 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Duncan v. Kansas City Southern Railway Co.10/30/2000
with the participation of federal funds. However, the evidence presented by the defendants does not support an unequivocal conclusion that the signage at East Iowa Road was installed or replaced with federal funds during the 1980 project. Rather, the only equipment definitely installed at the East Iowa Road crossing during the 1980 project was an inventory number. An inventory number does not meet the definition of warning devices provided in 23 C.F.R. ยงยง 646.204. Thus, in the absence of proof that warning devices were actually installed or replaced at the East Iowa Road crossing, we cannot say the state law negligence claims are preempted by federal law. Further, the trial court's decision rejecting KCS federal preemption claim is not manifestly erroneous.
ALLOCATION OF FAULT
Alternatively, KCS contends the court of appeal erred in affirming the jury's allocation of fault between it and Mitchell. The jury found KCS was 58.6% at fault and Mitchell was 26.4% at fault in causing the accident. KCS asserts this allocation of fault is not one at which reasonable persons could arrive. Instead, KCS contends any fault on its part was minimal in comparison to Mitchell, and that a more appropriate allocation would be a finding of less than fifty percent of the fault on its part.
This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded "the trier of fact is owed some deference in allocating fault" since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La. 1/16/96); 666 So. 2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id. Therefore, an appellate court should only disturb the trier of fact's allocation of fault when it is clearly wrong or manifestly erroneous. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court's discretion. Clement, 666 So. 2d at 611; Coco v. Winston Industries, Inc., 341 So. 2d 332, 335 (La. 1977).
The appellate courts determination of whether the trial court was clearly wrong in its allocation of fault is guided by the factors set forth in Watson v. State Farm Fire and Cas. Ins. Co., 469 So. 2d 967, 974 (La. 1985). In Watson, we said "various factors may influence the degree of fault assigned, including:
(1) hether 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 capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. Watson, 469 So. 2d at 974.
These same factors guide the appellate court's determination as to the highest or lowest percentage of fault that could reasonably be assessed. Clement, 666 So. 2d at 611.
Applying these factors to the case sub judice, we address whether the trial court's allocation of fault was an abuse of its discretion. The jury was presented with
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|