Walton v. Bellard
| Decision Date | 16 May 1991 |
| Docket Number | Nos. CA,s. CA |
| Citation | 581 So.2d 307 |
| Parties | Pamela M. WALTON and Lynwood N. Walton, Jr. v. Albon BELLARD, Jr. and Colony Insurance Company * . Consolidated with Albon BELLARD, Jr. and Bellard Trucking, Inc. v. ALLSTATE INSURANCE COMPANY, Lynwood N. Walton, Jr. and Pamela M. Walton. 90 0330, CA 90 0331. 581 So.2d 307 |
| Court | Court of Appeal of Louisiana — District of US |
C. John Caskey, and Robert Kleinpeter, Baton Rouge, La., for plaintiff-appellee Pamela Walton, Lynwood Walton, Jr., and Allstate Ins. Co.
Stephen Edwards, Baton Rouge, La., and Robert Shelton, Lafayette, La., for defendant-appellant Albon Bellard, Jr., Presidential Fire & Cas. Co., and Bellard Trucking, Inc.
Before LOTTINGER, SHORTESS and CARTER, JJ.
This tort action arises as a result of an accident that occurred as Mr. Bellard attempted to pass Mrs. Walton while she was making a left hand turn. From a judgment apportioning 75% of the fault to Mr. Bellard and awarding Mrs. Walton $30,000 in general damages, Mr. Bellard appeals.
Pamela Walton, plaintiff, was driving an automobile, owned by Lynwood Walton, Jr., her husband, in a northerly direction on La. Highway 37. This is a two lane highway. Albon Bellard, defendant, had been following the plaintiff on this curvy road for approximately seven miles. While following the plaintiff, the defendant noted that she appeared to slow down and speed up on three occasions thereby giving him the impression that she may have been looking for something.
As the defendant rounded a curve and entered a passing zone, he proceeded to pass the plaintiff's slow-moving vehicle. Absent the illumination of her brake lights or a turn signal, the defendant assumed that it would be a good time to initiate the pass. He dropped back at a distance to gain enough speed to make the pass safely. As he approached the rear of the plaintiff's car at a speed of 45 m.p.h., he placed his left signal on and began to pull into the southbound lane to make the pass. When Bellard's truck and trailer were almost completely in the southbound lane and almost to the rear of the plaintiff's car, the plaintiff unexpectedly proceeded to make a left turn into the obscure driveway that she had been looking for.
The plaintiff contends that she activated her left turn signal and looked in her rear-view mirror a distance before she approached the driveway. The driver of the vehicle that the plaintiff had been following corroborated the fact that the plaintiff activated her left signal before turning. The defendant contends that the plaintiff did not engage her left turn signal or, in the alternative, that plaintiff's rear left turn signal was not operating properly on the date of the accident. In fact, the driver of the truck who had been following the defendant testified that the plaintiff's rear left turn signal and brake lights never came on prior to the accident. There was testimony by other witnesses that support the defendant's contention that the light may not have been working properly on the day of the accident.
When the plaintiff began to make the left turn, she was broad-sided by the defendant and pushed into a nearby tree. The plaintiff was taken to the emergency room. She was diagnosed with a moderate severe cervical strain with a significant contusion and skull laceration, a mild cerebral concussion, and a contusion to the left knee. She was later diagnosed as having post-concussion syndrome and possible traumatic neurosis.
The Waltons sued Mr. Bellard and his insurer for damages for the injuries sustained by Mrs. Walton and the damage to their car. In addition, Mr. Bellard sued the Waltons and their insurer for the injuries sustained by him and for damage to his truck. These cases were consolidated for trial. The suit by Mr. Bellard settled prior to trial.
The trial court found that both of the parties were at fault in causing this accident because of their failure to exercise reasonable care. Mr. Bellard followed the plaintiff long enough to determine whether back lights of the plaintiff's car were malfunctioning. Had this determination been properly made, he would have exercised extreme caution in attempting to pass the plaintiff as she slowed down for the third time. There was no way for the defendant to know what the plaintiff was going to do. Such a situation mandates that the passing driver sound the horn before attempting to pass.
The driver of the truck that the plaintiff was following testified that the plaintiff's left-front signal was engaged prior to the plaintiff's attempted turn. Based on this evidence, the trial court found more probable than not that the rear signal lights on the plaintiff's car were working. The trial court attributed the dislodging of the left-rear light fixture to the impact of the collision.
Based on the plaintiff's unfamiliarity with the location of the driveway, the court found that she probably utilized her turn signal in an untimely fashion. The plaintiff was aware that she was being followed by the defendant; therefore, she should have activated her left signal earlier. She was aware that the defendant dropped back and then sped up until he approached her from the rear once again. The accident could have been avoided had the plaintiff simply looked in her rearview mirror after the defendant had pulled into the southbound lane to pass.
Based on these findings of fact, the trial court apportioned 75% of the fault to Mr. Bellard and the remaining 25% to the plaintiff. In addition to awarding those special damages that had been stipulated to, the trial court awarded $30,000 in general damages. The judgment ordered that the award of damages be reduced by the plaintiff's percentage of fault. The defendant appeals the finding of liability and quantum.
