Turner v. New Orleans Public Service, Inc.

• Decision Date: 20 June 1985
• Docket Number: No. 84-C-0911,84-C-1405.,84-C-0911
• Citation: 476 So.2d 800
• Parties: Musette TURNER v. NEW ORLEANS PUBLIC SERVICE INC. James V. DRUM v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al.
• Court: Louisiana Supreme Court

476 So.2d 800

Musette TURNER v. NEW ORLEANS PUBLIC SERVICE INC.

James V. DRUM v. UNITED STATES FIDELITY AND GUARANTY COMPANY et al.

Nos. 84-C-0911, 84-C-1405.

Supreme Court of Louisiana.

June 20, 1985.

Nahum Laventhal, Herman, Herman & Katz, New Orleans, for plaintiff-respondent.

James Maher, III, Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendant-applicant.

M.H. Gertler, John B. Perry, New Orleans, Robert C. Leininger, Jr., Metairie, Raymond P. Augustin, Jr., New Orleans, Darryl D. Sicarelli, Bailey & Leininger, Metairie, Basile J. Uddo, Donald M. Pierce, New Orleans, for respondents.

DIXON, Chief Justice.

These consolidated cases are not related, but have certain common factors. Each plaintiff was a pedestrian. One was injured by a public transportation bus and the other by a truck which was backing up. Writs were granted to determine whether our decision in Baumgartner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400 (La.1978) was affected by the adoption of the doctrine of comparative negligence by the Louisiana legislature.¹

Musette Turner was injured in the neutral ground on Canal Street where she was rushing to transfer from one bus to another, but was run over by a third bus. The trial court found Mrs. Turner negligent, held that the Baumgartner case applied, and awarded plaintiff the full amount of her damages. The court of appeal affirmed. 449 So.2d 139 (1984).

James Drum, sent on an errand by his employer, entered a warehouse where trucks were being parked and was knocked down by a truck traveling in reverse within the warehouse. In Drum's case the district court applied comparative fault and awarded Drum only 50% of his damages. The court of appeal reversed, 454 So.2d 267 (1984), and awarded plaintiff 100% of his damages, holding that the pedestrian's fault in a case like Drums's is not contributory negligence, and that consequently comparative negligence principles do not apply.

Mrs. Turner rushed across part of Canal Street to catch a bus on the other side of the neutral ground. She failed to see a bus moving toward her at about ten miles an hour until a woman near her screamed. When she tried to avoid the bus, she fell down and the bus ran over her foot.

Drum was sent by his employer to collect money owed his employer from a Mr. Freeman, who owned a business across the street from the warehouse where plaintiff was injured. Freeman's son told Drum that Freeman was in a warehouse across the way. Drum entered the warehouse and was about 100 feet from the entrance. Workmen for a welding supply house were parking their trucks in the warehouse as usual at the end of the day. A truck backing in hit Drum and injured him severely. Drum neither saw nor heard the truck that hit him until too late. The truck driver never saw Drum. The truck had no lights and no warning device. It was equipped with a rear view mirror on the driver's side and on the passenger side of the cab. There were no other witnesses to the accident.

Both plaintiffs contend that under the wording of the new statute, comparative negligence does not apply in pedestrian-motorist cases. Their contention emphasizes the clause "when contributory negligence is applicable to a claim for damages ..." Plaintiffs argue that, since Baumgartner abolished the defense of contributory negligence in pedestrian-motorist cases, article 2323 does not apply because, by its express terms, it deals only with the effect of contributory negligence.

Defendants, on the other hand, claim that the decision in Baumgartner instituted a "humanitarian doctrine" designed to avoid the harsh consequences of the "all-or-nothing" rule of contributory negligence. They argue that comparative negligence obviated the need for a "Baumgartner" rule.

Since the new legislation equitably adjusts the right to recover for personal injuries by comparing the fault of both victim and defendant by reducing the plaintiff's recovery in proportion to his contribution to the accident, the need to perpetuate the "humanitarian doctrine," it is argued, is no longer present.

The Drum case is inapplicable to our inquiry because there is no evidence of any negligence on Drum's part. He had walked about 100 feet into the warehouse from its entrance. He was in a place where "it wasn't unusual for somebody to be." The truck approached him from behind without warning and knocked him down before he saw it.

The driver of the truck backed in for about 100 feet without being able to see behind him, with no back-up light or backup signal, and never saw Drum until after he had run over him.

