Devin Barfield v. Brandon Akins and Safeway Insurance Company of Louisiana

Judgment rendered July 20, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,204-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DEVIN BARFIELD Plaintiff-Appellee

versus

BRANDON AKINS AND Defendants-Appellants
SAFEWAY INSURANCE
COMPANY OF LOUISIANA

*****

Appealed from the
Monroe City Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2019CV04698

Honorable Aisha S. Clark, Judge

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RICHIE, RICHIE, & OBERLE, L.L.P. Counsel for Appellants
By: Paul Douglas Oberle, Jr.

MANNING LAW FIRM Counsel for Appellee
By: Bobby Ray Manning
Brennan Rayshad Manning

*****

Before MOORE, PITMAN, STONE,
COX, and HUNTER, JJ.

COX, J., concurs with written reasons.
STONE, J., concurs in part, and dissents in part, with written reasons.
HUNTER, J., dissents with written reasons.

PITMAN, J.

Defendants Brandon Akins and Safeway Insurance Company of

Louisiana (“Safeway”) appeal a judgment which found Akins 100 percent at

fault in an automobile accident that injured his passenger, Plaintiff Devin

Barfield. For the following reasons, we affirm the judgment of the trial

court.

FACTS

On August 4, 2019, at approximately 5 a.m., Akins was driving south

on Highway 165 in Ouachita Parish and was giving his friend, Barfield, a

ride home. Akins was driving in the right lane of the highway when he

noticed a driver in front of him in the left lane swerving and driving

erratically. He followed the driver at a safe distance for 30 seconds to a

minute until the driver appeared to have stabilized his vehicle. Akins

decided to pass the driver in the right lane; but as he drew beside the car, it

swerved into his lane, forcing him off the road, where he crashed into a

dumpster located “less than a car length off the road” near the rumble strip.

Barfield was injured in the accident and filed suit against Akins and

Safeway claiming that the accident was caused solely by Akins’s negligence

and that the Defendants are solidarily liable to him. Akins and Safeway

answered and pled the negligence of the unknown driver as the cause of the

accident and as a defense.

A trial was held, and only Akins and Barfield testified. Both parties

agreed that the facts occurred as stated above. Akins testified that had he

continued to simply follow the swerving vehicle, he would have arrived at

Barfield’s house within 15 to 20 minutes. He also testified that because the

unknown driver swerved into his lane as he was parallel to him, the accident

was unavoidable and the result of “sudden emergency.” He stated that he

had no choice but to veer to the right when the driver swerved into his lane

and that he did not see the dumpster on the side of the road until he hit it.

Barfield testified that they were both watching the other driver and did not

see the dumpster on the side of the road. Both Akins and Barfield testified

that, had Akins not veered to the right and off the roadway, the other vehicle

would have struck them.

The trial court found that “sudden emergency” did not cause the

accident but, rather, that it was caused by Akins’s negligence in deciding to

pass the vehicle instead of following it. Further, it found that the accident

was caused by Akins’s failure to observe the dumpster on the side of the

road or “see what he should have seen”; thus, Akins was assessed with

100 percent fault in the accident. Barfield was awarded $14,864 in damages.

Akins and Safeway appeal the judgment of the trial court finding him

to be 100 percent at fault in the accident.

DISCUSSION

Akins and Safeway argue that the trial court erred in finding him

100 percent at fault in this accident and failing to assess liability to an

unknown driver who created a “sudden emergency” resulting in Akins

having to leave the roadway. They contend that comparative fault should be

applied to find that the negligent driver of the swerving car was the person

who was 100 percent at fault in the accident. They assert that none of the

evidence at trial reflected any act of negligence on Akins’s part. They claim

he had not been engaged in any activity which would have taken his

attention away from driving safely and that had it not been for the unknown
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driver swerving fully into his lane and forcing his car off the road, the

accident would not have happened.

Barfield argues that the trial court correctly found that the “sudden

emergency” did not occur and that the accident could have been avoided by

Akins if he had simply followed the swerving car instead of trying to pass it.

Further, he claims that the trial court was correct in finding Akins

100 percent at fault because, as the driver of the vehicle, it was his

responsibility to exercise ordinary care in its operation, and he failed to do

so. He argues that he was able to prove that his injuries were caused by

Akins’s negligence; thus, the trial court correctly found him to be solely at

fault in the accident.

An appellate court may not set aside a trial court’s finding of fact in

the absence of manifest error or unless it is clearly wrong. Where two

permissible views of the evidence exist, the fact finder’s choice between

them cannot be manifestly erroneous or clearly wrong. Cole v. State Dep’t

of Pub. Safety & Corr., 01-2123 (La. 9/4/02), 825 So. 2d 1134; Jones v. Fin.

Indem. Co., 52,421 (La. App. 2 Cir. 1/16/19), 264 So. 3d 660. If the

findings are reasonable in light of the record reviewed in its entirety, an

appellate court may not reverse, even though convinced that, had it been

sitting as the trier of fact, it would have weighed the evidence differently.

Stobart v. State through Dep’t of Transp. & Dev., 617 So. 2d 880 (La.

