Rose v. State Farm Mut. Auto. Ins. Co.Rose v. State Farm Mut. Auto. Ins. Co.
This is a personal injury action arising out of a vehicular collision. The primary issues on appeal are apportionment of fault and quantum.
FACTS
At approximately 1:15 P.M. on November 29, 1980, plaintiff, Robert P. Rose, was driving his 1979 Dodge van in the center of the three westward lanes of traffic on Interstate 10 in Baton Rouge. Plaintiff was towing a small house trailer. At some point near the Acadian Thruway overpass the van hit a bump and the trailer hitch disconnected. Consequently, the trailer was being pulled only by its safety chains, with the tongue of the trailer striking the pavement causing sparkles. Plaintiff immediately slowed down and came to a gradual halt near the top of the incline.
According to plaintiff, he then turned on his emergency flashers, waited about two minutes until traffic cleared sufficiently and stepped out of the van. Plaintiff stated he observed the left rear light on the trailer flashing at this time. After waving several cars past, plaintiff had his wife pull the van forward slightly to allow the tongue of the trailer to clear the van‘s bumper. Plaintiff then again went to the rear of the trailer to check traffic. Although traffic was heavy, the center lane was clear as far as plaintiff could see. He went to the front of the trailer, looked back again to check traffic and then stepped between the trailer and the van. However, he was unable to lift the trailer tongue to reconnect it because of the angle of the incline on which the trailer was stopped. Plaintiff estimates he was in this position for approximately seven seconds when the trailer was struck from the rear by a pickup truck driven by Devin Holley. A total period of approximately seven to eight minutes had elapsed since plaintiff stopped his van.
Plaintiff subsequently filed suit against Devin Holley (hereinafter Holley) and his father Michael M. Holley,1 State Farm Mutual Automobile Insurance Company, liability insurer of the truck driven by Holley, and Treads and Care, Inc., owner of the truck.2 Following a trial on the merits, the jury found plaintiff‘s total damages amounted to $47,000.00 and assessed Holley with 20% negligence and plaintiff with 80% negligence. Accordingly, the trial court rendered judgment in favor of plaintiff and against defendants for $9,400.00, 20% of plaintiff‘s total damages, together with legal interest. Plaintiff was cast for 80% and defendants for 20% of court costs. Plaintiff appeals this judgment.
APPORTIONMENT OF FAULT
On the date of the accident the weather was sunny and clear, with good visibility. Holley does not claim there were any obstructions which prevented his seeing the trailer. Nor does he make any claim he saw the trailer but did not realize it was stopped. Under these circumstances, we find Holley was clearly negligent in failing to maintain the proper lookout required of all motorists.
We now turn to an examination of plaintiff‘s conduct. Defendants argue plaintiff is responsible for the detachment of the trailer either on the basis of actual negligence or strict liability under
Defendants also argue plaintiff should have pulled off the interstate or at least pulled into the right lane. We find no merit in this argument. Plaintiff had little control over the trailer since it was being pulled only by safety chains. Additionally, traffic was heavy. Thus, an attempt to maneuver into another lane would have been extremely dangerous. There was no exit or road shoulder for a considerable distance from the point at which plaintiff stopped. If he had continued further there was a danger the trailer would break loose completely and present an even greater risk to traffic. For these reasons, the action taken by plaintiff in coming to a gradual stop in the center lane was reasonable and prudent.
A motorist disabled on a highway has a statutory duty to remove his vehicle as soon as possible and to protect traffic until that time.
There were alternatives plaintiff could have undertaken which, although still dangerous due to the nature of the situation, would have been more reasonable. He could have attempted to flag down a motorist and either request their assistance or send them for assistance. He could have gone for assistance himself. Although there was no shoulder, there was a raised ledge on the edge of the road wide enough for a person to walk on in an emergency. Additionally, plaintiff or his wife could have carefully and slowly attempted to remove the van and trailer while the other
Since both drivers were negligent, the next issue presented is the apportionment of fault between them.3 Holley‘s fault in failing to maintain a proper lookout and to see plaintiff‘s trailer until it was too late was much greater than 20%. Conversely, plaintiff‘s actions, although negligent, were undertaken under difficult conditions and constituted far less than 80% fault. Accordingly, we will raise the percentage of fault attributable to Holley to the lowest degree a reasonable trier of fact could have found and reduce the percentage of fault attributable to plaintiff to the highest degree a reasonable trier of fact could have found. See Efferson v. State of Louisiana, Through the Department of Transportation and Development, 463 So.2d 1342 (La.App. 1st Cir.1984), writs denied, 465 So.2d 722 (La.1985).4 Under the circumstances present, we find the appropriate apportionment of fault to be 75% to defendant, Devin Holley, and 25% to plaintiff, Robert Rose.
