended.

FACTS

On March 19, 1993, shortly before 8:00 p.m., the defendant, James Kirkpatrick, was operating a tractor-trailer truck, owned by Roberson Trucking Company, in a southerly direction on U.S. Highway 79 in Claiborne Parish, Louisiana. The plaintiff was also driving south in a vehicle on the same highway, with a speed limit of 55 miles per hour. Her passenger was Mandy Kilgore. The conditions were dark with a misting rain.

In preparation to make a right turn into the driveway of his residence, defendant put on his right directional light and drove over the center line of the road into the northbound lane to make sufficient space for the turn. As defendant was slowly turning into his driveway, plaintiff drove over the crest of a highway incline and saw the tanker trailer across the lane of travel. Her vehicle struck the side of the tanker and lodged beneath the truck. Kilgore was able to get out of the vehicle, but the plaintiff was trapped inside.

Plaintiff was extracted from her vehicle by the jaws of life and transported by helicopter to Willis Knighton Hospital, where she was treated for a concussion, lacerations on her right ring finger and pain in her left ear, shoulder and ankle. State Police Trooper Ted Raley investigated the accident scene. Officer Raley used a flashlight and a flash camera to take photographs of the vehicles. He reported that the truck was perpendicular to the roadway with its rear tandem wheels in the northbound lane.

Subsequently, plaintiff filed a petition for damages against the defendants, James Kirkpatrick, Roberson Trucking and its insurer, State Farm. Following a trial, the jury assessed 80% of the fault in causing the accident to plaintiff and 20% fault to defendants. The jury awarded $20,000 to plaintiff for general damages and $6,900 in medical expenses and denied the claim of plaintiff's child for loss of consortium. Plaintiff appeals.

DISCUSSION

In two assignments of error, the plaintiff argues the trial court erred in assessing her with 80% of the fault in causing the accident. Plaintiff contends the truck driver improperly blocked the road and created a hazard which the plaintiff could not avoid.

Any person operating a motor vehicle on the public roads shall drive in a careful and prudent manner, so as not to endanger the life, limb or property of another. Failure to drive in such a manner shall constitute careless operation. LSA-R.S. 32:58. A person is required to drive a vehicle on the highway at a speed that is reasonable and prudent under the conditions and potential hazards then existing. LSA-R.S. 32:64.

In an action for damages based on negligence, the case is properly governed by comparative fault principles. LSA-C.C. art. 2323. Several factors are considered in comparing the relative fault of the parties, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, either superior or inferior, and (5) any extenuating circumstances which might require the actor to *135 proceed in haste, without proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.1985). An appellate court may not set aside a jury's finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State DOTD, 617 So.2d 880 (La.1993).

In the present case, each driver was required to exercise due care while operating their vehicles on the highway. Applying the factors set forth in Watson v. State Farm Fire and Casualty Ins. Co., supra, we note that the defendant, James Kirkpatrick, acknowledged that although he knew turning his truck would temporarily block the highway and that traffic was approaching from behind, he continued his turning maneuver despite his awareness of the potential danger to other drivers. In contrast, the plaintiff's conduct in driving on the highway and in failing to more quickly notice the turning truck was inadvertent.

The defendant's conduct involved significant risk, particularly with the reduced visibility due to the darkness and misting rain. In support of their contention that plaintiff failed to avoid the accident because she was following the truck too closely, defendants refer to notes by Dr. Mary Ellen Hayden, who wrote that plaintiff stated she was driving behind a large trailer truck which went over a hill and turned. However, this statement does not necessarily contradict the plaintiff's testimony that she did not see the truck until after it had made its turn. In addition, Kirkpatrick testified that he did not see the plaintiff's automobile when he looked behind the truck as he began his turn, but could only see the glow from her headlights. This testimony indicates that the plaintiff's vehicle was not unreasonably close to the truck prior to the accident. The evidence shows that plaintiff did not create the risk, but was confronted with an unexpected obstruction of the highway caused by defendant's action.

Concerning the capacity of the parties, the defense expert, John Bentley, testified that he took photographs of the accident area to represent a driver's "field of view" at four different points ranging from 600 to 645 feet from the parked tanker trailer. Bentley opined that the tanker lighting should have been visible to an oncoming driver well in advance of the collision, that the tank's white color enhanced its visibility and that the accident could have been avoided had plaintiff maintained a proper lookout. However, the plaintiff's expert, Andrew McPhate, opined that the tanker's curved shape made it less reflective and that dirt on its clearance lights, along with the dark misty conditions, reduced their visibility.

Although Bentley acknowledged that darkness, misting rain and dirt could inhibit the tanker's visibility, he apparently did not account for these factors in forming his opinion of the distance at which plaintiff should have noticed the truck in the road. In addition, the daylight photographs relied upon by Bentley do not depict the lighting conditions existing at the time of the accident, and could have been somewhat misleading to the jury, particularly since the record does not indicate that the trial court gave a limiting instruction when the photographs were admitted into evidence.

To support their contention that plaintiff should have been able to avoid the collision, the defendants point out that Homer, Louisiana, Police Chief Rodney Hollenshead, who was driving south on Highway 79 shortly after the accident, was able to stop his vehicle safely.

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Bluebook (online)
714 So. 2d 132, 1998 WL 237261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-state-farm-auto-ins-co-lactapp-1998.