Marcum v. U.S.

• Decision Date: 09 July 1980
• Docket Number: No. 78-2248,78-2248
• Citation: 621 F.2d 142
• Parties: Virginia Elaine MARCUM, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 142

621 F.2d 142

Virginia Elaine MARCUM, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 78-2248.

United States Court of Appeals, Fifth Circuit.

July 9, 1980.

John R. Olds, Baton Rouge, La., for plaintiff-appellant.

Mitchell B. Lansden, Asst. U. S. Atty., Baton Rouge, La., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Louisiana.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

AINSWORTH, Circuit Judge:

In this wrongful death action Virginia Elaine Marcum sued the United States under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., alleging that her deceased husband Ronney F. Marcum was killed in an accident caused by the negligence of Oscar Kwiterovich, an employee of the United States Department of Labor, acting within the scope of his employment. The parties consented to a trial before a United States magistrate on stipulated facts, depositions, exhibits, memoranda and proposed findings of fact and conclusions of law. After considering the evidence and hearing arguments, the magistrate dismissed plaintiff's case, finding that defendant's employee Oscar Kwiterovich was not negligent; alternatively, decedent Marcum was contributorily negligent; and alternatively, the Louisiana law doctrine of last clear chance was not applicable. Judgment was entered in favor of defendant United States pursuant to the magistrate's oral findings, and the judgment was approved by the district judge. We conclude that the trial court was clearly erroneous in its findings, and accordingly reverse.

The accident occurred at approximately 11:15 a. m. on September 7, 1976 at the intersection of Plank and Evangeline Roads in Baton Rouge, Louisiana. Decedent Marcum was employed as a trades helper by the Louisiana Highway Department, which had sent a crew to work in the area. At the time of the accident, the crew was engaged in running an electrical cable north to south down Plank Road, a four-lane street, from a spool located approximately two blocks north of Evangeline, also a four-lane street. The cable, black in color and three-quarters of an inch in diameter, was attached to the bumper of a work truck driven by the supervisor of the crew, Paul Treadway. Although there is some dispute as to the direction in which Treadway's vehicle was facing, there is evidence in the record that Treadway was backing down Plank Road so he could observe the cable operations while driving. Marcum and a co-worker, Warren Hurst, were following the truck on foot.

As the truck reached the intersection, the light was green for traffic on Plank Road, and Treadway instructed Hurst to hold the wire and Marcum to try to prevent traffic from striking the cable as the truck pulled it across the intersection. The cable was elevated approximately 18-20 inches from the road surface as it was pulled through the intersection. Although there was some testimony that the truck had its flashing light on prior to the accident and the crewmembers were wearing yellow hard hats, there were no red flags, orange vests or other safety devices being used by the crew at the time.

Immediately prior to the accident, Kwiterovich was proceeding in a westerly direction in the left-hand lane of Evangeline Street in a 1972 Toyota. A trailer truck was traveling in the same lane ahead of him. When he was approximately 200 yards east of the Plank Road intersection, Kwiterovich first noticed some work taking place in the area of the intersection. He observed the Highway Department truck as it was proceeding through the intersection and saw a man following the truck. He noticed the man looking up and assumed the persons at the intersection were involved in doing some overhead work. At a point approximately 50 to 100 yards east of the intersection, Kwiterovich, who testified in his deposition that he thought the trailer truck ahead of him would turn left, moved into the right lane. The traffic light turned green and he proceeded through the intersection at an estimated speed of 35 miles per hour. He testified that at this time the work truck and pedestrian crewmember had moved to the left and were no longer in his field of vision.

Kwiterovich was looking ahead as he went through the intersection and struck the cable. He did not attempt to brake at first but allowed the car to slow down. The cable became lodged between the front wheels and the body of the Toyota. It came off of the work truck bumper and wrapped around the legs of Marcum, dragging him behind the Toyota approximately 146 feet down Evangeline Street. Marcum's head struck the curb, resulting in his death shortly thereafter at a local hospital. Kwiterovich testified that he never saw the cable and was unaware of it until after the accident.

In actions brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, state law where the alleged negligence occurred is controlling. Ferrero v. United States, 603 F.2d 510, 512 (5th Cir. 1979); Simpson v. United States, 322 F.2d 688, 690 (5th Cir. 1963). Therefore, Louisiana law governs the substantive issues in this appeal.

