 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Simms v. Progressive Insurance Co.9/29/2004
d driver as set forth in La. R.S. 32:213 and La. R.S. 32:214, and the principles of comparative fault, including the Watson factors. The court instructed the jury that pedestrians must exercise reasonable care when leaving a place of safety and must maintain a proper lookout. The instructions also stated that a motorist has a duty to see what an ordinarily prudent driver should have seen and to avoid striking pedestrians in the road. The trial court explained that a motorist "who observes, or who with the exercise of reasonable care should have observed, a pedestrian ... has a duty to avoid injuring the pedestrian if he ... can reasonable do so."
Our review of the trial court's instructions to the jury convinces us that the court properly advised the jury as to the substance of the law applicable in this matter. The charges were sufficient to inform the jury as to the issues presented and the correct principles of law, including the duties of the respective parties to the accident and the law applicable to determining negligence and assessing fault. We cannot conclude that the trial court's failure to include the sudden emergency doctrine or the specific charges proposed by the defendants misled the jury or prevented the jury from doing justice.
Because we find that the jury was adequately informed as to the applicable law, de novo review is not warranted. We will now review the jury's allocation of fault under the manifest error standard of review. See Stobart v. State, Through DOTD, 92-617 So. 2d 880 (La. 1993) and Rosell v. ESCO, 549 So. 2d 840 (La. 1989) for the applicable, well-known law governing the manifest error standard of review.
As told to the jury, the respective duties of Williamson and Simms as motorist and pedestrian are set forth in La. R.S. 32:213 and 214. The pedestrian's duty is provided in La. R.S. 32:213, in relevant part, as follows:
A. Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.
The motorist's duty is provided in La. R.S. 32:214, which states:
Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.
Motorists are charged with a duty to see what an ordinarily prudent driver should have seen under the circumstances, and to avoid striking pedestrians in the roadway ahead. Hanna v. Roussel, 35,346 (La. App. 2d Cir. 12/5/01), 803 So. 2d 261; Jackson v. Scott Truck & Tractor, Inc., 31,933 (La. App. 2d Cir. 5/5/99), 736 So. 2d 987. However, motorists are not the insurers of pedestrians' safety. Jackson v. Scott Truck & Tractor, Inc., supra.
The fact that an accident occurs does not create a presumption of negligence on the part of either party. Id. Even though the motorist commands a greater instrumentality of harm, the pedestrian must still prove that the motorist was negligent in order to recover. Bennett v. State, Through DOTD, 503 So. 2d 1022 (La. App. 2d Cir. 1987), writ denied, 505 So. 2d 58 (La. 1987). A determination of negligence in a case involving a pedestrian and a motorist rests upon the particular facts of each case and is governed by principles of comparative fault. Jackson v. Scott Truck & Tractor, Inc., supra.
From our review of the record, we find no error in the jury's allocation of fault between Williamson and Simms.
Page 1 2 3 4 5 6 7 8 9 10 11 12 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|