Heather Tate v. Robert Turnage

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-671

HEATHER TATE, ET AL.

VERSUS

ROBERT TURNAGE, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2011-6754-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Mark J. Neal
Neal Law Firm
P.O. Box 14657
Monroe, LA 71207-4657
(318) 807-0929
COUNSEL FOR DEFENDANT/APPELLANT:
Robert Turnage
Southern Casualty Ins. Co.

Cory P. Roy
Law Offices of Cory P. Roy
P. O. Box 544
Marksville, LA 71351
(318) 240-7800
COUNSEL FOR PLAINTIFFS/APPELLEES:
Heather Tate, et al.

GREMILLION, Judge.

The defendants, Robert Turnage and Southern Casualty Insurance Company

(collectively Turnage), appeal the judgment in favor of the plaintiffs, Heather Tate,

individually and on behalf of her minor child, Nicholas Tate, arising out of a motor

vehicle accident. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On Memorial Day, May 30, 2011, Tate was exiting a McDonald’s parking

lot on Louisiana Highway 28 East in Pineville. Louisiana Highway 28 East

consists of five lanes: Two lanes traveling west, two lanes traveling east, and a

turning lane in the middle. Tate was attempting to proceed eastbound, which

required that she cross two lanes of westbound traffic and the turning lane.

Turnage was traveling westbound on Highway 28 East and was stopped for a

traffic light. Turnage proceeded forward and hit the driver’s rear side of Tate’s

vehicle.

Tate filed a petition for damages in June 2011. Following a March 2012

bench trial, the trial court found Tate 10% liable and Turnage 90% liable. It

awarded Tate general damages of $16,500.00, special damages of $5,831.01, and

property damage in the amount of $3,262.17. It awarded her son general damages

of $3,000.00 and special damages of $658.00. The trial court rendered judgment in

April 2012. Turnage now appeals.

ISSUES

Turnage argues that the trial court was manifestly wrong or clearly

erroneous in finding that:

1. The Plaintiff was essentially free from fault and met the heightened
burden of proof imposed upon left-turning motorists from private
driveway;

2. The Plaintiff preempted the Defendant’s right-of-way, although the
Accident did not occur at an intersection;

3. That Defendant was 90% at fault, although the Court found
credible his testimony that he did not motion to the Plaintiff that
the way was clear for her to cross the highway;

4. The Plaintiff was 10% at fault in causing the Accident[.]

DISCUSSION

Standard of Review

A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La.1989).

The appellate review of fact is not completed by reading only so much
of the record as will reveal a reasonable factual basis for the finding in
the trial court, but if the trial court or jury findings are reasonable in
light of the record reviewed in its entirety, the court of appeal may not
reverse even though convinced that had it been sitting as the trier of
fact, it would have weighed the evidence differently.

Id. at 844.

Though an appellate court may feel its own evaluations and inferences are

more reasonable than the factfinder’s, reasonable inferences of fact should not be

disturbed upon review where conflict exists in the testimony. Id. “[W]here two

permissible views of the evidence exist, the factfinder’s choice between them

cannot be manifestly erroneous or clearly wrong.” Stobart v. State Through DOTD,

617 So.2d 880, 883 (La.1993). “[T]he issue to be resolved by a reviewing court is

not whether the trier of fact was right or wrong, but whether the factfinder’s

conclusion was a reasonable one.” Id. at 882. Allocations of fault are subject to

the abuse of discretion standard. Shelvin v. Allstate Ins. Co., 99-833 (La.App. 3

Cir. 11/3/99), 747 So.2d 160.

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Testimony

Tate testified that she traveled with her six-year-old son and puppy to

McDonald’s to pick up some lunch for her husband. Tate testified that as she

exited the McDonald’s to make a left turn, she saw no traffic in the outermost lane

closest to McDonald’s, but that Turnage was in the inner lane closest to the turning

lane. Tate said that Turnage signaled for her to go. She said that Turnage was at a

complete stop at the time. Tate said that she signaled to Turnage, who then

signaled again for her to go. Tate proceeded forward, crossing the outside lane and

half-way crossing the inner lane before her vehicle was struck by Turnage’s

vehicle. The front part of Tate’s vehicle was half-way into the turning lane when

she was hit. Turnage struck the rear door and the gas tank on the driver’s side.

Turnage testified that he has a commercial driver’s license and has driven

eighteen-wheeler trucks for a living for the past twelve years. Turnage denied

indicating to Tate that it was safe to enter traffic. He said he “gave her room” to

pull out into traffic but never made eye contact with her or motioned to her that it

was safe for her to approach. Turnage said that he would never motion for

someone to enter traffic because, as part of his profession, he was taught never to

do so because a driver of an eighteen-wheeler cannot see all the way around the

vehicle. He said he also follows that rule when he is driving his personal vehicle,

which he was driving on the day of the accident.

Turnage said that he had dropped off his daughter and was headed to the

local mall to kill time. He said traffic was heavy that day due to the holiday.

Turnage said he saw that the approaching light was red, and came to a stop. He

testified:

A. . . . Got close to McDonalds and seen her car there, and just left a
gap for her to come through, you know, if she wished.

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Q. Did she do that initially?

A. She eventually come through. Like I said I wasn’t looking at her
specifically. You know, I was just kind of looking around, you know,
watching the light and everything.

He said that when the light turned green he proceeded to move forward and Tate

drove in front of him. Turnage said that “before I proceeded forward I knew there

was nothing in front of me.” However, later in his testimony, Turnage admitted

that he “did not check right” before proceeding even though he knew he had left a

gap for a potential left-turning motorist exiting the McDonald’s.

