Foster v. Lafayette Ins. Co.
| Citation | 504 So.2d 82 |
| Decision Date | 25 February 1987 |
| Docket Number | No. 18411-CA,18411-CA |
| Parties | Judy M. FOSTER, et vir., Plaintiff-Appellee, v. LAFAYETTE INSURANCE COMPANY, et al., Defendants-Appellees, J.T. Ferrier, et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Hicks & Bookter by S. Maurice Hicks, Jr., Shreveport, for J.T. & Craig Ferrier.
Mayer, Smith & Roberts by Vicki C. Warner, Shreveport, for Valley Forge Ins. Co.
Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer & Mary L. Cook Blackley, Shreveport, for Casualty Reciprocal Exchange Ins. Co.
Donald R. Miller, APLC, Shreveport, for defendants-appellees.
Before MARVIN, SEXTON and NORRIS, JJ.
From a $40,897 net judgment for personal injuries sustained when one of seven high school boys on a lark intentionally threw a rotten pumpkin, once used as a jack-o-lantern, from the rear of a southbound pickup through the windshield of a northbound pickup being driven by plaintiff Mrs. Foster on a Shreveport thoroughfare, four defendants appeal.
The defendants-appellants are the driver of the pickup, who became an adult after this action was instituted, the father of the driver, the UM carrier for Mr. and Mrs. Foster, and the UM carrier for the owner of the truck Mrs. Foster was driving.
Plaintiffs Mrs. Foster and her husband, who was a passenger in the pickup she was driving, also appeal, seeking to increase the award to her and to have this court award damages to him for his injury and for his loss of consortium.
The liability issues are factually and legally related. The UM carriers contend that the intentional throwing of the pumpkin by 17-year-old Scott Drach from the rear of the truck driven by 17 year old Craig Ferrier did not arise out of the ownership, maintenance, or use of Ferrier pickup, which, under each UM carrier's policy, was an un- or under-insured vehicle. 1
Craig Ferrier and his father contend that Craig did not factually or legally contribute to the throwing of the pumpkin and was not negligent in any respect. The UM carriers track the Ferriers' argument by alternatively contending Craig Ferrier's vicarious liability, if any, that might conceivably result from his being engaged in an enterprise with, or on a lark with, Scott Drach and the other boys, did not arise from, and was not caused by, the operation or use of the Ferrier pickup.
The trial court reasoned that Craig Ferrier and his passengers were acting in concert and found all defendants liable in solido. Mrs. Foster's award was itemized below as $75,000 damages, $5,595.73 medical expenses, and $1,200 loss of wages. The trial court reduced the total damages by one-half because Mrs. Foster settled her demands against Scott Drach, his parents, and their homeowner's insurer. See La.C.C. Art. 1803; Garrick v. Washington Parish, 440 So.2d 787 (La.App. 1st Cir.1983).
We amend and affirm.
In the early evening of November 3, 1983, Craig Ferrier and six other Woodlawn High School students about the same age began cruising the Woodlawn-Southwood High School contiguous school districts in the Ferrier pickup. The rivalry between these schools is described as intense. This was the eve of the date for the Woodlawn-Southwood football game. When these boys drove in the immediate area of Southwood, students there pelted them with raw eggs and balloons filled with water. Ferrier and his friends attempted to steal a road construction warning light in the area and had a confrontation with other boys, during which a tire tool and a knife were exhibited.
After departing, one or more of the Ferrier group purchased from a convenience store at which they stopped, several cans of biscuits, the contents of which were thrown from the Ferrier pickup at other vehicles when the Ferrier pickup resumed its cruise. At a trash bin at another location, Craig Ferrier stopped to allow one or more of his passengers to obtain oyster shells which were intended to be thrown from the Ferrier pickup. While Craig Ferrier continued cruising, one of the boys in the rear of the truck saw the discarded and rotting jack-o-lantern. At the order or request of one or more of his passengers, Craig Ferrier stopped his truck to allow the pumpkin to be put in the truck, obviously, we deduce, for the purpose of also being thrown from the truck.
