Craighead v. Preferred Risk Mut. Ins. Co.
| Decision Date | 25 August 2000 |
| Docket Number | No. 33,731-CA.,33,731-CA. |
| Citation | 769 So.2d 112 |
| Parties | Chris L. CRAIGHEAD, et al., Plaintiffs-Appellees, v. PREFERRED RISK MUTUAL INSURANCE CO., et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Blackwell, Chambliss, Henry, Caldwell, Cagle, McKee & Camp by Sam 0. Henry, III, W. Mark McKee, West Monroe, Counsel for Plaintiffs-Appellees, Chris L. Craighead, Ind. and as W. Admin. of the Estate of Christopher Craighead and Deborah Craighead.
Hayes, Harkey, Smith & Cascio by Harry M. Moffett, IV, Monroe, Counsel for Plaintiff-Appellee, State Farm Ins. Co.
Cook, Yancey, King & Galloway by Sidney E. Cook, Jr., Shreveport, Counsel for Defendants-Appellants, Victor Jerome Sullivan, Cedar Creek School, and Preferred Risk Mutual Ins. Company.
Before BROWN, WILLIAMS and DREW, JJ.
Victor Jerome Sullivan, Cedar Creek School and its insurer, Preferred Risk Mutual Ins. Co. (Cedar Creek defendants) appealed the judgment in which the trial court (1) granted Motions for Judgment Notwithstanding the Verdict and, alternatively, Motions for a New Trial; (2) found the Cedar Creek defendants to be 80% at fault in causing the accident; and (3) awarded the plaintiffs damages. On March 3, 1997 at 7:20 a.m., Caroline Craighead, age 11, was struck and killed by an eastbound motorist as the child attempted to cross the southern, eastbound lane of Hwy. 80 to board the westbound Cedar Creek school bus stopped in the northern westbound lane of the road. The Cedar Creek defendants complained on appeal that the trial court erred in granting the motions for JNOV and alternative motions for new trial. Additionally, the Cedar Creek defendants objected to being cast with 80% of the fault, with damages for emotional distress and for excessive quantum. For the following reasons, the judgment of the trial court is affirmed.
Prior to filing suit, Caroline's parents and brother (the Craigheads) settled with the driver (Judy Martinez) who struck the child along with Martinez's insurer. The Craigheads sued the bus driver, Sullivan; Cedar Creek; and its insurer, Preferred Risk (No. 33, 731—CA). The Craigheads' UM insurer, State Farm, tendered its limits of $100,000 and filed a subrogation claim against Sullivan, Cedar Creek and Preferred Risk (No. 33,730—CA). The two suits were consolidated for trial and tried before a jury which found no negligence on the parts of the bus driver, the mother and the deceased child. The jury placed 100% of the fault for the accident on Martinez, the driver whose eastbound vehicle struck and killed Caroline. State Farm and the Craigheads filed Motions for Judgment Notwithstanding the Verdict and, alternatively, Motions for New Trial.
On July 26, 1999, the trial court granted the motions and entered a Judgment Notwithstanding the Verdict in favor of the Craigheads. The trial court found that the bus driver, Sullivan, was 80% at fault in causing the accident. The trial court awarded 8450,000 to each of the parents and $50,000 each for emotional distress to Mrs. Craighead and her son who witnessed the accident. In addition, the trial court awarded $20,000 for Caroline's survival action. The trial court conditionally granted the Motions for New Trial in the event this court reversed the JNOV. The Cedar Creek defendants appealed.
The Craighead family resided in Calhoun, Ouachita Parish, and the children attended Cedar Creek, a private school in Ruston, Louisiana. Each morning, Mr. or Mrs. Craighead drove the children to a pick-up location, the parking lot of the Price Right Pharmacy on Hwy. 80 in Calhoun, for the children to ride the bus to school. On the day of the accident, Mrs. Craighead drove Caroline to the parking lot. They were accompanied by Caroline's nine-year-old brother, Christopher. who was ill and not attending school that day. Highway 80 runs east and west. Mrs. Craighead parked her van south of and perpendicular to Highway 80. The front of the Craighead vehicle was about a van length from the southern, eastbound lane of traffic. When they saw the approaching westbound bus turn on its flashing lights after it had topped the hill, they knew it was Caroline's bus. At trial, Mrs. Craighead estimated that the flashing yellow bus lights came on near the pizza place some distance east of her location. Caroline opened the van door and walked to the road to cross and board the bus stopped in the northern, westbound lane. Mrs. Craighead looked down to put her vehicle in gear to leave. She heard a horn and the impact of the vehicle striking Caroline.
