Smith v. Travelers Ins. Co.
| Decision Date | 04 April 1983 |
| Docket Number | No. 82-C-2054,82-C-2054 |
| Citation | 430 So.2d 55 |
| Parties | Armantine M. SMITH v. TRAVELERS INSURANCE COMPANY, et al. |
| Court | Louisiana Supreme Court |
Theodore A. Mars, Jr., Steven O. Medo, Jr., Mars & Medo, W.W. Young, Jr., W.W. Young, III, Young & Young, New Orleans, for applicant.
Mark B. Meyers, Phelps, Dunbar, Marks, Claverie & Sims, John J. Weigel, Madeline Fischer, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for respondents.
Armantine M. Smith instituted this action for damages for personal injuries sustained by her in a one-vehicle accident against Jerry Krushin, driver of the automobile, Travelers Insurance Company, public liability insurer of the vehicle, and Arthur Henry Chester, representative of certain underwriters at Lloyds of London, excess insurer of the vehicle. Plaintiff alleged that Krushin had attempted to park his vehicle and as she alighted he suddenly and without warning put the car in reverse and started backing up, causing her to be thrown to the ground and struck by the automobile. Defendants filed answers generally denying the allegations of the petition and affirmatively asserting the defense of contributory negligence.
After trial, the jury, by a nine to three vote, returned a general verdict in favor of defendants and against plaintiff dismissing plaintiff's suit at her cost. The verdict was made the judgment of the court. The court of appeal, with one judge dissenting, finding no negligence on the part of Krushin, affirmed the judgment of the trial court. 1 On plaintiff's application, we granted certiorari to review the correctness of that decision. 2
The facts in this case are generally not in dispute. The accident occurred in the early morning hours of December 27, 1978. On the afternoon of December 26, 1978, plaintiff and her friend, Revonda Surratt, made plans to go shopping. Plaintiff drove to Surratt's apartment which was also occupied by Jerry Krushin. 3 After dining at the apartment, plaintiff, Krushin and Surratt left to go shopping at Oakwood Shopping Center. 4 The stores closed at about 9:00 or 9:30 and the trio decided to go to Nick's Bar. Upon their arrival, each purchased and consumed a round of drinks. The two ladies were invited and accepted an invitation by two men to leave the bar and smoke a marijuana cigarette. Each of the ladies had four or five puffs. Krushin, although invited, remained in the bar and did not participate in this activity. The ladies then returned to the bar where they consumed one or two more drinks.
At about 12:30 or 1:00 a.m. plaintiff, Krushin and Surratt left the bar for the purpose of returning to the apartment complex. The three occupied the front seat of the car with Krushin driving, Surratt in the middle and plaintiff to the extreme right next to the door. During the ride, the radio was playing and the girls carried on a conversation. As they entered the apartment complex, a song came on the radio that Krushin liked. Instead of turning to the left, which led to his apartment, he turned to the right. Plaintiff, noticing that this was not the way to the apartment, asked why they had turned the wrong way and was informed by Surratt that Krushin wanted to hear the end of the song. Krushin then increased the volume of the radio to a "loud" level. 5 As they were driving through the complex, plaintiff noticed a swimming pool and swings to her right which she had never seen before. The two ladies began to discuss the area and it was suggested that they get out and play on the swings. At this point, Krushin turned left into a parking area across the street from the pool and swings. There were about three empty parking bays to his right and only one-half of a parking bay to his left. Although splitting a bay, he pulled completely into the parking area within a foot of a retaining wall. He came to a complete stop and both plaintiff and Surratt thought all three of them were going to get out to look at the swings. Plaintiff opened her door to exit and Surratt was prepared to follow. Plaintiff placed her right foot on the ground. As she did so, Krushin, looking only to his left and failing to notice that the interior dome light had come on when plaintiff opened the door, put the car in reverse and began to back out of the parking area. Plaintiff lost her balance, fell to the ground and the open door traveled across her back "popping" her spine. She is now paralyzed.
The issues to be resolved in this litigation are (1) whether Krushin was negligent, (2) if so, whether plaintiff's claims are nonetheless barred by her contributory negligence, 6 and (3) if plaintiff is entitled to recover, the amount of damages.
The standard of conduct required of persons in Louisiana in their relationships with one another as a basis of delictual liability is set forth in La.Civ.Code arts. 2315 and 2316.
Article 2315 provides in pertinent part:
Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
Article 2316 provides:
Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.
Persons are liable for acts of commission and omission that cause damage to another under these articles if a duty imposed by the relationship of the parties is breached by such act or omission. We have stated in discussing whether a duty exists as a result of the relationship between the parties under the duty-risk analysis of tort liability that
[a]ll rules of conduct, irrespective of whether they are the product of a legislature or are a part of the fabric of the court-made law of negligence, exist for purposes. They are designated to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.
Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).
A driver of an automobile has a duty to his guest passengers to use reasonable care in the operation and control of his vehicle. The question which remains is whether this duty encompasses within its scope the risk that a guest passenger will attempt to exit from a car and be injured when the driver brings the vehicle to a complete stop in a designated parking area and the driver without warning immediately puts the car in reverse. We think so.
In the instant case, defendant turned into a designated parking area and came to a complete stop. With the radio still playing very loud, he looked only to his left, put the car in reverse and failed to notice that the interior dome light came on when plaintiff attempted to exit the car. Under these circumstances, we conclude that Krushin breached the duty he owed to plaintiff to exercise reasonable care in the operation and control of his vehicle and the risk of plaintiff's injury was within the scope of that duty....
To continue reading
Request your trial
-
Jaffarzad v. Jones Truck Lines, Inc.
...the burden of proving by a preponderance of the evidence that such negligence was a cause-in-fact of the accident. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983); Hano v. Louisiana Dept. of Transp. & Development, 519 So.2d 796 (La.App. 1 Cir.1987), writ den., 523 So.2d 861 (La.1988); C......
-
97-300 La.App. 3 Cir. 10/29/97, Haynes v. Calcasieu Medical Transp., Inc.
...erroneously instructed and the error probably contributed to the verdict, the verdict must be set aside on appeal. Smith v. Travelers Insurance Company, 430 So.2d 55 (La.1983). Only then should the appellate court make an independent determination of the facts from the record, if possible, ......
-
Nicholas v. Allstate Ins. Co.
...instructed and the error probably contributed to the verdict, an appellate court must set aside the verdict. Smith v. Travelers Ins. Co., 430 So.2d 55 (La.1983). In the assessment of an alleged erroneous jury instruction, it is the duty of the reviewing court to assess such impropriety in l......
-
Maldonado v. Kiewit La. Co.
...by denial of the discovery? See Smith v. Travelers Ins. Co., 418 So.2d 689 (La.App. 4[th] Cir.1982), rev'd on other grounds, 430 So.2d 55 (La.1983). To determine if the work-product privilege applies, a court should consider the content, nature, and purpose of a document, not the date or ti......