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Pesson v. Reynolds11/13/1998
lane, Mr. Moore had to apply his brakes and move to the right side to avoid hitting Mr. Reynolds' vehicle.
Becky Todd, who also witnessed the accident, testified she was traveling westbound on Hwy. 90 when she saw Mr. Reynolds turning into the westbound lane of Hwy. 90. Ms. Todd acknowledged she saw yellow reflectors all the way down the side of the trailer. Photographs of the trailer in the record show reflector lights down the side of the trailer.
Lieutenant Rick Harris, with the Morgan City Police Department, investigated the accident. He testified there were no skid marks from the Pesson vehicle, indicating that Mrs. Pesson never applied her brakes prior to the accident. In the accident report Lt. Harris indicated that Mrs. Pesson was speeding at the time of the accident, and that the speed of her vehicle was a factor contributing to the accident. Lt. Harris interviewed both Ms. Todd and Mr. Moore after the accident, at which time they indicated to him that Mrs. Pesson was traveling at a high rate of speed. The force of the impact of Mrs. Pesson's car caused the trailer to become detached from the tractor.
A motorist has a duty to maintain a careful lookout, observe any obstructions present, and exercise care to avoid them. Ly v. State Through Department of Public Safety and Corrections, 633 So.2d 197, 201 (La. App. 1st Cir. 1993), writ denied, 93-3134 (La. 2/25/94), 634 So.2d 835; McIntyre v. Saunders, 554 So.2d 1371, 1373 (La. App. 1st Cir. 1989), writ denied, 558 So.2d 583 (La. 1990); Prest v. State Department of Transportation, 490 So.2d 659, 662 (La. App. 2nd Cir.), writ denied, 494 So.2d 328 (La. 1986).
The record shows that Mrs. Pesson's blood alcohol was .05 when her blood was drawn one to two hours after the accident. Expert testimony by Dr. James Freeman, who specializes in anatomic pathology, established that at the time of the accident, Mrs. Pesson's blood alcohol level would have been between .07 and .09. there is evidence in the record that, before leaving the party that night, Mrs. Pesson had at least one alcoholic beverage know as a "Flaming Dr. Pepper," which consists of a half of a beer and a shot of peppermint schnapps.
Dr. Freeman testified that alcohol causes the loss of three-dimensional perception, and slows down nerve impulses and fine muscle movements. As the quantity of alcohol increases, the reaction and reflex time decreases. He stated that an individual who drives with an alcohol blood level above .05 can be impaired enough to cause an unsafe situation.
We find that the trial court's failure to assess fault against Mrs. Pesson for the accident constituted manifest error. Mrs. Pesson failed to take any evasive action to avoid the tractor-trailer. Had Mrs. Pesson braked and slowed her car down, or simply moved into the outside lane, she could have avoided the accident entirely.
Under the facts of this case, we find Mr. Reynolds 60% at fault and Mrs. Pesson 40% at fault for the accident.
Therefore, for the foregoing reasons, the trial court judgment is REVERSED. Fault for the accident is assessed 60% against Mr. Reynolds and 40% against Mrs. Pesson. Costs are assessed against Mrs. Pesson.
GUIDRY, J., Dissents and assigns reasons.
GUIDRY, J., Dissenting.
The Louisiana Supreme Court in the case of Aucoin v. State, Through Department of Transportation and Development, 97-1938, 97-1967, p. 4 (La. 4/24/98), 712 So.2d 62, 65, made it clear that we must look at the specific facts of the case before us to determine whether the trial court erred in finding the roadway in question unreasonably dangerous.
The majority points out that
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