It is well settled in Louisiana law that automobile drivers are required to exercise care to avoid colliding with pedestrians. Motorists are charged with the duty to see what an “ordinarily prudent” driver should see to prevent striking pedestrians in the roadway. In fact, La. R.S. 32:214 requires drivers to
“exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.”
A driver’s liability for injury to a pedestrian is based on ordinary negligence principles. The traditional duty/risk analysis is used to compare the driver’s behavior to “how a reasonably prudent person [would] have acted or what precautions [he would] have taken if faced with similar circumstances and conditions; the degree of care required is dependent upon the foreseeable dangers facing the driver. It can be particularly challenging for a court to conduct the duty/risk analysis when a victim dies as a result of his injuries and there are no eyewitnesses to the accident other than the defendant himself. The “trier of fact is free to believe in whole or part the testimony of any witness,” which means that the a judge or jury may disregard a defendant’s own testimony about whether he saw–or should have seen–the victim. Scoggins v. Frederick. However, under Louisiana civil procedure, “a court cannot make [such] credibility determinations in ruling on a motion for summary judgment.” This rule of procedure led to the First Circuit Court of Appeals’ reversal of the trial court in Woodward v. Hartford Insurance Co.
On October 10, 2005, John Mouton was performing cement work in a parking lot that abutted the north side of South Choctaw Drive in Baton Rouge. Mouton was working about two feet from the edge of the roadway, and at various times crouched down to smooth the concrete that had been recently poured with a hand trowel. Around noon, Albert Champion turned his bus onto South Choctaw Drive. As Champion’s bus passed Mouton’s location, the bus’s side mirror struck Mouton in the face, resulting in his death a short time later. Mouton’s family sued Champion and his employer, the Baton Rouge Marine Institute. The defendants filed a motion for summary judgment, which was granted by the trial court. Mouton’s family appealed, contending that the trial court erred in dismissing their claims because issues of material fact about whether Champion breached his duty of care to Mouton existed; in fact, the Moutons argued they could “satisfy their evidentiary burden on the material issue of whether Mr. Champion saw or should have seen Mr. Mouton as he proceeded westward on South Choctaw Drive” at trial.
Champion was the only witness to the incident. He provided the investigating police officer a written statement immediately following the accident in which he claimed he had seen Mouton as he approached the point of impact but did not believe at any time that Mouton was at risk of being hit. Conversely, in his deposition, Champion stated that he did not see Mouton at all until he “heard a thump” and saw a man falling toward the sidewalk in his mirror. The First Circuit noted, “[c]learly, the trial court concluded that the explanation Mr. Champion provided in his deposition was more credible than that which he offered in his written statement.” However, this conclusion was a judgment that was reserved for the trier of fact and was therefore inappropriate for resolution by summary judgment. “Because reasonable persons could disagree about whether Mr. Champion saw Mr. Mouton … or did not see him …, the issue of whether Mr. Champion breached the duty he owed Mr. Mouton to see him and avoid colliding with him is a genuine issue of fact.” The court determined, therefore, that “the trial court erred in dismissing the Moutons’ claims on this basis.”
The Woodward case makes plain that, under Louisiana jurisprudence, questions of fact must be left to a jury or trial judge to decide and cannot be resolved through summary judgment. If you have been injured by someone’s negligence, it is essential that you obtain counsel who understands Louisiana civil procedure and who can ensure your case is not improperly dismissed at the summary judgment stage.
Contact the Berniard Law Firm today at 1-866-574-8005 and speak with a lawyer who can help you obtain the recovery you deserve.