About 7:30 p.m. Mrs. Foster, with her husband as passenger, was driving her son's pickup north on Linwood Avenue. At this time four boys were in the rear and two others were in the cab of the truck being driven by Craig Ferrier south on Linwood. Scott Drach, one of the boys in the back of the truck, picked up the pumpkin and threw it at the windshield of the Foster pickup as it approached the Ferrier pickup. The impact shattered the windshield on the Foster truck in the face of Mr. and Mrs. Foster. Mrs. Foster sustained serious injuries which will be later considered. Craig Ferrier admitted leaving the scene of the accident by an "evasive" route to avoid police.
Negligence, of course, must arise out of the breach of a duty owed by a defendant to a particular plaintiff. Unless some conduct or omission on the part of Craig Ferrier is found to have contributed substantially to the cause-in-fact of the injuries to plaintiffs, we need not further inquire into what duty, if any, of Craig Ferrier protected these plaintiffs against what risks.
Without further elaboration, we readily conclude that but for the chauffeuring of the others by Craig Ferrier and his stopping to allow the pumpkin to be placed in the truck when he knew or should have known that his passengers had been and were throwing objects from the truck at other persons and vehicular traffic, the pumpkin would not have been thrown. Craig Ferrier's conduct was a substantial cause in fact of the injuries to Mr. and Mrs. Foster.
Certainly Craig Ferrier owed to others on or about the roadway the duty of reasonably operating, controlling, and using his automobile. To all, he owed the duty of being reasonably observant of conditions that either might affect the operation or use of his vehicle that would pose an unreasonable risk of harm to others. See LRS Title 32, Motor Vehicle Law; La.C.C. Art. 2315. Stated in another way, a person in control of a motor vehicle must make a reasonable effort to avoid that vehicle or any object in, on, or from that vehicle from causing injury to others on or about the highway. C.C. Art. 2315.
We have noted that the most exasperating and elusive torts problem that a judge must face is the task of determining how far legal protection should extend. Rules are essentially condemned. Reasoned and careful analysis is preferred. Foreseeability is not the only criterion for determining whether there is a duty-risk relationship. Because a risk may foreseeably arise out of certain conduct or omission does not necessarily place that risk with the scope of the duty owed. Neither are all non-foreseeable risks excluded. Inquiry must be made into the ease of associating the injury with the duty that is sought to be enforced against the defendant and into policy reasons that serve to indicate how far, or to what extent, the duty should extend.
Where the rule of law imposing the duty derives from a principle such as is found in C.C. Art. 2315 that the Legislature has left to the courts to implement, we exercise our own judgment, much like the Legislature might exercise, in weighing policy reasons for and against imposing and enforcing the duty to the extent that is sought. Finley v. North Assur. Co. of America, 476 So.2d 837, 843-846 (La.App. 2d Cir.1985), and authorities cited therein. There we quoted with approval:
The keys for the solution of the issue of responsibility when there is more than one cause-in-fact of damages are (1) a determination of the exact risk or risks anticipated by imposition of the legal duty which has been breached and (2) the legal or policy considerations which grant excuses from certain consequences which follow an act of negligence. This requires ... a jurisprudential determination which will implement and make effective our broad codal provisions concerning those who should respond in damages for their fault. (Emphasis added.) Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821, 831 (1970).
We agree with the trial court's express and implied conclusion that Craig Ferrier breached his duty of reasonable care toward others on or about the roadway by actively participating in the lark or undertaking with his passengers, chauffeuring them, stopping to allow procurement of items which could be, and which were, thrown from the truck. We simply cannot find, and have not heard suggested, any legal or policy reasons that might excuse the consequences of Craig Ferrier's conduct.
As the chauffeur of the group and fully aware of the mission and purpose of the group and that the group was procuring and purchasing items which were being thrown from his truck, Craig Ferrier could have easily thwarted or aborted the undertaking. The obvious risk that someone on or about the roadway would suffer injury from an item being thrown from his truck is easily associated with the rule of this case:
Under the described circumstances, the custodian-driver's duty of reasonable care towards others on or about the roadway includes the duty of taking reasonable measures either to prevent his passengers from throwing objects from his truck at other vehicles or persons, or, at least, not actively assisting their efforts to procure the objects...
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