Liedtke v. Allstate Ins. Co.

• Court: Court of Appeal of Louisiana
• Writing for the Court: STOKER
• Citation: Liedtke v. Allstate Ins. Co., 405 So.2d 859 (La. App. 1981)
• Decision Date: 27 May 1981
• Docket Number: No. 8258,8258
• Parties: Harry LIEDTKE, Individually and As Administrator of the Estate of His Minor Child, Randy Liedtke, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.

Page 859

405 So.2d 859

Harry LIEDTKE, Individually and As Administrator of the Estate of His Minor Child, Randy Liedtke Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellees.

No. 8258.

Court of Appeal of Louisiana, Third Circuit.

May 27, 1981.

Rehearings were Denied July 8, 1981 for Allstate Insurance

Company and Liedtke.

On Rehearing for Town of Many and Royal Globe Insurance,

Oct. 7, 1981.

Writ Denied Dec. 14, 1981.

Self & Burkett, Donald M. Burkett, Many, for plaintiff-appellant.

Trimble, Randow, Smith & Wilson, Alonzo P. Wilson, Alexandria, for defendants-appellants-appellees.

Nelson & Achee, Roland Achee, Shreveport, for defendant-appellee-appellant.

Lowther & Boone, William R. Boone, Many, for defendants-appellees.

Before SWIFT, STOKER and DOUCET, JJ.

STOKER, Judge.

Eleven year old Randy Liedtke sustained a broken leg as a result of a collision between a motorcycle he was riding and an automobile being backed into a street by Peter C. Morvan. This case presents questions of negligence on the part of Randy Liedtke, Peter C. Morvan (a minor at the time), the Town of Many, and the father of Randy Liedtke, Harry Liedtke.

Harry Liedtke brought suit, individually and as administrator of the estate of his minor son, Randy. The defendants are John Morvan, father of Peter C. Morvan, and their insurer, Allstate Insurance Company and the Town of Many and its insurer Royal Globe Insurance Company.

The accident in question occurred early in the morning on October 4, 1979, on Alieze Street in Many, Louisiana. Randy who was then eleven years old, was operating a 1979 XR Honda motorcycle and was riding south. Peter C. Morvan had spent the night at his grandmother's house on Alieze Street and was attempting to back an orange 1979 Mercury Capri into Alieze Street. Just north of the location where Peter C. Morvan attempted his backing maneuver the town had begun making a water tap and had dug a considerable amount of dirt from just beyond the west edge of the street. The dirt was being deposited in the south bound half of Alieze Street which consists of very narrow blacktop. The street has neither curbs nor any well defined edges or shoulders. It is a small residential street.

As Randy moved from the right (south bound) lane into the left (north bound) lane he passed the pile of dirt and a short distance later crashed into the rear end of the Mercury Capri which had been backed into the street by Peter C. Morvan.

Two workmen for the Town of Many were present. Otherwise, there were no eye witnesses to the accident.

After suit had been filed the Town of Many and its insurer, Royal Globe Insurance Company, filed an answer denying liability; in the alternative, a reconventional demand was filed against Harry Liedtke demanding contribution based on allegations that Harry Liedtke was negligent in permitting Randy to operate a motorcycle on the public highway of the State. These same defendants filed, in the alternative, a third party action for contribution against John Morvan and Allstate.

Through a first supplemental and amending answer, third party demand and reconventional demand, the Town of Many and Royal Globe alleged that Randy Liedtke was negligent and his negligence caused the accident. Tr. 27

In answer to the incidental demand of the Town of Many and Royal Globe, John Morvan, individually and on behalf of his son, Peter Morvan, and Allstate filed an answer denying liability and denying that Peter Morvan was guilty of negligence which was a cause of the accident. The Morvans and Allstate alleged that acts of negligence of the Town of Many caused the accident. The Morvans and Allstate pleaded that both Harry Liedtke and Randy Liedtke were contributorily negligent and their negligence barred any recovery by them. These parties asserted in the alternative a third party action against the Town of Many and Royal Globe for contribution in the event of recovery by plaintiffs.

Harry Liedtke denied the allegations set forth in the incidental demands filed against him.

The case was tried before a jury which returned a verdict as indicated on the following verdict form.

'VERDICT FORM

'I. We, the Jury, find in favor of:

A. Plaintiff (Randy/Harry Liedtke) ___yes___

B. Defendants (Town of Many, Peter C. Morvan, and their Insurance Companies)__________________

(Choose one of the above)

'If you find for the Plaintiff, Liedtke, then complete questions II and III. If you find for the defendants, stop here.

