Britany Lucas and Kim Richardson, surviving heirs of Brett Lucas v. Progressive County Mutual Insurance Company, Leroy Eaglin and Country Boy Trucking, LLC ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
BRITANY LUCAS AND KIM NO. 2023 CW 0290
RICHARDSON, SURVIVING HEIRS
OF BRETT LUCAS, DECEASED
VERSUS
PROGRESSIVE COUNTY MUTUAL
INSURANCE COMPANY, LEROY
EAGLIN AND COUNTRY BOY
JUNE 15, 2023
TRUCKING, LLC
In Re: 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unpublished).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
CO OF APPEAL, FIRST CIRCUIT
11UY CLERK OF COURT
OR THE COURT