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JIMMY D. LAFLEUR, JERRY D. LAFLEUR & OSCAR J. LAFLEUR
VERSUS
BILLY J. MARTIN, ALLSTATE INSURANCE COMPANY, ANTHONY MELANCON, JR., INDIVIDUALLY, DELTA BEVERAGE GROUP INC., RELIANCE NATIONAL INDEMNITY, & PROGRESSIVE INSURANCE COMPANY
NO. 04-CA-516 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 43245, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

NOVEMBER 16, 2004
CLARENCE E. MCMANUS
JUDGE

Panel composed of Judges Edward A. Dufresne, Jr., James L. Cannella and Clarence E. McManus
DAN E. WEST
DEBORAH A. HOWELL
McGLINCHEY STAFFORD One American Place, Fourteenth Floor Baton Rouge, Louisiana 70825 COUNSEL FOR PLAINFIFF-APPELLEE COLEMAN T. ORGAN HAROLD G. TOSCANO LAW OFFICE
650 Poydras Street
Suite 1950
New Orleans, Louisiana 70130
COUNSEL FOR DEFENDANT/APPELLANT
VIRGIL A. LACY, III ELIZABETH V. KNOWER GUICE A. GIAMBRONE, III BLUE WILLIAMS LAW FIRM
3421 N. Causeway Blvd.
9th Floor
Metairie, Louisiana 70002
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
This suit arises out of an automobile accident. The plaintiffs were stopped in anticipation of making a left hand turn when they were struck first by a truck driven by Anthony Melancon, owned by Delta Beverage, and insured by Reliance Insurance, and then by a truck driven by Billy Martin and insured by Allstate Insurance Company. Prior to trial, the plaintiffs stipulated that none of their individual claims was in excess of $50,000.00. It was also established that, at the time of the accident, Jimmy LaFleur did not have automobile liability insurance on his vehicle. After trial on the merits, the trial court rendered judgment in favor of plaintiffs. The court found that Jimmy LaFleur was free from fault in the accident, and it assessed liability for damages at 25% to Melancon and 75% to Martin. The trial court awarded damages, as follows:
Jimmy LaFleur -special damages, medical bills of $1,089.00 and property damages of $15,491.00, each subject to a reduction of $10,000.00 pursuant to La.
R.S. 32:866, for a total special damage award of $5,491.00, and general damages of $7,000. Jerry LaFleur-special damages, medical bills of $4,258.25 and lost wages of $25,000.00, and general damages of $25,000.00. Oscar LaFleur-special damages, medical bills of $6,662.78 and general damages of $3,500.00. Martin/Allstate filed a motion for new trial, which was granted by the trial court on the issue of quantum. Thereafter, the court rendered judgment as follows:
JimmyLaFleur-generaldamagesof$7,000.00 andmedicalbillsof $1,089.00, subject to the reduction of $10,000.00 for a total bodily injury recovery of $0.00, and property damage of $15,491.00, also subject to a reduction of $10,000.00, for a total damage award of $5,491.00.
JerryLaFleur-general damagesof$20,741.75 andmedicalbillsof
$4,258.25, and lost wages of $25,000.00, for a total damage award of $50,000.00.
Oscar LaFleur-general damages of $3,500.00 and medical bills of

