 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Dennis v. Finish Line12/22/2000
ted the accident, Ms. Dennis did not notice any erratic driving by Mr. Givens. This evidence is insufficient to prove that the action of The Finish Line in removing Mr. Givens from the bar and leaving him in his car to sleep off an intoxicated state was causally related to his crossing the center line while driving, over seven hours later. Therefore, the trial court's assignment of fault to The Finish Line was manifestly erroneous.
Liability of Ms. Dennis
The court did not assign any liability to Ms. Dennis and no one contested this portion of the judgment. Accordingly, the judgment with respect to Ms. Dennis's fault is final.
Re-allocation of Fault
Having found that the trial court was clearly wrong in apportioning fault to The Finish Line, this court must make an adjustment. However, before doing so, we must re-examine the allocations of fault to the remaining parties to determine whether the court's allocation of fault between those parties was manifestly erroneous.
In apportioning fault, the court considers the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. Gibson, 674 So.2d at 1005. The factors to be considered include: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacity of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985); Moore v. Safeway, Inc., 95-1552 (La. App. 1st Cir. 11/22/96), 700 So.2d 831, 853, writs denied, 97-2921, 97-3000 (La. 2/6/98), 709 So.2d 735 and 744. If an appellate court finds a clearly wrong apportionment of fault, it should adjust the award, but only to the extent of lowering or raising it to the highest or lowest point respectively that is reasonably within the trial court's discretion. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607, 611; Barsavage, 686 So.2d at 962; Lee, 751 So.2d at 325.
With those standards in mind, we conclude the trial court erred in allocating only 5% fault to Ms. Cassisa. Our initial impression of the allocation of fault in this case was that Ms. Cassisa should have borne a greater responsibility for the accident; after a thorough review of the evidence, we are convinced the trial court should have allocated a greater percentage of fault to her. She certainly was faced with an emergency situation, but if she had simply stayed on the shoulder and slowed her vehicle, this accident would not have occurred. There is nothing in the evidence concerning the condition of the shoulder to indicate Ms. Cassisa could not have safely slowed her vehicle before attempting to regain the paved surface. Mr. Tiblier's testimony concerning her possible need to avoid the ditch to the right of the shoulder was purely conjectural, since Ms. Cassisa herself was unable to recall anything about the accident or her state of mind when she reacted to the oncoming headlights. Based on the evaluations of all the experts and the testimony of her passenger, it was Ms. Cassisa's over-reaction and over-steering, in combination with the defective condition of the shoulder, that caused her car to re-enter the highway at an angle that took her across the center line. Therefore, she and DOTD were equally responsible for the resulting collision. Her fault being equal to DOTD's, it should have been assessed at 15%. Accordingly, we find this is the lowest reasonable percentage of fault that is attrib
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|