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Plank v. Town of Rayville6/21/2000
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In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (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 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.
In the case sub judice, the trial judge also relied upon the factually similar case of Lee v. Missouri Pacific Railroad Co., 566 So. 2d 1052 (La. App. 2d Cir. 1990), in which a panel of this court found a motorist to be the sole cause of the accident which resulted in his death when he parked his vehicle directly on the railroad tracks and was struck by a train. In Lee, we explained our reasoning as follows:
After careful and thorough review of the record, we are convinced that plaintiffs have failed to show that any of the complained of actions or failures to act by the defendants in any way caused this accident. The uncontradicted evidence in this case is that Roger Lee, for some unknown reason chose or happened to stop his vehicle directly in the middle of MoPAC's grade crossing at Stubbs-Vincent Road. In the face of an approaching locomotive, he did not attempt to remove his vehicle from the crossing nor himself from the vehicle. There was no obstruction preventing him from viewing the locomotive from the position at which he stopped. The engineer blew his horn repeatedly to no avail. The light of the engine shined directly onto Lee's automobile. Yet, Roger Lee did nothing.
Had additional bells or lights been erected at this crossing, there is no evidence that Roger Lee would not have been stopped on the crossing before they activated. Furthermore, no warning could have alerted Lee to any greater danger than the locomotive itself did as it approached him on this tragic morning. This evidence overwhelmingly convinces us that the sole cause of the accident was Lee's stopping his vehicle directly on the grade crossing, a violation of the law. LSA-R.S. 32:17(B). Lee took no evasive action as the train approached him and by the time the engineer saw the stopped vehicle it was impossible to bring the more than one-mile-long train to a halt. We therefore are compelled to affirm the judgment of the trial court.
Applying the above jurisprudence to the present case, the trial judge stated:
. . . the accident resulted solely from Mrs. Plank's inattentiveness and her failure to heed the visible and audible warnings of the impending collision; her positioning her vehicle within the "foul line" of the KCS train; her superior position compared to that of the Town of Rayville, DOTD and KCS to avoid this accident; and the fact that given all the warnings and the time and space available to her to escape, she had the last clear chance to remove herself from harm's way.
It is clear from the trial judge's reasons for judgment that he properly applied the principles of comparative fault in assessing the fault for this accident, including the consideration that Mrs. Plank could have, but did not, take any evasive action. We do not find error in the trial judge's consideration of Mrs. Plank's ability and failure to remove herself from the danger which ultimately resulted in her death.
Consideration of the factors enunciated in Watson, s
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