1993); Holland v. State Farm Mut. Auto. Ins. Co., 42,753 (La. App. 2 Cir.

12/05/07), 973 So. 2d 134.

Under the sudden emergency doctrine, a person who finds himself in a

position of imminent peril and without sufficient time to consider and weigh

all the circumstances is not guilty of negligence if he fails to adopt what
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subsequently and upon reflection may appear to be the better method, unless

the emergency is brought about by his own negligence. King v. State Farm

Ins. Co., 47,368 (La. App. 2 Cir. 8/8/12), 104 So. 3d 33, citing Holland,

supra. The rule of sudden emergency, however, cannot be invoked by one

who has not used due care to avoid the emergency. King, supra. The

sudden emergency doctrine is only applicable to the standard of conduct

after an emergency has arisen. It does not apply to lower the standard of

care required of motorists before the emergency occurs. Id., citing Ebarb v.

Matlock, 46,243 (La. App. 2 Cir. 5/18/11), 69 So. 3d 516, writ denied,

11-1272 (La. 9/23/11), 69 So. 3d 1164.

La. C.C. art. 2323, which provides for comparative fault in tort cases,

states that the degree or percentage of fault of all persons causing or

contributing to the injury shall be determined regardless of whether the

person is a party to the action or a nonparty and regardless of whether the

other person’s identity is not known. La. C.C. art. 2324(B) concerns joint

liability and states that if liability is not solidary, then the liability is

considered joint and divisible. The joint tortfeasor shall not be liable for

more than his degree of fault regardless of whether the other person found at

fault is known or not. Id.

In the case at bar, the trial court specifically found that the “sudden

emergency” doctrine did not apply to relieve Akins of liability in this case.

Sudden emergency cannot be invoked by one who has not used due care to

avoid the emergency. As the trial court stated in its reasons for judgment,

this was not a case in which the accident was unavoidable. Akins’s

testimony was that he was following the swerving car and that he had

slowed down his own vehicle while observing the car in front of him.
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Despite having seen the car veering in and out of his lane, Akins made the

decision to pass the car in the right lane when it appeared the driver had

regained control. When the driver of the car swerved, once again, into his

lane, Akins had no choice but to either be hit by the swerving car or to drive

off the roadway where the dumpster awaited. Had Akins simply ridden

behind the swerving vehicle, the accident could have been avoided, even

though he would have arrived at his destination slightly later.

The trial court chose not to assess any fault in this accident to the

unknown driver and chose, instead, to assign 100 percent of the fault to

Akins. Its findings are reasonable in light of the record reviewed in its

entirety, and the judgment is not manifestly erroneous. This assignment of

error lacks merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of

Devin Barfield and against Brandon Akins and his insurer, Safeway

Insurance Company of Louisiana, finding Akins 100 percent at fault is

affirmed. Costs of this appeal are assessed to Akins and Safeway Insurance

Company of Louisiana.

AFFIRMED.

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COX, J., concurs with written reasons.

Although I may have decided this case differently, I believe that the

trial court’s conclusion that the “sudden emergency” doctrine did not apply

to this case was not manifestly erroneous because the driver, Akins, had the

opportunity to avoid this accident. Moreover, the trial court was in the best

position to hear the witnesses, evaluate the evidence and credibility of the

parties in this matter, and determine fault. As such, I agree with the majority

in affirming this decision.

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STONE, J., concurring in part, and dissenting in part.

Concurrence

In essence, the trial court stated in its oral reasons that the defendant

was negligent because he did not keep a safe distance behind the phantom

vehicle until their paths diverged. The law does not require such an

excessive degree of precaution. The defendant’s duty did, however, require

him to keep a safe distance for more than 30 seconds to a minute; that

precautionary interim was unreasonably short. Thus, the trial court, in my

opinion, was correct in holding that the defendant was negligent, but

apparently reached that conclusion based on an erroneous conception of the

law.

Dissent

For the following reasons, I respectfully dissent regarding the phantom

driver.

It is undisputed that the phantom driver swerved into the defendant’s

lane. It is also undisputed that this act by the phantom driver forced the

defendant to choose between being hit by the phantom vehicle or veering off

the road where the dumpster awaited. By necessary implication, the majority

opinion holds that a reasonable trier of fact could find that the phantom driver

was not negligent. I disagree, and I find the majority’s discussion of this point

woefully inadequate; in full, the majority states:

The trial court chose not to assess any fault in this accident
to the unknown driver and chose, instead, to assign 100% of
the fault to Akins. Its findings are reasonable in light of the
record reviewed in its entirety, and the judgment is not
manifestly erroneous. This assignment of error lacks merit.

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This conclusion cannot withstand an application of our law of negligence to the

undisputed facts. The majority opinion does not provide such an application,

but instead glosses over the matter with broad, vague, conclusory language.