The only argument the defendants make is that Drum was negligent in not hearing the approach of the truck, in spite of the fact that there was no evidence that Drum was able to hear the truck approach.

Backing a truck without knowing whether it can safely be done is grossly negligent. (See, for example, R.S. 32:281(A): "The driver of a vehicle shall not back the same unless such movement can be made with reasonable safety and without interfering with other traffic."

If the driver of a backing vehicle could reasonably have avoided the accident, he is responsible for injuries caused when he strikes a pedestrian in his path. Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La.1976); Reeves v. Louisiana and Arkansas Railway Co., 282 So.2d 503 (La.1973).

The court of appeal was correct in awarding Drum 100% of his damages, not because of the Baumgartner rule but because the truck driver was 100% at fault, and Drum was not at fault to any degree.

Musette Turner's case is another matter. She had completed the first leg of her trip and was headed to the proper place to catch the second bus, when a third bus ran over her.

Both driver and pedestrian were negligent in this case. The driver did not see plaintiff. One of his passengers, sitting near the driver, did, and knew the plaintiff was on a collision course with the bus. Either party could have avoided the accident, but the bus continued, and plaintiff's foot slipped under a wheel when she realized how close she was to the moving bus. Plaintiff was in a pedestrian crosswalk, but probably in the path of the bus; the bus had the green light. The Baumgartner case would not have permitted New Orleans Public Service to escape liability by proving plaintiff's negligence, because the driver could have avoided the accident by the exercise of reasonable care.

To the extent that the decision in Baumgartner placed the value of human life above the rigid applications of common law rules, it could be called humanitarian, as is the doctrine of comparative fault. The object of Baumgartner was not to compare negligence, however. It was to compare fault; it was to compare blameworthiness; it was an effort to make sense in a small area of the law in which the actor with the greatest protection and the greatest capacity for harm to the other was insulated from responsibility for the accident, something he could have clearly and easily avoided by the exercise of reasonable care. Instead, it was thought that it would be sensible to protect the weak and (except to himself) harmless, because the pedestrian's carelessness could be so devastating to himself, and relatively harmless to others. The dissent in Baumgartner, 356 So.2d 400, 407, followed traditional tort law, which would have permitted the motorist to kill the pedestrian and escape all penalty, regardless of his blameworthiness. Simple justice seemed to require the readjustment of responsibility. Placing the greater responsibility on the actor whose fault can cause the greater havoc is not only sensible and economic, it also satisfies the greatest interest of civilized society—the lives and safety of its members.

The issue is whether comparative negligence (or comparative fault) principles apply in motorist-pedestrian cases like Baumgartner, or whether a pedestrian injured by a negligent motorist can recover his damages without reduction based on comparison of fault of the parties.

Baumgartner was decided January 30, 1978 and rehearing was denied on March 15, 1978. C.C. 2323 was amended to its present form by Act 431 of 1979, to become effective on August 1, 1980, over two years after the finality of the Baumgartner case.

Act 431 of 1979 not only amended C.C. 2323, but also C.C. 2103 and C.C. 2324. C.C. 2103 now provides for the division of an obligation arising from an offense or quasi offense "in proportion to each debtor's fault." C.C. 2324 now provides that "persons whose concurring fault has caused injury, ..." are solidarily liable but that one judgment debtor should "not be liable for more than the degree of his fault to a judgment creditor to whom a greater degree of negligence has been attributed,..." (Emphasis added).

Whether the rule of the Baumgartner case is still applicable depends on its interpretation and the interpretation of the new C.C. 2323, which begins: "When contributory negligence is applicable to a claim for damages, its effect shall be as follows:..."

"Fault" and "negligence" might have been used interchangeably by the legislature, but probably were not. It is common knowledge in the legal profession that "fault" includes more than negligence. See Malone, Prologue, 40 La.L.Rev. 293 (1980); Stone, 12 Civil Law Treatise § 59 et seq. (1977); Tunc, Fault: A Common Name for Different Misdeeds, 49 Tul.L.Rev. 279 (1975); Stone, Tort Doctrine in Louisiana: The Concept of Fault, 27 Tul.L.Rev. 1 (1952).

Willful acts, violations of statutes, breaches of the obligations of vicinage, for example, create liability as "fault" under C.C. 2315.

C.C. 2323 uses "fault" and "negligence" in the same breath: "If a person suffers injury, ... as the result partly of his own negligence and partly as a result of the fault of another ..." his claim will not be defeated, but the damages recoverable "shall be reduced in proportion to the degree or percentage of n...