Weatherford v. Commercial Union Ins. Co.

637 So. 2d 1208, 93 La.App. 1 Cir. 0841, 1994 La. App. LEXIS 1717, 1994 WL 227323
CourtLouisiana Court of Appeal
DecidedMay 20, 1994
Docket93 CA 0841
StatusPublished
Cited by7 cases

This text of 637 So. 2d 1208 (Weatherford v. Commercial Union 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
Weatherford v. Commercial Union Ins. Co., 637 So. 2d 1208, 93 La.App. 1 Cir. 0841, 1994 La. App. LEXIS 1717, 1994 WL 227323 (La. Ct. App. 1994).

Opinion

637 So.2d 1208 (1994)

Mary Gail WEATHERFORD, et al.
v.
COMMERCIAL UNION INSURANCE COMPANY, et al.

No. 93 CA 0841.

Court of Appeal of Louisiana, First Circuit.

May 20, 1994.
Rehearing Denied June 27, 1994.

*1209 Phil Breaux, St. Gabriel, for plaintiffs-appellants Mary Gail Weatherford, et al.

Daniel R. Atkinson, Jr., Baton Rouge, for defendants-appellees Commercial Union Ins. Co., et al.

Before FOIL, PITCHER and PARRO, JJ.

PITCHER, Judge.

This is an appeal from a trial court judgment in favor of the defendants, dismissing plaintiffs' suit for damages arising out of an automobile-bicycle collision.

FACTS

On Thursday, December 27, 1990, at approximately 3:00 p.m., Mario S. Termini (Father Termini), a Roman Catholic priest, was driving his van southbound at approximately 45 to 50 miles per hour, in the right lane of Louisiana Highway 75. Highway 75 was a two-lane highway in Iberville Parish and had a speed limit of 45 miles per hour. At the same time, eight-year-old Thomas Weatherford (Thomas) was also riding southbound on Highway 75, but in the northbound lane, on the new 20-inch bicycle which he had gotten two days earlier for Christmas.

When Father Termini rounded a curve in Highway 75, he observed Thomas to his left, in the northbound lane of travel. Thomas' side-to-side motions as he tried to reach the pedals on the large bicycle caught Father Termini's attention and "fascinated" him. As Father Termini observed Thomas' motions, Thomas turned the bicycle to the right and entered the southbound lane, into the path of Father Termini's van. Father Termini abruptly applied his brakes and steered the van to the right in an attempt to avoid a collision. The van skidded approximately 98 feet and struck Thomas, dragging him a distance of approximately 31 feet. As a result of the accident, Thomas sustained severe and permanent injuries.

On May 20, 1991, Mary Gail Weatherford, individually and as tutrix for her minor children, Thomas Weatherford and Eunice Weatherford (collectively, plaintiffs), filed this suit claiming damages for personal injuries to Thomas Weatherford and for loss of consortium for herself and Eunice Weatherford. Made defendants were Father Termini and his automobile insurer, American Employers Insurance Company (American Employers).[1] Also made defendants were Father Termini's employer, the Catholic Diocese of Baton Rouge (the Diocese)[2] and the Diocese's insurers, Catholic Mutual Relief Society and Virginia Surety Company (insurers).

Prior to trial, plaintiffs settled with Father Termini and American Employers and voluntarily dismissed those defendants with prejudice. The case proceeded to trial by jury *1210 against the remaining defendants. The Diocese offered as a defense Father Termini's lack of negligence and, alternatively, that Father Termini was not within the course and scope of his employment with the Diocese when the accident occurred.

The jury determined that Father Termini was not negligent and returned a verdict in favor of the Diocese and its insurers. Therefore, the issues of course and scope of employment and damages were not addressed by the jury. On March 4, 1993, the trial court signed a judgment in accordance with the jury verdict in favor of defendants and against plaintiffs, dismissing plaintiffs' suit, with prejudice, at their costs. Plaintiffs appealed and submitted the following assignments of error:

1. The jury erred in finding Father Termini was not negligent.
2. The court erred in refusing to allow plaintiffs' counsel to recall Father Termini to the witness stand.

With respect to plaintiffs' assignment of error number two, we note at the outset that the trial court is given much discretion over how the proceedings shall be conducted. See LSA-C.C.P. art. 1631. Our review of this assignment revealed no abuse of discretion on the part of the trial court. Therefore, this assignment of error lacks merit.

NEGLIGENCE OF FATHER TERMINI

It is well settled that a motorist who observes the presence of a child on a bicycle ahead of him is placed under a high degree of care, and should anticipate that the child is possessed of limited judgment and that the child's action might be sudden and unpredictable. Robertson v. Penn, 472 So.2d 927, 931 (La.App. 1st Cir.), writ denied, 476 So.2d 353 (La.1985). Louisiana jurisprudence places a high degree of care upon a motorist who sees a child on or near the road and imposes upon him a duty to anticipate that the child might be unable to appreciate impending danger, is likely to be inattentive, and might suddenly place himself in a position of peril. Buckley v. Exxon Corporation, 390 So.2d 512, 514 (La.1980); Dufrene v. Dixie Auto Insurance Co., 373 So.2d 162, 164 (La.1979). Every driver is required to give warning by sounding the horn when necessary and to exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway. See LSA-R.S. 32:214.

The duty to exercise greater than ordinary care to avoid injury to a child becomes operative or exists in favor of the child when his presence is known or should have been known under the existing facts of the particular case to the operator or driver of a motor vehicle. The motorist, upon discovering the presence of children in his path of travel or in a position where they could become imperiled, is under a duty to exercise the highest degree of care to avoid injury to them. Each case must be adjudged on the facts peculiar to it. No one case is absolutely controlling of another, as few cases are identical factually. Campo v. Vampran, 183 So.2d 57, 61 (La.App. 1st Cir.), writ. denied, 249 La. 64, 184 So.2d 735 (La.1966).

In the instant case, the jury determined that Father Termini was not negligent in causing the accident. The jury's determination of a factual issue should not be altered by an appellate court in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, under the facts and circumstances here presented, we are convinced that the jury manifestly erred in its determination. Considering the high degree of care that is required of a motorist when he sees a young child on the road, neither the jurisprudence nor the evidence supports the jury's determination that Father Termini was not negligent in the manner in which he operated his vehicle shortly prior to and at the time of the accident. The presence of children on the road places the highest duty of care on the motorist, requiring him to take every available means to apprise the person in danger of his precarious position and at the same time exercise all maneuvers possible to avoid injury. Robertson v. Penn, 472 So.2d at 932. After reviewing the record in its entirety, we cannot say that Father Termini exercised the requisite degree of care.

The evidence simply does not support a finding that Father Termini took every available means to apprise Thomas of his precarious position. The record reveals that when *1211 he first noticed Thomas, Father Termini was traveling at a speed between 45 and 50 miles per hour. As he approached the curve in the highway, he saw Thomas in the left lane, from an unobstructed view of at least 500 feet. Father Termini testified: "... [A]s I approached that curve, ...

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Cite This Page — Counsel Stack

Bluebook (online)
637 So. 2d 1208, 93 La.App. 1 Cir. 0841, 1994 La. App. LEXIS 1717, 1994 WL 227323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weatherford-v-commercial-union-ins-co-lactapp-1994.