Opinion
2023 CW 0290
06-15-2023
BRITANY LUCAS AND KIM RICHARDSON, SURVIVING HEIRS OF BRETT LUCAS, DECEASED v. PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, LEROY EAGLIN AND COUNTRY BOY TRUCKING, LLC
Leroy Eaglin and Country Boy Trucking, LLC, applying for supervisory writs, 19th Judicial District Court, Parish of East Baton Rouge, No. 711094.
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
WRIT GRANTED. The district court's February 7, 2023 judgment, which denied the motion for summary judgment filed by defendants, Leroy Eaglin and Country Boy Trucking, LLC, is reversed. Motorists are not the insurers of a pedestrian's safety. Pottinger v. Price, 2019-0183 (La.App. 1st Cir. 10/23/19), 289 So.3d 1047, 1055. A pedestrian has a statutory duty to yield to traffic in the roadway in the absence of a marked crosswalk. La. R.S. 32:213(A). A pedestrian must also exercise reasonable care to avoid leaving a curb or other place of safety beside the roadway and walking into the path of a vehicle. La. R.S. 32:212(B). The fact that an accident occurs does not create a presumption of negligence in favor of either the pedestrian or the motorist. Although a motorist commands a greater instrumentality of harm, a pedestrian still bears the burden of proving that the motorist was negligent before he can recover damages. Saucedo v. Safeco Insurance Company of Oregon, 2020-0599 (La.App. 1st Cir. 3/11/21), 2021 WL 925820, *3 (unpublished).
Here, we find the defendant/driver, Leroy Eaglin, did not breach his duty of care to the pedestrian, Brett Lucas. The evidence establishes the driver was traveling below the posted speed limit, with functioning headlights, and entirely in his lane of travel. Additionally, the accident area was dark and the pedestrian, who was not walking on a sidewalk or in a crosswalk, was wearing dark clothing. Moreover, the driver had no knowledge of the pedestrian's presence until impact. See Aetna Cas. and Sur. Co. v. Nero, 425 So.2d 730, 732-33 (La. 1983). Accordingly, the motion for summary judgment filed by defendants, Leroy Eaglin and Country Boy Trucking, LLC, is granted, and plaintiffs' claims against defendants, Leroy Eaglin and Country Boy Trucking, LLC, are dismissed.
MRT
WRC
CHH