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Bender v. Cron12/12/2001
reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway". In Louisiana law a following motorist in a rear-end collision is presumed to have breached this duty, and he bears the burden of exonerating himself. Hadley v. Doe, 626 So.2d 747 (La.App. 5 Cir. 1993). A following driver may rebutt the presumption of fault by establishing that his vehicle was under control, that he closely observed the leading vehicle and followed at a safe distance under the circumstances. Chambers v. Graybiel, 25,840 (La.App. 2 Cir. 6/22/94), 639 So.2d 361; writ denied, 94-1948 (La. 10/28/94), 644 So.2d 377.
One exception to the rule in R.S. 32:81 arises when the driver of the preceding vehicle "negligently creates a hazard which the following vehicle cannot reasonable avoid." Slocum v. American Casualty Insurance Co., 189 So.2d 299, 301 (La.App. 3 Cir. 1966). LSA-R.S. 32:79(1) provides that, "(a) vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." Thus, if plaintiff could establish that he had his vehicle under control, and defendant created a hazard by changing lanes in an unsafe manner, plaintiff could prove liability on the part of defendant.
The trial court ruled that plaintiff failed to prove his case by a preponderance of the evidence. In this case the parties presented two separate versions of how the accident occurred, and the trial court made findings of facts based on the credibility of the witness. In such a case, this court must use the manifest error/clearly wrong standard of review, which gives great deference to the trier of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989).
Here, the defendant and an independent witness testified that defendant had safely changed from the right lane into the left lane before plaintiff, traveling at a high rate of speed, rear-ended him. The independent witness, Mr. Gautreaux, further testified that it appeared to him that plaintiff was unaware of the slow moving traffic in front of him in the left lane. The concern caused Mr. Gautreaux to sound his horn in warning. Trooper Wood's opinion that defendant was at fault was based only on the information given him at the time of the accident by the two parties. He did not speak to the independent witness, nor did he view the actual scene of the accident. Under the circumstances of this case we cannot say the trial court was manifestly erroneous in finding that plaintiff failed to meet his burden of proof that defendant was at fault in this accident.
Plaintiff also argues that the trial court erred in not applying the principles of comparative negligence. Plaintiff argues that the trial court incorrectly used the standard of contributory negligence as a bar to plaintiff's recovery. We do not agree. The trial court simply found that plaintiff failed to prove his case by a preponderance of the evidence. This assignment is without merit.
For the foregoing reasons, we affirm the trial court. All costs of this appeal are assessed to plaintiff.
AFFIRMED
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