'II. We, the Jury, award to the Plaintiff (Liedtke), including both general and special damages, the sum of

$__4,100.70___

'III. Which of the parties were negligent?

A. Town of Many Yes__X__ No____

B. Peter Morvan Yes_____ No____

C. Harry Liedtke Yes_____ No____

Many, Sabine Parish, Louisiana, July 1, 1980

s/ Robert T. Graham

_____________________

FOREMAN"

FACTS

Prior to the accident involved in this case the Town of Many had adopted the Louisiana Highway Regulatory Act, LSA-R.S. 32:1 et seq., to govern vehicular traffic within the Town of Many.

At the time of the accident Peter Morvan was seventeen years old. He spent the night before the accident at the home of his grandmother who lived on Alieze Street. He parked the vehicle he was driving, an orange 1979 Mercury Capri, on an apron of gravel or wide driveway. From the photographs in the record the parking space appears to be a graveled parking area with a culvert in the ditch. The parking area is private property off the public street.

For ease in describing the events and understanding the accident and the actions of the parties we have reproduced and made a part of this opinion photographs numbered P-1, P-2, P-5 and P-16. (See appendix.)

P-5 shows the relative position of Peter Morvan's Mercury Capri, a red Chevrolet pickup truck belonging to the Town of Many and the area at which the Town of Many was engaged in making the water tap. The machinery used by the Town of Many is shown more particularly in photographs P-1 and P-2. These photographs also show the location of the dirt pile which had resulted from digging to make the water tap. Photograph P-1 depicts the scene looking from north to south, and P-2 depicts the scene looking from south to north. In P-16, one may see a number of vehicles parked on the parking strip on the west side of the street, the first being the town's pickup truck, the second being Peter Morvan's Mercury Capri and third in line being the automobile of a relative of Peter Morvan. One may also see the opening of a culvert running underneath the parking area or driveway where Peter Morvan's Mercury Capri and the town's pickup truck were parked.

On the night before the accident Randy Liedtke spent the night with friends south of the scene of the accident. He rode his motorcycle north on Aleize Street for the purpose of taking his dog home prior to his departure for school. The Liedtke home was located at some distance north of the place where the water tap was being made by the town. Randy passed this point on his northward trip and observed the two town workmen, the backhoe and the dirt in the street.

After leaving his dog at his home Randy rode his motorcycle south on Alieze Street and intended to go past the place where the dirt was piled in the street. Randy did not put his dog in his house or pen it up, and the dog apparently followed him on his return trip. The dog may be observed in photograph P-5 on the west edge of the street to the rear of the Mercury Capri and white car which is parked in the street.

When Peter Morvan came out of his grandmother's home to get into his car he noticed the water tap operation, saw the two workmen and also noticed that the town's red pickup truck was parked to his right (north). Peter was fully aware that the pickup would block his view of traffic approaching on Alieze street from the north. In fact, the family car to his left (south) also blocked his view from that direction. Nevertheless, Peter Morvan got into the Mercury Capri and attempted to back it out into the street. He testified that the truck bed completely blocked his view and he could not see the equipment of the town in the street which he had previously noted.

As Peter Morvan was backing out from the parking area Randy Liedtke was returning south on Alieze Street and collided with the extreme right rear end of the Mercury Capri. In approaching the point of impact it was necessary for Randy to go around the dirt pile which required that he move from the right hand (south bound) lane and into the left hand (north bound) lane of Alieze Street. Randy testified that, as he reached the area where the dirt was piled in the street, he thought he heard someone call to him and he looked back. When he faced forward again he was already just one foot away from the rear end of the Mercury Capri which had by then backed out into the street and was evidently beyond the center line of the street. Counsel for plaintiffs points to what appears to be a small pool of oil in the north bound lane of Alieze Street as marking the point of impact.

Although the town's equipment and the dirt pile were located in the street, both Peter Morvan and Randy Liedtke testified that they could have seen one another had it not been for the presence of the pickup truck of the Town of Many which obstructed their views. If their testimony is accepted, the presence of the town's digging equipment and dirt pile played no part in causing the accident.

The two town workmen testified they had observed Randy go north riding his motorcycle holding his dog in his arms. They heard him return and noticed that the dog was chasing the motorcycle and that Randy was looking back (or to the side) at the dog as he rode at a relatively fast rate of speed. They also observed Peter Morvan get into his Mercury Capri and start to back it. To warn Randy they began to shout and wave their arms. Randy never slowed and never applied his brakes. As he stat...