Weatherford v. Commercial Union Ins.

650 So. 2d 763, 1995 La. LEXIS 595, 1995 WL 70192
CourtSupreme Court of Louisiana
DecidedFebruary 20, 1995
Docket94-C-1793, 94-C-1927
StatusPublished
Cited by27 cases

This text of 650 So. 2d 763 (Weatherford v. Commercial Union Ins.) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana 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., 650 So. 2d 763, 1995 La. LEXIS 595, 1995 WL 70192 (La. 1995).

Opinion

650 So.2d 763 (1995)

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

Nos. 94-C-1793, 94-C-1927.

Supreme Court of Louisiana.

February 20, 1995.

Paul P. Breaux, Jr., Breaux & Hornstein, St. Gabriel, for applicant in No. 94-C-1793 and respondent in No. 94-C-1927.

Daniel R. Atkinson, Jr., Mathews, Atkinson, Guglielmo, Marks & Day, Baton Rouge, for respondent in No. 94-C-1793 and applicant in No. 94-C-1927.

KIMBALL, Justice.[*]

In this consolidated automobile accident case, eight year old Thomas Weatherford was injured when he rode his bicycle into the path of a van driven by Father Mario Termini, a Roman Catholic priest associated with the Catholic Diocese of Baton Rouge. Plaintiffs sued Father Termini, the Catholic Diocese of Baton Rouge, Catholic Mutual Relief Society, and Virginia Surety Company. A jury found that Father Termini, who had previously been released from the suit, was not at fault, and the district court accordingly entered judgment in favor of the remaining defendants, the Catholic Diocese of Baton Rouge, Catholic Mutual Relief Society, and Virginia Surety Company. On appeal, the first circuit concluded the trial court committed manifest error in finding Father Termini free of fault but held that because Father Termini was not in the course and scope of his employment at the time of the accident, *764 the Diocese could not be held liable under the doctrine of respondeat superior.[1] Both plaintiffs and defendants sought writs of certiorari, which we granted to review the correctness of the court of appeal judgment.[2]

This case presents the threshold issue of whether the jury committed manifest error when it concluded that Father Termini did not cause plaintiffs' damages. After reading the record, we conclude the court of appeal erred when it held that the jury's verdict was manifestly erroneous. Because our decision on the threshold negligence issue is dispositive of this case, we need not address the issue of whether Father Termini was in the course and scope of his employment at the time of the accident.

I.

FACTS AND PROCEDURAL HISTORY

On Thursday, December 27, 1990, a damp and overcast day, Father Termini was traveling south on Louisiana Highway 75, a two-lane highway in Iberville Parish. Father Termini was driving his personally owned van at a speed of forty-five (45) to fifty (50) miles per hour and was en route to his rectory in Bayou Pigeon, Louisiana. Meanwhile, eight year old Thomas Weatherford and his fifteen year old uncle, Gary Weatherford, were riding their bicycles on Highway 75, also in a southerly direction. Thomas was riding a new twenty-inch bicycle, which he had received two days earlier for Christmas, and was travelling in the traffic lane reserved for north-bound traffic.

As Father Termini was rounding a large curve, near where Highway 75 intersects with Louisiana Highway 404, he began to look for oncoming cars, and as he approached the end of the curve, he saw Thomas riding his bicycle. The accident occurred when Thomas, who had been travelling southward in the north-bound lane, turned into Father Termini's lane of travel and was struck by Father Termini's van. Father Termini later testified that Thomas was wearing dark, patterned clothing which made it difficult for him to see Thomas until he noticed the boy was having trouble maneuvering his bicycle. He also testified that while he had no recollection of what he did immediately upon seeing Thomas, he believed he reflexively removed his foot from the accelerator and applied his brakes. Father Termini remembered locking his brakes at some point because his braking action caused him to hit his face against the van's windshield when the van ultimately came to rest against a nearby mailbox after the accident.

Testimony from Trooper Michael D. Noel, Jr., the Louisiana State Police officer who investigated the accident, established that Father Termini's van left one hundred and twenty-nine (129) feet of skid marks. The van skidded for approximately ninety-eight (98) feet before the impact and thirty-one (31) feet after the impact.

As a result of the accident, Thomas was severely injured.

On May 20, 1991, Mary Gail Weatherford, individually and in her capacity as tutrix for her minor children, Thomas D. Weatherford and Eunice Weatherford, filed this lawsuit claiming damages for personal injuries sustained by Thomas and for loss of consortium to herself and her daughter, Eunice. Mrs. Weatherford named Father Termini as a defendant along with Commercial Union Insurance Company, which was mistakenly named as Father Termini's insurer. Father Termini's actual insurer, American Employer's Insurance Company, was eventually made a party to this lawsuit. Also made defendants were the Catholic Diocese of Baton Rouge and the Diocese's insurers, Catholic Mutual Relief Society and Virginia Surety Company. Prior to trial, the plaintiffs settled with, and dismissed with prejudice, Father Termini and American Employers Insurance Company.

The case against the remaining defendants was set for trial on February 25, 1993, and the matter was tried over a two (2) day period. In all, the jury heard testimony *765 from fourteen (14) witnesses, including two accident reconstruction experts.

After closing arguments, the trial judge gave the following instruction concerning the duty of care a motorist owes when operating a vehicle in the vicinity of small children.

Louisiana law places the highest duty of care upon persons operating automobiles on highways in the vicinity of small children. The duty owed by a motorist to a child on or near the roadway is not discharged by merely reducing one's speed below the maximum limit. A driver may be negligent due to traveling at an excessive speed, even if driving at a speed less than the posted speed limit, if the circumstances require a reduction in speed.
A motorist encountering a child upon the roadside must anticipate that the child might be unable to appreciate the danger, is likely to be inattentive and might suddenly place himself in a position of danger. When a motorist observes a child of tender years along a highway he must bring his car under such control that he can stop and avoid an accident regardless of any unexpected or expected action on the part of the child. Every driver shall, when reasonably necessary to insure safe operation, give audible warnings with his vehicle horn to alert those in his vicinity of the potential danger ...[3]

After instructing the jury on the applicable law, the judge recessed the trial, and the jurors retired to deliberate. Sometime thereafter, the jurors informed the bailiff that they were interested in having the judge re-read a portion of the instructions. The jurors were then returned to the courtroom, where the jury foreperson made the following request:

We would like for you to read, if you would, the part [of the instructions] that discusses the obligation that a Louisiana motorist has, and what constitutes negligence in a situation such as this.
* * * * * *
We just need some more instruct[ion] on what constitutes negligence. What should Father [Termini] h[ave] done in this situation...

The judge then re-read the applicable instructions, and the jurors retired once more before returning a verdict in favor of the defendants by finding that Father Termini was not guilty of negligence.

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Bluebook (online)
650 So. 2d 763, 1995 La. LEXIS 595, 1995 WL 70192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weatherford-v-commercial-union-ins-la-1995.