With regard to our view of the court's factual determinations, the clearly erroneous standard applies. Alexander v. United States, 605 F.2d 828, 832 (5th Cir. 1979); Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968); Fed.R.Civ.P. 52(a). However, where the evidence before the trial court consisted solely of depositions and other written matter, the court hearing no live witnesses, the burden of showing clear error is not so heavy as in the case where the court has the opportunity to assess the credibility of witnesses by personal observation. Cooper v. Department of the Navy, 594 F.2d 484, 486 (5th Cir.), cert. denied, 444 U.S. 926, 100 S.Ct. 266, 62 L.Ed.2d 183 (1979); Sicula Oceanica, S. A. v. Wilmar Marine Engineering & Sales Corp., 413 F.2d 1332, 1333-34 (5th Cir. 1969). See also Toms v. Country Quality Meats, Inc., 610 F.2d 313, 315 n.5 (5th Cir. 1980); Village Fair Shopping Center Co. v. Sam Broadhead Trust, 588 F.2d 431, 434 n.2 (5th Cir. 1979). Thus, where our view of the same evidence from the same vantage point as the trial court leaves us "with a definite and firm conviction that a mistake has been committed," there is clear error and we are bound to set aside the court's findings. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Ferrero, supra, 603 F.2d at 512.

One such erroneous finding was the trial court's determination that there was no negligence on the part of defendant's employee Oscar Kwiterovich. This holding is unsupported by the evidence viewed in light of the applicable law. Louisiana law is clear that for a pedestrian to recover against a motorist there must be fault on the part of the motorist which brings about the injury. Baumgartner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400, 406 (La.1978). See Mathews v. Allstate Automobile Insurance Co., 370 So.2d 1331, 1333 (La.App.2d Cir.), writ denied, 373 So.2d 526 (La.1979); Fitch v. Evans, 364 So.2d 1309, 1312 (La.App.2d Cir. 1978), writ denied, 367 So.2d 392 (La.1979). Under Louisiana's "duty/risk" analysis applicable in negligence actions, plaintiff establishes a defendant's liability by showing that defendant's conduct is a cause in fact of the harm, and that conduct is a breach of a legal duty imposed on defendant to protect plaintiff against the particular risk and harm involved. Boyer v. Johnson, 360 So.2d 1164, 1166 (La.1978); Dixie Drive It Yourself System New Orleans Co. v. American Beverage Co., 242 La. 471, 487-90, 137 So.2d 298, 302-04 (1962). See Chavez v. Noble Drilling Corp., 567 F.2d 287, 288 (5th Cir. 1978). An act will be deemed a cause in fact of an accident when, viewed in light of all the evidence, it is concluded that it is a necessary antecedent to plaintiff's harm, without which the accident would not have occurred. Laird v. Travelers Insurance Co., 263 La. 199, 209-10, 267 So.2d 714, 717-18 (1972); Follins v. Barrow, 354 So.2d 609, 611 (La.App. 1st Cir. 1977), writ denied, 356 So.2d 434 (La.1978).

The accident here would not have happened but for Kwiterovich's proceeding through the intersection at Evangeline and Plank Road at an estimated speed of 35 miles per hour, failing to see the cable, which he struck and which in turn entangled Marcum and dragged him to his eventual death. Clearly Kwiterovich's conduct was a substantial factor which had a direct relationship to the accident. Laird, supra, 263 La. at 210, 267 So.2d at 718.

Our principal inquiry, thus, becomes whether Kwiterovich was under a legal duty to protect decedent Marcum against the particular risk of harm which Marcum encountered and which breach of that duty ultimately led to Marcum's death. Generally, a person's duty toward another can be stated as the obligation to conform to the standard of conduct of a reasonable man under like circumstances. Straley v. Calongne Drayage & Storage, Inc., 346 So.2d 171, 176 (La.1977). Louisiana law provides that a motorist is under a duty at all times to keep a sharp lookout ahead to discover the presence of those who might be in danger. Baumgartner, supra, 356 So.2d at 404; Jackson v. Cook, 189 La. 860, 868, 181 So. 195, 197 (La.1938). A motorist is not entitled to assume his pathway is clear. Weber v. Phoenix Assurance Co. of New York, 273 So.2d 30, 33 (La.1973). Rather, he is charged with the duty of seeing that which may be observed in the exercise of reasonable care. Jackson, supra, 189 La. at 868, 181 So. at 197; Follins, supra, 354 So.2d at 611; Welch v. Mayhall, 325 So.2d 741, 744 (La.App. 1st Cir. 1976). The failure to heed this duty constitutes negligence and such failure imposes liability on motorists for injuries they inflict upon pedestrians in positions of peril upon the roadway. Baumgartner, supra, 356 So.2d at 404; Guilbeau v. Liberty Mutual...