Application of the law of negligence to these undisputed facts

unavoidably leads to the conclusion that the phantom driver was negligent. To

establish negligence, the party asserting it must prove five separate

elements: (1) the actor had a duty to conform his conduct to a specific

standard (the duty element); (2) the actor’s conduct failed to conform to

the appropriate standard (the breach element); (3) the actor’s

substandard conduct was a cause in fact of the plaintiff’s injuries (the

cause-in-fact element); (4) the actor’s substandard conduct was a legal

cause of the plaintiffs injuries (legal cause); and (5) actual damages (the

damages element). Fowler v. Roberts, 556 So. 2d 1, 4 (La. 1989), reh’g

granted on other grounds and original opinion reinstated as supplemented,

556 So. 2d at 13 (La. 1990); Ebarb v. Matlock, 46,243 (La. App. 2 Cir.

5/18/11), 69 So. 3d 516, writ denied, 11-1272 (La. 9/23/11), 69 So. 3d 1164.

Vehicular traffic on public roads is statutorily regulated in Louisiana;

these statutes and the related jurisprudence establish the duty of care

applicable to the operation of motor vehicles on public roads in Louisiana.

La. R.S. 32:79(1) prohibits drivers from swerving out of their lane:

Whenever any roadway has been divided into two or more
clearly marked lanes for traffic, the following rules, in
addition to all others consistent herewith, shall apply.
(1) 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.

This statute establishes motorists’ duty regarding lane maintenance and lane

changes.
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The phantom driver clearly violated La. R.S. 32:79(1) in swerving

suddenly into the defendant’s lane. This establishes that the phantom driver

violated the applicable standard of care (i.e., duty and breach). It is

undisputed that, because of this breach of the standard of care by the

phantom driver, the defendant was forced to swerve out of his lane of travel

and into a dumpster awaiting him on the side of the road. It is also

undisputed that the plaintiff’s injuries resulted directly from the collision

with the dumpster (i.e., cause in fact, legal cause, and damages). Thus, all

the elements of negligence are established regarding the phantom driver. No

reasonable trier of fact could conclude otherwise. Therefore, the trial court

committed manifest error on this point.

This manifest error by the trial court is tantamount to willful disregard

of Louisiana’s comparative fault system as codified in La. C.C. arts. 2323

and 2324(B). Even if the phantom driver was assigned fault, the plaintiff

obviously could not collect from the phantom driver. However, the plaintiff

is virtually certain to collect from the defendant’s insurer. This is not merely

an error, but rather, is an error with serious public policy implications.

This court should reverse the trial court judgment insofar as the trial

court failed to attribute any fault to the phantom driver.

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HUNTER, J., dissenting.

Based on the factual circumstances of this case, I respectfully dissent

after concluding there must be an allocation of fault to the unknown driver

whose negligence was the impetus of the accident which caused plaintiff’s

injuries. Applying the factors for determining the degree of fault of the

persons involved in the accident, I would assess 20% fault to the unknown

driver and 80% fault to defendant.

In an action for damages where personal injury is sustained, the

percentage of fault of all persons causing or contributing to the injury shall

be determined regardless of whether the person is a party or nonparty or the

other person’s identity is not known or reasonably ascertainable. La. C.C.

art. 2323(A). In assessing the conduct of the parties for the apportionment

of fault, the court considers various factors, including whether the conduct

resulted from inadvertence or involved an awareness of the danger, how

great a risk was created by the conduct and whether the capacity of the actor

was superior or inferior. Watson v. State Farm Fire and Cas. Ins. Co., 469

So. 2d 967 (La. 1985). These same factors guide the appellate court’s

determination of the highest or lowest percentage of fault which could

reasonably be assessed. Hankton v. State, 2020-00462 (La. 12/1/20), 315

So. 3d 1278.

In this case, the evidence shows the unknown driver owed a duty to

maintain control of his vehicle and remain in his lane of travel. However,

the unknown driver breached this duty by swerving into the lane of

defendant, who then made an evasive maneuver and inadvertently veered off

the highway before hitting the dumpster on the side of the road. The

testimony described defendant as reacting to the unknown driver’s initiating
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negligence. Thus, this breach of duty by the unknown driver was a cause of

plaintiff’s resulting injury. Based upon this record, the trial court erred in

failing to assess any degree of fault to the unknown driver and the allocation

of fault must be adjusted.

In allocating fault, courts must consider both the nature of the conduct

and the causal relationship between the conduct and the damages claimed.

Hankton, supra. After finding a clearly wrong apportionment of fault, the

reviewing court should increase an inadequate allocation to the lowest point

which is reasonably within the trier of fact’s discretion. Hankton, supra.

Regarding the conduct of the drivers, the evidence presented shows

the accident would not have occurred but for the initial negligence of the

unknown driver. Coupling defendant’s reaction with the initial acts of the

other driver, the defendant was unable to maintain control of his vehicle and

veered from the roadway thereby resulting in plaintiff’s injuries. Thus,

defendant’s conduct created a significant risk of harm and he possessed a

superior capacity to avoid the accident in comparison to the erratic unknown

driver. The factual circumstances demonstrate although the unknown driver

is not without fault, defendant bears a greater degree of fault in causing the

accident.

Based upon this record and the applicable law, I find the fault of the

unknown driver is not less than 20%, which is the lowest amount the trial

court could have reasonably allocated to the unidentified motorist.

Consequently, I would amend the judgment to apportion 80% fault to the

defendant.

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