Harris v. BROWNING-FERRIS INDUSTRIES, 81-644-B.

• Decision Date: 09 May 1986
• Docket Number: No. 81-644-B.,81-644-B.
• Citation: 635 F. Supp. 1202
• Parties: Mrs. Willie Lee HARRIS, etc. v. BROWNING-FERRIS INDUSTRIES CHEMICAL SERVICES, INC., et al.
• Court: U.S. District Court — Middle District of Louisiana

635 F. Supp. 1202

Mrs. Willie Lee HARRIS, etc. v. BROWNING-FERRIS INDUSTRIES CHEMICAL SERVICES, INC., et al.

No. 81-644-B.

United States District Court, M.D. Louisiana.

May 9, 1986.

COPYRIGHT MATERIAL OMITTED

Russell L. Dornier, Gary & Field, Baton Rouge, La., for plaintiffs, Mrs. Willie Lee Harris, Gregory Cardell Harris and Tamish Danielle Harris.

Robert Henry Sarpy, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendants, Browning-Ferris Industries Chemical Services, Inc., and ABC Ins. Co.

J. David Forsyth, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, La., for Volkswagen Aktiengesellscraf (VWAG).

POLOZOLA, District Judge:

This diversity action was filed by Mrs. Willie Lee Harris, individually and on behalf of her children,¹ to recover damages arising out of an automobile accident in which Willie O. Harris was killed. The court finds that the sole proximate cause of this accident was the negligence of Willie O. Harris.² Therefore, plaintiffs' suit must be dismissed with prejudice.

I. Background

This suit was originally filed against Browning-Ferris Industries, Inc. (BFI) and its insurer on August 5, 1981. Plaintiffs claimed that Willie O. Harris was killed in an automobile accident which occurred on March 2, 1981, when the Harris' vehicle collided with the rear of a BFI truck being driven by Gary C. Tilley³ at approximately 10:30 p.m. on I-10 near Sulphur, Louisiana. On June 3, 1983, the plaintiffs filed an amended complaint which named Volkswagenwerk Aktienqesellschaft (VWAG) as an additional defendant.⁴ Plaintiffs' suit against VWAG was filed well after the Louisiana one year statute of limitations.⁵ Therefore, in order to recover against VWAG, the plaintiffs must prove that BFI and VWAG were joint tort-feasors.⁶ Since the court has found that BFI was not negligent, the suit against VWAG must be dismissed because it was not timely filed within one year of the date of the accident.

Prior to the trial, the court severed the issue of liability and damages. The court also severed the issue of whether VWAG was negligent.⁷ Thus, the sole issue before the court is whether BFI was liable to the plaintiffs as a result of the March 2, 1981 accident.⁸

II. Contentions of the Parties

The plaintiffs urge two basic grounds for recovery. Plaintiffs first contend that BFI's driver was negligent because he changed lanes when it was not safe to do so in violation of LSA R.S. 32:79 and 32:104 A. Plaintiffs also contend that even if the truck driver changed lanes safely, he was traveling in the center lane of the interstate at such a slow rate of speed that it posed a danger to other drivers on the highway, including Willie O. Harris, in violation of LSA R.S. 32:63 and 32:64.

BFI denies any liability on its part. BFI contends that its driver was proceeding in a safe and proper manner at a lawful rate of speed on the interstate when its truck was struck from the rear by Willie O. Harris. BFI further contends that at the time of the accident the decedent was obviously intoxicated with a blood alcohol content of 0.260 which caused him to proceed in an unsafe manner on the highway. More specifically, BFI contends that Willie O. Harris did not follow at a safe distance in violation of LSA R.S. 32:81, failed to timely apply his brakes and failed to maintain a proper lookout while proceeding on the interstate.

