## Facts

- On November 15, 1999, a two-vehicle collision occurred on U.S. Highway 165 in Allen Parish, Louisiana, a straight, level two-lane highway with a dashed centerline permitting passing.
- Marilyn Maricle drove north in a 1983 Dodge sedan with passengers, including her mother, Audrey McDaniel, and three small children.
- Donald Gene Dyer drove a Transwood Trucking Company tractor-trailer north on the same highway behind two vehicles, including Maricle’s car.
- The impact occurred as Dyer attempted to pass Maricle at the same time Maricle attempted to make a left turn from Highway 165 onto Meyers Road.
- Maricle’s vehicle was struck between the driver’s door and the front bumper by the right outside tire of the front axle of the rear tandem of the eighteen-wheeler.
- State Trooper Clifton Mire investigated, prepared an accident report, and cited Maricle for making an unsafe left turn.
- At trial, Mire testified and stated he needed his accident report to testify accurately; counsel did not lay a clear foundation establishing whether the report refreshed Mire’s present memory or whether he lacked sufficient independent recollection.
- The trial court admitted Mire’s accident report into evidence and allowed Mire to read from and testify about it.
- The jury found Dyer was without fault and the trial court dismissed all claims against Dyer, Transwood, and Liberty Mutual Insurance Company (their liability insurer).
- Plaintiffs appealed, raising multiple assignments of error; the Court of Appeal found merit in three, conducted a de novo review, and still affirmed the judgment.

## Issues

1. Whether the trial court properly admitted and permitted use of the trooper’s accident report and related testimony without establishing a proper foundation under the rules governing refreshed recollection and recorded recollection.
2. Whether the trial errors identified on appeal were serious enough to require de novo review rather than the usual manifest-error standard.
3. On de novo review, whether Dyer was negligent in attempting to pass as Maricle turned left, creating liability for Dyer, Transwood, and Liberty Mutual.

## Decision

- The appellate court found merit in three assignments of error, including errors tied to the handling of Trooper Mire’s accident report and his testimony based on that report.
- Because the errors affected the fact-finding process, the court reviewed the record de novo.
- After independently weighing the evidence, the court concluded the plaintiffs failed to prove Dyer’s negligence and that the collision occurred when Maricle turned left as Dyer was overtaking her during a lawful passing maneuver.
- The court affirmed the judgment dismissing all claims against Dyer, Transwood, and Liberty Mutual.

## Legal Principles

- A writing used to refresh a witness’s present recollection requires a foundation showing the witness’s memory is actually refreshed; otherwise, reading the writing risks placing hearsay before the factfinder.
- A recorded recollection may be used only if the proponent establishes the requirements for that hearsay exception, including that the witness once had knowledge but now cannot recall well enough to testify fully and accurately, and that the record was made or adopted when the matter was fresh.
- When trial-level evidentiary or procedural errors materially affect the factfinder’s evaluation of a central issue, an appellate court may set aside the normal deference to the verdict and decide the case on de novo review.
- In left-turn and passing scenarios, fault turns on whether the turning driver ensured the turn could be made safely and whether the passing driver acted reasonably and lawfully under the circumstances.

## Conclusion

Maricle v. Liberty Mutual Insurance Co. held that the trial court committed significant errors in the handling of the investigating trooper’s accident report and related testimony, warranting de novo review; however, based on the full record, the Court of Appeal still found the plaintiffs did not prove negligence by the passing truck driver and affirmed dismissal of the claims against the driver, his employer, and their insurer.


Maricle v. Liberty Mutual Insurance Co., 898 So. 2d 565 (2005)