In statements given the day of the accident, Sullivan said that he drove the bus west on Highway 80 and put on his flashing yellow lights as he approached the pick up location. He observed an eastbound gray car which was exceeding the speed limit. Because he feared that the driver would lose control if he put out the stop signs and the red lights, he decided to let that vehicle pass through his yellow flashing lights before putting out the stop signs on the bus. When his bus came to a complete stop in the northern westbound lane, he observed Caroline exit her mother's vehicle and walk into the road. He blew his horn in warning. Caroline stepped back but was struck by the car.
At trial, Sullivan testified that he had been employed at Cedar Creek to drive a bus and do maintenance on the buses for six and a half years at the time of the accident. Sullivan had a Louisiana commercial driver's license. Aside from on-the-job training, he received no formal training to be a school bus driver and had received no instructions on loading and unloading the children or in giving signals to the children.
Sullivan did not recall if the strobe light on top of the bus was on the day of the accident. Sullivan stated he illuminated the yellow flashing lights adjacent to a drive way (about 100 feet from the collision) and acknowledged knowing that state law required that the yellow flashing lights be turned on from 500 to 100 feet from the stop. Sullivan explained that putting on the red lights and putting out the stop signs indicated to the child that the bus and oncoming and following traffic had stopped and that it was safe for the child to cross the road to board. Sullivan agreed that a school bus can be characterized as a "moving red light."
Sullivan saw the eastbound Martinez vehicle which he thought was traveling in excess of the 55 MPH speed limit. Sullivan saw that Martinez did not slow or brake. He decided to let that car pass through the area before putting out the stop signs and illuminating the flashing red lights. Observing Caroline approaching the highway, Sullivan hollered no, but his window was up, he thought. He "laid on his horn" and Caroline paused or stepped back, but was struck by the car. Sullivan summarized the incident by stating that he stopped his bus and Caroline got out, walked to the road, heard the horn, stepped back and was hit by the Martinez car.
In a statement given at the scene of the accident, Martinez said she was traveling east on Highway 80 and saw the bus as her car came beside the store. Martinez saw no flashing yellow lights or stop signs on the bus. She concluded the bus was about to make a right turn. She saw someone at the right front corner of her car and she braked and swerved to try to avoid the pedestrian. Martinez estimated her speed was 50 MPH.
At trial, Martinez testified she had left her child at day care and was driving east to her job when she observed the westbound bus. Martinez said her radio was playing loudly. She braked her vehicle coming down the hill toward what she described as a congested area. The bus appeared to be slowing and she noticed the strobe light on the bus, the only light she observed on the bus. Martinez did not observe the bus completely stopped. Since her child was out of public school on spring break, Martinez did not think the bus was picking up a child. She had the impression the bus was going to turn. She thought she saw Caroline out of the corner of her eye at impact, but also stated she never actually saw Caroline but heard a thump.
State troopers investigating the collision noted that the highway was dry and clear with good visibility in the area. The speed limit was 55 MPH. After being struck, Caroline was thrown 63 feet seven inches and came to rest 16 feet six inches south of the highway in a ditch. Martinez's vehicle traveled 110 feet from the point of impact and her skid marks measured 93 feet, which indicated she hit her brakes after the impact.
In oral reasons for judgment, the trial court quoted La. R.S. 32:80(B)(2):
(2) The driver of any school bus equipped with signal lamps as provided in R.S. 32:318B(4) shall activate the yellow (amber) lights at least one hundred feet, but not more than five hundred feet, before stopping to receive or discharge any pupil, shall deactivate these lamps upon stopping, shall exhibit the red flashing lamps and semaphore sign or signs while stopped, and upon resuming motions shall deactivate both the lamps and the semaphore sign or signs.
The trial court also relied upon Clomon v. Monroe City School Bd., 572 So.2d 571, 577 (La.1990) which stated:
The process by which a child crosses an open highway to board or disembark from a school bus is charged with danger. Accordingly, the legislature has enacted the most stringent provisions feasible to safeguard the entire operation. The child, the bus driver and the motorist are constituents of this process, bound together legally and practically in a special, exigent relationship, from the moment the bus stops and signals until the child is safely across the roadway. If the school bus driver and the motorist perform their duties properly, a child who crosses a typical roadway while leaving or entering an...
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