Stallion v. Morris

546 So. 2d 563, 1989 La. App. LEXIS 1296, 1989 WL 70423
CourtLouisiana Court of Appeal
DecidedJune 20, 1989
DocketNo. CA 88 0730
StatusPublished
Cited by2 cases

This text of 546 So. 2d 563 (Stallion v. Morris) 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
Stallion v. Morris, 546 So. 2d 563, 1989 La. App. LEXIS 1296, 1989 WL 70423 (La. Ct. App. 1989).

Opinion

ALFORD, Judge.

The defendant, City of Baton Rouge/Parish of East Baton Rouge (City-Parish), appeals the trial court’s judgment finding the City-Parish to be fifty percent (50%) at fault in a vehicular accident between one of the plaintiffs, Regina Jackson, and another defendant, Carolyn A. Morris, which occurred on a Baton Rouge city street. The plaintiffs and Ms. Morris, as third party defendant, and her insurer answered the appeal.

FACTUAL BACKGROUND

On July 29, 1985, at about 4:20 p.m., the parties were involved in a two-car accident at the intersection of 69th Avenue and Goode Street in Baton Rouge. Ms. Jackson, who was operating a vehicle owned by a plaintiff, Marshall Stallion, was eastbound on 69th, which was the favored street. Another plaintiff, Patricia Williams, was a passenger in the Jackson vehicle. Ms. Morris, who was operating her own vehicle, was northbound on Goode. Goode was supposed to be controlled by a stop sign, however, the sign was not in place. The vacant lot on the northwest comer of the intersection of Goode and 69th was overgrown with tall grass. Ms. Morris did not notice Ms. Jackson approaching from her left and proceeded into the intersection without stopping. She was near the middle of the intersection when she was struck on the left front side by the front of Ms. Jackson’s vehicle. The police investigated the accident but did not issue any tickets. Ms. Jackson suffered an abrasion on her right leg and muscle strains to her back which had resolved by November 19, 1985. Ms. Williams sustained an abrasion on her forehead, a sprained right ankle and muscle strains to her back which had also resolved by November 19, 1985. Ms. Morris suffered a cervical strain from which her doctor stated she should fully recover. Each vehicle was heavily damaged.

PROCEDURAL HISTORY

On September 9, 1985, Mr. Stallion, Ms. Jackson and Ms. Williams filed suit against Ms. Morris, Cumis Insurance Society, Inc. (Cumis) and the City-Parish. Ms. Morris, Cumis and the City-Parish filed reconven-tional demands against Ms. Jackson and third-party demands against each other. Thereafter, trial on the merits was held on December 2 and 3,1987. Prior to trial, the reconventional demands against Ms. Jackson were dismissed. After presentation of the plaintiffs’ case-in-chief, the trial judge granted Cumis’ and Ms. Morris’ motion for an involuntary dismissal, finding that no evidence of fault had been presented by plaintiffs. Ms. Morris and Cumis then proceeded as plaintiffs in cross-claim against the City-Parish, and the City-Parish followed with its case against Ms. Morris and Cumis.

The court then issued two written judgments on January 11, 1988, one of which held that Ms. Morris and Cumis were dismissed from all claims lodged by the plaintiffs: Mr. Stallion, Ms. Jackson and Ms. Williams. This judgment was not appealed and is final. The second judgment cast the City-Parish with 50% fault, Ms. Jackson with 25% fault and Ms. Morris with 25% fault and awarded Mr. Stallion $400.00 plus legal interest and costs against the City-Parish; Ms. Jackson general damages of $250.00 plus specials and legal interest against the City-Parish less 25% fault; Ms. Williams $250.00 general damages plus specials and legal interest and costs against the City-Parish; Ms. Morris general damages and her medical deductible plus legal interest against the City-Parish less 25% fault; Cumis recovery on its subrogation demand plus legal interest from the City-Parish less Ms. Morris’ 25% fault, and [566]*566the City-Parish recovery from Ms. Morris and Cumis for 25% contribution on payments made by the City-Parish to Mr. Stallion, Ms. Jackson and Ms. Williams.

The City-Parish then perfected this de-volutive appeal, contending the trial judge erred (1) in finding that the City-Parish had knowledge or notice of the missing stop sign and (2) in finding the City-Parish liable when the sole cause of the accident was driver negligence. The plaintiffs answered the appeal requesting that the amount of the judgments be increased, and Ms. Morris as third-party defendant and Cumis answered the appeal seeking modification of the liability assessed against Ms. Morris and affirmance of the amount of judgments as to Ms. Morris and Cumis.

At the outset, we note that Ms. Morris, as third-party plaintiff/appellee, seeks in her brief to increase her damage award. However, Ms. Morris did not appeal or answer the appeal in this capacity. An appellee who seeks to revise or modify a judgment must file an appeal or answer to an appeal within the time delays. Failure to appeal or answer an appeal precludes this court’s review of any issues asserted solely in brief. Hospital Corporation of America v. Robinson, 499 So.2d 246 (La. App. 1st Cir.1986). Therefore, we will not consider Ms. Morris’ assertions as to increased damages which were raised solely in her brief.

LIABILITY

As is well settled jurisprudentially, a trial court’s finding of fact will not be disturbed on appeal unless manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). A trier’s findings as to percentages of fault are factual and, in the absence of clear or manifest error, must be upheld on appeal. Triangle Trucking Co. v. Alexander, 451 So.2d 638 (La.App. 3d Cir.1984). When assigning percentages of fault attributable to each tortfeasor, the court should consider the nature of each party’s conduct and the extent of the relation between the conduct and the damages suffered. Kyle v. City of Bogalusa, 506 So.2d 719 (La.App. 1st Cir.1987).

As to the duties and responsibilities of motorists, a driver on a favored highway has the duty of ordinary care toward drivers entering from side streets or private drives. Calk v. Grain Dealers Mutual Insurance Company, 508 So.2d 624 (La.App. 2d Cir.1987). Therefore, although a motorist may assume that a stop sign will be obeyed by other motorists, he must nevertheless exercise caution that is commensurate with the circumstances. Spencer v. Hynes, 452 So.2d 1291 (La.App. 3d Cir.1984). In the instant case, the circumstances included a missing stop sign, which Ms. Jackson did not know about, and an overgrown yard, which Ms. Jackson, who lived in the area, was familiar with. Ms. Jackson stated that she did not know if the other street (Goode) had a traffic control device and she admitted that the vacant lot was so grown up that it obstructed her vision. Therefore, we cannot say that the trial court was in error in finding “that she knew that a grassy area would obstruct her view of the intersection, yet she neither slowed the speed of her vehicle, nor looked for the approach of other vehicles.”

A driver, when approaching an intersection which appears to be uncontrolled, must keep a proper lookout as she enters the intersection. Watson v. Department of Transportation and Development, 529 So.2d 427 (La.App. 1st Cir.), writ denied, 533 So.2d 361 (La.1988); Peterman v. City of Hammond, 378 So.2d 181 (La. App. 1st Cir.1979). As stated in Burrow v. Commercial Union Assurance Companies, 419 So.2d 479, 485 (La.App. 3d Cir. 1982), writ denied, 423 So.2d 1162 (La. 1982), the

duty of reasonable care required that upon coming to an apparently uncontrolled intersection with a partially obstructed view between the two streets, [the driver] should have ascertained that it was safe to cross by coming to a complete stop, if necessary, before proceeding.

In the instant case, Ms.

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Bluebook (online)
546 So. 2d 563, 1989 La. App. LEXIS 1296, 1989 WL 70423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stallion-v-morris-lactapp-1989.