The trial court, in its oral reasons for ruling, stated that it did not find

whether Turnage motioned for Tate to enter relevant. Instead, it found the main

factor to be the gap that Turnage left, stating:

. . . [I]f you created the gap then you have a duty . . . a new duty that
arises that before you proceed that you proceed with all due care
regarding what is ahead of you. And if you create a gap you cannot
merely look straight ahead. You’ve created a situation where you
have to look to your left and look to your right before you close that
gap. Whether your [sic] closing the gap because you don’t feel like
leaving a gap anymore or whether you’re closing the gap because the
light has turned green is really irrelevant.

The trial court went on to find that Tate “preempted the intersection by a

wide margin, and the damage being behind the driver on her side.”

Louisiana Revised Statute 32:104(A) requires that a turning vehicle must not

enter the roadway “unless and until such movement can be made with reasonable

safety.” Further, La.R.S. 32:124 requires that a motorist entering a highway from a

private road or driveway “yield the right of way to all approaching vehicles so

close as to constitute an immediate hazard.”

We have set forth the duties of drivers in a situation where one driver is

exiting a private driveway as follows:

A motorist who is about to enter a roadway from a private
driveway is required to yield the right of way to all approaching
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vehicles so close as to constitute an immediate hazard. Unusual,
extreme, and high care toward favored traffic is required of such a
motorist under the case law. Conversely, the duty of the driver on the
favored street toward the intruding motorist is the much lesser
ordinary care and that driver generally may rely on the assumption or
presumption that those vehicles entering the roadway from less
favored positions such as a private drive will not drive into the path of
favored traffic. The motorist who is otherwise proceeding lawfully on
the favored street is not required to look out for or search in
anticipation of careless drivers who might enter his right of way from
a private driveway in violation of the statute. [La.R.S. 32:124.] The
presumption or assumption may not be relied on by a motorist who is
proceeding unlawfully before or after he sees the intruding vehicle.

Shelvin, 747 So.2d at 162, quoting Valin v. Barnes, 550 So.2d 352, 355-356

(La.App. 3 Cir.), writ denied, 552 So.2d 399 (La.1989). While a left-turning

motorist generally has a heightened duty of care, a presumption of negligence

against the left-turning motorist will not apply if the scope of the duty does not

extend to the plaintiff. Reed v. State Farm Mut. Auto. Ins. Co., 05-1532 (La.App. 3

Cir. 5/3/06), 929 So.2d 871, writ denied, 06-2000 (La. 11/3/06), 940 So.2d 672.

“A left-turning motorist is only required to make proper observation that the left-

turn can be made safely without endangering other motorists.” Id. at 875.

Turnage argues that Tate failed to meet her burden of extreme care in

making a left turn “as evidenced by the fact that she attempted the left turn and the

accident occurred.” This argument fails, as it would always cast every left-turning

motorist with liability. Additionally, the presumption in favor of Turnage no

longer existed once he left a gap for Tate to enter and then failed to look to his

right before proceeding forward. We find no error in the trial court’s finding that

once Turange left the gap for Tate to enter, Turnage had a duty to observe before

closing the gap. Moreover, the location of the damage over the right rear tire well

further indicates that Turnage proceeded unlawfully after Tate had nearly

completed her left turn maneuver in front of Tate.

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Turnage argues that Tate’s “entire case relied upon her testimony involving

the alleged motion/signal by Defendant Tate.” Turnage claims that the trial court

found Tate’s testimony about Turnage’s communications to her was not credible.

Turnage relies on a portion of the trial court’s oral reasoning that states: “So even

I accept it [as] true that he never made eye contact with her or waived her on, still

he left a gap.” The trial court never said it did not find Tate’s testimony credible;

we interpret this to mean that hypothetically, even if he had considered it as true

that Turnage did not motion for Tate to enter the roadway, he would still be at fault.

We find that the trial court did not rely on the testimony regarding the motion or

hand signal, and we find no error in its disregard.

Turnage next argues that the trial court erred in applying the doctrine of

preemption to the facts of this case. We disagree. A similar argument was

recently made before this court in Johnson v. Smith, 11-853, p.7 (La.App. 3 Cir.

3/14/12), 86 So.3d 874, 880 (footnote omitted), where we stated:

[T]he doctrine of preemption may allow a non-favored motorist to
recover if he crossed an intersection or entered a favored street only
after determining that he had a reasonable opportunity to do so safely
without endangering or impeding the approaching vehicles on the
favored street. See Cormier v. Albear, 99-1206 (La.App. 3 Cir.
2/2/00), 758 So.2d 250. The doctrine is based upon various statutes of
the Highway Regulatory Act governing intersections and is not
applicable to the facts of this case.

As in Johnson, we find the trial court used the term “preemption” loosely to

describe the fact that the point of impact to Tate’s vehicle (the rear tire well on the

driver’s side) indicated that Tate’s vehicle had nearly cleared, or preempted,

Turnage’s vehicle when the impact occurred. Moreover, the trial court did not

abuse its discretion in finding Turnage 90% at fault.

As the trial court pointed out, Tate had nearly cleared Turnage’s lane and

was half-way into the turning lane when he hit the rear of her car. Turnage

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admitted he did not look right before proceeding once the light had turned green

after he purposefully left a gap for motorists exiting the McDonald’s restaurant.

Accordingly, the trial court did not err in finding Turnage 90% liable.

CONCLUSION

The judgment of the trial court in favor of the plaintiffs/appellees, Heather

Tate, individually and on behalf of her minor child, is affirmed. All costs of this

appeal are assessed against the defendants/appellants, Robert Turnage and

Southern Casualty Insurance Company.

AFFIRMED.

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