Bellard contends that the trial court erred in:
1. finding him negligent in failing to sound his horn prior to attempting to pass;
2. apportioning only 25% of the fault to the plaintiff;
3. finding that the plaintiff's left rear blinker was working at the time of the accident; and
4. awarding excessive damages.
The defendant contends that the trial court erred in finding that he was negligent in failing to sound his horn prior to initiating his passing maneuver.
The law sets forth the duties imposed on a left turning driver as well as a passing driver. The duties imposed upon the plaintiff, a left turning motorist, are found in La.R.S. 32:104. The plaintiff was required to give a signal of her intent to make a left turn at least 100 feet before reaching the private driveway. In addition to giving the proper signal, the plaintiff is required to make a proper observation that the turn can be made without endangering a passing vehicle. Bamburg v. Nelson, 313 So.2d 872, 875 (La.App. 2nd Cir.), writ denied, 318 So.2d 57 (La.1975). The plaintiff's failure to meet these duties does not automatically absolve the defendant from liability.
The law equally imposes a duty upon the passing motorist. This duty is specifically set forth in La.R.S. 32:73 and 75. A passing driver is not automatically required to sound his horn when executing a passing maneuver. The statute simply mandates that the passing driver sound his horn when the circumstances dictate that it is reasonably necessary for safe execution of a passing maneuver. In other words, the facts of a case dictate whether the passing driver had a duty to sound his horn. Doucet v. Ryder Truck Rental, Inc., 415 So.2d 618, 620 (La.App. 3rd Cir.1982).
Generally, a passing driver does not have a duty to give an audible signal when the preceding vehicle is occupying its own lane of traffic, though traveling slowly. Soileau v. Hanover Insurance Company, 232 So.2d 128, 130 (La.App. 3rd Cir.1970). The purpose of sounding the horn is to warn the overtaken driver to give the passing driver necessary clearance in which to complete his pass. The purpose of this duty is not to warn the overtaken driver not to turn left. Barber v. Sumrall, 206 So.2d 560, 561-562 (La.App. 1st Cir.1968).
In Hall v. Jackson, 215 So.2d 367, 369 (La.App. 2nd Cir.1968), the court held that the driver who was following a slow moving vehicle was entitled to pass where the preceding driver had not signaled his intent to make a left turn. It is unreasonable to require the following driver to anticipate that the preceding driver will make a left turn into an obscure private driveway based on the mere fact that the preceding vehicle was traveling slowly. Barber v. Sumrall, 206 So.2d at 562.
The trial court found that the circumstances of this case mandate that the defendant sound his horn prior to passing the plaintiff. During the 7 miles for which the defendant followed the plaintiff, he should have been able to determine whether the back lights of the plaintiff's car were malfunctioning. Had Bellard properly assessed the situation, he would have exercised extreme caution in attempting to pass the plaintiff since she had slowed down to 15 m.p.h. Since the defendant was unable to anticipate the plaintiff's actions, an audible signal was reasonably necessary for safe execution of his pass. In his exercise of extreme caution warranted by the situation, Bellard should have sounded his horn before attempting to pass.
There is ample evidence in the record to support the trial court's imposition of the La.R.S. 32:75 duty to give an audible signal prior to passing in this case. Since the defendant breached this duty, the trial court correctly found that the defendant was negligent.
The defendant argues that trial court's finding that the plaintiff's rear left blinker was working at the time of the accident is contrary to the evidence presented at trial.
A leading motorist has a duty to have the proper lights illuminated upon execution of a turn. See, La.R.S. 32:104. The...
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93-852 La.App. 3 Cir. 6/22/94, Mayo v. Nissan Motor Corp. in U.S.A.
... ... Walton v. Bellard, 581 So.2d 307, 312 (1st Cir.1991); Watson v. State Farm Fire and Casualty Insurance Company, 469 So.2d 967, 974 (La.1985) ... ...
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951186 La.App. 1 Cir. 4/4/96, Couvillion v. Shelter Mut. Ins. Co.
... ... The plaintiff has cited cases involving general damage awards to plaintiff for head injuries. In Walton v. Bellard, 581 So2d 307 (LaApp 1st Cir1991) the Court affirmed a $30,000 general damage award to a plaintiff who suffered cervical sprain, ... ...
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Boudreaux v. Farmer
... ... Page 650 ... leading motorist is required to make a proper observation that the turn can be made without endangering a passing vehicle. Walton v. Bellard, 581 So.2d 307 (La.App. 1st Cir.), writ denied, 585 So.2d 567 (La.1991) ... Our review of the record leads us to the ... ...
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Budget Rent-A-Car of New Orleans v. Gradnigo
... ... Appellants urge that, if Butler had any degree of fault in the accident, it should not be more than 30% ... Walton v. Bellard, 581 So.2d 307, at pages 311-312 (La.App. 1 Cir.1991), writ denied 585 So.2d 567 (La.1991), discusses the allocation of fault as follows: ... ...