III. The Applicable Law

It is settled law in Louisiana that a driver of a vehicle cannot suddenly change lanes without first determining whether it is safe to do so. A driver who suddenly and without warning changes lanes without allowing the following party sufficient time to stop or change lanes to avoid the accident may be found negligent.⁹ In fact, the burden is placed upon the driver who changed lanes to demonstrate that the resulting collision did not result from the sudden change in lanes.¹⁰

The Louisiana jurisprudence also provides that the driver of a following vehicle must proceed at a distance that is prudent, safe and reasonable.¹¹ Indeed, there is a presumption of negligence on the part of the driver of a following vehicle which collides with the rear of a vehicle it is following.¹² Such a presumption may be rebutted by a showing that the driver of the following vehicle kept his vehicle under control, observed the lead vehicle and was following at a safe distance under the circumstances.¹³

Article 2315 of the Louisiana Civil Code, which provides in pertinent part that "every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it," is the basis for recovery under Louisiana law for the harm that is caused by the negligence of another.¹⁴ In order to prevail in this case, it is incumbant upon the plaintiff to prove, by a preponderance of the evidence, that (1) BFI was negligent; (2) the injury which the plaintiff has suffered was, in fact, caused by such negligence; and (3) there was actual damages suffered by the plaintiffs.¹⁵

The Louisiana Legislature has enacted a statutory scheme regulating the use of motor vehicles upon public highways.¹⁶ This statutory scheme supports and is supported by the jurisprudence set forth above. Thus, La.R.S. 32:79 sets forth the duty of care for a lead vehicle driving on a roadway laned for traffic as follows:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules, in addition, to all others consistent herewith, shall apply.

(1) A vehicle shall be driven as near as practical and entirely within a single lane and shall not be moved from such lane until such driver has first ascertained that such movement can be made with safety.

In addition, La.R.S. 32:104 A provides that:

No person shall turn a vehicle at any intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. (Emphasis supplied.)

The duty of a driver of a vehicle following another vehicle is set forth in La.R.S. 32:81, which provides that "the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." Furthermore, La.R.S. 32:63 and 32:64 govern the speeds at which a motor vehicle may be operated upon the state's highways. These statutes provide:

§ 63. Establishing of speed zones

A. Whenever the department shall determine upon the basis of an engineering and traffic investigation that any maximum speed set forth in this Chapter is greater or less than is reasonable or safe under the conditions found to exist upon any highway of this state, or any part thereof, the department may determine and declare a reasonable and safe maximum speed limit thereat, which, when appropriate signs giving notice thereof are erected, shall be effective at all times or at such specific times as may be determined by the department.

B. Whenever the department determines on the basis of an engineering and traffic investigation that slow speeds on any highway of this state, or part thereof, consistently impede the normal and reasonable movement of traffic, the department may determine and declare a minimum speed limit thereat, below which no person shall drive a vehicle except when necessary for safe operation or in compliance with law. Minimum speeds so determined shall become effective upon the erection of signs giving notice thereof. Acts 1962, No. 310, § 1. § 64. General speed law

A. No person shall drive a vehicle on the highway within this state at a speed greater than is reasonable and prudent under the conditions and potential hazards then existing, having due regard for the traffic on, and the surface and width of, the highway, and the condition of the weather, and in no event at a speed in excess of the maximum speeds established by this Chapter or regulation of the department made pursuant thereto.

B. Except when a special hazard exists that requires lower speed for compliance with paragraph A of this section, no person shall operate or drive a motor vehicle upon the highways of this state at such a slow speed as to impede the normal and reasonable movement of traffic. Acts 1962, No. 310 § 1.

C. Rolling roadblocks shall be prohibited from operating on all Interstate highways in the state.

IV. Findings of Fact

The primary issues before the court are factual in nature. The accident upon which this suit is based occurred on Monday, March 2, 1981, at approximately 10:30 p.m. on Interstate Highway 10 in the city of Sulphur, Louisiana. At the time of the accident, Gary C. Tilley was driving a 100 barrel vacuum, 18 wheeler GMC truck with a 1975 trailer, both of which were owned by BFI. Tilley was acting within the scope of his employment with BFI at the time of the accident. Willie O. Harris was driving a 1973 Volkswagen "Beetle" type two door vehicle which he owned when the accident occurred.

Just prior to the accident, Tilley had been at the BFI plant which is located on a service road south of I-10 near the intersection of I-10 and Louisiana Highway 108 "La.108". After leaving the plant, Tilley took the service road to La. 108, and then proceeded onto an overpass over I-10. After crossing I-10 by way of the overpass, Tilley turned right onto a loop leading to the entrance ramp of I-10. Tilley then proceeded from the entrance ramp onto I-10 in a westerly direction. After getting onto I-10, the hood of the BFI truck became loose and flew open. Tilley pulled his vehicle onto the shoulder of the road and then stopped in the emergency lane to shut the hood. After fixing the hood of the truck, Tilley went from the emergency lane to the first lane of the three lanes of I-10....