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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 27, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1719-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
GINGER L. LeBLANC,
Plaintiff-Respondent,
NETWORK HEALTH PLAN
OF WISCONSIN, INC.,
and EMPLOYERS HEALTH
INSURANCE COMPANY,
Involuntary-Plaintiffs,
v.
SECURA INSURANCE,
a Mutual Company,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Outagamie County:
MICHAEL W. GAGE, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Secura
Insurance appeals a judgment finding its insured, Allan LeBlanc, 4% causally
negligent for injuries suffered by his wife, Ginger.[1] Secura argues that the evidence does not
support the trial court's findings regarding Allan's negligence and
causation. We affirm the judgment.
When reviewing the
findings of a trial court sitting without a jury, this court will uphold the
findings unless they are clearly erroneous.
See § 805.17(2), Stats. The trial court is the ultimate arbiter of
credibility and, when more than one reasonable inference can be drawn from the
credible evidence, this court must accept a reasonable inference drawn by the
trial court. Cogswell v.
Robertshaw Controls Co., 87 Wis.2d 243, 249, 274 N.W.2d 647, 650
(1979).
Sufficient evidence and
reasonable inferences drawn from the evidence support the trial court's
findings that Allan was negligent as to lookout and that his negligence was a
substantial causal factor in Ginger's injury.
The accident occurred when a car driven by Debra Powell ran a stop sign
and collided with the LeBlanc's pickup truck.
Ginger testified that she saw the Powell vehicle, realized it was not
going to stop for the stop sign and communicated that fact to Allan before he
reacted by swerving and applying the brakes.
Allan testified that the Powell vehicle was "even with the stop
sign" when he first saw it. Ginger
saw it when it was about eighty feet from the intersection. An engineering expert testified that the
Powell vehicle was traveling at approximately twenty-five to thirty miles per
hour at the time of impact. From this
evidence, the trial court could reasonably infer that a meaningful interval of
time existed between Ginger's observation and communication of the danger and
Allan's first sighting of the Powell vehicle.
Two other drivers
trailing the LeBlanc pickup truck also testified that they saw the Powell car,
realized it was not going to stop and started to take precautions in anticipation
of the impending accident. Their
testimony, along with Ginger's, support a finding that Allan failed to exercise
ordinary care to keep a careful lookout for other vehicles. A person is negligent as to lookout if he
fails to see what is in plain sight. Westfall
v. Kottke, 110 Wis.2d 86, 110, 328 N.W.2d 481, 493 (1983).
In addition to the
observations of Ginger and the trailing drivers, the trial court found that the
LeBlancs were listening to music and Allan was singing right before the
accident, that there were four people in the front seat and that traffic was
heavy at the time of the accident. The
trial court reasoned that the singing and children in the front seat are
consistent with some measure of distraction and that the duty of lookout increases
with specific hazards such as high volume of traffic. These findings support the trial court's ultimate finding that
Allan bears some reasonability for Ginger's injuries. Although the law gives a driver on a through highway a
preference, the driver still has a duty of lookout. Leckwee v. Gibson, 90 Wis.2d 275, 287, 280 N.W.2d
186, 191 (1979). Having the
right-of-way does not relieve a driver of the duty to watch for vehicles
entering the highway. Id.
Sufficient evidence also
supports the finding of causation. The
trial court reasoned that if Allan had observed the danger when Ginger and the
trailing drivers observed it, additional options would have been open to
him. An engineering expert testified
that when Allan first reacted to the situation, he was approximately 210 feet
away from the impact area. His pickup
truck covered roughly sixty feet during his reaction time and then veered 123
feet and left twenty-seven feet of skid marks before impact. This evidence allows the reasonable
inference that if Allan had appreciated the danger at the time Ginger and the
trailing drivers did, he could have avoided the accident or lessened its
severity by braking sooner or more effectively swerving to avoid or lessen the
impact.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.