
    Bruce MARCEV v. ALLSTATE INSURANCE COMPANY, Ruthie Riley and Liberty Mutual Fire Insurance Company.
    No. 96-CA-603.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 30, 1997.
    Phillip K. Wallace, Wallace & Zezulka, Me-tairie, for plaintiff-appellant.
    Richard L. Edrington, Accardo, Edrington & Golden, LaPlace, for defendants-appellees.
    Kenneth B. Krobert, Borrello, Huber and Dubuclet, Metairie, for defendant-appellee.
    Before GAUDIN, GRISBAUM, WICKER, GOTHARD and DALEY. JJ.
   | iGRISBAUM, Judge.

This appeal relates to a personal injury action resulting from an automobile accident. We affirm.

ISSUE

The sole issue presented is whether the trial court erred in concluding that appellant’s own negligent conduct was the proximate cause of the accident.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Bruce Marcev, was injured on July 25, 1994, when he collided with Ruthie Riley’s car as he was crossing La. Hwy. 636-1 in LaPlace, Louisiana. Mr. Marcev, a route salesman for a bottled water supplier, had just completed paperwork on a delivery to Brooks Products and was crossing the road at a jog to return to his delivery truck. As he crossed the road, he and Ms. Riley’s oncoming vehicle collided, and he was tossed into the air and bounced off the windshield. |2He sustained cuts, bruises, and injuries to his leg and knee, which eventually required surgery.

Mr. Marcev sued Ms. Riley, her insurer, Allstate Insurance Company, and his own underinsured motorists insurance carrier, Liberty Mutual Fire Insurance Company.

After a bench trial, the trial court rendered judgment, dismissing Mr. Marcev’s claims and finding moot the incidental demands filed by the other parties. It is from this judgment that Mr. Marcev now appeals.

STANDARD OF REVIEW

We must be ever mindful that, in reviewing factual issues, our role is extremely limited in that we are permitted to disturb the factual findings of the trier of fact only when they are manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989); Ryals v. Louisiana Power & Light Co., 94-50 (La. App. 5th Cir. 4/26/94), 636 So.2d 1064.

LAW AND ANALYSIS

By his own admission, the plaintiff-appellant stated that he entered the roadway at a jog and failed to see the appellee’s car. It must be remembered that negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Dobson v. Louisiana Power & Light Co., 567 So.2d 569 (La.1990). In this case, there was no unreasonable risk of harm. What duty can an automobile driver owe a pedestrian other than to drive in her lane of traffic, at a moderate speed, obeying all traffic laws and paying attention? Additionally, La. R.S. 32:213(A) provides that “Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.”

la While this is certainly a tragic and unfortunate accident, we do not feel it would be prudent or legally correct to allow a plaintiff to recover damages for an accident caused when he or she carelessly darts out into moving traffic. Despite the fact that the person in the automobile is less likely to be injured, the legal duty is on the pedestrian not to leave his safe harbor until he is certain he can safely cross.

Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.

WICKER, J., dissents with written reasons.

GAUDIN, J., dissents for reasons assigned by WICKER, J.

| /WICKER, Judge,

dissenting with written reasons.

I respectfully dissent.

While a pedestrian has a duty to keep a proper lookout for approaching traffic, a driver of an automobile is under a never-ceasing duty to maintain a proper lookout and see what should be seen and to exercise reasonable care under the circumstances. Gibson v. Dixie Ins. Co., 542 So.2d 635, 638 (La.App. 5 Cir.1989). “[Ejvery driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary_” La.R.S. 32:214. All drivers have a never-ceasing duty to look and observe; that which they can see, they must see; failure to see what they could have seen by exercise of due diligence does not absolve them from liability. Colon v. Budget Rent-A-Car, 92-2437 (La.App. 4 Cir. 12/15/94); 648 So.2d 429, 431.

In comparison of fault in automobile-pedestrian accidents, a far greater duty and responsibility to avoid the accident is placed upon the motorist who is “insulated” inside his machine and has the greater chance of avoiding the accident than on the pedestrian. Id., citing Turner v. New Orleans Public Service, Inc., 476 So.2d 800 (La.1985), and Baumgartner v. State Farm Mut. Auto. Ins. Co., 356 So.2d 400 (La.1978).

The plaintiff and his coworker, Mark Roberts, both testified they saw a white pickup truck coming up McReine Road from River Road toward Airline Highway. They also testified that their Kentwood Water delivery truck was parked along McReine Road in front of Shannon’s Body Shop. Defendant, however, not only failed to see the plaintiff, but also failed to see the Kentwood truck or the approaching pickup truck. In my view that demonstrates that defendant was not paying proper attention to the conditions existing at the time. She breached her duty to maintain a proper lookout.

|2The evidence establishes that both plaintiff and defendant failed to see what they should have seen. The trial court was clearly wrong in finding only the plaintiff at fault.

Between the two parties, however, the plaintiff had the best chance of avoiding the accident. He was aware of the dangers of crossing the roadway and he looked both ways before crossing. He saw the pickup track approaching from River Road, but he failed to see defendant’s ear coming in the other direction. When he reached the roadway and heard Riley’s car approaching, he was moving too fast to stop in time to avoid the accident. There are no extenuating circumstances that justify his jogging rather than walking into the road.

Accordingly, I would amend the judgment to find Riley partly at fault and would assess plaintiff’s comparative fault at eighty percent (80%) to reduce his recovery proportionately.  