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Leonard v. Favaloro10/6/2005
Panel composed of Judges James L. Cannella, Clarence E. McManus, and James C. Gulotta, Pro Tempore
REVERSED AND RENDERED
This is an appeal by plaintiffs from an adverse judgment of the trial court in their personal injury action for injuries sustained in an automobile accident. The suit named Mark Favaloro and his insurer, Allstate Insurance Company (Allstate) as defendants. After a trial on the merits, the trial judge found plaintiffs' testimony to be unreliable, resulting in this dismissal of plaintiffs' suit. This appeal follows.
LIABILITY
Defendant, Mark Favaloro, was driving a 1997 Ford pick-up truck westbound on Jean Lafitte Boulevard on April 17, 2002. He was going about 40 mph when he noticed that the car in front of him, driven by Ms. Leonard, stopped to make a left turn. Although Mr. Favaloro slowed down, he was unable to stop in time and hit plaintiffs' car in the rear. Mr. Favaloro testified that he misjudged the distance between his vehicle and Ms. Leonard's car because of the glare. He further testified that he admitted his fault in the accident to the investigating officer.
Ms. Leonard's testimony regarding the facts of the accident corroborates that of Mr. Favaloro. She testified that she was traveling on Jean Lafitte, a two-lane road. She stopped to wait for a break in on-coming traffic that would allow her to make a left turn safely. While stopped, Mr. Favaloro's truck hit her vehicle in the rear. She did not see the truck approaching, she only felt the impact.
La. R.S. 32:81A provides that a driver "shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway." While a following motorist may assume that the vehicle in front is being driven with care and caution, he must drive at an appropriate speed and must maintain an interval between the two vehicles as would enable him to avoid a collision with the lead vehicle under circumstances which should be reasonably anticipated. Hadley v. Doe, 626 So.2d 747 (La.App. 5th Cir.1993). The following motorist in a rear-end collision is presumed to have breached this duty, and he bears the burden of exonerating himself. Id.
In the matter before us, the trial judge found plaintiff "solely" at fault in the accident, stating that she did not "sustain" her burden of proof. The trial judge based his conclusion on lack of credibility on the part of the plaintiff. We find that ruling to be in error. It is clear from the testimony of both parties that Mr. Favaloro ran into the back of Ms. Leonard's vehicle while she was stopped waiting to make a legal left turn. The burden is on Mr. Favaloro to rebut the presumption placed upon him as the following driver. He has not carried that burden.
The issue here is not one of credibility. There was no disagreement on how the accident happened. The versions were the same. Therefore, on the liability question we conclude the trial judge erred in dismissing plaintiffs' suit.
DAMAGES
Because of the holding, the trial judge did not award to plaintiffs any damages. In written reasons the judge stated that Tammy Leonard "testified falsely." He clearly found her testimony to lack credibility. We find no error in the trial judge's finding of lack of credibility on the part of plaintiff Tammy Leonard as it relates to the medical aspects of this matter. A reading of the record clearly supports this conclusion.
Ms. Leonard testified that prior to the accident she had no physical problems and was able to do her own housework and yard work, as well as help to care for elde
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