$2,340.78 for a total damage award of $5,840.78. Martin/Allstate filed this appeal. For the reasons that follow, we affirm the decision of the trial court.
This accident occurred on April 10, 2000, on US 61 in Reserve, LA. At the location of the accident, US 61 is a divided four lane highway, with two lanes northbound and two lanes southbound. Plaintiffs were proceeding northbound on US 61, and stopped to make a left hand turn which would take them across the southbound lanes ofUS 61 and onto West 196 Street. There was no turning lane at
the intersection. Plaintiff Jimmy LaFleur was driving, with his father Oscar LaFleur in the front passenger seat and his brother Jerry LaFleur in the back seat. Defendant
Melancon was following the LaFleurs, and defendant Billy Martin was following Melancoli. Melancon realized that the LaFleur vehicle had stopped in front of him, and he attempted to move into the right lane to avoid hitting it. Another vehicle, towing a boat was in that lane, and Melancon made contact with the trailer. Melancon drifted back into the left lane, and struck the LaFleur vehicle on the right rear bumper. Melancon's truck then went off the road and stopped in a ditch on southbound US 61.
Defendant Billy Martin, who was following Melancon, saw the truck slam on its brakes and drift to the right. Martin then struck plaintiff's vehicle. Martin did not see the LaFleur vehicle, and he thought he hit Melancon's truck. Martin made a strong impact with the LaFleur's Suburban, which plaintiffs testified was four to five times stronger than the intensity of the first impact.
All three plaintiffs received medical attention in the einergency room following the accident. Jimmy LaFleur suffered injury to his left knee and back, with duration of six weeks. Oscar LaFleur injured his neck, back, and right knee. He also alleged injury to his teeth; however the trial court found that the evidence was insufficient to support a conclusion that the teeth injuries were related to the accident. The awards to Jimmy LaFleur and Oscar LaFleur are not at issue in this appeal.
Jerry LaFleur was seen at the emergency room, and then by Dr. Susan Richarme at Hill Medical Associates and Dr. Mark Hodges at the Baton Rouge Clinic for injuries to his chest and pneumonia as a result of those injuries. He was also treated by Dr. J. Thomas Kilroy for back and knee injuries. Jerry LaFleur stated that his chest injuries resolved after about four months, but at the time of trial he still had difficulty with his knee and back.
In this appeal, Billy Martin and his insurer, Allstate, (Allstate/Martin), present four allegations of error. In the first allegation of error, Allstate/Martin
alleges that the trial court erred in finding Melancon only 25% at fault (and thereby

assessing Martin with 75%). The allocation of fault between comparatively negligent parties is a finding of fact. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Accordingly, an appellate court may only reallocate fault if it finds the trial court was clearly wrong or manifestly erroneous in its allocation of fault, even if
the reviewing court would have decided the case differently had it been the original trier of fact. (citations omitted) Gregor v. Argenot Great Cent. Ins. Co., 2002-1138 (La. 5/20/03), 851 So.2d
959, 968.
In this case, the court stated that Martin was bound to observe traffic conditions on the highway in front of him. After consideration of the evidence presented, the trial court found that Martin was familiar with the highway, and the fact that vehicles made left turns. Martin's impact with the LaFleur vehicle occurred at least five seconds after Melancon's impact. Furthermore, Martin's impact was greater than that of Melancon's vehicle, which the plaintiff estimated was four to five times greater. We cannot say that the trial court committed manifest error in assessing fault at 75% to Martin.
Allstate/Martin argues that "considering the gross negligence of Melancon, and his superior opportunity to avoid this accident, as well as his obligation to cars following him, i.e. Martin, the court's ruling assessing Martin with 75% of fault as determined by the district court is manifest error. It appears that Allstate/Martin is arguing the "sudden emergency" doctrine.
In the case ofLee v. Davis, 03-997 (La. App. 5 Cir. 12/30/03), 864 So.2d 780, 783-4, we said that A good definition of the sudden emergency doctrine was given in Hickman v. Southern Pac. Transport Co., 262 La. 102, 262 So.2d 385, 389 (1972), as follows: One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that
may be adopted to avoid an impending danger, is not guilty of negligence ifhe fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.
The court in Anderson v. May, 01-1031 (La. App. 5 Cir. 2/13/02), 812 So.2d
81, 86, said that:
The sudden emergency doctrine is applicable to the standard of conduct after an emergency has arisen. The rule of sudden emergency cannot be invoked by one who has not used due care to avoid the emergency. It does not apply to lower the standard of care required of motorists before the emergency occurs.
In the present case, the trial court found that Martin was inattentive, and that
"he did not maintain the requisite control of his vehicle nor did he closely observe
the cars in front of him," and therefore the sudden emergency doctrine was not
applicable. We cannot say that this determination of the trial court was manifestly
erroneous or clearly wrong.
In its second and third allegations of error, Allstate/Martin alleges that the
general damages and the lost wages awarded to Jerry LaFleur are excessive.
With respect to the amount of damages awarded, however, the
standard is not manifest error, but abuse of discretion:
[T]he discretion vested in the trier of fact is "great,"
and even vast, so that an appellate court should
rarely disturb an award of general damages.
Reasonable persons frequently disagree about the
measure of general damages in a particular case. It
is only when the award is, in either direction,
beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the
particular plaintiff under the particular
circumstances that the appellate court should
increase or reduce the award. Miller [v. Clout], 03

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