In reapportioning the percentages of negligence, we are not unmindful a persuasive argument could be made the negligence of Devin Holley, in failing to see what he should have seen and to maintain control of his vehicle, was the intervening and superceding cause of the accident, relieving plaintiff of any causative fault on his part. When an accident results from two acts of negligence, one more remote and one an intervening cause, the presence of the intervening cause prevents a finding of liability on the one responsible for the more remote cause. Hessifer v. Southern Equipment, Inc., 416 So.2d 368 (La.App. 1st Cir.1982), writ denied, 420 So.2d 982 (La. 1982); Mizell v. State, through La. Dept. of Hwys., 398 So.2d 1136 (La.App. 1st Cir. 1981).
Additionally, one might argue the very application of the concept of comparative negligence is improper in this instance. By the very language of
Pretermitting the above considerations, our review of fault apportionment is consistent with the guidelines of Higgins v. Johnson, 349 So.2d 918 (La.App. 1st Cir. 1977), writs denied, 351 So.2d 161, 162 (La.1977), and Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). In those cases, as here, the trial judge failed to give a proper charge relative to a motorist‘s duty to look ahead and see what he can see and in legal contemplation does see. It is obvious the defendant in this case was negligent in not seeing what he should have seen.
The jury in this case lacked a specific and vital instruction as to defendant‘s duty that was essential for the jury to properly assess defendant‘s fault. It was
QUANTUM
Plaintiff alleges the amount of damages fixed by the jury was grossly inadequate. The jury concluded plaintiff suffered total damages, general and special, of $47,000.00. A trial court‘s award of damages may be disturbed on appeal only when the record clearly reveals an abuse of the great discretion afforded the trier of fact in making the award. Reck v. Stevens, 373 So.2d 498 (La.1979). Upon such a finding, the appellate court can then raise (or lower) the award to the highest (or lowest) amount which is reasonable within the discretion afforded the trier of fact. Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976). Based on the facts established at trial, we conclude the amount of damages fixed by the jury in the present case was so inadequate as to constitute an abuse of discretion.
GENERAL DAMAGES
The primary personal injuries suffered by plaintiff were a compound fracture of his left tibia and a laceration to his chin requiring 17 stitches. He remained hospitalized for nine days following the accident. On the day of the accident his left leg was placed in a cast and pins inserted to hold it in place. These pins were not removed for approximately four weeks.
Following his release from the hospital, plaintiff‘s leg did not heal properly. His physician prescribed the use of a bioelectrical stimulation device to aid healing. Use of this device required plaintiff to be hooked up to the bioelectrical stimulation unit for prolonged periods of time. Although some progress was noted, satisfactory healing of plaintiff‘s leg still had not occurred after use of this device for one and a half years. Thus, in November of 1982, bone graft surgery involving the insertion of a permanent six inch plate and several screws was performed. Plaintiff was hospitalized for 12 days on this occasion. The surgery was successful and he was ultimately released from his physician‘s care on July 21, 1983.
Throughout most of his recovery, a period in excess of two and one-half years, plaintiff was required to wear casts on his leg and use crutches. He was unable to return to work and was compelled to take a disability retirement in July of 1981. Plaintiff stated he presently has limited endurance in his left leg and can stand on it for only a couple of hours at a time.
The medical evidence presented at trial establishes plaintiff will have permanent residual disability. The estimates presented range from 5% or less to 20%, with his treating physician assigning a 10% disability.
In addition, the medical testimony establishes plaintiff had a pre-existing arthritic condition which was aggravated by his injury and unusually long recovery period. Although plaintiff first complained of pain in his right knee in August of 1982, by the time of trial in October of 1983 this arthritic condition was severe, with little likelihood of improvement.
In view of these considerations we find $30,000.00 to be the lowest amount the jury could reasonably have awarded for general damages.
SPECIAL DAMAGES
At the time of his injury plaintiff was employed as a head fireman for Gulf States Utilities earning $486.59 per week.5 Although he was unable to work, Gulf States continued to pay his full salary until August
Dr. George Rice, a professor of economics at Louisiana State University, testified on plaintiff‘s behalf as to his economic losses. Defendant stipulated to Dr. Rice‘s expertise in economics and the court accepted him as such.
Plaintiff suffered a substantial loss of wages due to his inability to return to work following the accident. We conclude the shortest period upon which an award of lost wages could reasonably be based was from August 1, 1981, the date payment of his full salary was discontinued, to July 16, 1983, the date he would otherwise have been eligible for regular retirement. Dr. Rice calculated plaintiff‘s lost income for this period was $39,606.00, after deduction of disability benefits paid to him. We have reviewed these calculations and find no error. Thus, $39,606.00 was the lowest amount the jury could reasonably have awarded for this item of damages.6
In addition, plaintiff incurred $15,255.00 in medical expenses and $175.00 in ambulance and towing expenses.
DECREE
For the above reasons, the judgment of the trial court is amended to: (1) apportion negligence at 75% to defendant Devin Holley and 25% to plaintiff Robert Rose; (2) increase plaintiff‘s award to $63,777.04 ($85,036.05, less 25%), together with legal interest thereon from date of judicial demand until paid; and, 3) to assess trial court costs at 75% to defendants and 25% to plaintiff. Costs of appeal are also assessed 75% to defendants and 25% to plaintiff.
AMENDED AND, AS AMENDED, AFFIRMED.