Tammy D. Johnson VS Ivory Magitt and Illinois National Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 0200 TAMMY D JOHNSON VERSUS IVORY LEE MAGITT ILLINOIS NATIONAL INSURANCE COMPANY Judgment Rendered SEP 2 12012 EWWWWM On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No 523 923 Honorable Janice Clark Judge Presiding Robert W Hallack Counsel for PlaintiffAppellant Baton Rouge Louisiana Tammy D Johnson John W Norwood IV New Orleans Louisiana Counsel for DefendantAppellee Illinois National Insurance Company BEFORE WHIPPLE MCCLENDON AND HIGGINBOTHAM 33 61 V McCLENDON J In this personal injury suit the plaintiff appeals a trial court judgment dismissing her suit against the defendants We affirm On August 28 2003 the plaintiff Tammy Johnson was involved in a vehicular accident with the defendant Ivory Lee Magitt on North Acadian Thruway in Baton Rouge Louisiana and Illinois National Ms Johnson flied suit against Mr Magitt Insurance Company Mr s Magitt automobile insurer asserting that she was rearended by Mr Magitt and injured as a result of the accident Following a trial on the merits on November 2 2011 the trial court found that Ms Johnson was at fault in causing the accident and dismissed all of her claims Ms Johnson appealed A court of appeal may not set aside a trial court finding of fact in the s absence of manifest error or unless it is clearly wrong Rosell v ESCO 549 2d So 840 844 La 1989 The supreme court has announced a two part test for the reversal of a fact finder determinations 1 the appellate court must s find from the record that a reasonable factual basis does not exist for the finding of the trial court and 2 the appellate court must further determine that the record establishes that the finding is clearly wrong manifestly erroneous Stobart v State through Dept of Transp and Development 617 So 2d 880 882 La 1993 See also Mart v Hill 505 So 1120 1127 La 1987 2d Thus the issue to be resolved by a reviewing court is not whether the trierof fact was right or wrong but whether the fact finder conclusion was a s reasonable one Stobart 617 So at 882 2d When factual findings are based upon determinations regarding the credibility of witnesses the manifest error standard demands great deference to the trier of fact findings s Harris v Delta Development Partnership 07 2418 p 5 La 1 Cir 8994 App 08 21 2d So 69 73 74 Rosell 549 So at 844 2d Further where two permissible views of the evidence exist the fact finder choice between them cannot be s manifestly erroneous or clearly wrong Rosell 549 So at 844 2d 2 The law has established a rebuttable presumption that a following motorist who strikes a preceding motorist from the rear has breached the standard of conduct prescribed by LSA R 32 and is therefore liable for the S 81A accident Daigle v Humphrey 961891 pp 2 3 La 4 Cir 3 App 97 12 691 So 260 262 The rule is based on the premise that a following motorist 2d whose vehicle rear ends a preceding motorist either has failed in his responsibility to maintain a sharp lookout or has followed at a distance from the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances Id A following motorist may rebut the presumption of negligence by proving that he had his vehicle under control closely observed the preceding vehicle and followed at a safe distance under the circumstances Taylor v Voigtiander 36 p 4 La 2 Cir 12 833 So 1204 670 App 02 11 2d 1206 The following motorist may also avoid liability by proving that the driver of the lead vehicle negligently created a hazard that he could not reasonably avoid 2d Daigle 96 1891 at p 3 691 So at 262 State Farm Mut Automobile Ins Co v Hoerner 426 So 205 209 La 4 Cir 2d App 1982 writ denied 433 So 154 La 1983 2d In this appeal Ms Johnson contends that the trial court committed manifest error in finding that she was at fault in causing the accident Ms Johnson maintains that it is undisputed that she was rearended by Mr Magitt Therefore she argues she was entitled to the presumption of the fault of Mr Magitt who failed to rebut said presumption Conversely the defendants contend that the accident was not a simple rearend accident but was a lane change accident and therefore the presumption did not apply The defendants further assert that even assuming that the accident was a rearend collision they clearly rebutted the presumption 1 Louisiana Revised Statutes 32 provides 81A The driver of a motor vehicle 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 3 At trial Ms Johnson testified that she made a u turn on N Acadian Thruway to head northbound and that when she did so she got into the right lane looked to see if anybody was coming put on her signal and moved into the left lane Ms Johnson testified that she traveled in the right lane probably a few minutes before she changed lanes into the left lane for a few minutes to make a left turn She stated that she did not see Mr Magitt vehicle before the s accident She also testified that it was her intention to make a left turn at the next cross street Mr Magitt testified that he had been in the left lane of N Acadian Thruway traveling northbound since he entered N Acadian from Perkins Road and that he was heading to his home He stated that as he was driving on N Acadian he saw Ms Johnson svehicle headed southbound on N Acadian about to make a u turn Mr Magitt testified that when he saw that Ms Johnson was going to make the u turn he started blowing his car horn and he slammed on his brakes He stated that Ms Johnson made the uturn went into the right lane of N Acadian and then suddenly moved into the left lane and that when the s accident happened Louisiana Revised Statutes 32 1relative to driving on roadways laned 79 for traffic provides in pertinent part 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 In addition pursuant to LSAR 32 a motorist changing lanes may not S 104A turn his or her vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety signals must be used to indicate an intention to change lanes Also LSA R S 104D 32 Brewer v J Hunt Transport Inc 09 1408 p 15 La 3 B 10 16 35 So 230 241 Thus under the law a motorist attempting to make a lane 3d change on a multiplelane highway is required to determine that the maneuver can be made safely without endangering normal overtaking or oncoming traffic before attempting the lane change Averna v Industrial Fabrication rd Marine Service Inc 562 So 1157 1161 L 4 Cir 1990 A greater 2d App a burden of care is required for the motorist changing lanes than is demanded of a driver proceeding at a lawful rate on a straight line in a marked lane Brewer 091408 at P 15 35 So at 241 3d After listening to the testimony and reviewing the evidence which included photographs of the accident area and property damage the trial court made the specific finding that Ms Johnson was at fault in causing the accident and that the accident was not a straight on rearend collision The court found that Ms Johnson made a u turn got in the right lane and quickly shifted to the left lane without seeing if it was safe to do so The court stated that Ms Johnson had a heightened duty to ascertain that the motion she sought to execute could be done safely After a thorough review of the record in this matter we find that the factual findings of the trial court have evidentiary support and are not manifestly erroneous or clearly wrong The trial court clearly determined that the accident at issue was not a simple rearend collision but involved a uturn and lane change by Ms Johnson The record contains a reasonable factual basis for the trial court findings s Accordingly the December 2 2011 judgment of the trial court is affirmed Costs of this appeal are assessed to the plaintiff Tammy Johnson AFFIRMED 2 Because we find no error in the trial court finding that Ms Johnson was at fault in causing the s accident at issue herein we need not address her other assignments of error Even so we find no error in the trial court evidentiary rulings s 5
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